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1 1 (June 7, 2018)

handle is hein.crs/govzcn0001 and id is 1 raw text is: ~~H In 1rin the leiltvedbt, sne11 June 7, 2018 Endangered Species Considerations in Pesticide Use Restrictions: Background and Legislation The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA; 7 U.S.C. 136 et seq.) requires that pesticides, before being approved for distribution or sale, must be registered by the U.S. Environmental Protection Agency (EPA). Registration approval depends on a finding that the pesticide will not pose unreasonable adverse effects on the environment when used in conformance with labeling directions. To avoid unlawful takings of federally listed threatened or endangered species under the Endangered Species Act (ESA; 16 U.S.C. 1531 et seq.) from permitted uses of pesticides under FIFRA, EPA must consult with the U.S. Fish and Wildlife Service (FWS) or the U.S. National Marine Fisheries Service (NMFS), depending on the listed species of concern. The purpose of consultation is to determine whether a federal action may jeopardize listed species or adversely modify their critical habitat and, if so, to develop alternative federal actions that would avoid such jeopardy or adverse modification. Since 1988, several organizations have challenged the adequacy of the consultation process for pesticide registrations and its protectiveness of listed species. Conversely, pesticide manufacturers and applicators have asserted that overly conservative approaches to evaluating risk to listed species by FWS and NMFS leads to pesticide use restrictions that are not adequately supported by scientific and technical information. Currently, EPA, FWS, and NMFS must ensure that the permissible uses of more than 1,100 pesticide active ingredients do not jeopardize over 1,400 listed species or their critical habitats. Pesticide Re istration Process and Endangered Species Consultation Before EPA registers a pesticide, the agency conducts risk assessments to determine whether unreasonable adverse effects on the enviromnent may result from uses to be permitted by the registration. As part of the assessments, EPA determines whether listed species under the ESA might be affected by such uses. Generally, unreasonable risks identified by the agency may be avoided through labeling requirements that specify restrictions on use. For more information on the pesticide registration process under FIFRA, see CRS Report RL31921, Pesticide Law: A Summary of the Statutes. Under ESA Section 7 (16 U.S.C. 1536), if federal actions- or actions of nonfederal parties that require federal approvals, permits, or funding-might adversely affect listed species as determined by FWS or NMFS, the federal agency taking, approving, or funding such actions must complete a biological assessment to determine whether formal consultation is necessary. The assessment must be based on the best scientific and commercial data available. For purposes of pesticide registrations, biological assessments are also referred to as effects determinations. Through consultation with either FWS or NMFS, federal agencies must ensure that their actions are not likely to jeopardize the continued existence of any listed species or adversely modify their critical habitats. Critical habitat includes the geographic areas occupied by the species at the time of listing and areas outside that geographic area determined by FWS or NMFS as essential for the conservation of the species. If FWS or NMFS finds that an action (e.g., pesticide registration) would neither jeopardize listed species nor adversely modify critical habitat, the service issues a biological opinion that may include a written incidental take statement specifying the terms and conditions under which the federal action may proceed. If FWS or NMFS finds that an action would jeopardize listed species or adversely modify critical habitat, the service must suggest reasonable and prudent alternatives that would avoid harm to the species. Regulations that govern the consultation process are codified at 50 C.F.R. Part 402. See CRS Report RL31654, The Endangered Species Act: A Primer for more information on the ESA and the consultation process. Lit gation Challenging Adequacy of En d-anered Species Consultations for Pesticide Registrations EPA, FWS, and NMFS implementation of the ESA consultation process for pesticide registrations has been litigated multiple times in federal court. The litigation has resulted in court orders and legal settlements that direct the agencies to take certain actions to comply with the ESA. In 1988, a federal appeals court ruled that without an incidental take statement prepared by FWS through the consultation process, EPA's registration of the pesticide strychnine constituted unlawful taking under the ESA (Defenders of Wildlife v. EPA, 882 F.2d 1294, 8th Cir., 1988). The decision affirmed the consultation requirement for pesticide registrations. Subsequent litigation has focused on specific elements of the consultation process. For example, in separate decisions, federal district and appeals courts have directed EPA to conduct effects determinations for various pesticides (e.g., Washington Toxics Coalition v. EPA, 413 https:/crsreports.congress.go'

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