Herbicides and The Endangered Species Act: What You Need to Know

The Endangered Species Act is a long-standing federal law, first passed in 1973, which requires government agencies to ensure any actions they take don’t threaten any species that have been federally listed as endangered or threatened. Typically, when an agency has a proposed action that might affect an endangered species or its habitat, such as a logging project or a new construction of a facility, they consult with one of the agencies that helps enforce the ESA, the U.S. Fish and Wildlife Services or the National Marine Fisheries Service (this is known as “a consultation” with “the Services”). Either of those two agencies then delivers a “biological opinion,” which determines if the proposed action would cause jeopardy or adverse effects to any listed species or habitat. If it would, the agency has to modify their action to avoid that harm – such as altering the proposed borders of a logging project or moving construction of a new facility farther away from a critical habitat.

The Environmental Protection Agency (EPA) is a federal agency that oversees pesticide use. Because the use of pesticides, including herbicides, can affect animals and plants, pesticide registrations are considered “actions” that would trigger an endangered species consultation.

Simply put, EPA has not done the required endangered species consultations with the Services for pesticide registrations in the past. That has left many of those pesticides, including herbicides, vulnerable to lawsuits. EPA has spent many years in court, defending its registrations in order to keep these pesticides on the market and available to the industries that use them, such as agriculture. In an effort to make their pesticide registrations more secure from litigation and challenges, the EPA is now starting to fully comply with the Endangered Species Act. That means every new active ingredient will go through an ESA consultation with the Services and all current pesticide registrations will begin going through the consultation process, as well.

In the future, the consultations with the Services will likely require changes to many herbicide labels, and those changes could include:

• Limitations on what county they can be used in
• Expanded buffer requirements in certain counties or regions
• “Mitigation lists,” which require a producer to use a select number of drift or run-off mitigations, such as buffer strips or nozzle types, when using certain herbicides
• Requirement to check an EPA website that lists current ESA restrictions, called Bulletins Live Two.

In short, farmers and applicators should brace for some new spray requirements on their herbicide labels, such as those listed on the new labels of Enlist One and Enlist Duo, which were some of the first herbicides to go through an ESA consultation.

But there is no need to panic. To date, no herbicide has ever been fully removed from the market based solely on endangered species risks, and that remains an unlikely scenario in the future, as well. Getting pesticide registrations into compliance will take time, and may require label changes, but it will not end pesticide use in agriculture.

Currently, many pesticides are easily challenged in court, because EPA was not complying with a federal law when they were registered. The agency has realized that having pesticide registrations that are constantly facing lawsuits is not a sustainable situation for agriculture. By starting to fully comply with the ESA, pesticide registrations should become more legally sound and harder to challenge in court. EPA is hoping that this will give farmers and applicators more stable, reliable access to the pesticides they need.

Also, while the Endangered Species Act – and the plants and animals it protects – can seem remote from agriculture, it’s not. Losing a plant or animal to extinction has consequences for entire ecosystems and for the public good. For example, the loss of certain mussel species has hurt water quality and impacted the fishing industry. The ESA has been successful at bringing back some species Americans care about – such as the bald eagle or the Eggert sunflower – and restoring them to healthy populations. Farmers and the agricultural industry share these goals and WSSA and other organizations are working to ensure that ESA changes to the labels are limited to those truly necessary to protect valued endangered species.

Every time EPA has a draft plan for dealing with the ESA and running pilot projects for certain listed species and mitigations, they have made those available for public comment. The agency also sometimes holds public webinars on new plans. Watch the agency’s Pesticide News Stories website for chances to comment on decisions and view webinars.