Adjuvants to the Rescue
Fifty years ago, President Nixon signed the Endangered Species Act (ESA) into law. The ESA is often called the “pit bull” of environmental law because of the broad authority and power it grants to regulatory agencies responsible for administering the Act.
The modern-day Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) was passed in 1972 – one year earlier than ESA passage. Congress established FIFRA and the accompanying Federal Food, Drug and Cosmetic Act (FFDCA) as the sole federal statutes for regulating pesticides. However, that’s not how non-governmental organizations (NGOs) saw it.
In 2001, ESA and FIFRA began to collide. That’s when NGOs used the much more expansive authority under the ESA to file suit against the Environmental Protection Agency (EPA) for its failure to “consult” with the National Marine Fisheries Service (NMFS) regarding the possible effects of fifty-eight different pesticides on endangered salmon and trout in California, Idaho, Oregon, and Washington. One of the key provisions of the ESA is the requirement that all federal agencies “consult” with either NMFS or FWS (collectively, “the Services”) if an agency action could affect threatened and endangered species.
That’s a problem because EPA and the Services have dramatically different views on how to assess and manage potential risks to fish, wildlife, and plant species from the use of pesticides. That’s because there are fundamental legal and science policy differences related to their respective obligations under ESA and FIFRA. The result has been an inability to develop a workable process for consultation under ESA. This conflict is now threatening agricultural productivity and global competitiveness while providing no corresponding benefit to threatened and endangered species.
Fast forward to today and after 20 years of legal wrangling following the filing of the first lawsuit and the filing of numerous “copycat” lawsuits, we are now at a point where ESA restrictions will appear on some FIFRA labels.
To drive home that point, two major ESA/FIFRA developments have occurred in the past few days. The first is the announcement of a settlement in the ESA “mega-suit.” This lawsuit was filed by NGOs in 2011 which sought to invalidate or severely restrict EPA’s registration of any pesticide containing one of 382 active ingredients because of EPA’s failure to consult with the Services. The settlement agreement narrowed the case to challenge a subset of products containing one or more of thirty-five active ingredients.
The second is the release by EPA on July 24 of its draft “Herbicide Strategy,” which EPA describes as “a major milestone in the Agency’s work to protect federally endangered and threatened (listed) species from conventional agricultural herbicides.” The Strategy outlines proposed mitigations “for more than 900 listed species and designated critical habitats to reduce potential impacts from the agricultural use of these herbicides while helping to ensure the continued availability of these important pesticide tools.”
This leaves agriculture in a bad spot because pesticide registration and registration review are now regulated by a hybrid between FIFRA and ESA. To that point, before EPA registers any new conventional active ingredient, they must conduct an ESA assessment to determine potential effects to threatened or endangered species. If a product could cause “jeopardy or adverse modification,” EPA must add mitigation measures to the label before they can issue the registration. This new hybrid model also applies for products going through registration review.
This is where adjuvants enter the picture. There are a variety of potential mitigation measures designed to address new label restrictions. The goal is to reduce spray drift, surface water runoff, and pesticide transport through erosion by implementing “no-spray” buffers near species habitat.
For a pesticide with an ESA 150-foot no-spray buffer, a grower or applicator would have four options. First, select an alternative product that does not have a buffer. For some pests and situations, that might not be possible. Second, leave that portion of the field untreated. Third, do not plant or farm that part of the field. Fourth, add a drift reduction adjuvant tool to the mixture to either reduce or eliminate the buffer or to use another mitigation option, like a hooded sprayer.
To illustrate the potential effects to agriculture of these restrictions, pictured below is a map from the Iowa Department of Natural Resources that shows the Iowa species range for the Topeka Shiner – a small fish listed under the ESA. To be clear, not all these areas will face no-spray buffers. In fact, some areas will face little in the way of restrictions or impact. However, farmland adjacent to streams, wetlands, rivers, and intermittent waterways that feed lakes and water bodies where the Topeka Shiner exist, could.