The EPA's Mega-headache over the Endangered Species 'Mega-Lawsuit'

Tidewater Goby Photo by Zack Larson from the UC Davis California Fish Page

As some of you know, I've been spending a lot of time in the Washington D.C. area working as the American Phytopathological Society's Liaison to the Environmental Protection Agency's Office of Pesticide Programs. The Weed Science Society and Entomological Society of America also have representatives working in the EPA in the same program where we've been working with their staff on EPA Pesticide Issues.

You may have heard that recently, the Center for Biological Diversity (CBD) and Pesticide Action Network (PAN) filed suit against the EPA to protect over 200 endangered species from over 300 pesticide active ingredients in what is euphemistically being called the 'Mega-Lawsuit' in late January 2011.

http://www.pctonline.com/pct-endangered-species-mega-suit-filed.aspx

(Includes a link to the actual lawsuit and chemicals/endangered species being considered)

http://www.biologicaldiversity.org/news/press_releases/2011/pesticides-01-20-2011.html

(includes a map of endangered species considered in the lawsuit and justification by CBD and PAN)

Today, we had a chance to discuss some of these issues with EPA staff and I wanted to just give a brief overview of what's been going on with some of these recent lawsuits, and hopefully shed some light on them. (Apologies in advance if I screw something up by trying to simplify things, but...)

Since many golf courses interface with wildlife areas that could harbor endangered species, this lawsuit could have some significant repercussions for pesticide use by superintendents.

Recent actions such as the 'Goby 11' case in the San Francisco Bay Area illustrate the impact of such litigation, where 75 pesticides (including some commonly used ones on golf courses) cannot be used within 100 to 400 feet of areas known to harbor 11 northern California endangered species including the Tidewater Goby fish (thus the nick name of the 'Goby 11')

http://www.epa.gov/oppfead1/endanger/litstatus/factsheet.html

The Endangered Species Act (ESA) was passed in 1973 during the Nixon Administration, to protect the species in danger of extinction in the U.S. The EPA was established in 1970 (also by Nixon - who says Republicans aren't environmentalists?), and assumed responsibility for pesticide regulation from the USDA under the revised Federal Insecticide Fungicide Rodenticide Act (FIFRA) in 1972. So - under both ESA and FIFRA, the EPA was supposed to help register pesticides and be compliant with the protection of endangered species under the ESA.

Well, that's easier said than done.

Since 1973, the EPA has tried to mitigate doing its job of registering and regulating pesticides under FIFRA and being compliant with the ESA, but making these two federal acts work together has been....let's say, "complicated".

Given the demands for pesticides in the market, and protecting human and environmental health, the EPA had been pushing forward with pesticide regulation but simultaneously accused by environmental groups of not being compliant with the ESA by not fully considering the impact of pesticides on endangered species.

Everyone knows that federal agencies don't necessarily always move at lightning speed, but the EPA had long-term plans to address the ESA in the process of registering and re-evaluating pesticides. 'In 1988, EPA established the “Endangered Species Protection Program” or “ESPP” to try to address its pesticide program’s compliance with the ESA' with the first actions slated to take place in 2005.

However, a number of environmental groups basically said "hey, you're not moving fast enough on these" and have now forced the situation by suing the EPA for not adequately conferring consulting with the two federal services, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) - who are actually in charge of directly administering the ESA - to take pesticide impacts on endangered species into account during the pesticide registration and re-evaluation process, and thus violated the ESA.

So...the recent actions by organizations like the Center for Biological Diversity basically cause the EPA to do a thorough review of pesticide use and their effect on these species, including biological and toxicological data. As you can imagine, these reviews are both time consuming and at times complicated, and if not enough data exists, the EPA often must take a "worst case scenario" stance (e.g. making the most conservative estimates for exposure and toxicological risks) until enough data is generated to make an evaluation. In the meantime, as the lawsuit is being argued (which could take years!) the pesticides in question may be restricted in their use until a informed evaluation can be made. If enough data exists to show a negative impact on the endangered species, the pesticides could face severe restriction or even cancellation.

With the most recent lawsuit by CBD and PAN, it forces the EPA to review over 300 pesticide (including ones we frequently use for weed, insect and disease control) impacts on about 200 endangered species. This boils down to a big Mega-headache for the EPA.

Are the environmental groups the bad guys? Well, they sort of have their hearts in the right place and I can understand where they are coming from.

Is the EPA the bad guys? Well, not really, but they have the unwholesome task of defending against the lawsuits and at the same time maintaining pesticide use regulations and availability; talk about being stuck between a rock and a hard place.

However, with regard to our day to day operations, as the lawsuit proceeds, golf course superintendents could see severe limitations on pesticides they rely on because of our proximity to endangered species habitats. We as end users definitely need to be aware of what's brewing, why it's happening and where to find the information we need to help stay ahead of potential use restrictions.

These recent lawsuits are definite "game changers" when it comes to pesticide use in the U.S. and we may have to really invest in (i) researching new ways to apply pesticides and avoid non-target drift and exposure, (ii) developing 'greener' pesticides and (iii) implementing non-pesticidal controls for our disease, insect and weed issues.

More info on the EPAs Endangered Species Protection Program and updates on the lawsuits can be found here: http://www.epa.gov/espp/

Hopefully we'll have some updates soon from GCSAA's Government Relations group and how we can get directly involved with some of these issues, but the best thing we can do right now is get some education on what's going on with this one and keep an eye on any new information that comes out about this lawsuit.

Again, apologies if I got anything wrong, but sometimes that's what happens when you let a plant pathologist try to act like a lawyer. :P

PS - I know I promised some updates on diseases of warm season turf, but with Phil Harmon sick like a dog after GCSAA, I thought I'd better wait a week or so before I try to get him to give us a guest column here. Both Phil and Megan are sick this week, so I hope not a lot of people came back with the flu from the GIS as well :(

Ok, until next week, signing off from the right coast.