As part of its responsibilities under the Endangered Species Act (ESA), the U.S. Environmental Protection Agency (EPA) recently released its final Herbicide Strategy to address potential impacts of conventional herbicides on threatened and endangered species. EPA traditionally analyzed the impacts for each pesticide species-by-species. Under the Herbicide Strategy, EPA will preemptively apply a suite of listed species protections during initial herbicide registration or registration review.

The Herbicide Strategy applies only to conventional herbicides, not other types of pesticides. To determine which protections would apply, EPA will use a three-step framework:

1. Population-Level Impacts:  EPA will consider species location, survival needs, and environmental fate, exposure, and toxicity data to determine whether population-level impacts are not likely, low, medium, or high.

2. Mitigation Level:  Based on population-level impact risk, EPA will determine the level of mitigation needed to reduce spray drift, runoff, and erosion. Mitigation will be implemented through a point system using a mitigation menu. EPA may reduce the level of mitigation based on existing mitigation measures (e.g., installed tailwater return systems or downwind pesticide drift barriers) and area characteristics (e.g., more arid climates less prone to runoff).

3. Geographic Area:  EPA will determine where, in the contiguous U.S., the mitigation applies. Mitigation may apply for specific crops, or in geographically-specific areas.

Pesticide applicants, registrants, users, and other stakeholders should become familiar with the Herbicide Strategy as it will change the approach EPA uses to implement its responsibilities under the ESA and the process for certain herbicide registration approvals.

Beveridge & Diamond’s Endangered Species and Wildlife Protection and Pesticides practice groups provide strategic counseling and compliance advice to project proponents in all industries to minimize the impacts of threatened and endangered species listings and critical habitat designations on our clients’ activities, and help clients identify business objectives and implement the most effective regulatory, commercial, litigation, and legislative strategies to achieve or exceed those objectives. For more information or to discuss strategies for efficiently navigating your project through the complex and overlapping federal resources regulatory programs, please contact the authors.