Key Takeaways

• What Happened: EPA proposed mitigation measures for pesticide use to minimize impacts to listed species.
• Who’s Impacted: Pesticide registrants and users.
• What Should You Do: Carefully review EPA’s proposal and submit comments by August 6, 2023.

Last year, the U.S. Environmental Protection Agency (EPA) launched its Vulnerable Species Pilot to identify (1) at-risk species reasonably certain to be adversely affected by non-residential outdoor uses of pesticides and (2) proposed conservation measures (described by EPA as “mitigation measures”) for reducing those impacts to the species and their habitat. A key objective of the Pilot is to decrease the potential jeopardy or adverse modification determinations during future Endangered Species Act Section 7 consultations and to reduce species take overall. On June 22, 2023, EPA published a draft white paper identifying the initial set of listed species and EPA’s proposed mitigation measures. The draft white paper includes a proposed mitigation implementation plan and a plan to expand the pilot to other species in the future.

The initial proposal focuses on 27 federally listed species, including the rusty patched bumble bee, the American burying beetle, the Attwater’s prairie chicken, the Wyoming toad, and several mussel species, as well as a number of listed plant species. The species’ respective ranges include significant parts of Washington, Oregon, California, the Great Plains, the central U.S., and smaller areas across the eastern states. EPA’s initial proposed mitigation measures include pesticide use limitation areas (PULAs), spray drift minimization, runoff and erosion minimization, timing restrictions, and general avoidance.

EPA also published a technical document containing justifications for the proposed mitigation measures. Interested parties should carefully review the draft white paper and the technical document to ensure a balanced Agency decision-making process especially considering the potential impacts for future expansion.

Interested parties should submit comments by August 6, 2023.

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.