Endangered Species Act Regulatory Reform

Michael T. Riles Entomologist

Beach Mosquito Control District Chairperson

AMCA Endangered Species Act subcommittee

Environmental Protection Agency’s Responsibility

Risk Assessment

No Effect

May Affect

May affect, but not likely to

adversely affect

May affect and is likely to

adversely affect

Services Responsibility

Services Responsibility

Informal Consultation: A letter agreement for a “may affect, but not likely to adversely affect” determination

Services Responsibility

Formal Consultation: Where the Services disagree with the EPA’s findings, or can be the action is “likely to adversely affect” the species

National Research Council 2013 A mechanism to develop acceptable review and consultation processes

1. Can the federal action impact a listed species

• Registering pesticides ingredients • Overlap in time & space?? • Determined by EPA with consultation w/ Services

2. Is the pesticide registration “likely to adversely affect (LAA) or “not to likely adversely

affect” (NLAA) the species • Formally determined by the EPA in a “Biological Evaluation” (BE) • Consult with the Services within an “Interim Approach” • Adopted in 2013

3. Is the pesticide registration likely to cause “jeopardy” for the listed species of “adverse modification of critical habitat • Formally determined by the Services in the form of a “Biological Opinion” (BiOp) • Split by US Fish & Wildlife and the National Marine and Fisheries • If Yes; then….

• The services define Reasonable and Prudent Alternatives (RPA’s) to the proposed action

• The federal agency must adopt them to avoid jeopardy • If LAA but no adverse modification or jeopardy

• The Services can issue an “Incidental Take Statement” (ITS)*

*An ITS is an estimate by the Services of the "take" of a threatened or endangered species that is likely to result from an action by a federal agency. "Take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. ITSs are produced by the Services as part of a biological opinion resulting from consultations with the federal agencies under section 7 of the Endangered Species Act. https://www.fws.gov/endangered/improving_ESA/ITS.html

• Courts have consistently found that EPA must consult the Services when pesticides are registered • Although the same courts have found that the Services should use “sound and reasonable science” when conducting reviews • The 4th Circuit panel in 2013 unanimously rejected the 1st National Marine & Fishery Service BiOp

• covered OP’s and Pacific Salmonids • Decision based on that the BiOp was arbitrary and capricious • Did not use the best available science • OUCH!

National Research Council 2013 A mechanism to develop acceptable review and consultation processes

• Interim Approach was adopted in 2013 • EPA and the Services have been conducting a “pilot” • OP’s: Malathion, Chlorpyrifos and Diazinon • AMCA has been keeping a close eye on the process

• Participating when possible • Process will be influential to future proposed ESA reviews

• Courts have consistently found that EPA must consult the Services when pesticides are registered • Although the same courts have found that the Services should use “sound and reasonable science” when conducting reviews • The 4th Circuit panel in 2013 unanimously rejected the 1st National Marine & Fishery Service BiOp

• covered OP’s and Pacific Salmonids • Decision based on that the BiOp was arbitrary and capricious • Did not use the best available science • OUCH!

• Interim Approach was adopted in 2013 • EPA and the Services have been conducting a “pilot” • OP’s: Malathion, Chlorpyrifos and Diazinon • AMCA has been keeping a close eye on the process

• Participating when possible • Process will be influential to future proposed ESA reviews

National Research Council 2013 A mechanism to develop acceptable review and consultation processes

Chlorpyrifos & malathion usage within public health application

• Malathion and chlorpyrifos are used in public health mosquito control as integral components of a fully integrated approach to lessening disease risk while minimizing environmental impact

• Resistance management is universally recognized to require products from distinct chemical classes with multiple modes of action

• The variety of mosquito species and habitats, and the need to provide season long control demands a varied toolbox within each chemical class

• This is particularly critical in light of the challenges posed by emerging & reemerging mosquito-borne infectious diseases such as dengue, chikungunya, Zika, West Nile and Yellow Fever viruses

Malathion & Chlorpyrifos usage within public health applications

Making likely to adversely affect or not likely to adversely affect determinations • The risk assessment process has become focused on purely theoretical hazards, without considering realistic risk, product benefits or

practicality

• Extreme unrealistic levels of conservatism are demonstrated by the fact that species which are intuitively unlikely to be associated with pesticide applications like: • killer whales & sea turtles & desert pronghorn antelope • Which received LAA determinations!

• Can we assume that there is an actual affect if there is overlap in the habitat and use pattern?

• Extremely low bars used in the screening process (if the pesticides were found to affect 1 in a million individuals or toxicity studies exceeded No Affect Levels) 97% of

species and 99% of Critical Habitat were labeled as Likely to be Adversely Affected (LAA)

• This would effectively proscribe usage of malathion for public health application on the national scale if enacted and based on an individual vs population level

Chlorpyrifos & malathion usage within public health applications

Sources: Esri, DeLorme, NAVTEQ, USGS, Intermap, iPC, NRCAN, Esri Japan, METI, Esri China

(Hong Kong), Esri (Thailand), TomTom, 2012

Legend

Malathion

No Data

Do Not Use

Yes (usage)

Chlorpyrifos & malathion usage within public health applications

Sources: Esri, DeLorme, NAVTEQ, USGS, Intermap, iPC, NRCAN, Esri Japan, METI, Esri China

(Hong Kong), Esri (Thailand), TomTom, 2012

Legend

Chlorpyr

No Data

Do Not Use

Yes (usage)

Chlorpyrifos & malathion usage within public health applications

• Climate, meteorology, and current label restrictions must be considered when estimating where and when pesticide applications will coincide with protected critical habitat

• Ambient temperatures above 50° F as a suggested label restriction could: • limit the use of pesticides for vector control • limit subsequent environmental loading in northern states during short mosquito seasons

Chlorpyrifos & malathion usage within public health applications

RPA’s &RPM’s Must be economically and technologically feasible

• No public comment or assessment was taken into consideration concerning NMFS report in the end of 2017 • Despite historical usage data of malathion; without any proven impacts or effects on listed species • NMFS found in favor of jeopardy of half the species it reviewed in the process • RPA’s were drastic

• Spray applications only in residential and developed areas • How do they define developed? • How do you define developed?

• RPM’s were infeasible • Prohibition of application with wind speed up to 10 MPH or greater

• Take an average? By minute? or by hour? • 48 hour prohibition before forecasted rains • Prohibited when soils are water-saturated • Reporting of all non-target toxicity to any species

• At application site • And downwind • And for 4 days after application • How far? • How much money will that cost??

Actions

• AMCA has been involved in ESA reviews since 2001 • AMCA takes every opportunity to comment on proposed actions

• To protest when assumptions, methods or proposed mitigation is unreasonable • AMCA has asked the EPA and The Services to improve on their process

• To provide formal opportunities to make comments • AMCA has advised the EPA and The Services to vacate the NMFS BiOp and the OP BE’s

• Reinitiate consultation • The EPA has acted to revise the ESA review and consultation process

• A formal comment period on the NMFS BiOp has been opened

Thank You

Joe Conlon Karl Malamud-Roam

Angela Beehler Mike Hudon