Endangerd Species Act

GCSAA shares in EPA’s commitment to ensure that actions carried out by it and other federal agencies should not harm endangered species or threatened species or result in the destruction or adverse modification of their critical habitat. However, protecting endangered species and habitat does not need to be contradictory with easing the regulatory burdens faced by industry. GCSAA and its members have long-standing support, involvement and implementation of environmental stewardship programs that protect wildlife species and habitat throughout the U.S. GCSAA supports EPA and USDA working with federal fish and wildlife agencies to promulgate new rules that establish clear and equitable procedures for notice and comment on the EPA’s pesticide effects determinations for endangered species and subsequent actions including draft Biological Opinions and potential product restrictions. Any consultation process should be responsible, streamlined and sustainable to mitigate against ongoing ESA Section 7 litigation.

GCSAA supports continued implementation of the Jan. 31, 2018, Memorandum of Understanding between EPA-Interior-Commerce which established an Interagency Working Group (IWG) to evaluate and improve the ESA consultation process for pesticide registration. The 2018 Farm Bill created an interagency workgroup that includes representation from EPA, USDA, the White House Council on Environmental Quality, Department of Commerce and Department of the Interior to make recommendations and implement improvements to the ESA Section 7 consultation process for pesticide registration and registration review. The IWG has made progress since the enactment of the 2018 Farm Bill, but its work must continue. GCSAA supports extending and updating the charge of the IWG.

GCSAA will engage and educate impacted federal agencies including the EPA, USDA, USFWS and NMFS and agricultural and environmental State Lead Agencies on the association’s national Best Management Practices initiative and work toward inclusion of golf specific BMPs as a means for ESA mitigation and compliance.

Section 7(a)(1) of the Endangered Species Act (ESA) charges federal agencies to aid in the conservation of listed species, and section 7(a)(2) requires the agencies to ensure their activities are not likely to jeopardize the continued existence of federally listed species or destroy or adversely modify designated critical habitat. EPA has a statutory requirement to comply with the ESA when it registers and re-registers pesticides, and EPA has met these obligations for very few pesticides since Congress adopted the ESA in 1973. And unlike FIFRA, ESA does not include risk-benefit balancing. It is a hazard only statute.

After decades of litigation where EPA failed to meet its obligations, the agency is out of options in the courts. The vacatur of pesticide registrations is a real threat if the agency does not come into compliance. The intersection of FIFRA and ESA continues to present a significant challenge for the registration and re-registration of pesticides. It has been difficult to come up with a workable ESA consultation process and the lack of a clear and transparent process has jeopardized the availability and use of effective products to the golf industry.

In response to litigation, EPA has developed an ESA Workplan which was released in April 2022 and updated in November 2022. EPA is attempting to navigate a path that allows the agency to protect endangered species, provide an array of pesticides to ag and non-ag applicators, and comply with the ESA far more quickly. The ESA Workplan identifies the highest priority pesticides in the short term and also focuses on getting early protections in place for listed species and their critical habitat.

The agency has developed and is releasing a series of pilots and strategies (Herbicides, Insecticides, Fungicides, Rodenticides, Vulnerable Species Action Plan and Hawaii) under the ESA Workplan which will change the way pesticides are labeled and used in the future. The use of agricultural best management practices (BMPs) or mitigations are at the heart of the pilots and strategies. Some of these pilots and strategies impact non-ag interests. GCSAA wants to make sure the agency considers the differences between ag and non-ag pesticide use and works closely with non-ag applicator groups to find solutions for ESA compliance, preferably while EPA is crafting and refining its proposals.