To meet the conservation and species recovery goals of the Endangered Species Act (ESA), the EPA’s Office of Pesticide Programs must consult on each "action" to register or re-register a pesticide use with other federal fish and wildlife agencies like the US Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS). EPA is required to make an “effects determination” on whether registration of an active ingredient may harm a threatened or endangered species or its habitat. If there may be harm, a formal “consultation process” is initiated between federal agencies and specific steps for consultation are outlined in Section 7 of the ESA.
The ESA Section 7 consultation process has been flawed over time, and the lack of a clear and transparent ESA consultation process has jeopardized the availability and use of effective products to the golf industry. Activist-driven litigation has been coercing the ESA consultation process for pesticides for the past decade. While each court case is different, settlement agreements often require stopping use of targeted active ingredients while EPA re-examines targeted active ingredients on targeted species and habitat. It can take years for the re-evaluation to occur. Further complicating matters, while EPA uses a risk-benefit analysis to evaluate the registration and use of active ingredients, the fish and wildlife agencies examine pesticide use from a hazard only lens. The intersection of FIFRA and ESA continues to present a significant challenge for the registration of pesticides.
During the past 35+ years, EPA has not successfully implemented ESA consultation process obligations as part of pesticide registration activities. However, it has been EPA’s intention to integrate ESA consultation process obligations into its Registration Review process.
In 2011, EPA, US Department of Agriculture (USDA), USFWS and NMFS asked the National Academy of Sciences (NAS) to evaluate the ESA consultation review process and help the federal agencies come up with a better consultation process. In November 2013, the NAS released a much-anticipated report stating that EPA, NMFS, and USFWS should use a common approach when determining the potential effects a pesticide has on an endangered species and its environment. In 2014, the EPA began holding workshops to provide a forum for stakeholders to offer scientific and technical feedback on the joint interim approaches recommended by the NAS. Work continues between the federal agencies on crafting an effective and efficient ESA consultation process.