On August 20, 2024, the Environmental Protection Agency (EPA) unveiled its final Herbicide Strategy, marking a significant step in the agency’s efforts to mitigate herbicide exposure for species listed as threatened or endangered under the Endangered Species Act (ESA). This comprehensive document follows a draft version released in 2023, which underwent a period of public comment, and is the first in a series of policy strategies aimed at reducing pesticide exposure to listed species.
The final Herbicide Strategy is not self-implementing, meaning that while it outlines the steps and measures for reducing herbicide exposure, it will require integration into herbicide labels as new products are registered and existing registrations are reviewed. Growers and pesticide applicators can anticipate seeing these additional application requirements in the near future.
The genesis of this new policy dates back to 2022 when EPA first announced its intention to address pesticide exposure to listed species. This announcement was partly a response to a series of lawsuits challenging EPA’s compliance with the ESA while executing its duties under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). FIFRA, the primary federal law regulating pesticide use in the United States, mandates that no pesticide can be sold or used without EPA’s approval and registration. Moreover, the law requires EPA to review these registrations every fifteen years to ensure ongoing compliance with federal standards.
The ESA, jointly administered by the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), is the cornerstone of federal wildlife protection laws in the United States. It mandates federal agencies to consult with the Services to ensure that their actions do not jeopardize the survival of listed species. This consultation process is mandatory for any federal action that could impact these species, including the registration and review of pesticide products under FIFRA.
Historically, EPA has struggled to fully comply with the ESA during its pesticide registration processes, leading to numerous lawsuits from environmental groups. These legal challenges have often resulted in court orders compelling EPA to complete ESA consultations, a process that can take years and is projected to extend into the 2030s.
In an effort to streamline this process and better protect listed species, EPA has introduced its new policy, which includes the final Herbicide Strategy. This strategy aims to create pesticide labels that are less likely to be legally challenged and to ensure that future ESA consultations impose fewer restrictions on pesticide applications.
The final Herbicide Strategy, like its draft version, focuses on mitigating herbicide exposure through measures that reduce spray drift and runoff/erosion. The strategy introduces a three-step “decision framework” to classify herbicides based on their potential impact on listed species.
In the first step, EPA will categorize an herbicide’s potential to cause population-level impacts to listed species as not likely, low, medium, or high. This classification will consider factors such as the herbicide’s environmental behavior, exposure likelihood, and toxicity. Herbicides classified as low, medium, or high will require mitigation measures.
The second step involves determining the necessary levels of mitigation to reduce exposure to listed species, guided by the herbicide’s classification from step one. The final strategy provides more detailed guidance on how these mitigation measures will be identified and assigned to herbicide products.
By focusing on protecting plant species listed under the ESA, EPA aims to indirectly safeguard any animal species dependent on those plants. This proactive approach is designed to ensure that herbicide applications do not contribute to the extinction of listed species, aligning with the broader goals of the ESA.
The release of the final Herbicide Strategy represents a crucial milestone in EPA’s ongoing efforts to balance agricultural needs with environmental conservation. As the agency continues to develop and implement similar strategies for other pesticide categories, the agricultural community will need to adapt to new requirements aimed at preserving the nation’s biodiversity.