At the Front of a Storm: What Emerging Federal Processes for Endangered Species Risk Assessment will Mean to the Registration of Aquatic Herbicides

Transcription

1 COMPLIANCE SERVICES INTERNATIONAL At the Front of a Storm: What Emerging Federal Processes for Endangered Species Risk Assessment will Mean to the Registration of Aquatic Herbicides Bernalyn McGaughey Aquatic Plant Management Society Annual Meeting Grand Rapids, Michigan July 2016

2 FIFRA and ESA: The Nexus that Perplexes If, under FIFRA, EPA (the action agency ) determines that their registration action may affect a species (as an individual) listed under the Endangered Species Act (ESA), they must consult with the Services (FWS or NMFS) The Services then review the action (registration) to offer their biological opinion on the impact of the action: Whether or not the action will put the species (as a population) in jeopardy If protective measures (use restrictions) can be taken to mitigate risk to the point of not presenting a jeopardy 2

3 What do the OP BE s Tell Us about Registration Review for Aquatic Herbicides? It is likely that an aquatic herbicide treatment will be considered a wide ranging use with no spatial definition in exposure modeling Exposure will be calculated from maximum label rates and minimum dilution and degradation estimates Toxicity endpoints will be from most sensitive species and lowest published values with little consideration of data relevance and reliability In short, aquatic uses will have a tough row to hoe 3

4 What is at the Core of Review? Risk assessment, directed by steps from the NAS Panel: three phases of the ESA process as a crucible for policy flow The Panel Report is not a policy paper nor is it a regulatory guidance document 4

5 Why, when it comes to pesticide use (FIFRA) and endangered species (ESA), does conflict and litigation proliferate? 5

6 Value conflict is accompanied by disputes over means and methods. Whose scientific data are more correct? Which analytical techniques do we accept as valid? Who decides? Values intrude mightily into every facet of science and technology. Pesticides and Politics, C. J. Bosso 6

7 How Do You Handle Risk? The weatherman just told me that there will be a % chance of rain today I am not going to carry an umbrella! Yet numbers like this are moving no effect to may effect 7

8 How Do You Handle Myths? My mother always told me that if the flies are biting it s going to rain I carry an umbrella because I ve considered this in context Are the impacts of pesticides being evaluated in context of other things or is there a stigma carried over that is not related to actual risk? 8

9 Some things to think about 9

10 EPA, conducting risk assessments using resources available... By necessity depends on aggregated data Must rely on modeling and standard use scenarios for efficiency Is alert to sensitive areas with respect to their character but not exact relationship to areas treated Has no model for aquatic herbicide uses So, when there is a potential or perceived risk... 10

11 How this is all put together defines what s the problem? 11

12 Mathematically, it is often not possible to understand what may occur on average without understanding what the possibilities are and how probable they are. NRC,

13 REASON AND RESPONSIBILITY: WHAT IS ENDANGERED SPECIES RISK? What defines it? Who defines it? What constitutes risk reduction? 13

14 ONE DAY IN FOUR YEARS FOUR MONTHS IN ONE YEAR Weed control for fire suppression, Okanogan County 14

15 Proposed Resort Development Proposed Resort Development Proposed Resort Development First ESA Process : Action Agency Determines if their action may affect listed species Second ESA Process : Action Agency and policy partners determine the likelihood of an effect Third ESA Process : Services determines if there is jeopardy???????????? 15

16 For Example California Highway modification project affecting 0.51 acres Species affected: Alameda whipsnake California tiger salamander San Joaquin kit fox Expected impact: Take in the form of kill Habitat disturbance on 0.51 acres Permanent loss of 0.29 acres Finding: No significant impact 16

17 So What Happened that Leads to Where We are Now? We have had three periods of development that I d like to look at humorously but in a way that gives foundation to reflective thought and open discussion in the sessions to come 17

18 fäxxñ Çz j{xüx jx jxüx What started in the late 70 s as an ESA directed procedure of pesticide consultation was slow and burdensome, and after time did not produce new mitigation strategies. Gradually, the process slipped into EPA s independent application of existing and previously agreed mitigations to new registration actions. Regardless of the science behind species protection actions by EPA, absence of consultation process triggered litigation and the period of slumber was over. OK! We re all awake now! 18

19 V ÇwxÜxÄÄt ÉÜ \Ç VÉÅxá à{x ctçxä exñéüà We ve changed our appearance and come to the dance. We are all trying to make that glass slipper fit without breaking it or hurting ourselves. But in fixing the broken process of FIFRA/ESA consultation, we have the shoe but it doesn t fit 19

20 g{x XÅÑxÜÉÜ:á axã VÄÉà{xá ÉÜ g{x Y Üáà WÉv~xà á bñxç The Emperor had everything anyone could ask for, but seemed to have a little trouble putting it all together We have yet to put together the proper wardrobe 20

21 How Does Aquatic Herbicide Registration Fit? Fluridone Registration Review Final Work Plan March 2010 Copper Registration Review Final Work Plan March 2011 Diquat Registration Review Amended Final Work Plan March ,4 D Registration Review Final Work Plan May 2013 Endothall Registration Review Final Work Plan June 2016 BUT... No specific plans related to aquatic herbicide uses and endangered species assessment and No indication of how these non crop uses will be handled 21

22 The Solution? There are several possibilities aquatic uses will not be first in line (probably after 2020) but OP risk assessment on mosquito adulticides are a harbinger of what s to come Wide area approach means use anywhere BMPs and permitting are not considered in the initial risk assessment Use rates and frequencies will be assumed to be very high Options Refined risk assessment procedures for aquatic herbicides Universal state permitting and licensing Formally applied Best Management Practices that include ESA issue management Programmatic development of national pesticide aquatic registration 22

23 In any approach to the FIFRA/ESA conundrum, a proactive strategy will curtail lost uses and delayed new registrations and will be important to regulatory success and sustainability CLA RISE Spring Conference, April 13,

24 Thank you for this opportunity to share my thoughts and opinions Bernalyn D. McGaughey President/CEO, Project Manager, FIFRA Endangered Species Task Force 7501 Bridgeport Way West Lakewood, WA FIFRA Endangered Species Task Force