Three Federal Pesticide Injunctions for Protection of Endangered Species

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1 Three Federal Pesticide Injunctions for Protection of Endangered Species Sustainable Ag Expo, Monterey November 15, 2010 Patricia Matteson Pest Mgmt. & Licensing Branch Dept. of Pesticide Regulation

2 DPR Role: Educational Only Because court injunctions are not enforced through the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), they are only enforceable through citizen lawsuits, not by government agencies. DPR role: Raise awareness. Help explain what is expected. Provide tools and information.

3 Three Injunctions in Force Now Outcome of federal Endangered Species Act (ESA) lawsuits brought by public interest groups. U.S. EPA charged with failure to assess potential risks to listed species and to consult the U.S. Fish & Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) when certain AIs were evaluated for registration or re-registration. registration. Court-imposed prohibitions or restrictions on use of AI potentially affecting specific listed species or their habitat reduce exposure until assessment and consultations are completed and protective measures are in place.

Injunction #1 Salmonids Washington Toxics

Protects 26 distinct populations of three

4 Injunction #1 Salmonids Washington Toxics Coalition et al. vs. U.S. EPA, 2001: EPA failed to assess potential effects of 38 AI and to consult NMFS. Protects 26 distinct populations of three federally listed endangered or threatened species. Chinook Salmon Coho Salmon Steelhead

5 Injunction #1 Salmonids, ctd. Imposes variable buffers for application of 38 pesticides adjacent to salmonid-supporting supporting waters in Ecologically Significant Units identified by NMFS. Four states: CA, ID, OR, WA. Effective February 5, 2004.

6 U.S. EPA Informational Websites: Salmonids Example (Injunction-specific websites) epa.gov/espp/litstatus/wtc/maps. /maps.htm

Injunction #2 California Red-legged Frog Center for Biological Diversity vs. U.S. EPA et al., 2002: EPA failed to assess potential effects and to consult FWS.

7 Injunction #2 California Red-legged Frog Center for Biological Diversity vs. U.S. EPA et al., 2002: EPA failed to assess potential effects and to consult FWS. Imposes buffers for application of 66 AI: 200 by air, 60 by ground from aquatic and upland habitats of this threatened species. 33 counties. Effective October 20, 2006.

Counties Impacted Alameda, Amador, Butte, Calaveras, Contra Costa, El Dorado, Fresno, Los Angeles, Marin, Mendocino, Merced, Monterey, Napa, Nevada, Placer, Plumas, Riverside, San

8 Counties Impacted Alameda, Amador, Butte, Calaveras, Contra Costa, El Dorado, Fresno, Los Angeles, Marin, Mendocino, Merced, Monterey, Napa, Nevada, Placer, Plumas, Riverside, San Benito, San Bernardino, San Francisco, San Joaquin, San Luis Obispo, San Mateo, Santa Barbara, Santa Clara, Santa Cruz, Solano, Sonoma, Stanislaus, Tehama, Tuolumne, Ventura, and Yuba.

Injunction #1 Salmonids (Injunction Maps linked to U.S. EPA website) Washington Toxics Coalition et al. vs. U.S. EPA, 2001: failed to assess risks and to consult NMFS.

9 Injunction #1 Salmonids (Injunction Maps linked to U.S. EPA website) Washington Toxics Coalition et al. vs. U.S. EPA, 2001: failed to assess risks and to consult NMFS. Protects 26 federally listed endangered and threatened species of Pacific salmon and steelhead.

10 Injunction #3 11 Bay Area Listed Species Center for Biological Diversity vs. U.S. EPA, 2007: failed to assess potential effects and to consult FWS. Protects 11 federally listed threatened or endangered species in the San Francisco Bay Area. Imposes different no-use buffers for 75 AI, depending on species at issue and pesticide AI. Eight counties affected: Alameda, Contra Costa, Marin, Napa, San Mateo, Santa Clara, Solano and Sonoma. Effective May 17, 2010.

11 Species Included California clapper rail California freshwater shrimp California tiger salamander Salt marsh harvest mouse Tidewater goby

12 Species Included San Joaquin kit fox Alameda whipsnake San Francisco garter snake Valley elderberry longhorn beetle Bay checkerspot butterfly Delta smelt

13 U.S. EPA Interactive Maps (Bay Area Injunction)

14 DPR Species/County Maps

15 Reference Table Produced by DPR

16 DPR Endangered Species Slide Sets

17 DPR Endangered Species Field Identification Cards more under development

18 Active Ingredients Affected (Three Injunctions) 3 Salmonids: 38 AI 11 Bay Area Listed Species: 75 AI (AIs species-specific) specific) California Red-legged Frog: 66 AI

19 Exceptions, Modifications Many, injunction-specific, and can change. Public health vector control. Invasive species and/or noxious weed control. Re-check U.S. EPA informational websites before making a new pesticide application decision.

20 AI Injunction Terminating Events U.S. EPA makes an effects determination. Finding: AI not likely to adversely affect the species at issue under a particular injunction. Then the AI is removed from that injunction list. Finding: harmful effects are possible. Then EPA consults with FWS or NMFS, which issue a Biological Opinion including protective measures. At its discretion, EPA incorporates protective measures into County Bulletins. Registrants asked to voluntarily change pesticide product labels by accepting County Bulletins as label extensions. Alternative: AI cancellation.

21 Compliance Refer to U.S. EPA Web pages for injunction-specific guidance. (Check frequently for updates!) Do any of the injunctions apply to your proposed pesticide use? Check: 1. Exceptions, modifications to the injunctions. 2. General geographic areas subject to the injunctions. 3. Whether the specific proposed application site is subject to the injunction. 4. Active ingredients subject to the injunction.

22 Enforcement Only through citizen lawsuits while an injunction is in force. Once U.S. EPA AI risk assessment and consultation processes are completed, and required protective measures appear in EPA County Bulletins, and pesticide product labels refer pesticide users to the Bulletins Live! website, government agencies (e.g., U.S. EPA, DPR) become responsible for enforcement.

23 U.S. EPA Printable Bulletins (Draft Version)

24 U.S. EPA County Bulletin Buffer Calculator (test site for salmon injunction, not available yet) Use Limitation 99 shows corresponding buffer depending on chosen parameters for buffer calculator

25 Info Sources: Salmonids U.S. EPA informational website: epa.gov/espp/litstatus/wtc/index. /index.htm

26 Info Sources: California Red-legged Frog U.S. EPA website with injunction details and county maps of areas affected: espp/litstatus/redleg-frog/steps- info.htm Injunction information on DPR Website:

27 Info Sources: 11 Bay Area Listed Species U.S. EPA informational website: epa.gov/espp/litstatus/factsheet.html U.S. EPA interactive maps (printable, include specific buffer zones):

28 Additional Info from DPR Endangered Species Project Outreach seminars available upon request. Slide presentations and field identification cards - ES basic biology, sign and tracks, habitat characteristics; and Brochures - ES stewardship programs.

29 For Assistance, Contact: Allen Demorest U.S. EPA Region 9 San Francisco demorest.allen@epamail.epa.gov Tel Polo Moreno DPR Endangered Species Project Sacramento pmoreno@cdpr.ca.gov Tel

30 Questions?

General Decision Number: CA /02/2015 CA3. Superseded General Decision Number: CA State: California

General Decision Number: CA /02/2015 CA3. Superseded General Decision Number: CA State: California General Decision Number: CA150003 01/02/2015 CA3 Superseded General Decision Number: CA20140003 State: California Construction Type: Heavy Water Well Drilling Counties: California Statewide. WATER WELL