Mitigations are being proposed as a means to offset potential risks associated with pesticide registration and ensure compliance with the Endangered Species Act (ESA). Pesticide registration in the U.S. is fundamentally governed by two statutes: the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) as administered by the U.S. EPA, and the ESA as administered by the U.S. Fish and Wildlife Service and National Marine Fisheries Service, collectively known as The Services

When EPA assesses the potential risks associated with registering a pesticide under FIFRA in the form of a biological evaluation and concludes that the action may affect and is likely to adversely affect a threatened and endangered species, the agency is required to enter into formal consultation with The Services. The Services then assess whether the action is likely to jeopardize the existence of listed species or adversely modify corresponding critical habitat. Failure of the EPA to consult and/or failure of The Services to assess results in non-compliance and creates opportunities for lawsuits, which essentially brings the process to a standstill. 

In order to address the backlog, create efficiency and meet court-mandated timelines, the EPA has proposed a strategy to implement upfront mitigations to offset potential risks and ensure compliance. This sounds like a viable concept in theory, but in practice, its feasibility is unclear. 

More Questions Than Answers

Under this scenario of upfront mitigations, growers would essentially be tasked with selecting mitigations from a menu or picklist in accordance with a rather arbitrary point system to be able…