EPA ESPP Could Spell Trouble for Some Pesticides

By Tom Delaney

Under the Endangered Species Act (ESA), the government protects endangered and threatened plants and animals (listed species) and the habitats on which they depend. The Endangered Species Protection Program (ESPP) is designed to determine whether pesticide use in a certain geographic area may affect any listed species. If limitations on pesticide use are necessary to protect listed species in that area, the information is relayed through Endangered Species Protection Bulletins.

Bulletins identify the species of concern and the name of the active ingredient in the pesticide that may affect the listed species. They also contain a description of the measures necessary to protect the species, and a county-level map showing the geographic area(s) associated with the protection measures — depending on the susceptibility of the species to other factors, such as vandalism. Bulletins will be effective and enforceable as part of the product label enforceable under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

If you do not follow the label or bulletin applicable to your pesticide, whether that failure results in harm to a listed species or not, you would be subject to enforcement under the misuse provisions of FIFRA (section 12(a)(2)(G)). Absent authorized incidental take, you could be liable under section 9 of the ESA for any take that occurs as a result of pesticide application, regardless of whether label provisions were followed. This aspect of listed species protection does not change under the ESPP. Enforcement actions under FIFRA are the responsibility of the EPA, but enforcement of the ESA is the responsibility of the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (jointly referred to as the Services). Your state may have pesticide use limitations beyond those found in your bulletin.

Bulletins are not intended to replace or override any restrictions that your state may impose. You need to be aware of and follow pesticide use limitations by both the state [ital>and<ITAL] P

Colorado – 8

Montana – 17

Texas – 25

Kansas – 1

New Mexico – 13

Wisconsin – 16

Michigan – 6


South Dakota – 9

Wyoming – 4

The Michigan and Wisconsin bulletins are for the insecticide methoxyfenozide because of its potential effect on the Karner blue butterfly and the Hine’s emerald dragonfly (only found in Door County, Wisconsin). The other bulletins are for the rodenticide Rozol (chlorophacinone) and Kaput-D (diphacinone) Prairie Dog Bait for the control of black-tailed prairie dogs.

So, what should be considered? Are we in a critical habitat? If so, what are the restrictions? What’s the time period? (Bulletins may be accessed up to six months prior to pesticide application. Be sure that you follow the correct Bulletin for the month of your pesticide application.) Which products are affected by restrictions? Are alternate products available? Are there multiple endangered species in the application area? Does the current mapping information provide the level of detail needed?

It will probably be at least a year or more before our industry starts to see more products with labeling that will result in additional requirements. Some of the first products we will see are those going through re-registration, such as 2,4-D.

PLANET will continue to keep the industry alerted to any further developments on this issue, but please read the labels of any pesticides for which you receive new shipments.

Tom Delaney, is director of government affairs at the Professional Landcare Network (PLANET). If you have any questions about this topic, you may contact him at 800-395-2522 or TomDelaney@landcarenetwork.org

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