In the trio of Endangered Species Act (ESA) enforcement regulations — herbicide, insecticide and fungicide — the industry now has two of the three to consider.
The final herbicide rule was released in 2024, and just yesterday EPA released its final insecticide rule. This comes after the draft insecticide rule was first released in July 2024, and the final rule takes into account the public comments provided during the comment period.
These EPA regulations are a response by the agency to enforce ESA at the agency level rather than through litigation and the court system.
As new insecticides are registered and existing products are re-registered via the FIFRA process, they will need to comply to the new rule. Unlike the herbicide final strategy already being applied to the label for BASF’s Liberty Ultra, the industry does not have a product to look to as it applies to the insecticide rule, yet.
“Late yesterday, the Environmental Protection Agency (EPA) released its final Endangered Species Act (ESA) Insecticide Strategy. The Agricultural Retailers Association (ARA) plans to thoroughly review the proposal and provide feedback to the EPA’s Office of Pesticide Programs (OPP), addressing any questions or concerns that may arise,” says Richard Gupton, senior vide president of public policy and counsel for the Agricultural Retailers Association. “At first glance, it appears that the agency is considering the input from impacted agricultural stakeholders, which is encouraging. We will gain a clearer understanding once new labels are registered, and we can observe whether commercial applicators and farmers are afforded the necessary flexibility to utilize these products without facing undue regulatory burdens or additional operating costs.”
3 Steps Behind the Rule
Step 1
- Establishes the potential for population-level impacts to the listed species as not likely, low, medium, or high. The low, medium, and high categories indicate a potential concern for population-level impacts that may need mitigation
Step 2
- Identifies levels of mitigations that reduce spray drift and runoff/erosion to non-target habitats (e.g., low impacts would be addressed with fewer mitigations than medium or high potential impacts). EPA developed menus that identify mitigations that the Agency has determined to be effective at reducing spray drift and runoff/erosion in different parts of the country.
Step 3
- Applies the mitigations by geography, crop type, etc. In those cases, EPA would specify the mitigations on the general pesticide product label. In other cases, mitigations may only apply in geographically specific areas (referred to as Pesticide Use Limitation Areas or PULAs). For geographically specific mitigations, the pesticide labeling would include a direction for the user to access EPA’s Bulletins Live! Two (BLT) website to determine whether they are in an area that requires mitigation.
Mitigation Efforts
Similar to the herbicide rule, retailers and farmers can expect to calculate necessary mitigation efforts including spray drift and runoff/erosion considerations.
Per the Final Insecticide Strategy, farmers and retailers can expect EPA is working to:
- develop a process to qualify individual conservation programs that could achieve 9 mitigation points
- reconsider using descriptions of protected areas or habitat, as opposed to (or to supplement) the descriptions of managed areas (e.g., what is not a protected area) in the Final Insecticide Strategy.
- Develop refined Pesticide Use Limitation Area (PULA) maps2 to limit the spatial extent of off-target mitigations to specific areas to protect listed species and to minimize impacts to applicators
- continue to work with stakeholders to evaluate drift-reducing adjuvants as a mitigation measure for insecticides.
- work with stakeholders to identify additional mitigation options including potential offset opportunities for insecticides and other types of pesticides.
- develop a mobile-friendly application tool for growers and other applicators that provides efficiencies in compiling the label information and helps pesticide users consider their options and understand how their current practices, location, and field properties relate to any required mitigations.
