EPA Releases Draft Guidance for Pesticide Application Submissions That Require Endangered Species Act Reviews and Seeks Public Comment

On May 17, 2023, the U.S. Environmental Protection Agency (EPA) announced it released, and is seeking public comment on, draft guidance that claims to improve the efficiency of EPA’s Endangered Species Act (ESA) analyses for new pesticide active ingredient applications and active ingredients undergoing registration review. When the guidance is issued in final, EPA states that it will fulfill the requirements outlined in the Pesticide Registration Improvement Act of 2022 (PRIA 5) and extends the goals outlined in EPA’s 2022 ESA Workplan to protect listed species from exposure to pesticides.

EPA will accept public comments on the draft guidance document for 30 days in docket EPA-HQ-OPP-2023-0281. Comments are due on or before June 16, 2023.

One of the requirements under PRIA 5 is that EPA develop, receive comments with respect to, and finalize guidance to registrants regarding analyses necessary to support the evaluation of potential adverse effects from outdoor uses of conventional pesticides and biopesticide products on listed species and designated critical habitat. EPA states that “The information in this guidance reflects lessons EPA has learned over the past several years as it continues to make progress towards meeting its ESA obligations.” PRIA 5 specifies that the draft guidance must be available for public comment and must be issued in final within nine months of PRIA 5 issuance.

The draft guidance applies to:

• New conventional pesticide and biopesticide active ingredients that are intended for outdoor use; and
• Existing conventional pesticide and biopesticide active ingredients that are intended for outdoor use that are being reevaluated under registration review.

According to EPA, the guidance document does not create new requirements for applicants, but will help applicants, through recommendations outlined in the document, address potential effects to listed species for new active ingredients and registration review actions. In particular, the recommendations focus on actions that applicants can pursue voluntarily to inform their proposed mitigation measures for listed species. These actions include identifying where a pesticide will be used, how species may be exposed to the pesticide, and how to select mitigation to reduce the exposure. If followed, these recommendations should expedite the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) action and improve the efficiency of the overall ESA-FIFRA process.

EPA states that the guidance document for new uses of existing active ingredients will be made available at a later date.