September 16, 2010

Honorable Lisa Jackson Administrator United States Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Ave, NW [Mail Code: 1101A] Washington, DC 20460

Re: Petition for Rulemaking to Establish Procedures Consistent with Section 1010 of the 1988 Amendments to the Endangered Species Act.

Dear Administrator Jackson: Enclosed please find a petition for rulemaking filed on behalf of Growers for ESA Transparency by the members of its Executive Committee. Growers for ESA Transparency (“GET”) is a coalition of growers throughout the western United States committed to improving the transparency of and accessibility to the Endangered Species Act. GET is committed to an improved consultation process to ensure the development and implementation of agricultural practices that are simultaneously science based, practical, and afford strong species protections. The petition requests immediate action to establish by rulemaking clear and equitable procedures for notice and comment on the Agency’s pesticide effects determinations for endangered species and subsequent actions, including draft Biological Opinions and potential product restrictions, consistent with Section 1010 of the 1988 amendments to the Endangered Species Act. Due to the potential negative impact of this issue on the production of food and fiber in the United States, we respectfully request that you respond to our petition within forty five days. Thank you. Sincerely,

_________________________ _________________________ Terry Witt Heather Hansen Executive Director Executive Director Oregonians for Food & Shelter Washington Friends of Farms & Forests 1149 Court Street NE, Suite 110 PO Box 7644 Salem, OR 97301-4030 Olympia, WA 98507_________________________ _________________________

Rick Tomlinson Joel Nelsen Director of Government Affairs President California Strawberry Commission & California Citrus Mutual & California AgriBusiness President’s Council California AgriBusiness President’s Council 180 Westridge Drive 512 N. Kaweah Ave. Watsonville, CA 95076-6683 Exeter, CA 93221-1200

_________________________ Hank Giclas Senior Vice President Science, Technology & Strategic Planning Western Growers 17620 Fitch Street Irvine, CA 92614

cc: Hon. Steve Owens Steven Bradbury Donald Brady Rick P. Keigwin, Jr. Lawrence ElworthPETITION FOR RULEMAKING TO ESTABLISH PROCEDURES CONSISTENT WITH SECTION 1010 OF THE 1988 AMENDMENTS TO

THE ENDANGERED SPECIES ACT

Growers for ESA Transparency (“GET”) is a coalition of growers throughout the western United States committed to improving the transparency of and accessibility to the Endangered Species Act. GET is committed to an improved consultation process to ensure the development and implementation of agricultural practices that are simultaneously science based, practical, and afford strong species protections. GET hereby petitions the United States Environmental Protection Agency (“EPA”) to establish by rulemaking clear and equitable procedures for notice and comment on the Agency’s pesticide effects determinations for endangered species and subsequent actions, including draft Biological Opinions and potential product restrictions, consistent with Section 1010 of the 1988 amendments to the Endangered Species Act.

Introduction
No pesticide can be distributed or sold for use in the United States unless it has been registered by EPA under the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”), 7 U.S.C. Section 136 et seq. Registrations require that products carry labels providing specific directions for the appropriate use of the product, including limitations intended to protect the environment. The Endangered Species Act (“ESA”), 16 U.S.C. Section 1531 et seq., is intended to protect and promote the recovery of endangered or threatened species (“listed species”). Section 7(a)(2) of the ESA imposes a duty on federal agencies2

to “insure that any action authorized, funded, or carried out by such agency... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species...” ESA Section 7(a)(2) also prescribes a procedure – consultation – by which federal “action agencies” like EPA are to determine compliance with the provision’s substantive standards by review of their proposed activity by the Services. 16 U.S.C. Section 1536(a)(2). The consultation process is described in regulations jointly issued by U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, the “Services”), and codified at 50 C.F.R. Part 402. Whenever an agency such as EPA determines that its proposed action “may affect” a listed species, ESA consultation is undertaken. 50 C.F.R. Subpart B. If the action agency believes that proposed action will not adversely affect the species or is unsure whether the proposed action may adversely affect the species, it can request an “informal” consultation with the Services. If the Services find during the informal consultation that the “action is not likely to adversely affect listed species or critical habitat, the consultation process is terminated, and no further action is necessary.” 50 C.F.R. Section 402.13(a). If the action agency independently concludes, or the Service find in informal consultation, that the effects foreseen in the “may affect” determination could be adverse, formal consultation is undertaken. 50 C.F.R. Section 402.14. The action agency prepares and submits to the Services a written request for formal consultation and provides its assessment of how the proposed action may affect listed species.3 Under the standard ESA procedures, 1 the request for consultation must include:

 a description of the action to be considered;

 a description of the specific area that may be affected by the action;

 a description of any listed species or designated critical habitat that may be affected;

 a description of the manner in which the action may affect the listed species or designated critical habitat and an analysis of any cumulative effects;

 relevant reports, including any environmental impact statement, environmental assessment, or biological assessment prepared on the action; and

 any other relevant available information on the action, the affected listed species, or critical habitat. 40 C.F.R. Section 402.14(c). The regulations also require that EPA, as the action agency, provide the Services with the “best scientific and commercial data available or which can be obtained during the consultation for an adequate review of the effects that an action may have upon listed species or critical habitat.” (emphasis added) 40 C.F.R. Section 402.14(d). The response by the Services in formal consultation is provided through a “Biological Opinion” on whether the proposed agency action substantively complies with ESA Section 7(a)(2). 16 U.S.C. Section 1536(b)(3); 50 C.F.R.

1 The regulations also include a separate, option formal consultation procedure for FIFRA actions. See 40 C.F.R. Section 402.46. Regrettably, EPA to date has failed to avail itself of these procedures, which allow it to provide an effects determination and list or summary of supportive references and data and allow for more efficient Services determinations. The rules adopted in response to this petition also should provide for appropriate input when those procedures are invoked.4

Section 402.14. If the Biological Opinion concludes that there is a likelihood of jeopardy to the listed species’ continued existence or adverse modification of its critical habitat, the Services identify “reasonable and prudent alternatives” (“RPAs”) – modifications to the proposed action – that would avoid the jeopardy conclusion. Id

. Whether the Biological Opinion reaches a non-jeopardy or a jeopardy conclusion, the Services may issue an incidental take statement that allows specified “takes” of the listed species which are incidental to the proposed agency action (when it is a no jeopardy conclusion) or to a reasonable and prudent alternative (when it is a jeopardy conclusion). The incidental take statement will identify “reasonable and prudent measures” (“RPMs”) to be incorporated in the agency action or alternative. There is no liability for incidental takes specified in the statement if the action agency adopts the reasonable and prudent measures. 16 U.S.C. Section 1536(b)(4) and (o)(2), 50 C.F.R. Section 402.14(i). The action agency is not legally obligated to adopt the RPAs and RPMs recommended by the Services, but must decide for itself whether, and to what extent, it will follow the RPAs and RPMs when it implements an action under its own governing statute. Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007). During the mid-1980s, EPA requested and received Biological Opinions from FWS on a number of pesticides. Based on this experience, EPA proposed the Endangered Species Protection Program (“ESPP”) as a mechanism for implementing its obligations under the ESA. 53 Fed. Reg. 7716 (Mar. 9, 1988). At that time, it was a voluntary program that provided for pesticide label5

statements referring users in specified counties of concern to county bulletins detailing pesticide use limitations designed to protect listed species based maps of species and habitat location provided by the FWS. Although voluntary, the proposed ESPP raised public concern over the potential impact on agricultural land use, inaccuracies in the maps, inadequate public review and comment opportunities, and the need for additional education and training programs. This concern led Congress to enact Section 1010 of the Endangered Species Act amendments of 1988. Pub. L. No. 100-478, 102 Stat. 2306, Section 1010 (1988); codified as a note to 7 U.S.C. Section 136a. The depth of this concern is enhanced by the unique nation of Section 1010 as the only ESA provision that address specific commercial activities. With the 1988 amendments, Congress was particularly concerned with protecting agricultural producers and pesticide applicators by minimizing the impact of the ESA consultation process on end users. Specifically, in Section 1010, Congress sought ESA compliance by EPA’s pesticide regulatory program that “ minimize[d] the impacts to persons engaged in agricultural food and fiber commodity production and other affected pesticide users and applicators.” Section 1010 required – and continues to require – that the Administrator of EPA, in cooperation with the Secretary of Agriculture and the Secretary of the Interior, to “conduct a program to inform and educate fully persons engaged in agricultural food and fiber commodity production of any proposed pesticide labeling program or requirement that may be imposed by the Administration in compliance with the Endangered Species Act.” In addition, Section 1010 directs the Administrator to:6 provide the public with notice of, and opportunity for comment on, the elements of any such program and requirements based on compliance with the Endangered Species Act, including (but not limited to) [1] an identification of any pesticides affected by the program; [2] an explanation of the restrictions or prohibition on the user or applicator of any such pesticide; [3] an identification of those geographic areas affected by any pesticide restriction or prohibition; [4] an identification of the effects of any restricted or prohibited pesticide on endangered or threatened species; and [5] an identification of the endangered or threatened species along with a general description of the geographic areas in which such species are located wherein the application of a pesticide will be restricted, prohibited, or its use otherwise limited, unless the Secretary of the Interior determines that the disclosure of such information may create a substantial risk of harm to such species or its habitat. Endangered Species Act Amendments of 1988, Section 1010(a). In late 2005, EPA announced changes to the ESPP making it an enforceable program under FIFRA. 70 Fed. Reg. 66392, 66400 (Nov. 2, 2005). In describing the necessity of the program, EPA acknowledged that Section 1010 “provided a clear sense that Congress desires that EPA should fulfill its obligation to conserve listed species, while at the same time considering the needs of agriculture and other pesticide users.” Id. at 66393. Moreover, EPA made a commitment that it would provide opportunity for public input during three phases of an assessment:, “[p]rior to a ‘may affect determination’' by EPA; identifying potential mitigation; and prior to issuance of a Biological Opinion to EPA by the Services.” Id. at 66401. Despite a 20 year old statute and a 2005 commitment by EPA made to include agricultural producers, pesticide applicators, and other end users in the effects determination and consultation processes, EPA has yet to establish procedures to do so. Instead, end users are left only with an empty promise on the7

Agency’s website, last updated August 29, 2007, that the process for public input is “under development” and that “EPA will publish specific details of this [public input] process on its Web site as they are developed and refined.” See http://www.epa.gov/oppfead1/endanger/frequent-ques.htm (last visited August 31, 2010). Authority
This petition is filed under the Administrative Procedure Act, 5 U.S.C. Section 553(e) (“Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.”); the Federal Insecticide, Fungicide, and Rodenticide Act, FIFRA Section 25, 7 U.S.C. Section 136w (“The Administrator is authorized... to prescribe regulations to carry out the provisions of this subchapter.”); and the United States Constitution, U.S. Const., amend. 1 (“Congress shall make no law... abridging... the right of the people... to petition the Government for a redress of grievances.”).
Why a Rule is Necessary
The current ESA consultation process for EPA’s registration of pesticides under FIFRA takes too long, is not based on the “best scientific and commercial data available,” excludes input from affected stakeholders, and results in unwarranted restrictions on pesticide products, regulatory burdens on pesticide end users, and litigation. The Services’ current ESA consultation policy does not apply public notice-and-comment procedures to individual ESA consultations.8

Rather, the Services leave the availability of public procedures up to each federal action agency. 51 Fed. Reg. 19928, 19952 (June 3, 1986). The EPA (federal action agency), the Services and the registrants (i.e., “applicants” under regulations governing the consultation process) are not always the exclusive sources of the best scientific and commercial data available for consultation. With respect to designing reasonable and prudent alternatives and reasonable and prudent measures under ESA Section 7(b)(3) and (4), agricultural producers, pesticide applicators, and other end users often have the best information on which measures and alternatives are practical, reasonable and prudent. EPA and the Services should be open to receiving information from knowledgeable third parties, and to according them a greater role in individual consultations from an early stage. Unfortunately, current procedures effectively bar agricultural producers, pesticide applicators, and other end users from the effects determinations and consultation processes, leaving EPA and the Services without valuable information on which to base sound decisions. Section 1010 recognizes the need to educate agricultural producers and pesticide applicators on, and to include them in the development of, ESA-based use restrictions on pesticides. The overriding intent of Section 1010 is to minimize the restrictions’ adverse impacts on agricultural producers. As Congress explained in the Conference Report: Agriculture is a major part of the U.S. economy and provides nutritional sustenance for our population and exports abroad.... The Conferees, therefore, anticipate that... [the Federal agencies shall] implement the Endangered Species Act in a way that protects endangered and threatened species while minimizing, where possible, impacts on production of agricultural foods and fiber commodities.9

Conference Rpt. at 23-24 (Sept. 16, 1988). Yet, despite Congress’ enactment of Section 1010 more than 20 years ago, EPA has failed to promulgate regulations implementing the notice and comment requirements of Section 1010(a). EPA should take action to confirm the rights guaranteed to agricultural producers, pesticide applicators, and other end users by Congress; specifically the opportunity to comment on the decision that use of a pesticide “may affect” or “may adversely effect” listed species, as well as an opportunity to comment on all aspects of a Biological Opinion resulting from an ESA consultation. EPA has acknowledged the intent of Section 1010 in establishing the ESPP and made a commitment to include affected stakeholders in the effects determination and consultation processes. 70 Fed. Reg. 66392, 66939 (Nov. 2, 2005). Yet, when EPA presently determines that a proposed FIFRA action may affect listed species or may adversely modify designated critical habitat, the Agency requests formal or informal consultation from FWS and/or NMFS without first providing public notice of its determination or an opportunity for agricultural producers, pesticide applicators, and other end users to provide input, information or context that may alter EPA’s effects determination, or otherwise aid the consultation process. Prior to requesting formal or informal consultation, EPA should permit affected stakeholders an opportunity to provide data and information relevant to the effects determination and consultation processes. Comments may provide EPA and the Services with critical information on the actual use of the pesticide10

in a specific region or crop, or about cropping trends, invasive species, and other relevant information, providing critical context to EPA’s findings. If formal consultation is requested or ensues, stakeholders also have a statutory right to review and comment on all aspects of the draft Biological Opinion prepared by the Services before EPA takes final action. Indeed, Section 1010 of the 1988 ESA amendments guarantees agricultural producers, pesticide applicators, and end users detailed public notice of proposed restrictions and an opportunity to submit comments before those restrictions are implemented. Specifically, Section 1010 requires EPA to take comment on: (1) An explanation of the proposed restriction or prohibition on the use of the pesticide; (2) An identification of the geographic areas affected by the restriction or prohibition; (3) An identification of the effects of the pesticide on the listed species; and (4) An identification of the listed species with a general description of the geographic areas where the species are located and pesticide application would be restricted, prohibited or otherwise limited in its use. To date, EPA has failed to meet these requirements. Under a series of draft Biological Opinions on pacific salmon and steelhead issued by NMFS under the ESA over the last two years, EPA has not sought input from concerned user interests on the specific elements identified in Section 1010. See EPA Docket No. EPA-HQ-OPP-2008-0654. Moreover, the public comment period was generally only 30 days. As recent Biological Opinions are hundreds of pages in length, these brief comment periods frustrated the ability of agricultural producers, pesticide applicators, and other affected end users to prepare11

meaningful, comprehensive, and thoughtful comments to assist EPA and NMFS in making sound decisions on these complex issues with significant implications for American agriculture. EPA’s current practices run counter to the spirit and the letter of the law. EPA must respect the statutory rights of affected stakeholders, including agricultural producers and pesticide applicators, and fulfill prior commitments to provide an opportunity to submit important information relevant to the effects determination and consultation processes, including agronomic information and information about the economic and agricultural impact and regulatory burden of proposed restrictions. This information is essential for EPA to consider in determining whether, and to what extent, to implement the RPAs and RPMs suggested by the Services. Action Requested
GET requests that EPA promulgate a new section in Title 40 of the Code of Federal Regulations that sets forth clear procedures for the enforcement of Section 1010 of the 1988 amendments to the Endangered Species Act. The new section should include the following:

 Confirmation that the procedures described in Section 1010 of the 1988 amendments to the ESA will be invoked when EPA completes a biological assessment or during informal and formal consultation with a Service that may result in an EPA determination to amend labeling of an existing product to address ESA concerns, or to impose ESA labeling requirements on a new product to address ESA concerns.12  Provisions granting to agricultural producers, pesticide applicators, and other end users the following rights with regard to an initial determination that informal or formal ESA consultation is appropriate:

o Timely public notification of a determination by EPA that a pesticide may affect a listed species or its critical habitat. The regulation should set forth the minimum content of such a notice, including

 the identification of any pesticide affected by the determination;

 a detailed explanation of the basis of the effects determination, including a clear delineation of assumptions on which the determination is based;

 A description of the specific geographic area related to the effects determination; and

 identification of the endangered or threatened species along with a general description of the geographic areas in which such species are located wherein the application of a pesticide will be restricted, prohibited, or its use otherwise limited, unless the Secretary of the Interior determines that the disclosure of such information may create a substantial risk of harm to such species or its habitat.

o Not less than ninety days for agricultural producers, pesticide applicators, and other end users to submit comments.13 o A commitment by EPA to evaluate and summarize all comments prior to formally or informally requesting ESA consultation from FWS or NMFS, and to share all comments with FWS or NMFS.

 Provisions granting to agricultural producers, pesticide applicators, and other end users the following rights with regard to a draft Biological Opinion, prior to EPA’s final action:

o Timely public notification of the contents of the draft Biological Opinion. The regulation should set forth the minimum content of such a notice, including but not limited to:

 identification of any affected pesticide;

 identification of the effects of any restricted or prohibited pesticide on endangered or threatened species, including a clear delineation of assumptions on which the determination is based;

 explanation of the restrictions or prohibition on the user or applicator of any such pesticide;

 identification of those geographic areas affected by any pesticide restriction or prohibition;

 assessment of the impact of proposed restrictions on the production of agricultural foods and fiber commodities; and

 identification of the endangered or threatened species along with a general description of the geographic areas in which such species are located wherein the application of a pesticide will be restricted, prohibited, or its use otherwise14 limited, unless the Secretary of the Interior determines that the disclosure of such information may create a substantial risk of harm to such species or its habitat.

o Not less than ninety days for agricultural producers, pesticide applicators, and other end users to submit comments.

o A commitment by EPA to evaluate and summarize all comments prior to taking final action on any proposed RPAs and/or RPMs.

 Provisions granting to agricultural producers, pesticide applicators, and other end users the following rights regarding to implementation procedures related to EPA’s proposed final action:

o Timely public notification of EPA’s final action;

o EPA’s assessment of the impact of final restrictions on the production of agricultural foods and fiber commodities; and

o Not less than ninety days for agricultural producers, pesticide applicators, and other end users to submit comments on EPA’s implementation plan.

Promulgation of this rule should not result in any undue delay in implementing Biological Opinions or other ESA determinations. Instead, it will make the process more streamlined and efficient by providing EPA and the Services with important contextual information early in the process and reduce the probability of litigation.15 Conclusion Due to the potential negative impact of this issue on the production of food and fiber in the United States, we respectfully request that you respond to our petition within forty five days.

Respectfully Submitted by the Executive Committee of GET,

_________________________ _________________________ Terry Witt Heather Hansen Executive Director Executive Director Oregonians for Food & Shelter Washington Friends of Farms & Forests PO Box 7644 1149 Court Street NE, Suite 110 Olympia, WA 98507 Salem, OR 97301-4030

_________________________ _________________________ Rick Tomlinson Joel Nelsen Director of Government Affairs President California Strawberry Commission & California Citrus Mutual & California AgriBusiness President’s Council California AgriBusiness President’s Council 180 Westridge Drive 512 N. Kaweah Ave. Watsonville, CA 95076-6683 Exeter, CA 93221-1200

_________________________ Hank Giclas Senior Vice President Science, Technology & Strategic Planning Western Growers 17620 Fitch Street Irvine, CA 92614
September 16, 2010