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 Elworth
PETITION 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 agencies
2

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,1the 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 label
5

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 the
7

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 pesticide
10

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 prepare
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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 otherwise
14

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