1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

Center for Biological Diversity,

Plaintiff,

v.

United States Environmental 

Protection Agency et al.,

Defendants,

and,

CropLife America, RISE, and 

Reckitt Benckiser, Inc.,

Intervenor-Defendants.

Case No. 07-2794

Stipulation Amending 

Original Stipulated 

Settlement and [Proposed] 

Order

Plaintiff Center for Biological Diversity (the “Center”), Defendants the 

United States Environmental Protection Agency (“EPA”), and Gina 

McCarthy, in her official capacity as Administrator of EPA (collectively, the 

“Parties”), by and through the undersigned counsel, state as follows:

Whereas, the Parties entered into a stipulated settlement that resolved 

the remaining disputed issues in this case, and the Court entered the terms of 

that settlement as an order and dismissed this case without prejudice (while 

retaining continuing jurisdiction to enforce its order), Docket No. 121 (May 

17, 2010) (“Original Stipulated Settlement”);

Whereas, Section 2 of the Original Stipulated Settlement requires 

Case3:07-cv-02794-JCS Document154 Filed07/21/15 Page1 of 9
2

EPA to complete effects determinations and, as appropriate, initiate 

consultation with the U.S. Fish and Wildlife Service (“FWS”) under the 

Endangered Species Act (“ESA”) on the potential effects of 75 pesticides to 

certain species in the San Francisco Bay area over a four and one-half year 

period (that has since been extended);

Whereas, through June 30, 2013, EPA issued effects determinations 

and initiated consultation, where appropriate, for 59 of the 75 pesticides;

Whereas, EPA, the United States Department of the Interior, the 

United States Department of Commerce, and the United States Department 

of Agriculture (“USDA”) had previously asked the National Academy of 

Sciences (“NAS”) to evaluate the differing risk assessment approaches used by 

these agencies to identify the potential effects of pesticides on threatened and 

endangered species;

Whereas, the NAS responded to that request on April 30, 2013 by 

issuing a report entitled “Assessing Risks to Endangered and Threatened 

Species from Pesticides” (the “NAS report”);

Whereas, the NAS report suggests, inter alia, that EPA, FWS, and the 

National Marine Fisheries Service (“NMFS”) take a common approach to 

assessing the potential effects of pesticides on threatened and endangered 

species to facilitate coordination among federal agencies;

Whereas, EPA, FWS, NMFS, and the USDA are now working in 

close cooperation to evaluate and implement the recommendations made by 

the NAS report, including through the application of the November 2013

Interim Approaches for National Level Pesticide Endangered Species Act 

Assessments Based on the Recommendations of the National Academy of 

Sciences April 2013 Report (“Interim Approaches”) on an interim basis for 

ESA analyses of a specific subset of five pesticides (chlorpyrifos, diazinon, 

Case3:07-cv-02794-JCS Document154 Filed07/21/15 Page2 of 9
3

malathion, carbaryl, and methomyl);

Whereas, based on the findings in the NAS report and the work done 

so far by the agencies to implement the recommendations in that report, the 

Parties now agree that it would be more efficient for EPA to assess and 

initiate any required consultations with FWS or the National Marine 

Fisheries Service (NMFS), as appropriate, on the potential effects that 

pesticides have on threatened and endangered species nationwide, instead of 

limiting effects determinations and consultations only to potential effects on 

San Francisco Bay area species;

Whereas, the agencies intend to proceed with nationwide ESA 

evaluations in a phased, iterative process, taking into account input received 

and lessons learned from the initial efforts to work with the Interim 

Approaches, and maintaining flexibility to pursue processes or methodologies 

not part of the Interim Approaches;

Whereas, EPA is working to complete a nationwide evaluation of the 

effects of four pesticides–atrazine, simazine, propazine and glyphosate–on 

threatened and endangered species in connection with registration review 

under the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”)

Whereas, EPA expects to complete effects determinations and initiate 

any necessary nationwide ESA consultations for these four pesticides by June 

30, 2020;

Whereas, the Parties agree that it would be more efficient to complete 

nationwide effects determinations and consultations on the four pesticides

instead of completing effects and consultations on the remaining 16 pesticides 

that are limited to the San Francisco Bay Area species;

Whereas, the Parties have now devised this stipulation to amend the 

Original Stipulated Settlement so that EPA can complete nationwide effects 

Case3:07-cv-02794-JCS Document154 Filed07/21/15 Page3 of 9
4

determinations and initiate any necessary consultations on the four pesticides, 

as described above, but this stipulation will still require EPA to complete the

remaining 16 effects determinations on the San Francisco Bay Area species if 

it is not able to complete nationwide consultations on the four pesticides

(although the schedule for such San Francisco Bay Area effects 

determinations would be extended);

Whereas, the Parties reserved the right to ask this Court to modify the 

Original Stipulated Settlement “because of EPA’s and the FWS’s ongoing 

actions to comply with the ESA, to meet the requirements of other federal 

agencies or departments, or to deal with circumstances not presently 

anticipated”, Original Stipulated Settlement § 14; and,

Whereas, Intervenor-Defendants CropLife America, Responsible 

Industry for a Sound Environment (RISE) take no position on and 

Intervenor-Defendant Reckitt Benckiser, Inc., does not object to the relief 

sought by this stipulation;

Now, therefore, the Parties stipulate to amend the Original 

Stipulated Settlement as follows:

1. The schedule for the remaining 16 effects determinations set 

out in section 2 of the Original Stipulated Settlement is hereby suspended to 

allow EPA to conduct nationwide effects determination and initiate any

necessary consultations on atrazine, simazine, propazine and glyphosate.

2. No provision of this Stipulation requires (or shall be construed 

to require) EPA to complete nationwide effects determinations and initiate 

any necessary consultations on atrazine, simazine, propazine and glyphosate, 

and no provision of this Stipulation requires (or shall be construed to require) 

EPA to complete any such nationwide effects determinations or initiate

consultation on the schedule set out above in the “whereas” clauses.

Case3:07-cv-02794-JCS Document154 Filed07/21/15 Page4 of 9
5

3. While it is not obligated to do so, if EPA completes nationwide 

effects determinations and initiates any necessary consultations on the effects 

of atrazine, simazine, propazine and glyphosate on the schedule set out above 

in the “whereas” clauses, then EPA shall be deemed to have discharged its 

obligation to complete the required remaining 16 effects determinations and 

initiate any necessary consultation on San Francisco Bay Area species under 

the terms of the Original Stipulated Settlement, and the completion of 

consultation pursuant to Service regulations (including any EPA no effect 

determinations, where applicable) for atrazine, simazine, propazine and 

glyphosate shall terminate injunctive relief for the remaining 16 pesticides 

under the terms of the Original Stipulated Settlement.

4. Alternatively, if:

(a) EPA does not complete nationwide effects determinations 

and initiate any necessary consultations on atrazine, simazine, 

propazine and glyphosate on the schedule set out above in the 

“whereas” clauses;

(b) EPA concludes (based on further review of these issues) 

that nationwide effects determinations and consultations are no longer 

appropriate; or,

(c) EPA does not complete the interim benchmarks on the 

estimated schedule described below in Paragraph 5, 

then:

(1) at the request of either the Center or the Federal 

Defendants, the Parties shall meet and confer at the earliest available 

opportunity to discuss whether it is appropriate for EPA to complete 

the effects determinations and initiate any appropriate consultation on 

the potential effects to the San Francisco Bay Area species as described 

Case3:07-cv-02794-JCS Document154 Filed07/21/15 Page5 of 9
6

in Section 2 of the Original Stipulated Settlement and, if so, to discuss 

an appropriate revised schedule for those consultations based on the 

schedule set out in Section 2 of the Original Stipulated Settlement;

and,

(2) if the Parties are unable to reach agreement on that revised 

schedule within thirty (30) days of any such meeting and conference, 

either party may petition the Court to resolve the dispute and set a 

schedule for the remaining effects determinations on the potential 

effects of the remaining pesticides on the San Francisco Bay Area 

species as described in Section 2 of the Original Stipulated Settlement.

5. Within 30 days of the Court’s approval of this Stipulation, EPA 

shall provide the Center and Intervenor-Defendants with an estimated 

schedule for completing interim benchmarks as part of completing the 

nationwide effects determinations described above in the “whereas” clauses

for atrazine, simazine, propazine and glyphosate. That schedule will include 

estimated dates for draft effects determinations and comment periods (if 

applicable) for each of these pesticides. The parties recognize that this 

schedule will be a good faith estimate as of the date that it is provided, but 

that the schedule may be subject to change (based on factors including, but 

not limited to, variations in the estimated dates for data submission and 

unanticipated legal obligations), and that, as stated above in Paragraph 2, this 

schedule will not be binding or enforceable by the Court.

6. Starting from the date of the Court’s approval of this 

Stipulation, EPA shall provide the Center and Intervenor-Defendants with an 

update by conference call every four months describing the status of EPA’s 

and the Services’ efforts to address the NAS report, which may include 

processes and methodologies other than those specified in the Interim 

Case3:07-cv-02794-JCS Document154 Filed07/21/15 Page6 of 9
7

Approaches, and of the effects determinations on atrazine, simazine, 

propazine and glyphosate. At the Federal Government’s discretion, these 

calls may be combined with the conference calls required by Paragraph 6 of 

the July 28, 2014 Stipulation Amending Original Settlement and Order in 

Center for Biological Diversity v. U.S. Fish and Wildlife Service, et al., No. 3:11-cv5108 (JSW).

7. Within 30 days of the Court’s approval of this Stipulation, EPA

shall include the full text of this Stipulation in a clearly marked section of its 

Office of Pesticide Programs website. EPA shall also ensure that publiclyavailable documents associated with the nationwide consultation processes for 

atrazine, simazine, propazine and glyphosate, as well as the pesticides that are 

subject to this case, including preliminary risk assessments, biological 

evaluations, draft biological opinions, and proposed decisions that are subject 

to public comment, are posted on an easily accessible government website

within 14 days of the date they become publicly available.

8. Provisions of the Original Stipulated Settlement that are not 

directly amended by this Stipulation shall remain in effect.

9. This Stipulation has no precedential value and shall not be used 

as evidence in litigation or in any other context.

PURSUANT TO THIS STIPULATION, IT IS ORDERED that the 

Original Stipulated Settlement executed by the Parties is hereby incorporated 

into this Order; and

IT IS FURTHER ORDERED that this Court shall have continuing 

jurisdiction to enforce this Order and the terms of the Original Stipulated 

Settlement herein consistent with the terms of that agreement.

Case3:07-cv-02794-JCS Document154 Filed07/21/15 Page7 of 9
8

Dated: July 21, 2015

Respectfully submitted,

JOHN C. CRUDEN

Assistant Attorney General

United States Department of Justice

Environment & Natural Resources Division

SETH M. BARSKY, Section Chief

S. JAY GOVINDAN, Assistant Section Chief

/s/ J. Brett Grosko

___________________________________

J. BRETT GROSKO, Trial Attorney

Wildlife & Marine Resources Section

P.O. Box 7611, Washington D.C. 20044

COUNSEL FOR DEFENDANTS

/s/ Collette Adkins Giese (with permission)____ 

COLLETTE ADKINS GIESE (MN Bar # 035059X)

JUSTIN AUGUSTINE (CA Bar # 235561)

CENTER FOR BIOLOGICAL DIVERSITY

351 California Street, Suite 600

San Francisco, CA 94104

Telephone: (415) 436-9682

Facsimile: (415) 436-9683

jaugustine@biologicaldiversity.org

cadkinsgiese@biologicaldiversity.org

ATTORNEYS FOR PLAINTIFF

Case3:07-cv-02794-JCS Document154 Filed07/21/15 Page8 of 9
9

CERTIFICATE OF SERVICE

I hereby certify that on July 21, 2015, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system, which will 

send notification of such to the attorneys of record.

/s/ J. Brett Grosko

________________________________

J. BRETT GROSKO

Case3:07-cv-02794-JCS Document154 Filed07/21/15 Page9 of 9
Case No. 07-2794 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

Center for Biological Diversity, a 

non-profit corporation,

Plaintiff,

v.

Environmental Protection Agency et 

al.,

Defendants,

and

Croplife America, RISE, and 

Reckitt Benckiser, Inc.,

Intervenor-Defendants.

Case No. 07-2794-JCS

[Proposed] Order on Parties’ 

Stipulation Amending Original 

Stipulated Settlement

This matter having come before the Court upon Plaintiff’s and Federal 

Defendants’ Stipulation Amending the parties’ Original Stipulated Settlement

(Dkt. 154) (“Amendment”), and the Court being fully advised in the premises and 

good cause appearing,

IT IS HEREBY ORDERED that the Amendment is hereby approved and 

adopted by the Court. 

IT IS SO ORDERED.

Date: July ___, 2015

______________________________________

Joseph C. Spero

Chief Magistrate Judge

21

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORN

I

A

Judge Joseph C. Spero

Case3:07-cv-02794-JCS Document155 Filed07/22/15 Page1 of 1