UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

 WASHINGTON, D.C. 20460
 

OFFICE OF CHEMICAL SAFETY 

AND POLLUTION PREVENTION 

DRAFT BIOLOGICAL OPINIONS ISSUED UNDER THE ENDANGERED SPECIES ACT, 

BY THE NATIONAL MARINE FISHERIES SERVICE, RELATED TO PESTICIDES AND 

PACIFIC SALMON AND STEELHEAD SPECIES 

COMMENTS ACCEPTED THROUGH JUNE 3, 2011
 

EPA has initiated formal consultation with the National Marine Fisheries Service on the 

potential effects of certain pesticides to Pacific salmon and steelhead listed under the 

Endangered Species Act as either threatened or endangered. As EPA receives draft 

Biological Opinions relative to these consultations, they will be posted to www.epa.gov/espp 

and included in a public docket EPA-HQ-OPP-2008-0654 so EPA may receive public input 

on any changes to a pesticide’s registration recommended by the National Marine Fisheries 

Service. 

BACKGROUND 

The Endangered Species Act (ESA) requires that Federal Agencies assess their “actions” to 

determine whether species listed as threatened or endangered under the ESA, may be 

affected by those actions, or whether critical habitat may be adversely modified. The 

registered uses of a pesticide constitute an EPA "action" under the ESA. 

If EPA determines a pesticide's registered uses are likely to adversely affect a federally 

listed threatened or endangered species (listed species) or modify its critical habitat, EPA 

initiates "formal consultation" with the U.S. Fish and Wildlife Service or the National Marine 

Fisheries Service (the Service or Services), as appropriate. In response to a Federal 

Agency initiating formal consultation, the Service(s) develops a Biological Opinion (BO) in 

which it provides its opinion on whether the "action" is likely to jeopardize the continued 

existence of a listed species or is likely to adversely modify designated critical habitat and, if 

so, describes alternatives to avoid jeopardy. 

PUBLIC INPUT 

In 2005, EPA published in the Federal Register (FR 70 No. 211 pp. 66392-66402), a 

document titled Endangered Species Protection Program Field Implementation. That notice 

of how EPA intends to implement its responsibilities under the ESA, states (p 66401): 

"If EPA must formally consult with the Services, after the Services issue a 

draft Biological Opinion, EPA will welcome input from State, Tribal and local 

governments on draft reasonable and prudent measures and 

alternatives. The purpose of this review would be to determine whether the 

alternatives or measures can be reasonably implemented and whether there 

are different measures that may provide adequate protection but result in less 

impact to pesticide users. The Agency will consider this input in developing its 
response to draft Biological Opinions." 

EPA also is seeking input from the public in general, pesticide users, and public interest 

organizations on whether the alternatives or measures can be reasonably implemented and 

whether there are different measures that may provide adequate protection but result in less 

impact to pesticide users. The Agency will also consider this input in developing its 

response to draft Biological Opinions. 

APPLICANT INPUT 

Further, the Services’ Consultation Handbook (pp. 2-13), supports their consultation 

regulations and states: 

“... the Service and the action agency meet their obligations to [the applicant 

or pesticide registrant] as outlined in 50 CFR section 402 through the 

following: The applicant is entitled to review draft Biological Opinions 

obtained through the action agency and to provide comments through 

the action agency. The Service will discuss the basis of their biological 

determination with the applicant and seek the applicant’s expertise in 

identifying reasonable and prudent alternatives ...”. 

COMMENTS 

Draft Biological Opinions are being included in the docket (EPA-HQ-OPP-2008-0654) and 

posted to EPA’s Web site (http://www.epa.gov/oppfead1/endanger/litstatus/effects) to seek 

input on the Service’s recommended reasonable and prudent measures and alternatives, as 

noted above. Such input should be submitted by June 3, 2011 in order to be considered in 

EPA’s response to the Draft Biological Opinion. Comments received by EPA on other 

aspects of the Draft Biological Opinion, will be forwarded to the Service for their 

consideration. 

As stated in the Services’ regulations (50 CFR 402.14(g)(5)): 

“All comments on the draft Biological Opinion must be submitted to the 

Service through the Federal agency, although the applicant may send a copy 

of its comments directly to the Service.” 

SUBMITTING YOUR COMMENTS 

You may submit your comments, identified by the docket identification (ID) number 

EPA-HQ-OPP-2008-0654 and the pesticide to which the Biological Opinion pertains, by one 

of the following methods: 

Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for 

submitting comments. 

Mail: Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental 

Protection Agency, 1200 Pennsylvania Ave., NW, Washington, DC 20460-0001. 
Delivery: OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. 

S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are 

only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday 

through Friday, excluding legal holidays). Special arrangements should be made for 

deliveries of boxed information. The Docket Facility telephone number is (703) 305-5805. 

Instructions: EPA's policy is that all comments received will be included in the docket 

without change and may be made available on-line at http://www.regulations.gov, including 

any personal information provided, unless the comment includes information claimed to be 

Confidential Business Information (CBI) or other information whose disclosure is restricted 

by statute. Do not submit information that you consider to be CBI or otherwise protected 

through regulations.gov or e-mail. The regulations.gov website is an ''anonymous access'' 

system, which means EPA will not know your identity or contact information unless you 

provide it in the body of your comment. If you send an e-mail comment directly to EPA 

without going through regulations.gov, your e-mail address will be automatically captured 

and included as part of the comment that is placed in the docket and made available on the 

Internet. If you submit an electronic comment, EPA recommends that you include your 

name and other contact information in the body of your comment and with any disk or CDROM you submit. If EPA cannot read your comment due to technical difficulties and cannot 

contact you for clarification, EPA may not be able to consider your comment. Electronic files 

should avoid the use of special characters, any form of encryption, and be free of any 

defects or viruses. 

Docket: All documents in the docket are listed in the docket index available in 

regulations.gov. To access the electronic docket, go to http://www.regulations.gov, select 

''Advanced Search,'' then ''Docket Search.'' Insert the docket ID number where indicated 

and select the ''Submit'' button. Follow the instructions on the regulations.gov website to 

view the docket index or access available documents. Although, listed in the index, some 

information is not publicly available, e.g., CBI or other information whose disclosure is 

restricted by statute. Certain other material, such as copyrighted material, is not placed on 

the Internet and will be publicly available only in hard copy form. Publicly available docket 

materials are available either in the electronic docket at http://www.regulations.gov or, if 

only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One 

Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of operation of 

this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal 

holidays. The Docket Facility telephone number is (703) 305-5805.