Endangered Species Act Considerations and Mosquito Control

Issue: Decisions on how pesticides should be used near sensitive or listed species are not being developed in a transparent manner based upon sound science.

Background: The Endangered Species Act (ESA) is intended to protect species that are threatened with extinction and maintain their critical habitat. However, the current manner in which the ESA is being implemented can impede mosquito control programs from protecting the public and wildlife from nuisance and disease carrying mosquitoes. Furthermore, current ESA implementation is increasingly being driven by costly litigation – not science. These lawsuits would effectively eliminate the use of public health pesticides in the prevention of disease in humans and wild animals – even protected species in these habitats.

During the pesticide registration process, EPA provides its analysis of a pesticide’s potential environmental effects, including those involving endangered or threatened species, to the Fish and Wildlife Service and National Marine Fisheries Service (the Services), which are charged with administering the ESA. The Services then develop and issue Biological Opinions (BiOps), reflecting their conclusions of potential impacts to species and habitat from pesticide use. In developing BiOps, the Services are required to use the “best available” data to determine potential impacts on species, and where necessary, recommend measures to mitigate those impacts.

Unfortunately, current policy does not allow for the mosquito and vector control community to provide valuable data on how pesticides are actually applied in real-world conditions. In many instances, the “best available data” being relied on by the Services are not validated, but are more properly seen as unsubstantiated opinions. This is not an open and transparent peer review process. Furthermore, EPA has deemed assumptions used in some Service’s models as grossly invalid, and the 4^th Circuit Court of Appeals recently ruled that NMFS was “arbitrary and capricious” in the first of several pesticide BiOps relating to salmonids (Case No. 11-2337).

These faulty analyses then form the basis of Reasonable and Prudent Alternatives (RPAs) and Reasonable and Prudent Measures (RPMs) the Services send to the EPA for required implementation. These often result in significant label restrictions that preclude use of pesticide products to protect the public health and welfare – all based on unreliable data.

Discussion: It is extremely difficult for the Services to render comprehensive BiOps because of shortages in qualified staff and the short timeframe (135 days) allotted by law. This shortfall can be mitigated by a more robust reliance on the expert environmental effects review performed by the EPA Office of Pesticide Programs as part of the pesticide registration review process. EPA analyses and conclusions should only be set aside if the Services have validated information demonstrating that the EPA’s analysis is faulty.

NEEDED ACTION: Congress should direct the Services to implement measures to ensure that ESA decisions are based upon peer-reviewed, validated science, transparency, and the rule of law. The Services and Agency need to be fully resourced if the ESA is to be successfully implemented.