EPA has finalized its court-ordered biological evaluations (BEs) for glyphosate, atrazine, and simazine, three herbicides that are used to control a variety of grasses and broadleaf weeds. EPA evaluated them to determine whether they may affect one or more species listed under the Endangered Species Act (ESA) or their designated critical habitats. The BEs find that all of these chemicals may affect, and are likely to adversely affect, certain listed species or their designated critical habitats.
The likely to adversely affect (LAA) determination means that EPA reasonably expects that at least one individual animal or plant, among a variety of listed species, may be exposed to the pesticide at a sufficient level to have an effect, which will be adverse. The LAA threshold for a BE is very sensitive (some say a very "low bar") because the likely take of even one individual of a species, which includes unintentional harm or death, triggers an LAA determination. This is the case even if a species is almost recovered to a point where it no longer needs to be listed. As a result, there is a high number of may affect and LAA determinations in these BEs, the EPA says.
A BE is a document that contains EPA's initial analysis of the potential effects of a pesticide on federally threatened or endangered species and their designated critical habitat. It includes any conclusions that the pesticide may affect, or may be likely to adversely affect, any of these species or habitats. These evaluations encompass all registered uses and approved product labels for pesticide products containing these three herbicides.
The EPA's BE analysis now goes to the U.S. Fish & Wildlife Service and the National Marine Fisheries Service for their "biological opinions" (BiOps) on whether the products are putting the species in jeopardy. Jeopardy determinations will be made by the Services through a formal consultation process that evaluates any effects of the pesticides on entire species. These results are expected by December 2022.
The Services will use the EPA's initial information to develop their biological opinions. The Services may also conduct additional analyses and use additional information that EPA and the applicants provide to support their BiOps, if it has the resources to do so. In a BiOp, the Services document their determination of whether a pesticide is likely to jeopardize the continued existence of the species and whether there will be likely adverse modification to its designated critical habitat.
If jeopardy or adverse modification is determined, the Services, with input from EPA and the registrants, will propose additional protections, such as rate use limitations or additional best management practices to protect the species. EPA would then make these requirements and limitations part of the product labels. It remains to be seen if some of these products will loose their registration status altogether, as some activist groups have demanded.
It is also expected that other crop protection compounds will have to undergo this relatively new consultation process - outside of the normal FIFRA product approval/review process - as they go through federal registration or re-registration. The process is the result of a 2016 legal agreement between the EPA and the Center for Biological Diversity and the Pesticide Action Network.