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San Francisco Bay Area Endangered Species Litigation - Center for Biological Diversity v. EPA

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EPA and the Center for Biological Diversity have agreed to a revised settlement agreement that amends a 2010 court order establishing a schedule to complete effects determinations for 75 chemicals on 11 endangered or threatened (listed) species in the San Francisco Bay Area. EPA has already issued effects determinations for 59 of the 75 pesticides.  Instead of completing determinations that are limited to the San Francisco Bay Area for the remaining 16 pesticides, EPA and CBD agreed that it would be more efficient and environmentally significant to complete nationwide effects determinations on four pesticides (atrazine, simazine, propazine and glyphosate). 

Under the revised settlement, EPA will complete nationwide effects determinations for atrazine, simazine, propazine and glyphosate. The agreement includes schedules for completion of effects determinations and initiation of consultation for the four pesticides by 2020. EPA intends to use and build on assessment approaches that are consistent with the April 2013 National Academy of Sciences report Exit EPA disclaimerrecommendations. This agreement represents the second set of chemicals, after the initial pilot chemicals (chlorpyrifos, diazinon, malathion, carbaryl and methomyl) to be assessed on a nationwide scale.

EPA has made “No Effect” determinations for six pesticides (azinphos-methyl, carbofuran, disulfoton, methamidophos, methidathion and tralomethrin) as a result of cancellation. As a result, these six pesticides have been removed from the SFB interactive mapper, and the interim use limitations do not apply to these six pesticides. However, the interim use limitations and other commitments set forth by the 2010 Stipulated Injunction remain in effect until the completion of consultation for the 53 pesticides for which EPA has completed effects determinations other than a “No Effect”. Consultation is completed when EPA makes a “No Effect” determination, the U.S. Fish and Wildlife Service (FWS) concurs with EPA on a “Not Likely to Adversely Affect” finding, or once EPA receives a Biological Opinion from FWS.

As noted, EPA will not be conducting assessments on the 11 San Francisco Bay Area species for the 16 remaining pesticides in the original agreement. For those pesticides, the interim measures will remain in effect until EPA completes consultation on atrazine, simazine, propazine and glyphosate.

Background on this court case

On May 30, 2007, the Center for Biological Diversity filed a lawsuit in the United States District Court for the Northern District of California alleging that EPA failed to comply with section 7(a)(2) of the Endangered Species Act in regard to 47 pesticides and 11 listed species in the San Francisco Bay Area (Center for Biological Diversity v. EPA, Case No. 07-2794-JCS (N.D. Cal.) (PDF)) (49 pp, 195.33K, About PDF). Ultimately, 75 pesticides came to be at issue in this case.

On July 1, 2009, EPA published a Notice in the Federal Register (PDF) (2pp, 139K, About PDF) opening a 15-day comment period on a proposed stipulated injunction to resolve the litigation discussed in the above paragraph. EPA published another Federal Register Notice (PDF) (1pp, 132K, About PDF), based on comments received, re-opening the comment period for an additional 30 days from the original closing date, extending the public’s opportunity to comment on the proposed stipulated injunction until August 17, 2009.

After considering public comment, the Federal Government agreed to a Stipulated Injunction to resolve the lawsuit, Center for Biological Diversity v. EPA (Case No.: 07-2794-JCS). On May 17, 2010, the U.S. District Court for the Northern District of California Ordered the Stipulated Injunction (PDF) (54 pp, 998.04K, About PDF) which set forth a schedule by which EPA was to review the registrations of pesticides containing any of 75 pesticide active ingredients for their potential effects to 1 or more of 11 federally-listed threatened or endangered species in 8 counties around the San Francisco Bay Area of California. The injunction also identified interim pesticide use limitations intended to reduce exposure to the 11 species during the time EPA is assessing these pesticides and consulting with the U.S. Fish and Wildlife Service, as appropriate. The injunction also committed EPA to:

On June 23, 2015, EPA made the proposed, revised settlement agreement publicly available in the docket EPA-HQ-OPP-2009-0481 at www.regulations.gov, for a 15-day comment period. On July 21, 2015, the U.S. District Court for the Northern District of California entered the revised settlement agreement.

 

Links to the Lawsuit, Federal Register Notices, Court Orders and Docket

Species Identified in Lawsuit

The 11 species identified in the lawsuit are found in the greater San Francisco Bay area:

  1. Alameda whipsnake
  2. bay checkerspot butterfly
  3. California clapper rail
  4. California freshwater shrimp
  5. California tiger salamander
  6. delta smelt
  7. salt marsh harvest mouse
  8. San Francisco garter snake
  9. San Joaquin kit fox
  10. tidewater goby
  11. valley elderberry longhorn beetle

Pesticides Named in Lawsuit

The 75 pesticide active ingredients identified in the lawsuit are: 

2,4-D
acephate
acrolein
alachlor
aldicarb
aluminum phosphide
atrazine
azinphos-methyl*
bensulide
beta-cyfluthrin
bifenthrin
brodifacoum
bromadiolone
bromethalin
carbaryl
carbofuran*
chlorophacinone
chlorothalonil
cholecalciferol
chlorpyrifos
cyfluthrin
cyhalothrin (lambda)
cypermethrin
deltamethrin
diazinon
difenacoum
difethialone
dimethoate
diphacinone
disulfoton*
diquat dibromide
endosulfan
EPTC (eptam)
esfenvalerate
ethoprop
fenpropathrin
fipronil
fluvalinate
imidacloprid
magnesium phosphide
malathion
maneb
mancozeb
metam sodium
methamidophos*
methidathion*
methomyl
methoprene
methyl bromide
metolachlor
naled
oryzalin
oxydemeton-methyl
oxyfluorfen
PCNB
pendimethalin
permethrin
phenothrin
phosmet
phorate
potassium nitrate
propargite
resmethrin
s-metolachlor
simazine
sodium cyanide
sodium nitrate
strychnine
tetramethrin
thiobencarb
tralomethrin*
trifluralin
warfarin
zeta-cypermethrin
zinc phosphide

*indicates that a “No Effect” determination was made because the chemical was cancelled.

16 Pesticides for Which EPA Has Not Yet Issued an Effects Determination

The 16 pesticide active ingredients for which EPA has not yet issued an effects determination are:

cypermethrin
dimethoate
esfenvalerate
ethoprop
fenpropathrin
fipronil
fluvalinate
imidacloprid
oxyfluorfen
phenothrin
propargite
resmethrin
sodium cyanide
strychnine
tetramethrin
zeta-cypermethrin

Under the amended agreement, once EPA completes effects determinations on atrazine, propazine, simazine and glyphosate, its obligation to complete effects determinations for these 16 pesticides is discharged, and the interim measures for these pesticides will be removed upon completion of consultation on atrazine, propazine, simazine and glyphosate.

Contact Us

If you have any questions related to the revised settlement or the San Francisco Bay interactive map, contact us at espp@epa.gov.

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