January 27, 2010 Sent via Fed Ex and Email Lisa Jackson, Administrator Sam Hamilton, Director United States Environmental Protection Agency United States Fish and Wildlife Service Ariel Rios Building 1849 C Street, NW 1200 Pennsylvania Avenue, NW Washington, DC 20240 Mail Code: 1101A [email protected] Washington, DC 20460 [email protected] Dr. James W. Balsiger Acting Assistant Administrator for Fisheries Ken Salazar National Oceanographic and Atmospheric Secretary of the Interior Administration 1849 C Street, NW 1315 East-West Highway Washington, DC 20240 Silver Spring, MD 20910 [email protected] [email protected] Gary Locke Secretary of Commerce U.S. Department of Commerce 1401 Constitution Avenue, N.W., Room 5516 Washington, D.C. 20230 [email protected] Re: Notice of Violations of the Endangered Species Act Related to the Registration of Pesticides On behalf of the Center for Biological Diversity, I hereby provide notice, pursuant to section 11(g) of the Endangered Species Act (“ESA”), 16 U.S.C. §1540(g)(2)(A)(i), that the Environmental Protection Agency (“EPA”) is in violation of the ESA, 16 U.S.C. § 1521, et seq. Specifically, EPA has failed to satisfy its ESA Section 7 consultation requirements that apply to pesticide registrations and reregistrations. Attached to this Notice of Intent to Sue (“NOI”), as Exhibit A, are charts identifying threatened and endangered species and the registered pesticides whose concentrations in the environment may exceed Levels of Concern (“LOCs”) to those species and/or that are “highly” to “very highly” toxic to those species. The pesticides included in Chart 1 may exceed LOCs for mammals and/or are “highly” to “very highly” toxic to mammals and therefore “may affect” the endangered and threatened mammalian species listed in Chart 1. The pesticides included in Chart 2 may exceed LOCs for birds and/or are “highly” to “very highly” toxic to birds and therefore “may affect” the endangered and threatened avian species listed in Chart 2. The Arizona • California • Nevada • New Mexico • Alaska • Oregon • Montana • Illinois • Minnesota • Vermont • Washington, DC Justin Augustine • 351 California St., Suite 600 • San Francisco, CA 94104 Phone: 415-436-9682 x302 • Fax: 415-436-9683 • [email protected] pesticides included in Chart 3 may exceed LOCs for fish and/or are “highly” to “very highly” toxic to fish and therefore “may affect” the endangered and threatened fish species listed in Chart 3. The pesticides listed in Chart 4 may exceed LOCs for amphibians and/or are “highly” to “very highly” toxic to amphibians and therefore “may affect” the endangered and threatened amphibian species listed in Chart 4. The pesticides listed in Chart 5 may exceed LOCs for mollusks and/or are “highly” to “very highly” toxic to mollusks and therefore “may affect” the endangered and threatened mollusk species listed in Chart 5. The pesticides listed in Chart 6 may exceed LOCs for crustaceans and/or are “highly” to “very highly” toxic to crustaceans and therefore “may affect” the endangered and threatened crustacean species listed in Chart 6. The pesticides listed in Chart 7 may exceed LOCs for insects and/or are “highly” to “very highly” toxic to insects and therefore “may affect” the endangered and threatened insect species listed in Chart 7. The pesticides listed in Chart 8 may exceed LOCs for plants and/or are “highly” to “very highly” toxic to plants and therefore “may affect” the endangered and threatened plant species listed in Chart 8. The pesticides listed in Chart 9 may exceed LOCs for reptiles and/or are “highly” to “very highly” toxic to reptiles and therefore “may affect” the endangered and threatened reptile species listed in Chart 9. For each of these pesticides, EPA must conduct an effects determination and, if necessary, initiate consultation with the appropriate wildlife agency (FWS or NMFS).1 EPA is also in violation of Section 9 of the ESA for the take of listed species which is resultant from pesticide applications. Furthermore, EPA has failed to comply with sections 7(a)(1) and 2(c) of the ESA. Finally, EPA is in violation of the Migratory Bird Treaty Act due to the take of birds that is caused by registered pesticides. LEGAL BACKGROUND A. The Endangered Species Act The Endangered Species Act (“ESA”) was enacted, in part, to provide a “means whereby the ecosystems upon which endangered species and threatened species depend may be conserved . [and] a program for the conservation of such endangered species and threatened species . .”2 The ESA vests primary responsibility for administering and enforcing the statute with the Secretaries of Commerce and Interior. The Secretaries of Commerce and Interior have delegated this responsibility to the National Marine Fisheries Service (“NMFS”) and the U.S. Fish and 3 Wildlife Service (“FWS”) respectively. 1 This NOI does not cover pesticide/species combinations for which effects determinations, and ESA section 7 consultations, are already in progress (or may soon be) as a result of a court order (e.g., Washington Toxics (salmonids), and Center for Biological Diversity (Barton Springs salamander, California red-legged frog, 11 Bay Area species)) However, to the extent that those effects determinations, and consultations, are geographically constrained, this NOI does address species/pesticides combinations for any geographic area not addressed by the effects derminations and consultations. 2 16 U.S.C. §§ 1531-1544; 16 U.S.C. § 1531(b) 3 50 C.F.R. § 402.01(b) 60-Day Notice of Intent to Sue re Pesticides Page 2 January 27, 2010 Section 2(c) of the ESA establishes that it is “the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act.”4 The ESA defines “conservation” to mean “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary.”5 Similarly, Section 7(a)(1) of the ESA directs that the Secretary review “…other programs administered by him and utilize such programs in furtherance of the purposes of the Act.”6 In order to fulfill the substantive purposes of the ESA, federal agencies are required to engage in consultation with FWS (and/or NMFS) to “insure that any action authorized, funded, or carried out by such agency . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the adverse modification of habitat of such species . determined . to be critical . .”7 Section 7 consultation is required for “any action [that] may affect listed species or critical habitat.”8 Agency “action” is defined in the ESA’s implementing regulations to include “(b) the promulgation of regulations; (c) the granting of licenses, contracts, leases, easements, rights-of- way, permits, or grants-in-aid; or (d) actions directly or indirectly causing modifications to the land, water, or air.”9 At the completion of consultation, FWS or NMFS issues a biological opinion that determines if the agency action is likely to jeopardize the species. If so, the opinion may specify reasonable and prudent alternatives that will avoid jeopardy and allow the agency to proceed with the action.10 FWS and NMFS may also “suggest modifications” to the action during the course of consultation to “avoid the likelihood of adverse effects” to the listed species even when not necessary to avoid jeopardy.11 An agency’s duty to avoid jeopardy is continuing, and “where discretionary Federal involvement or control over the action has been retained or is authorized by law,” the agency must in certain circumstances reinitiate formal consultation:12 4 16 U.S.C. § 1531(c)(1) 5 16 U.S.C. § 1532(3) 6 16 U.S.C. § 1536(a)(1) 7 16 U.S.C. § 1536(a)(2) (“Section 7 consultation”) 8 50 C.F.R. § 402.14 9 50 C.F.R. § 402.02 10 16 U.S.C. § 1536(b) 11 50 C.F.R. § 402.13 12 50 C.F.R. § 402.16 60-Day Notice of Intent to Sue re Pesticides Page 3 January 27, 2010 (a) If the amount or extent of taking specified in the incidental take statement is exceeded; (b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (c) If the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or (d) If a new species is listed or critical habitat designated that may be affected by the identified action. Section 7(d) of the ESA, provides that once a federal agency initiates consultation on an action under the ESA, the agency, as well as any applicant for a federal permit, “shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2) of this section.”13 The purpose of Section 7(d) is to maintain the environmental status quo pending the completion of consultation. Section 7(d) prohibitions remain in effect throughout the consultation period and until the federal agency has satisfied its obligations under Section 7(a)(2) that the action will not result in jeopardy to the species or adverse modification of its critical habitat. B. Relationship Between the Endangered