and that the ESA places different responsibilities on the action agency (EPA) and the decision agency (NMFS or FWS). However, the committee has concluded that when the determination involves risk posed by chemical stressors, the agencies should use the same ERA paradigm to reach conclusions about adverse effects. Scientific obstacles to reaching agreement between EPA and the Services during consultation have emerged apparently because of the agencies’ differences in implementation of the ERA process, including differences in underlying assumptions, technical approaches, data use, exposure models, and risk-calculation methods. Agreement has also been impeded because of a lack of communication and coordination throughout the process.
To understand and reconcile the differences between how EPA assesses risk to listed species from pesticide use and how the Services reach jeopardy decisions, it is important first to understand the consultation process under the ESA. The Services’ Endangered Species Consultation Handbook (FWS/NMFS 1998) details the procedural and legal steps that they must follow when engaging in informal or formal consultations regarding listed species. As discussed in Chapter 1, the process involves three steps; the first two steps are to determine whether a proposed action needs formal consultation (Figure 2-1). In Step 1, the action agency (EPA) determines whether the action “may affect” a listed species. If the answer is yes (as it almost always is at the screening level for outdoor-use pesticides because “may affect” is interpreted broadly), EPA has two options: it can enter into formal consultation or proceed to Step 2—an optional step known as informal consultation—in which it must determine whether the action is “likely to adversely affect” a listed species. If the answer is no and NMFS or FWS concurs, the consultation process ends. However, if the answer is yes, Step 3 (formal consultation) is triggered. In formal consultation, NMFS or FWS must determine whether the action is “likely to jeopardize the continued existence of the species.” A jeopardy decision must be informed by science, but the final regulatory determination of whether a risk is sufficient to constitute jeopardy is partly a policy decision. As the action agency, EPA is responsible for Step 1. It is also responsible, with concurrence from the Services, for Step 2; the Services are responsible for Step 3. In 2004, the Services promulgated a rule that would essentially authorize EPA to conduct Step 2 on its own without concurrence from the Services. The court found that this was a violation of the ESA, and it invalidated that portion of the Services’ rule [Washington Toxics Coalition v U.S. Fish & Wildlife Serv., 475 F.Supp.2d 1158 (W.D. Wash. 2006)]. In recent years, EPA seems to be bypassing Step 2 and initiating formal consultation whenever it finds that a pesticide “may affect” a listed species. Although this approach is permissible, it might be more efficient in many cases to conduct a Step 2 analysis before deciding to enter formal consultation. Presumably, Step 2 would filter out some actions, and fewer biological opinions would be needed. An agreed-on common approach to ERAs would give the Services more confidence in EPA’s Step 2 analyses.