By Scott Gerlt • ASA Chief Economist

The Environmental Protection Agency has recently released several proposals regarding its Endangered Species Act commitments under its pesticide program. One such proposal could significantly hinder or prevent pesticide use on close to 13 million acres of cropland, including over five million acres of soybeans[i]. EPA holds responsibility for approving federal registration of pesticides in the United States. It determines the parameters for use during the registration process, including ensuring pesticide uses will not harm wildlife or the environment. The Vulnerable Species Pilot Project (VSPP) is part of EPA’s efforts to meet its obligations under the Endangered Species Act (ESA) to consider endangered species as part of federal  registration process. The broad approach EPA is proposing as part of the VSPP would greatly inhibit agriculture on a significant amount of land, and the agency intends to expand the pilot project to scale up the program to much larger areas in the future.

EPA has struggled to meet the obligations under ESA to complete endangered species impact evaluations for pesticides. The agency has lost multiple lawsuits related to the matter, which can result in pulling a pesticide immediately from the market[ii]. This litigation is unlikely to subside without changes. ESA consultations typically take four to 15 years. EPA has court-determined deadlines to complete 18 reviews over the next six years. The agency estimates this workload will put them at capacity before any other potential court-ordered ESA evaluations are handed to them. Simply put, the current situation under ESA for pesticide registration is untenable given the resources available to do the evaluations.

EPA proposes to solve the situation through several ESA pilot projects and strategies, including the Vulnerable Species Pilot Program, aimed at making its system more efficient. Under this program, growers would undertake area-wide efforts, in particular species ranges, to achieve ESA compliance without waiting for individual pesticide evaluations. The agency proposes VSPP ranges based upon 27 endangered species. All the species are located within the continental United States. EPA has stated it has small ranges, and more species with larger ranges will be added after the pilot stage[iii].

Table 1 shows the estimated number of acres affected by species in the VSPP proposal. Twenty seven species from across the United States are on the initial list. The American burying beetle brings restrictions on the most acres at over 43 million. The total acreage impact sums to over 97 million acres.

Table 1: Acres Effected Under VSPP Restrictions

Source: Compliance Services International

Notes: Lake Wales Ridge plants contain seven species. Totals across species will not equal the sum of the species due to range overlap. Maps of individual species ranges can be found here.

Although EPA’s proposal uses different terms through its language, it creates two types of areas[iv]. The first are effective avoidance areas. This is the most restrictive type. No pesticide applications can take place in these areas unless “the applicator coordinates with the local Fish and Wildlife Service Ecological Services field offices to determine appropriate measures to ensure the proposed application is likely to have no more than minor effects on the species [iii].” The applicator would have to coordinate with the FWS office at least three months prior to application. This requirement is very difficult to fulfill in practice, as a producer would need to know at least three months in advance what applications will need to be made, and FWS is unlikely to have the staffing necessary to conduct the determinationsⁱ. The effective avoidance areas total over 20 million acres.

The other area type is effective mitigation. For Leedy’s roseroot, Okeechobee gourd, Poweshiek skipperling, Rusty patched bumble bee, Taylor’s checkerspot and White Bluffs bladderpod, the avoidance and mitigation areas are explicitly determined by location. For the other 21 species, the effective avoidance and effective mitigation areas would be separated by whether the land in the area contains habitat that fits the provided description. For instance, the habitat for the Ozark cavefish is karst groundwater defined as, “features of karst groundwater systems of the Springfield Plateau aquifer that exists within a few hundred feet of the surface such as underground streams, pools, etc.” Pesticide users are responsible for determining if the habitat meets this criterion.

While effective mitigation areas do not have outright bans on pesticides without prior consent, farmers in those areas still face many barriers to continued pesticide use. Several mitigations must first be implemented. The first is spray drift minimization. The exact requirements vary by species and application method but generally involve spray buffers. The second mitigation is runoff/erosion minimization. This applies to all species areas except White Bluff’s bladderpod and American burying beetle and contains several parts:

1. Applications cannot be made if the soil is saturated (i.e., no standing water or ability to squeeze water from the soil).
2. No irrigation to the point of runoff
3. No applications if NOAA/National Weather Service predicts at least a 50% chance of one or more inches of rain in the 48 hours following application.
4. If the land is not formally in a state or federal soil conservation plan, then at least four measures from Table 2 must be utilized.

If the field has subsurface drainage that releases the water into controlled drainage structures or buffer zones, then the runoff mitigation measures are not needed. Additionally, if the land has a site-specific runoff or erosion plan, then the mitigation measures are also not needed. For most of the species, the mitigations are required to use pesticides at any point in the year.

Table 2: Draft options for runoff/erosion measures

Source: EPA

The runoff mitigation options vary by crop type. For instance, rice has only four options. Given that four mitigations must be implemented, rice producers have no discretion in selecting the qualifying practices. Field crops have thirteen options of which they must utilize four. Some are beyond the control of the farmer, such as the slope of the field. Many of the mitigations have a high cost of implementation. For example, the median cost of establishing cover crops is $37 per acre [v]. Although buffer strips only need to be implemented on part of a field, a riparian buffer could cost $330 per acre on an annualized basis and a vegetative filter strip could cost $233 on the same basis [vi]. While a controlled drainage structure could serve in place of the four mitigations, the same analysis estimates its annualized costs at $150 per treated acre. In short, many of the mitigations require expensive fieldwork or equipment investments.

While it may be sensible to think that organic production would allow compliance with the VSPP, that is not the case. Many pesticides that are permitted for USDA-certified organic agriculture would fall under the program [i]. Furthermore, many conservation practices depend on herbicides. For instance, no-till practices require herbicides that can be applied over the top of the crop to control weeds, and cover crops are often terminated with herbicides. Farms that wish to utilize these practices in the VSPP areas will find it more costly to implement or continue them.

Figure 1 shows where these areas are estimated to occur. The blue area corresponds to effective avoidance areas, and the orange area corresponds to the effective mitigation areas. Given that the differences for many species are defined by habitat that is not clearly delineated, the map is a best guess. USDA estimates that 12.9 million cropped acres fall into the VSPP areas [i]. Compliance Services International estimates that 5.3 million acres of soybeans would be affected: 348,000 in the effective avoidance areas and 5.0 million in the effective minimization areas. The species with ranges having the largest soybean overlaps are the Scaleshell mussel (1.5 million acres), Mead’s milkweed (1.3 million acres) and American burying beetle (1.2 million acres). As previously mentioned, American burying beetle does not require runoff mitigation. Its territory is primarily in Nebraska and Oklahoma. The proposed pilot project overlaps many soybean acres in Arkansas, Nebraska, Minnesota, Iowa, Missouri, Wisconsin, Illinois and Indiana.

Figure 1: VSPP and Soybean Area

The financial impact for landowners and farmers in the program could be quite severe. For avoidance areas, it is quite possible that agriculture could not persist under the proposal, a conclusion also reached by USDAⁱ. Even in the mitigation areas, the ability of agriculture to survive is questionable. For instance, assume that a farmer in one of these areas can work around the spray drift minimizations. The runoff mitigation requirements could be met through controlled drainage, which has an annualized cost of $150 per year. In its soybean budgets for 2022, USDA shows an opportunity cost of land of $166 per acre for the national average[vii]. This opportunity cost is the equivalent of the rental rate for the land, which is what a landowner would expect to receive in revenues for the use of the land. Installing controlled drainage would nearly fully offset this for the average acre. In other words, the land would have almost no agricultural return.

While there is a distribution of rental rates and costs to put in controlled drainage, the average landowner would lose much of the value of their land without any compensation. This would likely result in the land going to other uses. Ironically, other uses, such as land development, often do not have the same ESA requirements, which can easily lead to the endangered species being worse off. Furthermore, the United States competes on the world stage in agricultural trade. About half of domestic soybeans are exported, but South America is the largest soybean exporter and keeps adding area [viii]. Acres lost in the United States will likely reappear in another part of the world without such stringent restrictions and could have a greater impact on biodiversity. What will happen is that the United States would lose billions of dollars in crop production revenues. The 5.3 million acres of soybeans would have translated into about $3.8 billion in revenues in 2022. The effects of other crops would be on top of that.

In summary, EPA’s proposed broad approach to ESA compliance will likely result in hundreds of thousands to millions of acres of farmland being removed from production due to an outright inability to use pesticides or due to the cost of mitigations exceeding the agricultural productivity of the land. Perhaps most concerning is that EPA intends to expand the program beyond the 27 initial species labeled as having “small” ranges. Fortunately, the VSPP has not been finalized. Per the terms of a recently announced court settlement, EPA has until December 30 to determine if modifications should be made to VSPP and until September 30, 2024, to determine if the proposal should be expanded [ix]. USDA has suggested many measures that can be taken to protect the endangered species while increasing the ability of farmers to comply [i]. These include tailoring the restrictions to the risks of individual pesticides, providing for offsets to allow agricultural production where it is most valuable and better understanding species’ ranges. EPA’s subsequent revisions will have a large impact on the viability of many acres.

[i] https://www.regulations.gov/comment/EPA-HQ-OPP-2023-0327-0140

[ii] https://www.epa.gov/system/files/documents/2022-11/esa-workplan-update.pdf

[iii] https://www.regulations.gov/document/EPA-HQ-OPP-2023-0327-0002

[iv] The terminology used here is slightly different than used by EPA for the purposes of simplicity. Effective avoidance areas in this article refer to delineated location, geographically explicit PULAs and the area in the known habitat, not delineated PULAs that meet the habitat description. The effective mitigation area refers to the delineated location, geographically explicit area minimization PULAs and the area in the known habitat, not delineated PULAs that do not meet the habitat description.

[v] https://www.sare.org/publications/cover-crop-economics/how-to-get-a-faster-return-from-cover-crops/creating-a-baseline-for-cover-crop-costs-and-returns/

[vi] https://bmpcosttools.nrem.iastate.edu/

[vii] https://www.ers.usda.gov/data-products/commodity-costs-and-returns/commodity-costs-and-returns/

[viii] https://www.usda.gov/oce/commodity/wasde/wasde1023.pdf

[ix] https://www.epa.gov/pesticides/epa-resolves-longstanding-litigation-protect-endangered-species-ensure-pesticides-feed