Source: EPA, 6/24/11

EPA Seeks Public Comments by July 25, 2011 on the Draft Reasonable and Prudent Alternative in NMFS’ Draft Biological Opinion on the Proposed Pesticides General Permit
June 24, 2011

EPA is seeking public comment on a Reasonable and Prudent Alternative (RPA) in the draft Biological Opinion by the National Marine Fisheries Service (NMFS) that concludes issuance of the Pesticide General Permit (PGP) is likely to jeopardize the continued existence of endangered and threatened species and result in the destruction or adverse modification of critical habitat that has been designated for such species, absent the implementation of the RPA. The comment period is for 30 days and ends on July 25, 2011.

Under section 7 of the Endangered Species Act (ESA), federal agencies have an obligation to insure, in consultation with NMFS and the U.S. Fish and Wildlife Service (FWS), that actions authorized, funded, or carried out by such agencies are not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of critical habitat that has been designated for such species. To evaluate how the PGP would likely affect listed resources, EPA prepared a Biological Evaluation (BE), a copy of which is available in the PGP docket, which concluded that in some instances the PGP “may affect” listed resources. Based on this BE, EPA initiated formal consultation with the Services.

As part of this consultation, on June 17, 2011, NMFS submitted to EPA a draft Biological Opinion containing its determination that the PGP is likely to jeopardize the continued existence of 33 species and to result in the destruction or adverse modification of critical habitat that has been designated for 29 such species absent implementation of the RPA. As required by the ESA, NMFS has included in its draft Biological Opinion a suggested “Reasonable and Prudent Alternative” (RPA) that NMFS believes would avoid the likelihood of jeopardizing the continued existence of these species or resulting in the destruction of adverse modification of critical habitat. Under the ESA, biological opinions are not subject to notice and comment. However, pursuant to NMFS and FWS implementing regulations, the consulting Service works with the federal agency to develop reasonable and prudent alternatives. In order to get information to assist in this process, EPA is seeking comment on NMFS’ suggested RPA , and is particularly interested in the appropriateness of the proposed RPA for protecting jeopardized species and their critical habitat, issues that would be associated with implementing the RPA, and on possible alternatives to the RPA that would also avoid the likelihood of jeopardizing the likely existence of threatened or endangered species or the destruction of adverse modification of critical habitat. EPA provides the entire Opinion to assist in reviewing the RPA. EPA encourages input from the regulated community, stakeholders, State/local governments, Tribes, and other parties interested in the pesticide general permit.

EPA wishes to be clear that this solicitation of comment is not pursuant to notice and comment rulemaking. NMFS has agreed to consider comments collected by EPA and to modify its suggested RPA if and as appropriate, but NMFS will not respond to comments as would be done in a rulemaking proceeding.