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

• Background on this court case and EPA's commitments
• Species identified in lawsuit
• Pesticides named in lawsuit
• 16 pesticides for which EPA has not yet issued an effects determination
• Links to the lawsuit, Federal Register notices, court orders and docket
• Contact us

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.

The revised settlement 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 recommendations.  

EPA has made “No Effect” determinations for six pesticides (azinphos-methyl, carbofuran, disulfoton, methamidophos, methidathion and tralomethrin) as a result of cancellation. Therefore, 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
• 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.

• Read the July 2015 revised settlement agreement for the Center for Biological Diversity v. EPA
• Read the original 2010 court order for the Center for Biological Diversity v. EPA

Background on this Court Case and EPA's Commitments

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.). 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, 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; and
• 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:

• develop and make available through various means, a brochure to inform pesticide users of the Order, the Stipulated Injunction, and the 11 species involved;
• mail copies of the Stipulated Injunction to all registrants of the pesticides subject to the Stipulated Injunction;
• provide to certain retail establishments, shelf tags they may use to identify certain pesticides identified in the Stipulated Injunction as “urban use” pesticides;
• annually notify certain retail establishments and certain user organizations that the Stipulated Injunction is still in effect and refer them to EPA’s Web site for further information; and
• display on its web site, a copy of the Order and Stipulated Injunction, maps identifying the areas where the interim injunctive relief applies, and fact sheets for the 11 species identified in the Stipulated Injunction.

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.

Species Identified in Lawsuit

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

• Alameda whipsnake
• bay checkerspot butterfly
• California clapper rail
• California freshwater shrimp
• California tiger salamander
• delta smelt
• salt marsh harvest mouse
• San Francisco garter snake
• San Joaquin kit fox
• tidewater goby
• valley elderberry longhorn beetle

Pesticides Named in Lawsuit

The 75 pesticide active ingredients identified in the lawsuit are: 

*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:

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.

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

• Center for Biological Diversity v. EPA, Case No. 07-2794-JCS (N.D. Cal.) – May 30, 2007
• Proposed Stipulated Injunction – July 1, 2009
• Federal Register Notice making proposed Stipulated Injunction available for public comment – July 1, 2009 (PDF) (2pp, 139K, About PDF)
• Federal Register Notice extending the public comment period for the Stipulated Injunction – July 22, 2009 (PDF) (1pp, 132K, About PDF)
• Stipulated Injunction – May 17, 2010
• Memorandum authorizing posting to FDMS Docket without a Federal Register Notice – June 23, 2015
• Stipulation Amending Original Stipulated Settlement and Proposed Order – July 21, 2015
• Regulations.gov Docket #EPA-HQ-OPP-2009-0481 – Proposed Stipulated Injunction to Settle Endangered Species Act Litigation
• Order on Parties’ Stipulation Amending Original Stipulated Settlement – July 21, 2015

Contact Us

If you have any questions related to the revised settlement or the San Francisco Bay interactive map, contact us at [email protected].