US EPA releases final biological evaluations of dinotefuran and acetamiprid effects on endangered species

The U.S. Environmental Protection Agency (EPA) is releasing the final biological evaluations (BEs) and response to comments received on the draft BEs for the neonicotinoid insecticides dinotefuran and acetamiprid on federally threatened and endangered (listed) species and designated critical habitats. These final BEs are part of EPA’s efforts to meet its obligations under the Endangered Species Act (ESA).

Background on Dinotefuran and Acetamiprid

Dinotefuran is an insecticide used to control aphids, whiteflies, thrips, leafhoppers, scales, leaf miners, and other insects in agricultural crops such as root vegetables, leafy vegetables, berries, cereal grains, and oilseed crops (e.g., cotton). In addition to the agricultural uses, there are a wide variety of non‐agricultural uses, including Christmas trees, forestry, turf, and ornamental applications.

Acetamiprid is an insecticide to control piercing sucking pests (such as aphids) on a variety of crops including fruit and fruit trees, tree nuts, vegetables, sweet corn, cotton, soybean, and tobacco, as well as non-agricultural uses such as ornamentals, nurseries, and vegetables grown for transplant.

The timing of the issuance of these final BEs is tied to a lawsuit filed by the Natural Resources Defense Council (NRDC) against EPA on October 3, 2017, alleging that EPA violated the ESA by failing to consult with the U.S. Fish and Wildlife Service and National Marine Fisheries Service (the Services) on the effects to listed species of pesticide product registrations containing one of three pesticide active ingredients—acetamiprid, dinotefuran, and imidacloprid. In January 2021, EPA and NRDC agreed, through a stipulated partial settlement agreement, to resolve the claim concerning imidacloprid by requiring EPA complete a final BE with an effects determination for imidacloprid, which was released in June 2022. EPA also initiated consultation with the Services on imidacloprid. In March 2022, EPA and NRDC agreed to resolve the remaining two claims (acetamiprid and dinotefuran). Specifically, by October 2024, EPA must complete its final effects determinations and request initiation of any necessary ESA consultation from the Services on the potential effects of acetamiprid and dinotefuran on any listed species and critical habitat.

Effects determinations include findings that an action will have ‘no effect’ or that it ‘may affect’ listed species or critical habitats. If an action ‘may affect’ a listed species or critical habitats, then EPA determines if the action is likely to adversely affect (LAA) or not likely to adversely affect (NLAA) listed species or critical habitats. An NLAA determination is made when effects on a listed species or critical habitat are expected to be discountable (for example, effects that are extremely unlikely to occur), insignificant, or beneficial. By contrast, an LAA determination means that EPA reasonably expects that at least one individual animal or plant, among a variety of listed species, may be exposed to dinotefuran or acetamiprid at a sufficient level to have an adverse effect. This is the case even if a listed species is almost recovered to a point where it may no longer need to be listed. As a result, there are often a high number of LAA determinations in a BE. EPA’s effects determinations in the dinotefuran and acetamiprid BEs include LAA determinations for some listed species and critical habitats. An LAA determination, however, does not necessarily mean that a pesticide is putting a species in jeopardy.

EPA included a refined analysis in the biological evaluations that predicted the potential likelihood that dinotefuran or acetamiprid use could result in ″jeopardy″ (i.e., potential impacts to the survival of listed species) for any listed species or ″adverse modification″ of any critical habitats. In contrast to its LAA determinations, EPA’s predictions of the potential likelihood of future jeopardy and adverse modification examined the effects of both active ingredients to populations of a species, rather than to an individual. EPA predicted that there was a potential likelihood that approved uses of dinotefuran and acetamiprid could result in future jeopardy or adverse modification findings for some listed species and critical habitats. The Services, however, are responsible for making jeopardy/adverse modification findings in their biological opinions.

Biological Evaluations

When EPA determines in a final BE that a Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) action may affect listed species or critical habitats, the Agency must initiate consultation with the Services. Because EPA’s final BEs of dinotefuran and acetamiprid made LAA determinations for species under both Services' jurisdiction, EPA will initiate formal consultation with both Services.

After reviewing public comments on the draft BEs, EPA revised its evaluation of dinotefuran and acetamiprid.

EPA’s final BE finds that dinotefuran:

• Will have no effect on 12 percent of species and 11 percent of critical habitats (as compared to 13 percent and 14 percent, respectively, from the draft BE);

• May affect but is not likely to adversely affect 13 percent of species and 11 percent of critical habitats (unchanged from the draft BE);

• Is likely to adversely affect 75 percent of listed species and 78 percent of critical habitats (as compared to 73 percent and 76 percent, respectively, from the draft BE); and

• Has a likelihood of future Jeopardy/Adverse Modification for 6 percent of listed species and 5 percent of critical habitats (as compared to 9 percent and 7 percent, respectively, from the draft BE).

EPA’s final BE finds that acetamiprid:

• Will have no effect on 13 percent of species and 31 percent of critical habitats (as compared to 16 percent and 35 percent, respectively, from the draft BE);

• May affect but is not likely to adversely affect 20 percent of species and 27 percent of critical habitats (as compared to 25 percent and 27 percent, respectively, from the draft BE);

• Is likely to adversely affect 56 percent of listed species and 32 percent of critical habitats (as compared to 59 percent and 38 percent, respectively, from the draft BE); and

• Has a likelihood of future Jeopardy/Adverse Modification of 11 percent of listed species and 10 percent of critical habitats (as compared to 10 percent and 6 percent, respectively, from the draft BE).

During formal consultation, the Services use EPA’s effects determinations to inform their biological opinions. If the Services determine in their final biological opinions that mitigations are necessary to address any jeopardy or adverse modification determinations (that the Services may make) or to address any incidental take beyond those mitigations, then EPA will work to ensure that any necessary registration or labeling changes are made.

The final BEs are available in the dinotefuran docket (EPA-HQ-OPP-2023-0506) and the acetamiprid docket (EPA-HQ-OPP-2023-0513) on www.regulations.gov.