NCC Submits Comments on ESA Reform

The Senate Environment and Public Works Committee held a hearing to discuss reforming the Endangered Species Act (ESA), and the NCC submitted comments for the record on the issues of registration delays, lack of water in the western states due to ESA restrictions, and the unscientific process used to list the Rusty Patched Bumble Bee.

Published: February 17, 2017


Presented to the Senate Committee on Environment and Public Works
on Oversight:  Modernization of the Endangered Species Act
by the National Cotton Council

February 15, 2017


On behalf of the National Cotton Council we offer these comments into the hearing record.  We would like to thank Chairman Barrasso, Ranking Member Carper, and Members of the Committee for the opportunity to offer the views of the National Cotton Council regarding the Endangered Species Act.

The National Cotton Council (NCC) is the central organization of the United States cotton industry. Its members include farmers, ginners, cottonseed processors and merchandisers, merchants, cooperatives, warehousers and textile manufacturers. Cotton is a cornerstone of the rural economy in the 17 cotton-producing states stretching from Virginia to California. The scope and economic impact extends well beyond the approximately 19 thousand farmers that plant between 9 and 12 million acres of cotton each year. Taking into account diversified cropping patterns, cotton farmers cultivate more than 30 million acres of land each year. Processors and distributors of cotton fiber and downstream manufacturers of cotton apparel and home furnishings are located in virtually every state. Nationally, farms and businesses directly involved in the production, distribution and processing of cotton employ more than 125,000 workers and produce direct business revenue of more than $21 billion. Accounting for the ripple effect of cotton through the broader economy, direct and indirect employment surpasses 375,000 workers with economic activity well in excess of $75 billion.


The NCC’s reason for commenting is to discuss the federal government’s failure to implement the   Endangered Species Act (ESA) in a holistic and common-sense way, and to integrate the requirements of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act.  These two pieces of legislation have been in existence since the 1970s and still all attempts to integrate the two have failed to make a compatible union.  Among those who suffer for it are the farmers and ranchers of the U.S.

Under FIFRA, the United States Environmental Protection Agency (EPA) is directed to register a product if EPA determines that it “will not generally cause unreasonable adverse effects on the environment,” while taking into account the “economic, social and environmental costs and benefits” of each product.  In this process EPA must comply with Section 7 of the ESA which requires consultation with and assistance from the U. S. Fish and Wildlife Service (FWS) and/or the National Marine Fisheries Service (NMFS) (combined as “the Services”), depending upon the species.  Section 7 allows for the creation of counterpart regulations to provide for interagency operability which were completed a decade ago but never fully implemented where Section 7 consultations are concerned.

Section 7 consultations can vary in formality based on the perceived threat to a listed species or its habitat, however the Services tend towards a slow and precautionary procedure that does not allow for the speed that EPA is required to use in order to review thousands of registrations per year. Of the formal consultations that have occurred, most have not been completed by the Services.  It should be noted that EPA does not ignore its responsibilities under Section 7 as endangered species and habitat impacts are part of the comprehensive ecological risk assessments that EPA undertakes as part of the evaluation for registration of active ingredients and as part of the review of all existing registrations every 15 years.  EPA’s capabilities in these matters far exceeds those of the Services.

Since 2000, a series of lawsuits brought by environmental groups have added to the complexity of the consultation process and slowed the process down to the point of a possible shutdown of pesticide registration approvals.  In addition, these lawsuits often end up with interim measures imposed on pesticides that reach far beyond the safety restrictions already imposed by EPA.  The aforementioned counterpart regulations were largely annulled through the use of a lawsuit.  The Services then resisted the use of the surviving sections of the regulations.  After a National Academy of Sciences panel endorsed the EPA strategies for consultation in 2013, the EPA and the Services instead agreed to processes used by the Services.

EPA then began to use the interim approaches to reevaluate registration actions on several organophosphates (OPs) and carbamates pesticides. The draft document for the OPs totaled over 12,000 pages and thousands of spreadsheets for each OP but did nothing to improve the FIFRA/ESA process for those stakeholders interested in a working program.  While pilot programs are underway for this process on these active ingredients, they are subject to further lawsuits and settlement agreements, further hampering the potential implementation of a workable process. Further regulatory uncertainty has been caused by lawsuits challenging the newest and most advanced products and herbicide tolerant crop uses.

California Drought and ESA

As stated previously, the implementation of ESA has moved in recent years towards an approach that is now driven by litigation and sometimes inappropriate interpretation by federal agencies.  Nowhere perhaps is this felt more intimately and personally that in the rural communities of California.  These communities continue to face the consequences of closed door listing settlements between the FWS and environmental groups.

Western water users face continued challenges on the ground. The destructive tactics of the environmental litigation industry, which drives and legitimizes the biased implementation of federal environmental laws by agencies, have eroded once-certain water deliveries to Western producers.  For example, the current implementation of the ESA in California’s Central Valley has redirected once-reliable water supplies for farmers and ranchers to the apparent needs of fish protected by the ESA. The loss of that water and resulting loss of productive farm land is already chipping away at rural communities throughout the Valley - schools are closing, vendors are going broke, and families and friends are fighting as the law creates “haves” and “have nots”. Those communities could be permanently crippled if the current ESA-driven management style in the California Bay-Delta does not change in a way that injects common-sense discretion and balance into the decision-making process.

Water use is a critical issue throughout the Western states, especially in areas served by federal water projects like California’s Central Valley and the Klamath Irrigation Project. Federal involvement has grown exponentially over the past several decades through legislative enactments such as the ESA and the Clean Water Act. The increased control exerted by federal agencies through a variety of means has increasingly led to gridlock in the management of water supplies in the West. It is crippling Western rural communities supported by agriculture and once-reliable irrigation supplies.

While there have been tremendous adverse impacts to farmers and ranchers for years from this top-down approach to ESA implementation, the most recent impacts have been exacerbated by the drought in California.  Within three years in the cotton industry alone, 30 cotton gins, three cotton warehouses, three custom cotton hauling companies and two cotton merchants have shuttered with the loss of over 1,000 jobs. Because the west side of Fresno County relies almost solely on federal water from the Delta, 20 of the 30 cotton gins lost were in that county.  In addition, over 400,000 acres of cotton were lost.  All of this cost came with zero impact on species recovery.

In 2014, vast areas of farm land in the San Joaquin and Sacramento Valleys received no surface water at all – a 100 % reduction. Those same areas were again zeroed out in 2015. Overall, agricultural water supplies have been cut by 70% in the Central Valley.

Currently, 44% of California’s 9.6 million acres of irrigated farmland are receiving zero surface water allocations from state, federal and local irrigation projects, according to the California Farm Water Coalition Agricultural Water Supplies Survey. Almost 75% of the state’s irrigated farm land, nearly seven million acres, receives less than its normal surface water supply. According to the California Department of Water Resources (DWR), 692,000 acres of farmland were fallowed in 2014 because of water shortages.

Rusty Patched Bumble Bee

The problems inherent in ESA came to the forefront most recently in the listing of the Rusty Patched Bumble Bee (RPBB) as endangered.  When the comment period ended in November 2016, the docket contained comments from concerned agricultural stakeholders including the cotton industry.  Nevertheless, it only took weeks for the FWS to list the bumble bee, apparently without taking agriculture’s comments into account.  This lack of addressing stakeholder comments, coupled with the proposal documents concentrating on pesticides, greatly concerned everyone in agriculture.  Now there are two more bee species petitioned to be listed.  These bees will cover the western states whereas the RPBB concentrates in the northeast, and southern and western regions of the U.S.

Of further concern is the role that the Xerces Society played in this issue.   The Xerces Society is an active and robust environmental advocacy organization that also holds USDA-NRCS staff positions, and receives substantial federal grants.

According to their website, “Xerces and the NRCS also share several joint pollinator specialist staff positions. These personnel are based at the USDA-NRCS National Technology Support Centers in Portland, OR and Greensboro, NC, and the Columbus, NJ NRCS field office.” In addition, Xerces has been the recipient of more than $2.85 million dollars in Federal grants since 2009.  Approximately two-thirds of the funding has come through USDA-NRCS Conservation Innovation Grants, where they have a staff position. The balance of the funding is from the Department of the Interior, specifically FWS programs, with the bulk of these funds awarded in FY14 through FY16.

Xerces received nearly $1 million in funding from the Department of Interior to develop policy and train FWS staff before and following their petitioning of the FWS to list the Rusty Patched Bumblebee as an endangered species. Xerces’ role in petitioning an agency (FWS) for which they are also assisting in policy development and conducting staff training suggests a high likelihood of undisclosed conflicts of interest and influence.

Xerces also played a significant role in the development and implementation of the White House’s National Strategy to Promote the Health of Honey Bees and Other Pollinators. They are the most referenced non-government organization in in the Pollinator Research Action Plan (nine times). However, their prevalence in the 2014 publication by the White House’s Center for Environmental Quality (CEQ), “Supporting the Health of Honey Bees and Other Pollinators” is far more alarming. Xerces is referenced more than three times that of NRCS – it’s agency of employment – and nearly on par with the USDA in its entirety (26 mentions compared to 29 respectively). The contents of the 2014 CEQ document largely reflect the grassroots and petition messages of Xerces.

The advocacy efforts of Xerces combined with their official capacity within USDA-NRCS and training FWS staff strongly suggest a blurring of lines, and potentially, unethical merging of Federal agency work and environmental activism.  Coupled with FWS’ rush to list the RPBB despite a weak scientific justification highlights one of the many problems facing implementation of ESA.


The NCC supports the committee’s review of the ESA and recognizes the need for reform.  The current system threatens to overload the pesticide registration process which will in turn create adverse impacts in the production of food, fiber and fuel in the U.S.  The NCC and the broader agricultural community have specifics that can be provided as Congress moves toward legislation to reform ESA.  In addition, we have attached a document with suggested solutions to aid in reforming the ESA.  The document was created by the Pesticide Policy Coalition and has been presented to the new Administration.  We thank you for the opportunity to comment on this important issue.