Bees could be affected by a flurry of legal and policy changes coming out of D.C.

Right now there is a flurry of legislative and policy proposals coming from both the Trump administration and Congress that have the potential to impact the well-being of bees and other pollinators in the United States. It’s both a continuation and, in some cases, a culmination of efforts that have been happening over past two years. Some of the current proposals would be beneficial, many others would not. They are spread across different laws and policies — such as the Endangered Species Act, the latest farm bill and management practices used by the U.S. Fish and Wildlife Service — but common themes exists among many of them. A few have already been approved.

If these proposals and efforts haven’t been on your radar until this very moment, don’t feel too bad. Keeping track of all the various machinations of the federal government, even on a fairly specific topic, is challenging at the best of times. In our current age of 24/7 cable-news hyperbole, twitter storms and a constant barrage of shiny distractions, it’s become nearly impossible. So let’s draw some clear lines between these actions at the federal level and how they stand to affect the well-being of bees. Seriously, let’s draw some actual lines.

line graphic

If you’ve ever navigated your way through a major city by public transport – especially a city in which the language, culture and landscape is completely foreign to you – you know how difficult it can be without a good visual guide. Navigating the connections between what happens in Washington D.C. and our own backyards can feel just as foreign and difficult. Which means a metro map might be the best tool for clarifying both the origins and destinations of the impacts coming down the line.

There are a few things to note about this particular map. Station names represent specific actions or proposals; each has a detailed explanations further below. Green lines on this map represent beneficial actions and red lines represent detrimental actions. Dotted lines represent proposed actions and solid lines represent actions that have already occurred. Also, contrary to a map of real metro routes, the green and red lines on this map cannot coexist; wherever there is a solid red line, the green stops working. And where there are multiple red lines, any one of them could stop the corresponding green line.

This map is also specifically designed to show how all the proposals connect to Healthy Bee Populations. Unlike a real metro system, travel does not flow in two directions; connections only occur from the outer points towards the central star. All of the proposed actions will ultimately affect bee populations by passing through one of three points: Quality Habitat, Reduced Pesticide Use and On-Going Research (the blue lines). These points are based on some very important things we’ve learned over the past decade of (on-going) research: the quantity and quality of available habitat can often be the most important factor affecting bee populations, and exposure to pesticides — both direct and indirect – can have both lethal and sub-lethal effects on bees. (The Bee Better Standards from the Xerces Society and Oregon Tilth has a comprehensive collection and summary of relevant research. Check it out.)

Finally, this map, like any good public transit map, is only intended to make getting from one point to another as easy as possible. The purpose of this map is to help you be more aware of the different federal proposals, understand how they could affect bee populations, and direct you towards additional sources of information to learn more. It is not a complete analysis of each proposal, nor does it show every single action over the past two years that might possibly in some way affect bees. That would take more than a simple map; it would require an atlas.

collateral damage MAP H3

The Endangered Species Act

The Endangered Species Act (ESA) was enacted into law in 1973, and has been amended several times in the subsequent decades. The goal of the act is to help recover animals and plants that on the verge of disappearing forever, and there are two specific sections in the act that help accomplish this. Section 9 prohibits the “take” of endangered animals through any act that kills, harms or injures them, whether intentional or not; this includes altering habitat essential to the animal’s well-being. Section 7 requires all federal agencies to ensure that any action they take, authorize or fund is not likely to jeopardize the well-being of the endangered species.

In 2017, the rusty-patched bumble bee was added to the Endangered Species List. This was a big deal, not just for this single species but for bees and pollinators in general. As applied to the case of the rusty-patched bumble bee, Sections 9 makes it unlawful to disrupt or destroy habitat that the bee needs to survive; Section 7 requires federal agencies to ensure they do nothing to harm the bee, which includes the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the system by which the Environmental Protection Agency regulates pesticides in the United States.

Because habitat disruption and pesticide use are common threats to pollinators in general, the endangered species protections afforded to the rusty-patched bumble bee benefit countless other bee and insect species as well.

In July, the Trump administration proposed a series of revisions to the Endangered Species Act. Two in particular stand out as having the potential to impact bees. The period for public comment on these revisions ends Monday, September 24.

Revisions to the ESA: Economic factors

We propose to remove the phrase, ‘‘without reference to possible economic or other impacts of such determination’’

Docket No. FWS–HQ–ES–2018–0006

This revision would change a foundational element of the Endangered Species Act: that the determination for protection is based solely on scientific evidence and “without reference to possible economic or other impacts of such determination”. If approved, economic factors could be used to prevent the addition of new bees to the endangered species list, like the western bumble bee and the yellow-banded bumble bee; both concluded positive 90-day findings in March, 2016 and each are gradually making their way through the next steps in the process. Economic factors could also be used to down-list or even de-list the rusty-patched bumble bee.

Revisions to the ESA: “Destruction or adverse modification” of critical habitat

We propose to revise the definition of ‘‘destruction or adverse modification’’ by adding the phrase ‘‘as a whole’’ to the first sentence and removing the second sentence of the current definition.

Docket No. FWS–HQ–ES–2018–0009

Current definition: Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features.

As it’s currently written, the definition of “destruction or adverse modification” of critical habitat allows for the possibility that such habitat or other environmental features that are important to the recovery of a species could grow and change over time. By removing the second sentence, the definition could eliminate the possibility of protecting habitat outside the species’ current range or habitat that improves.

Insect populations, including bees, are known to pop up in different locations from year to year, especially as physical and biological features change. To limit critical habitat — and its destruction or modification — to the spots where protected insects are currently found would be out of step with the natural dynamics of these creatures. The rusty-patched bumble bee is now being found in new places, while no longer being found in many parts of its historic range — the very range that was used to originally list and protect the bee.

Memorandum of Agreement Between the Interior Department, EPA and Commerce Department

“… the Working Group will develop a streamlined process for identifying which actions require no consultation, informal consultation, or formal consultation. The Working Group will also help provide clarity as to what constitutes the “best scientific and commercial data available” in the fields of pesticide use and ecological risk assessment..”

Full text of the memorandum

In January 2017, the EPA and the departments of Interior and Commerce released a joint memo describing how they will be working together on “improving the Endangered Species Act consultation process for pesticide registration and registration review”. This memo is focused on speed; the intent is to make the consultation process move faster. In isolation, any effort to streamline a government process seems both reasonable and admirable. But this change needs to be understood in the context of the current political environment: the administration’s rush to deregulate and accommodate large industry, and its general assault on science and facts. A rushed regulation process for pesticides that favors industry certainly doesn’t bode well for bees and other pollinators.

U.S. Fish and Wildlife Service memo on neonicotinoids in refuge system

“… I am withdrawing the 2014 memorandum’s restrictions with regard to neonicotinoid pesticides…”

Full text of memo

In August, the Trump administration ended restrictions on the use of neonicotinoid insecticides in national wildlife refuges. The change was announced in a memo from the U.S. Fish and Wildlife Service (USFWS) that was primarily intended to rescind the ban on the use of genetically modified crops within the refuge system. “In addition, I am withdrawing the 2014 memorandum’s restrictions with regard to neonicotinoid pesticides that are often used in conjunction with GMO seed,” wrote Gregory J. Sheehan, Principal Deputy-Director of USFWS, as one of his final actions before leaving the wildlife service this week.

There is ample scientific evidence about how harmful neonics are to bees. However, the extent to which this new policy could or will affect bee communities in North America isn’t clear yet. It will obviously depend on what sorts of bees live in and around these various refuges. It will also depend on how refuge managers choose to employ the new flexibility and how rigorously they adhere to the wildlife service’s own recommended best practices regarding pesticide use.

2018 FARM BILL

House version

Senate version

Bees have had a place in the farm bill for decades, mostly as producers of a commodity (honey) but eventually as providers of a service (pollination) as well. This shift occurred definitively in the 2008 Farm Bill, when the distinction between honey bees and native bees was recognized, pollinator habitat was made a priority in federal conservation and land management programs, and significant emphasis was placed on research into the health and well-being of pollinators. All thanks, of course, to the scare from colony collapse disorder. These changes have carried forward, for the most part, through subsequent legislation and the Farm Bill of 2014.

Congress has been racing to have a new farm bill on the president’s desk by the end of September, but it now seems unlikely they will make that deadline; ultimately, they have until December 31 to avoid the real trouble that would result from not having a new bill in place. It’s also still not clear which sections from the House and Senate bills will end up in that final version. If certain sections do become law, they will impact bees in terms of their habitat, exposure to pesticides, and the research that keeps us informed about their populations.

Conservation Reserve Program

House: SEC. 2201. (b)(1) (pg. 114); SEC. 2205 (starting on pg. 125)

Senate: SEC. 2101 (1) (pg. 67); SEC. 2101 (3) (pg. 68)

The purpose of the Conservation Reserve Program (CRP) is to conserve and improve soil, water and wildlife habitat by encouraging farmers to remove environmentally sensitive land from production and establish long-term cover for these purposes. The federal government shares the cost and provides rental payments for farmland that’s put into CRP. Pollinator habitat is considered wildlife habitat. Both the House and Senate version extend the program through 2023, and both versions also increase the maximum total farm land that can be enrolled in CRP. The House Bill annually increases the total amount from the current 24 million acres to 29 million by 2023, while the Senate only increases the total to 25 million acres by 2023.

However, the House bill also reduces incentive and cost-sharing payments to farmers, and caps rental rates below market value. This is a clear disincentive to participate. And fewer farmers participating in the program would make increasing the total acreage for enrollment irrelevant.

Environmental Quality Incentives Program

House: Subtitle C, SEC 2302 (a) (pg. 134)

Senate: SEC. 2303 (1) (pg. 118); SEC. 2303 (9)(B) (pg. 123)

The Environmental Quality Incentives Program (EQIP) is a voluntary conservation program for farmers that shares the cost of implementing conservation practices on their working farm land. Creating and maintaining pollinator habitat is a practice of “great significance” in the program. The House and Senate versions both extend payments for participation through 2023. The Senate version also increases the pay rate to help farmers cover the costs of implementing these practices, as well as increasing the percentage of total funds available specifically to wildlife (including pollinator) conservation.

Supplemental and Alternative Crops

Senate: SEC. 7125 (2) (pg. 619)

Another small but interesting change in the Senate farm bill is the addition of “habitat for honey bees and other pollinators” as a specific reason for developing supplemental and alternative crops. Funding for research is extended through 2023.

Registration of Pesticides

House: SEC. 9111 (a)(6) (pg. 559)

When registering a pesticide for use in the United States under FIFRA, Section 7 of the Endangered Species Act requires the EPA to consult with either the Fish and Wildlife Service or the National Fisheries to determine whether or not the pesticide is likely to jeopardize the well-being of listed species. “Jeopardy” is a specific term in this context: “jeopardy occurs when an action is reasonably expected, directly or indirectly, to diminish a species’ numbers, reproduction, or distribution so that the likelihood of survival and recovery in the wild is appreciably reduced”. Determining jeopardy involves an extensive process of gathering data and research.

This section of the House farm bill would allow the EPA administrator to make determinations about jeopardy all on his or her own. In effect, the EPA administrator could approve pesticides without needing to consult either service. As with the interagency memorandum of agreement, the intent of this change seems to be speed. And the danger to bees of rushing the pesticide approval process is also the same.

Pesticide Use: Unlawful Acts

House: SEC. 9114 (pg. 566)

Currently under the Endangered Species Act, take of any sort — intentional or otherwise — is prohibited by Section 9. This section from the House farm bill would loosen the blanket prohibitions by making it legal to kill or harm endangered species through the use of pesticides, if those pesticides are used according to the directions on the label and in an otherwise legal manner. This change would obviously undercut the protection from take that the rusty-patch now enjoys — and provides, by extension, to all other pollinators.

The pesticides of greatest concern to bees at the moment are neonicotinoids. Sections 9111 and 9114 of the House bill would change how neonics are currently regulated. These sections would also change if and how new, potentially just-as-harmful products (like sulfoximine-based insecticides) are brought into use.

It’s worth noting that both of these sections in the House farm bill are identical to sections of a proposed bill that was reportedly circulating in Washington D.C. earlier this year and was reportedly sponsored by CropLife America, a trade organization for the pesticide industry.

High Priority Research: Pollinator Protection

House: SEC. 7208. (4) and (5) (pg. 429)

Senate: SEC. 7208 (1) (pg. 655)

Both the House and Senate versions extend funding for pollinator research through 2023. This is categorized as “high-priority” research and is focused on a wide range of areas including pollinator biology, immunology, ecology, genomics, and bioinformatics, as well as the sub-lethal effects of insecticides, herbicides and fungicides on bees and other pollinators.

Pollinator Health Task Force

Senate: SEC. 7208 (4) (pg. 655)

The Senate bill goes even a step further with research, calling for the reestablishment of the Pollinator Health Task Force to review and update the 2015 National Pollinator Health Strategy; to implement the strategy as updated; to ensure that federal resources are put to the best use improving pollinator habitat and health; and, perhaps most notably, to host a joint summit with EPA on “crop protection tools” that will examine the science relating to the impacts of these tools on pollinators, the techniques used to mitigate these impacts, and any gaps in the research on these tools.

Merkley Amendment

Full text of the amendment

Senator Jeff Merkley (D-OR) has also proposed an amendment to the Senate bill focused on pollinator habitat development and protection. It specifically calls for a reduction in pesticide use through increased use of integrated pest management and education. It also calls for a monarch corridor to be created in any area in the country that the Secretary of Agriculture determines to be “prime habitat and forage” for the butterflies. Such corridors would be a win for bees as well, given the general principle that habitat created for some pollinators is typically beneficial to all.

Legislation

There is a surprising number of bills that have been proposed during the 2017-2018 session that could impact bees in some way, shape or form. Only one of the bills I looked at was targeted specifically at bees and pollinators. The vast majority of the potential impacts would be unintended. Most of the bills were referred to committee and have remained there; it’s unlikely they’ll get any further this session. None of the bills I looked at actually became law, no matter how far along they got in the process. That being said, it’s worth adding a few of these bills to the map as an example of what’s been proposed and what could be proposed again during the next session of Congress.

H.R. 5015 Saving America’s Pollinators Act

Full text of H.R. 5015

The Saving America’s Pollinators Act was introduced to the House in February of this year. Or rather, reintroduced; SAPA has previously been proposed in July 2013, March 2015 and June 2017. First and foremost, the bill would require the EPA to suspend the registration of several approved neonicotinoids until such time as the agency has determined that the insecticides don’t cause “unreasonable adverse effects” to bees and other pollinators. The bill would also prevent the EPA from issuing new registrations for neonics to be used in similar fashion. And, finally, it would require the Interior Department to regularly monitor the health and population status of native bees and report to both Congress and the public on it’s findings.

The bill has been in committee since February.

H.R.6345 EMPOWERS Act of 2018

Full text of H.R. 6345

This bill would change the Endangered Species Act’s process for listing, delisting, or reclassifying a species. Anyone wishing to submit a petition to protect a particular species would first need to notify each county and state in which the species is located. Then each of those county or state governments would have the power to say whether or not they thought the petition was warranted. As a result, a single local government could reject national protection for a species. If passed, it’s not entirely clear how this might affect a petition in process, like those for the western or yellow-banded bumble bees. It would certainly make petitioning to protect other pollinators incredibly complex.

This bill was introduced in July and remains in committee.

H.R.6355 – PETITION Act of 2018

Full text of H.R. 6355

This bill would make two significant changes to the Endangered Species Act. First, it would allow the Secretaries of the Interior and Commerce to declare a “backlog” of petitions waiting to move through the review process and eliminate any deadlines for dealing with those petitions. In effect, the change would allow the secretaries to simply ignore petitions that had not been addressed. Second, and perhaps more importantly, the bill would exempt any decision by the secretaries and the petitions themselves from judicial review. Listing the rusty-patched bumble bee dragged out over several years; it took a lawsuit to get things moving.

This bill was introduced in July and remains in committee.

Both the EMPOWERS Act and the PETITION Act were part of an expansive effort by House Republicans to change the Endangered Species Act in significant ways through legislation. The Center for Biological Diversity has been maintaining a comprehensive list of the various bills that’s worth looking at.