Endangered herbicides?

Whether you are a private applicator and apply your own herbicides or utilize custom applicators, complex changes to labels and recordkeeping will alter how, when, and where herbicides can be applied. 

Last July, the Environmental Protection Agency (EPA) released its draft herbicide strategy, which proposed mitigations for more than 900 species and critical habitats. The mitigations are designed to reduce the potential impact of herbicides to comply with the Endangered Species Act (ESA). EPA received over 20,000 comments on the proposed herbicide strategy. 

Stanley Culpepper is a weed science specialist at the University of Georgia who has been actively involved with the EPA regarding the science behind the proposed mitigation measures.

“As proposed, requirements outlined in the EPA’s herbicide strategy document would be catastrophic for family farms and wildlife,” he says. “Eliminating the practical use of herbicides required by farms to feed and clothe humankind is not the solution. But the key word here is ‘proposed’. I’m optimistic that regulators, stakeholders, and scientists can work together to make better decisions based on sound science, which will in turn protect both agriculture and wildlife.”

Yet, this topic seems to be flying under the radar of many farmers.

Richard Fordyce raises corn, soybeans, and cattle in Missouri, has served as the director of the Missouri Department of Agriculture, and was administrator of USDA’s Farm Service Agency in the Trump administration. “I’ve had probably 50 conversations with 50 different farmers with what they are thinking about heading into 2024,” he says, “and the EPA herbicide strategy is not on their radar. There’s nobody talking about it.” 

Why Now?

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and ESA are the two regulatory frameworks driving pesticide registration. Administered by the EPA, FIFRA regulates pesticide products through registration and how products are used at the field level. The Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) administer the ESA to conserve and recover threatened and endangered species and their habitats.

Pesticide registration and reregistration decisions have largely ignored the ESA for five decades. What has changed?

Litigation is a big factor. “The courts are out of patience with us; there’s just no way we cannot comply with ESA anymore,” says Jake Li, the EPA deputy assistant administrator for pesticide programs.

The challenge, Culpepper says, is figuring out how to comply with FIFRA and ESA guidelines. “If we don’t do that,” he says, “our products are going to be vacated by the court system, and that’s the last thing we want.” This has already happened, Li points out. 

Streptomycin sulfate is an antibiotic to treat serious illnesses. It has also been used as a pesticide to combat citrus greening and citrus canker, diseases that have had devastating impacts on citrus production in Florida. In a lawsuit filed in 2021, farmworker and public-interest groups argued the EPA failed to ensure that using streptomycin on citrus trees would not unreasonably harm human health or the environment. In December 2023, the United States Court of Appeals for the Ninth Circuit vacated the EPA's amended registration of streptomycin for use as a pesticide against citrus diseases, saying it did not satisfy FIFRA and ESA requirements.

“There will be more situations of pesticides being pulled off the shelf if we continue as we have,” Li says. “That’s one reason people are very, very motivated to solve this. 

“And second, for the first time ever, we have environmental groups and agriculture and other pesticide users working together. We are really serious about complying with the law and fixing this issue once and for all.”

Complying with ESA

EPA’s proposed approach to meeting ESA obligations is through various mitigation strategies. Instead of requiring a certain number of mitigation measures, the EPA herbicide strategy directs herbicide users to achieve a minimum number of efficacy points. The number of points required will vary based on the herbicide and the field location. As many as nine points may be required of some products if the use occurs within a pesticide use limitation area (PULA). 

Spray drift mitigations would largely rely on spray drift buffers. Runoff and erosion measures include field management categories, field characteristics, application parameters, and areas adjacent to the field or habitat. The more effective a mitigation measure is considered to prevent off-target movement, the higher the point value. 

“We’re going to create a menu and there will be several options,” Li says. “Growers can pick whatever options work to get the minimum number of points that are needed for that particular crop and herbicide.” 

As proposed, farmers could potentially be exempt from runoff or erosion measures if fields are farther than 1,000 feet from potential habitats of listed species; the field has subsurface drainage; or a conservation program gives the field a site-specific runoff or erosion management plan. 

Li adds that the EPA also is trying to work with USDA NRCS (National Resources Conservation Service) and their stewardship programs designed to address runoff and soil erosion. “It so happens that those programs also help with pesticide movement,” he points out. “We are trying to give credit to those measures that people are already doing as part of the menu and the points.”

Culpepper’s hopes that all parties can effectively work together to expand proposed options for agriculture while also offering greater credit for science-supported mitigation measures. “It is also important to keep in mind,” he reminds, “that many of the mitigation measures have an expense associated.” 

Fordyce echoed similar concerns: “If you’re going to need to incorporate some of these physical things to be in compliance and utilize the herbicides we need to control weeds, this does nothing but add to the demand for an already underfunded cost share and technical assistance program.” 

Impact Already Being Felt

Product labels for Enlist One, Enlist Duo, and XtendiMax with VaporGrip Technology provide a preview of what to expect. The updated Enlist labels include new application timing requirements designed to reduce runoff, leaching, spray drift, and other off target impacts on threatened and endangered species and their critical habitats.

“Endangered species was a consideration in the last registration decision for Enlist,” notes Dave Scott, program administrator for the Office of the Indiana State Chemist. “So in a nutshell, we would expect the restrictions on the Enlist label to be on virtually all herbicide labels.”

Dicamba is a good example of how mitigation measures may work in relation to an endangered species. It involves using the EPA’s Bulletins Live! Two online tool that displays pesticide use limitation areas (PULAs) for products with active endangered species protection bulletins. (Access it at epa.gov/endangered-species/bulletins-live-two-view-bulletins.) For example, applying dicamba products over the top requires a 310-foot in-field wind-directional spray drift buffer, as well as a 57-foot omnidirectional in-field buffer for shaded areas of the map that may have affected endangered species.

“It’s going to depend on where you are in relation to an endangered species or protected habitat,” Scott explains. “You need to go to Bulletins Live! Two, zoom in, click on your area, and see where the habitat is. If you’re in one of those shaded areas, that would mean you have to print out a bulletin that highlights additional restrictions for that area.”  

The best-case scenario is fields that lack any shaded areas for the products being used. But, Fordyce notes, habitat area maps for endangered species can be adjusted from year to year. “As a farmer who applies my own chemistry,” he says, “not only do I need to look at the weather, temperature, etc., I’ll also have to check these bulletins. How do I stay current? I could be in compliance one year and I may not be in compliance the next.” 

How Will Label Requirements Be Enforced?

Enforcement will be a challenge, everyone agrees. “There are some things that as they are proposed, we as states don’t understand yet,” Scott says. “We will need to get up to speed on what some of those label restrictions mean and how we would verify compliance or non-compliance with those restrictions. 

“The truth of the matter,” he adds, “is states in general are not there while the application is being made. We don’t know if the applicator’s not leaving a buffer, or the soil is not saturated, or the right number of conservation practices have been in place on the field. 

“You have to make sure folks understand it before you go into enforcement mode. There’s a lot of education to do.”

Culpepper says he hopes most in Extension are already communicating with the farmer. “The best way to be successful is to make sure the products stay on target,” he says. “We will continue to train through the process.”

Timeline

The deadline for the final version of the herbicide strategy has been extended until the end of August 2024. 

Li explains that the herbicide strategy is just a framework to identify protections, which will appear on a label as part of product registration or reregistration. “That process is on its own time frame that’s independent of the herbicide strategy,” Li says. “That's typically a 15-year reevaluation schedule. People will start seeing elements of the herbicide strategy in proposed reevaluation decisions in the future, but it will be on the schedule of the actual pesticide decision process.”

American Soybean Association Farmer Survey

In December 2023, the American Soybean Association (ASA) conducted a survey of its farmer board members and a sample of soybean growers from affiliate state soybean organizations to estimate the ability of producers to comply with the potential regulations within the EPA’s draft Herbicide Strategy. The results were summarized by ASA Chief Economist Dr. Scott Gerlt and Director of Government Affairs Kyle Kunkler. 

The survey covered much of the soybean-growing region and asked for respondent location, crops grown, herbicides used, and current mitigation practices among other information. Given the non-random selection of participants and small sample size (75), survey results should not be treated as statistically significant, definitive evidence. However, given the geographic dispersion of producers (24 states), range of farm size (320 to 9,000 acres) and number of commodities grown (15), coupled with a lack of alternative attempts to quantify the Herbicide Strategy compliance ability of growers, ASA feels results from these 75 farmers provide the best snapshot to date of potential impacts.

The picture painted by the ASA grower survey indicates the Herbicide Strategy’s requirements for pesticide application most likely would vastly and negatively alter agricultural production. Approximately 99% of the producers who responded to ASA’s survey would have compliance obligations under the Herbicide Strategy. 

If adopted in the draft form, ASA data indicates approximately 80% of surveyed producers would be noncompliant with the proposal and would face moderate to extreme costs to become compliant. Given herbicide resistance issues and a lack of comparable options reported by survey respondents, farmers would be forced to adopt pricy mitigations, accept lower yields due to weed pressure, or need to stop growing crops requiring herbicides with high efficacy point requirements. 

Herbicide-resistant weeds are becoming a big challenge for growers, with 41% of ASA survey respondents rating it as a major issue. Only 11% do not have at least moderate problems with herbicide resistance. Largely because of herbicide resistance, growers have limited flexibility to change their herbicide mix. Nearly all respondents (93%) stated they could not easily remove these products from their lineup. In other words, swapping or removing herbicides to lower the efficacy point requirements under the Herbicide Strategy is difficult.

The EPA announced in February the deadline to finalize the Herbicide Strategy has been extended three months to Aug. 30, 2024. EPA requested the extension “so the Agency will have more time to consider public comments on the draft Herbicide Strategy and the input the Agency continues to receive about implementing ESA mitigation measures, particularly on ensuring that measures are practical and effective.” 

A more in-depth discussion of the ASA survey results can be found in the Economists Angle. 

“It’s going to impact every single grower,” Culpepper says flatly. “We just don’t know the magnitude of the impacts until we see how EPA respects and responds to our comments and the data we’re providing.” 

“We need farmers to be engaged. We need farmers to know what’s going on. We need farmer support.”

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