EPA directive leaves future of ag chemicals at stake

Brent Rendel wasn't expecting a beetle to nearly derail his 2022 soybean production plan. The Miami, Oklahoma, farmer had already placed his seed order and was waiting for planting season when he learned a new Environmental Protection Agency (EPA) directive would threaten his soybean weed management strategy.

The Ruling

In January 2022, the EPA announced plans to revamp the agricultural chemical registration process to comply with the Endangered Species Act (ESA) of 1973. While the agency has always considered environmental impacts of agricultural chemicals, impacts to federally threatened or endangered (listed) species have not been routinely examined.

"We began to get some lawsuits from environmental organizations in the early 2000s," says Rod Snyder, the EPA's senior agriculture adviser. "Pretty consistently, the agency has lost those cases or needed to settle them outside of court."

Updates to the registration process are the Biden administration's attempt to fix decades-long issues within the agency. "We want to make sure we are following the law and doing what we can to ensure protections for listed species," Snyder says. "At the same time, we want to make sure we're preserving critical tools and products farmers need to produce food."

Under the new process, the EPA evaluates every new active ingredient in conventional pesticides for their effects on the environment and more than 1,300 endangered or threatened species. When a more comprehensive consultation is needed, the EPA works with the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service.

This more detailed, back-and-forth evaluation considers effects to each species population as a whole. "If there's harm to a species, we basically get a permit to allow for that harm, because you can't avoid all impacts from pesticide use," says Jake Li, EPA deputy assistant administrator for pesticide programs.

Growing Pains

The updates haven't been free of growing pains. Soon after the January 2022 announcement, Corteva's Enlist system was the first to receive a new registration. Farmers such as Rendel were blindsided by the loss of registration in their counties.

The messaging from the industry was that the label changes would affect a small number of soybean growers. While true, 128 counties saw limitations because of the American burying beetle, a threatened species living in parts of Oklahoma, Nebraska, and Kansas.

"Those counties were significantly impacted by broad sweeping measures," says Kyle Kunkler, director of government affairs with the American Soybean Association. "I think the EPA quickly realized they're going to need to take a more finessed approach to ESA implementation moving forward. Ultimately, ESA protections are going to have to be workable for agriculture."

While experts agree the beetle does not live in farm fields, tight deadlines made things difficult for Corteva.

"The Enlist herbicide registration amendment process was a very complex and fluid process with many factors and uncertainties at play, particularly because the EPA had not yet issued its Endangered Species Act work plan at that time. The previous Enlist One and Enlist Duo herbicide registrations were set to expire on January 12, 2022," said a Corteva spokesperson in a statement. "Although Corteva Agriscience worked as quickly as possible to generate data to support EPA's ESA evaluation, it became clear it was not feasible to complete all the steps needed to address all species and habitats identified by EPA's ESA risk assessments before the January 11 amendment, and continued work would need to be done to support the removal of certain restrictions."

In the weeks that followed, Corteva submitted additional data to the EPA. By mid-March, a registration amendment restored use for 134 counties, namely in northeast Oklahoma.

While Rendel was ultimately able to use Enlist, the lack of communication regarding this situation and the potential impact a ban would have had has left him wary of the future.

"The main thing was that seed was marketed and sold to us without our knowledge that this was going to happen," Rendel says. "The company we were doing business with had a piece of information that could negatively impact us, and they did not share that information with us."

As the new process becomes more clear, companies are working to better prepare farmers for potential issues.

"With Enlist herbicides being the first products to undergo a new, evolving ESA assessment process, Corteva diligently provided EPA with information to lessen impacts to farmers as broadly as possible," said a Corteva spokesperson in a statement. "While these efforts preserved the availability of an important tool for growers in most counties, we continue advocating for improvements to communication, transparency, and planning in the registration process."

Vulnerabilities

The Enlist system was just the beginning. Every chemical on the market will undergo reregistration under the new constraints, making the future of product availability murky.

"BASF and our customers are already feeling the impacts of product registration challenges due to the current implementation of the Endangered Species Act (ESA)," said a BASF spokesperson in a statement. "BASF is committed to working with the EPA and other agriculture industry stakeholders to find durable solutions that protect threatened and endangered species, while also providing growers with the critical technologies they need to produce goods for a growing global society."

Popular chemicals such as glyphosate and atrazine could be the most vulnerable to restrictions.

"Critically important herbicides are the backbone for most weed management programs across the country, so their potential to interact with an endangered species is significant," says Stanley Culpepper, an extension weed scientist at the University of Georgia. "As scientists, we must work aggressively to better understand how to preserve these tools."

The process of keeping chemicals on the market is a massive undertaking that requires industry-wide collaboration.

In Georgia, where 11 counties lost the Enlist Duo registration to protect two endangered salamanders, Culpepper has already embarked on a mission to understand the science behind potential chemical impacts.

"Even though [the ESA] is almost 50 years old, we need more data to make true science-based decisions to register or reregister or use these tools," Culpepper says. "This has really brought to light a challenge and a missing gap of data that we're now aggressively pursuing. We want to protect these species, but we also have to protect farmers and make sure they have tools in their toolbox. I believe when we generate the science, we're going to accomplish both, but it's not a simple task. It's a monumental task."

Every corner of the industry, from chemical companies to government agencies to farmers will need to work together to gather the data needed to make these complex decisions based on science. For experts such as Culpepper, uncertainties lie with the ability to gather data fast enough.

"We want to get in front of the decision-making before they make decisions on future products. We don't want to lose the tools and then have to try to bring them back," Culpepper says.

The new process, paired with the amount of data the EPA needs to comb through for each registration, has led to significant delays. Companies and customers can expect a six- to 12-month delay in new product registrations.

Keeping Consistent

A key concern within the EPA is maintaining consistency throughout the process while continuing to serve farmers' best interests, say EPA officials. While still in the early stages, efforts have already been made.

"In recent decisions like the one for Enlist we have been consistently requiring spray drift and runoff mitigation in some of these recent decisions," Li says.

Practical mitigation measures such as buffers, vegetative filter strips, and cover crops aim to protect endangered species while still allowing farmers to utilize important chemicals.

Proposed mitigations also go through a risk-benefit analysis and are open to public comment before being finalized.

"We're constantly talking to the user community about what's practical," Li says. "When it comes to regulating pesticides under FIFRA [Federal Insecticide, Fungicide, and Rodenticide Act], we don't propose mitigations that are separate from the benefits of that pesticide. If a pesticide has higher benefits and lower risk, then it's going to get more lenient mitigation measures than a pesticide with limited benefits and very high risk."

In November 2022, the EPA released an update to the ESA work plan, detailing how the agency plans to implement risk mitigation measures under both FIFRA and ESA.

"Corteva supports the development and implementation of mitigations that aim at avoiding coarse tools like whole-county limitations for use of specific products and continues to be actively engaged in the development of this process. Corteva is committed to supporting growers," said a Corteva spokesperson in a statement.

While the future of many ag chemicals hangs in the balance, having a plan B will be necessary.

"At the end of the day, the regulations are going to be made, and we as a community need to be ready to respond as best we can," Rendel says. "You always have to have a backup plan."

Staying Power

While enforcing the ESA was a Biden administration directive, the EPA is determined to make the new processes durable for years to come.

"The courts are clear this isn't going away," Li says. "We're trying to embed the approaches in our work plan and in the day-to-day work of EPA career staff. Most importantly, we need to get stakeholder support so in a new administration people don't want to wipe away the work we did."

Despite the hurdles ahead, groups such as the American Soybean Association are getting on board, understanding it may be the best way to protect vital agriculture chemicals.

"We want the EPA to be compliant with the law because it provides predictability to farmers," Kunkler says. "It is not helpful to have a tool with legal risks. At the end of the day, a court could find the registration noncompliant and strike it down. We increasingly believe the agency doesn't have a choice but to make those decisions compliant with the ESA."

Even with the panic he faced last January, Rendel sees value in being part of the conversation around registrations.

"What we need doesn't play into this equation and I don't think farmers understand that," Rendel says. "While we need to be supportive and encourage regulations to work for all sides, we also need to be part of the conversation. We have to listen sometimes, and the agricultural community is not really good at listening."