Questions Abound on Herbicide Strategy

PEORIA, Ill. (DTN) -- Farmers aren't the only ones who have questions about the Environmental Protection Agency's (EPA) Draft Herbicide Strategy and how it might transform the application of conventional agricultural pesticides in the future.

During the Illinois Fertilizer and Chemical Association (IFCA) Annual convention this week, a panel of speakers representing pesticide registrants, university researchers and state departments of agriculture spoke to an audience of custom applicators, seed dealers, agronomists and others. They discussed the potential repercussions of the EPA's proposed plan and the many unanswered questions about it.

"One of the things that is causing the most angst in the ag community is the uncertainties created by this policy," said Frank Wong, U.S. industry affairs lead at Bayer. "I kind of feel like EPA is flying by the seat of their pants right now. They're still trying to figure out how to build a policy that actually works."

The draft strategy, which was released last summer, represents the agency's attempt to become legally compliant with the Endangered Species Act (ESA) while still ensuring predictable herbicide access for growers. The strategy proposes a menu of mitigation measures intended to reduce off-target movement of agricultural herbicides and protect endangered and threatened species and their habitat from exposure. But many questions surround how the final proposal will be implemented and enforced.

"The way that EPA is rolling out this new strategy is such a wholesale fundamental change in how pesticides are regulated in this country," said Josie Montoney-Crawford, associate director of public policy for the National Association of State Departments of Agriculture. "This was not a discussion (EPA) had with state lead agencies before things rolled out. The hard part is we're asking a lot of questions and not getting a lot of answers right now."

Here are five unanswered questions about the Draft Herbicide Strategy that the panelists addressed during the IFCA annual convention:

1. What does Herbicide Strategy compliance look like?

"If I'm utilizing multiple chemistries on my farm, how complex is it going to be for me to remain compliant with the label?" asked Montoney-Crawford. "Probably increasingly complicated. We have a lot of questions on whether or not you're actually going to be able to do that."

2. Who's responsible for the mitigation measures?

Aaron Hager, associate professor of weed science at the University of Illinois, said that many of the mitigations outlined, such as establishing grass waterways, filter strips or contour farming, will require physical manipulation of farmland.

"The last FarmDoc survey I could find indicates that about 77% of Illinois farm ground is not farmed by the owner, so it raises all sorts of questions," he said. He posed a hypothetical situation where a landowner would have to take 15 acres out of production so that a waterway could be installed in a field for mitigation. "I'm guessing there are going to be some landowners who say no, you can't do that because that's going to be X number of acres less revenue."

3. Who will be liable?

KJ Johnson, IFCA president noted that in the past, whoever was in the cab of the sprayer was the liable party for any negative effects of an herbicide application.

"We're seeing this kind of shift in where liability is going to fall," Montoney-Crawford said. "Does it lie on the person who's actually making those applications on the farm, but doesn't have control over the land? Does it need to fall instead on the landowner, who may or may not be meeting those mitigations? And then particularly even more relevant is going to be what kind of documentation do you need?"

4. How will enforcement occur?

Montoney-Crawford explained that as co-regulators with EPA, the state departments of agriculture have been responsible for the enforcement of herbicide label requirements. Ensuring compliance and enforcing the Herbicide Strategy would greatly expand the states' roles, requiring more staff, funding and other resources.

"We recognize that at the end of the day, if it can't be reasonably implemented on an operation, it probably can't be reasonably enforced either," Montoney-Crawford said. "It has to be workable for those applicators."

5. When might the herbicide strategy go into effect?

It's been nearly six months since the Draft Herbicide Strategy was released. A Final Herbicide Strategy is expected by May 30. That's the date EPA agreed to when it settled the longstanding "megasuit" that covered more than 1,000 pesticide products and 35 active ingredients.

While EPA is expected to produce a final proposal by the May 30 deadline, implementation time frames are unknown. Wong described it as "TBD."

"This is all proactive, based on the fact that if EPA does nothing, they're going to potentially lose (herbicide) registrations or vacate them," he said. "It's maybe more than they need to do to get where they need to go for species protection, but that's the boat we're in right now."

Reuben Baris, regulatory policy leader with Corteva, echoed Wong's assessment.

"The reality is the way ESA is written, a federal agency must ensure that any action it takes does not result in the jeopardy or continued existence of any species listed as threatened or endangered or the habitat which it depends on," he said. "So, with every decision EPA makes, they're vulnerable until they find a path forward. Every day that goes by is another day of vulnerability.

"If EPA gets sued and loses, we all lose because those tools are taken out of your toolbox and you're left with less tools," Baris continued. "We have to navigate that place where EPA is able to meet its obligations, but it cannot be at the burden of agriculture. Those are unworkable solutions."

The Draft Herbicide Strategy can be found here: https://www.regulations.gov/…

Jason Jenkins can be reached at jason.jenkins@dtn.com

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