EPA Proposes New Approach for Pesticides

COLUMBIA, Mo. (DTN) -- Typically, when farmers, crop advisers and pesticide applicators see Kevin Bradley's name on a program, it's a safe bet the topic will be herbicides and herbicide-resistant weeds. After all, the weed scientist has spent a large portion of his nearly 20-year career at the University of Missouri seeking out and combating weeds that thwart chemical control.

However, Bradley had something entirely different that he wanted to address when he took the stage at the recent MU Crop Management Conference in Columbia, Missouri.

"Does anybody know what label this is from?" he asked the audience, displaying a portion of the Enlist Duo herbicide label on the screen. "This is a pick list of mitigation measures that we are going to see more in the future, almost certainly with a lot of different herbicide labels.

"If some of you don't have a clue what I'm talking about, and you sprayed Enlist products last year, that's not so good," Bradley continued. "I believe that you all need to be prepared for what's coming with regard to registration of new products and requirements of those new products. The whole process is going to be unlike anything we've ever seen."

The coming changes to which the weed scientist eluded are the focus of a comprehensive workplan for which EPA is seeking public comment until Jan. 30, 2023. A copy of the entire document can be downloaded here: https://www.epa.gov/….

Developed to address what the agency describes as a decades-old challenge of protecting endangered species from pesticides, the workplan diverges from the current system of establishing mitigations on a chemical-by-chemical or species-by-species basis. Such was the case for Enlist and Enlist Duo herbicides when they were granted new registrations in January 2022.

Instead, the agency has proposed a menu of mitigation measures that can be used across a range of pesticides. These measures are intended to reduce spray drift, surface water runoff and pesticide transport through erosion. In addition, EPA has proposed new label language on pesticide incident reporting, advisory language to protect insect pollinators and language directing users to an online system where geographically specific use limitations can be found.

For farmers, the proposal is somewhat of a double-edged sword. While new restrictions and other requirements may be placed on the pesticides on which they rely, EPA contends that it is likely such actions will increase the legal certainty of continued access to those products.

LOSING GROUND TO LITIGATION

When EPA registers pesticides under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), a review takes place to ensure that each active ingredient causes no unreasonable adverse effects. However, the agency also has an obligation to meet duties under the Endangered Species Act (ESA). By its own admission, EPA has not adequately met these ESA obligations.

"More and more, our courts are ruling that many FIFRA actions must comply with the Endangered Species Act," said Jake Li, deputy assistant administrator for pesticide programs within EPA's Office of Chemical Safety and Pollution Prevention, during a webinar the agency held in November. "EPA's inability to fully comply over the years has created a growing number of lawsuits against the agency. So, unless we can make a lot of progress on ESA compliance, we're likely to face more litigation. One of the best things we think we can do to make progress is to include early mitigation under FIFRA for a variety of species, including endangered ones."

Under the current process, including the ESA component, Li explained that registration review takes anywhere from four to 12 years for each pesticide. According to the agency, more than 50 pesticide ingredients -- covering more than 1,000 products -- currently have court-enforceable deadlines to comply with the ESA or are in pending litigation alleging ESA violations.

Li said that with the agency's current resources and processes, completing work on just those chemicals wouldn't occur until the 2040s. Even then, the EPA would have finished less than 5% of its ESA work.

"EPA must adopt more efficient ways to meet our ESA obligations given that the current ESA-FIFRA process creates a workload that far exceeds what our agency has the resources to handle," Li noted. "We can't keep working the same way. If we do, we face the very real risk that courts will continue to lose patience with our agency and abruptly cancel pesticides that we know farmers rely on."

MORE MITIGATIONS MOVING FORWARD

To reduce pesticide exposure to non-target species, including those listed as threatened or endangered, EPA proposes a menu of "interim ecological mitigation" measures. For each chemical in registration review that presents risk, the agency will decide which measures from this menu to propose based on the risks and benefits of the pesticide.

"This is still FIFRA, and we need to have that balancing of risks and benefits," said Melanie Biscoe, a senior regulatory adviser in EPA's Pesticide Re-evaluation Division, during the same November webinar. "The goal here is simply to further reduce risk and exposure to non-target plants and animals while taking into account the benefits of the pesticide use and potential impacts of mitigation."

A pick list of 16 interim ecological mitigation measures are described within the appendix to the ESA Workplan Update. They include off-field conservation buffers, such as vegetative filter strips, grassed waterways and field borders intended to reduce runoff and erosion. Also included are on-field conservation practices, such as reduced tillage in the form of no-till and strip-till, as well as planting cover crops.

The workplan also contains several proposed additions to current label language. These include:

- Surface water protection statements, prohibiting application during rain or when rain events producing runoff are forecast within 48 hours;

- Mandatory spray drift management statements, establishing spray drift buffers and application limits on droplet size, wind speed and release height;

- Endangered and threatened species protection statements, wherein pesticide users must consult the Bulletins Live! Two (BLT) website to obtain geographically specific mitigation for listed species or their designated critical habitat within six months of the day of application;

- Pollinator hazard statements, noting when there is acute risk to insect pollinators;

- Treated seed statements, establishing guidelines for the use of both on-farm and commercial seed treatments to reduce exposure risks; and

- Incident reporting statements, providing guidance on how to report ecological incidents.

PALTRY PUBLIC COMMENT

While this updated workplan rolls out sweeping measures for pesticide use, public comment has been nearly nonexistent. Since the 75-day comment period opened on Nov. 15, only eight total comments have been submitted. By contrast, during a 90-day comment period that ended earlier this fall, the EPA's proposed regulation changes for atrazine received more than 68,000 public comments.

"This is not necessarily under the radar, but it seems like something that people are not giving as much attention as you might expect," said Brigit Rollins, staff attorney for the National Agricultural Law Center based at the University of Arkansas in Fayetteville. "It's very easy to focus on one particular pesticide, but it's a lot harder to look at this more global approach. It's kind of hard to get your arms around what's going on."

Rollins said that within the workplan, EPA clearly acknowledges the value of pesticides to users while also addressing the agency's need to meet its ESA obligations. Finding a balance between those ends while satisfying the courts is the goal.

"Hopefully, any changes will mean that the labels are stronger and will be able to withstand some of these judicial challenges," she said. "From the pesticide user perspective, yes, going forward there probably are going to be changes. But hopefully, those changes will give more stability. You're not necessarily going to have to worry that a lawsuit is going to revoke a label unexpectedly in the middle of the growing season."

During the EPA webinar, Biscoe noted that in the workplan appendix, the agency has posed several questions pertaining to the proposed mitigation measures and label language.

"What we're really looking for here is that commenters provide specific feedback on the feasibility, user impacts, efficacy of the measures in reducing exposure or risk, compliance or enforcement issues, and improvements to clarity of any of the example label language," she said.

Li described the workplan update as a crucial milestone.

"We're doing this for the benefit of species that need protection, we're doing this for the benefit of farmers and others who rely on pesticides and need regulatory certainty, and we're doing this for the benefit of our own agency, which needs to manage our burgeoning workload," he said.

To comment on the ESA Workplan Update, visit https://www.regulations.gov/…

The EPA's ESA Workplan Update webinar can be viewed here: https://youtu.be/…

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

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