EPA Proposes New Ag Herbicide Rules

JEFFERSON CITY, Mo. (DTN) --- Use whatever idiom you want to describe it -- jump through hoops, clear the bar, check the boxes -- the cost of keeping tools in the herbicide toolbox is about to increase for U.S. farmers.

For nearly two years, the Environmental Protection Agency (EPA) has said it will no longer turn a blind eye toward the Endangered Species Act (ESA) and its legal obligation to ensure that pesticides don't jeopardize the continued existence of nearly 1,700 federally threatened or endangered species.

In July, EPA took what it believes is another step toward ESA compliance, releasing the "Draft Herbicide Strategy Framework." The 96-page proposal outlines how the agency intends to protect more than 900 listed species and their designated critical habitats (CH) from agricultural uses of conventional herbicides in the lower 48 states. The document is available for public comment until Oct. 22.

The draft herbicide strategy presents substantial change, requiring herbicide users to implement mitigation measures for potential impacts much earlier -- even before EPA or the U.S. Fish and Wildlife Service (USFWS) determines definitely that a herbicide poses a risk.

Here are answers to six questions about EPA's Draft Herbicide Strategy Framework. For a quick explanation of some of the terms that EPA uses, read this post on the DTN Production Blog: https://www.dtnpf.com/… .

1. Why is EPA doing this?

In recent years, EPA has faced many lawsuits by not adequately meeting its ESA obligations. While the agency settled longstanding litigation known as the "megasuit" on Sept. 12, this ongoing legal vulnerability has created uncertainty for farmers and other pesticide users about their continued ability to use many pesticides.

"EPA is not going to dig itself out of this dilemma using a traditional pesticide-by-pesticide, species-by-species approach to complying with the ESA," said Jake Li, deputy assistant administrator for pesticide programs within EPA's Office of Chemical Safety and Pollution Prevention, during a webinar held last month. "Instead, EPA needs to work a lot, lot faster and more efficiently. That means we need to get early mitigations in place to protect endangered species so that even if we haven't fully met our ESA obligations yet, we still have some protections in place in the meantime.

"That's the main reason we created the draft herbicide strategy," he continued. "It's really our first attempt to identify protections for hundreds of endangered species at once and to do so much earlier in the pesticide regulatory process using an approach that's much more efficient for EPA to implement. By doing all of those things, we think we can provide more certainty to growers about what mitigations they should expect in the future and how we intend to bring herbicides that they use into full compliance with the law."

2. How would it work?

EPA proposes a three-step process.

STEP 1: Conduct an analysis to determine which groups of plant species are expected to have the potential for population-level impacts from direct exposure to herbicides, and which groups of animals could be affected because they rely on listed plants for their diet or habitat. If at least one group of listed species is potentially affected, proceed to STEP 2.

STEP 2: Identify the type and level of mitigation measures needed to reduce herbicide exposure via spray drift and/or runoff or soil erosion. Mitigation measures would be identified specific to a herbicide's active ingredient, formulations, use site, application parameters and maximum use rates.

STEP 3: Determine where mitigation measures would be applied. Spray drift and runoff/erosion mitigation measures could be included on the general product label if the mitigations would apply everywhere the product is used. In some situations, mitigations would target only areas where groups of listed species occur. In those situations, EPA expects to use the Bulletins Live! Two (BLT) website to post geographically specific mitigations for listed species.

3. How many mitigation measures will I need to implement to comply with the product label?

Instead of requiring a certain number of mitigation measures, the EPA herbicide strategy outlines a system where herbicide users need to achieve a minimum number of "efficacy points." EPA assigned one to three points to each option in its menu of mitigation measures. 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).

4. Will there be any exemptions from the runoff/erosion mitigation requirements?

EPA is considering potential exemptions to the mitigation menu requirements. If a field is more than 1,000 feet away from a terrestrial or aquatic habitat for listed species, it may be exempt from mitigation. Fields with subsurface drainage or tile drains may be exempt, but runoff from the entire field would need to be controlled and directed into a retention pond or saturation zone.

Fields may also be exempt if they are managed with a site-specific runoff and/or erosion plan that has been implemented according to the recommendations of a recognized conservation program or appropriate conservation expert. EPA is still developing criteria for experts and conservation programs that would meet this exemption. With the draft herbicide strategy, the agency specifically requests feedback on the types of experts and programs that could be relied upon to ensure this exemption could be effective.

5. When will the EPA Herbicide Strategy go into effect?

In the "megasuit" legal settlement approved in federal court in California on Sept. 12, EPA committed to issuing a final Herbicide Strategy no later than May 30, 2024. Presently, the draft framework is available for public comment until Oct. 22.

Implementation of the final strategy would occur as existing herbicides come up for registration review, at which time mitigation would be applied. EPA revised its registration review schedule to account for the timing of the final strategy. At present, herbicides including atrazine, dicamba and 2,4-D are all scheduled for Proposed Interim Decisions in 2024. New herbicide active ingredients would incorporate the herbicide strategy from the outset of the registration process.

It should be noted the agency extended the comment period by 30 days after receiving more than two dozen comments requesting 60- to 90-day extensions from various national and state commodity organizations, product registrants and other agriculture-related groups. This includes the American Farm Bureau Federation, the National Association of State Departments of Agriculture, the American Soybean Association, the National Corn Growers Association, the Agricultural Retailers Association, CropLife America, BASF, Bayer and Syngenta.

6. What about other pesticide categories beyond herbicides?

The same Sept. 12 court-approved agreement also outlined deadlines for rodenticides and insecticides.

EPA expects to issue a draft Rodenticide Biological Evaluation, which will assess the effects on all listed species, in November 2023. The final evaluation is expected no later than Nov. 12, 2024. At that time, should it be determined rodenticides do affect listed species or their critical habitats, EPA will initiate consultation with the U.S. Fish and Wildlife Service and the rodenticide registrants to discuss possible mitigation options.

While a specific date was not given for issuing a draft Insecticide Strategy, EPA agreed to use its best efforts to issue a final Insecticide Strategy by no later than March 31, 2025.

No deadlines were set for the completion of a final Fungicide Strategy, but the determination of such a deadline is expected to take place no later than Aug. 31, 2024.

The EPA Draft Herbicide Strategy Framework and its supporting documents can be found here: https://www.regulations.gov/….

To submit a public comment, go here: https://www.regulations.gov/….

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

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