EPA Herbicide Strategy Deadline Pushed

Court Grants Three-Month Extension to Complete EPA Herbicide Strategy

Jason Jenkins
By  Jason Jenkins , DTN Crops Editor
Connect with Jason:
A federal district court this week extended the deadline for EPA to issue its final Herbicide Strategy, a plan that will significantly change agricultural herbicide use. (Photo by Tim-Evanson, cc-by-sa-2.0)

JEFFERSON CITY, Mo. (DTN) -- Like a college professor giving a student extra time to finish an important term paper, this week a federal district court granted EPA an extension to complete the agency's forthcoming Herbicide Strategy.

On Wednesday, Feb. 14, in the U.S. District Court for the Northern District of California, San Francisco Division, Judge Joseph C. Spero approved a three-month extension to EPA's plan attempting to bring herbicide registration in compliance with the Endangered Species Act (ESA). The court modified a settlement reached last September when the agency had agreed to produce the document by May 30, 2024. The new deadline is Aug. 30, 2024.

In an effort to protect endangered species and their critical habitats from herbicide exposure through spray drift and/or runoff or soil erosion, the EPA plan would require agricultural herbicide users, namely farmers, to implement mitigation measures such as vegetative filter strips, grassed waterways and field borders. Herbicide users would need to achieve a minimum number of "efficacy points," with EPA assigning one to three points to each option in its menu of mitigation measures. The number of points required would vary based on the herbicide and the field location.

In an email that was sent to industry stakeholders and obtained by DTN, Jake Li, EPA deputy assistant administrator for pesticide programs, wrote the agency had requested the extension so it would 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.

"In light of the extension, EPA will release an update in the coming months about the status of its work on the Herbicide Strategy," Li wrote in the email. "EPA still plans to release its draft Insecticide Strategy no later than the settlement deadline of July 30, 2024."

EPA released its draft Herbicide Strategy in July 2023 and received more than 20,000 public comments on the plan.

In an email to DTN, Brigit Rollins, staff attorney with the National Agricultural Law Center based at the University of Arkansas in Fayetteville, said she's seen courts be willing to extend deadlines for settlement agreements, particularly when the agreement requires a federal agency to take a specific action.

"Something interesting about this particular case is the overall scope of the settlement agreement," Rollins said. "This is a fairly substantial policy change that EPA has agreed to make, so to me, it isn't terribly surprising that the parties and the court are all willing to grant a bit of extra time to let EPA take the steps it needs to take."

News of the extension was welcomed by the American Soybean Association (ASA).

"The three-month extension on the Herbicide Strategy deadline will be a big help in getting this proposal to a much better place," said Josh Gackle, ASA president and soybean grower from Kulm, North Dakota. "As proposed, we are very concerned with the financial burden it will impose on farmers, many of whom have few reasonable means to implement it. For some growers, it could entirely prevent them from using herbicides essential to their farming operations, resulting in great economic damage and harm to conservation practices. We look forward to using this additional time to work with EPA and other stakeholders and make this proposal workable for agriculture."

The extension for the Herbicide Strategy is the latest development surrounding litigation that began more than a decade ago. In 2011, the Center for Biological Diversity and Pesticide Action Network filed suit against EPA alleging that it violated the ESA when it registered or reevaluated the registration of 382 pesticide active ingredients. Ultimately, the list of active ingredients was reduced to 35 covering more than 1,000 pesticide products containing one or more of these active ingredients. This became known as the "megasuit" because of the number of pesticides it covered.

In addition to the Herbicide Strategy, the settlement agreement reached last September also set deadlines for other pesticides. As Li referenced in his email to stakeholders, a draft Insecticide Strategy is expected in July 2024 with a final version issued by March 2025. No deadlines have been set for the completion of a final Fungicide Strategy, but the determination of such a deadline is expected to take place no later than August 2024.

Rollins noted that while it is hard to predict, another extension to the settlement agreement is a possibility.

"Settlement agreements can be modified in a variety of different ways," she said. "I don't think that future extensions are precluded, but that also doesn't mean they're guaranteed either."

More stories from DTN on the EPA Herbicide Strategy:





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

Follow him on X, formerly known as Twitter, @JasonJenkinsDTN

Jason Jenkins