“This topic is one that can get very technical very quickly. It can be a very deep topic, and there’s a lot of nuances,” says Kyle Kunkler, director of government affairs at the American Soybean Association.
He’s referring to EPA’s Final Herbicide Strategy, which puts forth new guidelines for herbicide registration and use per the Endangered Species Act (ESA).
In order to simplify the ag industry’s understanding and therefore be in compliance, he and other industry pros are encouraging ag retailers and crop consultants to know the details of the work plan.
They shared more on a recent webinar hosted by ASA, CSSA, and SSSA. Webinars are free and open to certified crop advisers, certified professional soil scientists, and tri-science society members.
“The Endangered Species Act is in and of itself nothing new. It was first enacted by Congress and signed into law in 1973, and it’s a very well intentioned law,” Kunkler says.
So how did we get to the Final Herbicide Strategy? And what does it mean for applicators, crop consultants and farmers? Here are seven key details to know:
1. Pesticides pose a unique challenge in how ESA is administered through the federal agencies.
“Pesticides could have dozens of crops registered for which it could be used on hundreds of millions of acres, and it may intersect with nearly all of the or most of the 1,700 listed species [overseen by U.S Fish and Wildlife Service and National Marine Fisheries Service]. What further complicates the situation as well, is that there’s a requirement under FIFRA that pesticides have to be reviewed once every 15 years.”
He says this sets up an enormous workload for EPA.
2. In some cases, the litigation process was moving faster than regulatory process.
As Kunkler points out, “federal judges can issue rulings on these registrations that may not be compliant with the law, faster than the service can conduct a consultation. The farming community and the applicator community were losing pesticide registrations as a result of these lawsuits and ESA non compliances.”
So instead, EPA agreed to do this in a court settlement and work to find efficiencies in the process. Instead of going chemical by chemical, species by species, the agency agreed to develop a common set of mitigations for classes of chemicals. First, is the herbicide strategy (final in August 2024), next is insecticides (final version due March 2025), and third will be fungicides (final version due in November 2026).
3. These upfront mitigation menus will be relevant as new pesticides receive registration and existing products are reregistered through FIFRA.
“You’ll see changes on the labels, and online at Bulletins Live Two!,” says Leah Duzy, Agricultural Economist at Compliance Services International. She highlights how this is applied to agricultural uses which include cultivated land but not pasture grass or rangelands.
It is the responsibility of the users to check the label and the EPA website before application to be sure they are in compliance.
4. The development process of the rules has involved stakeholder and industry feedback.
“The strategies as a whole impact production decisions that are being made at an individual level and also at an operational level because agriculture is not simple, and there’s a lot of complexity,” Duzy says.
As such, there is a points system for runoff/erosion mitigation practices that growers can use to match the necessary points assigned to product (the maximum is 9). In the process of the herbicide rule going from draft to final, many are pointing to additional practices being added for increased flexibility necessary for successful adoption.
And these practices mirror others which qualify farmers for NRCS programs.
“To their credit, EPA and USDA did a great job of trying to harmonize these mitigations with those that are made available also through NRCS programs and practices, so that in instances where there might be cost share dollars available through NRCS programs,” Kunkler says.
5. In addition to the runoff/mitigation practices there are two additional considerations for herbicide application per the new regulations.
There are spray drift buffers outlined based on application method, landscape, and more.
And there are geographic considerations.
6. Two big questions remain around who is responsible for sharing this information and how it will be enforced.
“There’s a lot of confusion right now on who is actually going to be the ones responsible for educating and disseminating the information. Is that going to be your State Extension Service? Is it going to be your State Department of Ag? And nobody really has a solid understanding or has really taken ownership of that,” says Megan Dwyer, Director of Conservation and Nutrient Stewardship at Illinois Corn Growers Association.
She’s also watching how it’s being revealed what the exact record keeping will be.
“The EPA has released a couple tools. There’s a PDF version. There’s also an Excel version. You can go to determine how many points you have in a field,” she says.
And while there is no written requirement outlining record keeping, Dwyer encourages crop consultants and farmers to have a proactive approach.
“You can get points for keeping records. And I would strongly recommend that where we’re going to see the challenge come in is when there there’s a question raised. So when there’s a concern about a discrepancy if they have enough points to apply a certain product, did something happen that shouldn’t have happened, and more. This is going to be a great place to start by saying, Oh, I printed off my Bulletins Live! Two, and I’ve got a copy of my point sheet that I filled out, and have that initial base record to back up what you were doing,” she says.
7. Another big unknown is if the Trump administration and newly confirmed EPA director Lee Zeldin will change the current trajectory of what is outlined.
“The idea of ever going back to a period of non-compliance like we had, I don’t think would be appropriate or ever acceptable. We don’t want to think back to a point where we’re losing pesticide registrations to court vacatures. But at the same time, we want to make this as workable for agriculture as possible,” Kunkler says. “Our hope is, is that an incoming administration would be receptive to our concerns, and we could find ways to continue to work together to make these the landing zone for these strategies, and any registrations that result from them even more workable for agriculture.”
