Herbicide strategy’s broad implications

URBANA, Ill. — A proposal that has the potential to impact most future pesticide applications is in the U.S. Environmental Protection Agency draft stage.

EPA’s proposal aims at protecting federal endangered species against potential impacts of herbicide applications.

Corey Lacey, Illinois Soybean Association public policy manager — regulatory, detailed EPA’s herbicide strategy draft during ISA’s Soybean Summit. A final strategy is expected by May 30.

“We’re dealing with a complicated issue. It’s a space where environmental policy, agriculture policy, political issues and priorities, and science all intermingle,” Lacey said.

The proposed strategy centers around the 51-year-old Endangered Species Act and its enforcement.

EPA’s ESA work plan addresses how the agency can protect nearly 1,700 threatened and endangered species and their habitats while governing the registration, distribution, sale and use of pesticides.

EPA will evaluate the potential effects of pesticides on federally threatened or endangered species and their habitats and recommended mitigation strategies. The mitigation requirements mirror nutrient loss reduction efforts.

Examples include requirements for vegetative filter strips, field borders and grassed waterways, terracing, contour farming, cover cropping, mulching, the adoption of no tillage or reduced tillage strategies and the safe disposal of excess seed that has been treated with pesticides.

Once finalized, such protections will become part of the formal registration review process for various geographic regions and for various groups of herbicides, insecticides and fungicides.

“There are some well-intentioned people in D.C. who have said there’s an issue we have to address, and they feel like they’ve come up with a simple plan,” Lacey said.

“With the Endangered Species Act labeling and pesticide regulation space, we have people who have created policy that feel like they’ve come up with a very simple plan that’s not simple.

“The herbicide strategy is an example. It is a 900-page document that’s going to affect all herbicide use across the country for every farm. So, there’s no way that could be simple, but that’s the perspective that we get from D.C.”

Complexities

EPA’s move would increase the complexity of pesticide labels, including constant changes moving forward.

“So, instead of what we usually consider as a very static process, we’re going to have an online portion of the label where we have to get online or on our cell phones and check to see if the label has changed. We’re going to see an example later in this talk where that label has changed from year to year,” Lacey said.

“It’s where I can and can’t use pesticides and how I use that changes year to year — that really adds complexity.

“What that also adds is we have to increase the amount or recordkeeping. I don’t have a solution for that, but I will say that that’s some space that farmers need to start thinking about. How are we recordkeeping better? How are we proving that we’re following the rules? The other area of complexity is regulation.”

He referred to “Bulletins Live! Two,” an EPA online version of pesticide labels “that we’ll have to start watching in the future.”

“The ESA part of our future labels is what the ‘Bulletins Live! Two’ website is. It’s EPA’s website that basically lets them alter or update or extend the label beyond what’s on the bottle,” he said.

“We have a lot of concerns with this. One is access. How often do I have to go look at this website. Who’s responsible for checking that? Do we have to check that every day? Every time I’m about to go out, do I need to check it? If it’s changed and I can’t do what I’d planned, how does that impact me?”

Field-To-Field

Application regulations would be narrowed down to field-to-field, depending on the locations of endangered species.

“So, what we’re going to see moving forward is where we can and can’t do things with pesticides is going to depend on whether or not that field is in the range or the county where an endangered species is present or where it’s thought to be present,” Lacey said.

“What that means for us is that a field in one part of the county, you may have different rules than a field in another part of the county, even if it’s just a mile down the road.”

Pilot Project

EPA is currently working through several proposals, including a pilot project that would limit pesticide applications across a range of habitat for the endangered rusty patched bumblebee. The project proposes there will be no outdoor pesticide application in the range of that insect.

According to EPA’s own estimate, that would be in excess of 1 million acres and the predominant areas impacted would include Illinois, Wisconsin and Minnesota. The location of the endangered species is determined by the Fish and Wildlife Service.

Not Just Insects

The ESA isn’t limited to insects. The largest group is plants with 940 species listed.

“When we think about pesticides on plants, we think about Roundup herbicides in general. Glyphosate is the first thing that came to my mind. Glyphosate is up for reregistration in a few years. The reason it works so well is because it’s good at killing plants. It’s also likely going to be good at killing the protected species that we’re talking about,” Lacey said.

“So, what that means is, if we’re following the train of thought here, we’re looking at a lot of regulation on things like glyphosate.

“We should also recognize glyphosate is really commonly used in the urban sector, too. You go down to Lowe’s and buy glyphosate for your house. None of the regulations we’re talking about impacts urban use at all. We’re only talking about agriculture.”

Current Impact

ESA already impacts product use. For example, the latest labels for Enlist One and Enlist Duo prohibits application in certain counties with endangered species.

That is anticipated to become more commonplace as more herbicides are either registered or reregistered.

For the last two years, the Enlist label included runoff mitigation credits that require the applicator to select mitigation measures to avoid runoff from the application site and subsequent surface water contamination. Each mitigation measure is worth a certain number of credits.

“There are also different rules for dicamba in counties with endangered species. If you’re inside or outside that county, the rules change,” Lacey said.

“In 2019, there were 27 Illinois counties that had endangered species label on dicamba. There were 18 Illinois counties in 2021. So it seems we’re moving in the right direction, but the complexity there is there were 14 dropped off the list and five got added.

“There’s no transparency in understanding how that happened. Did all the endangered species from those 14 counties just decide to go to the five counties that didn’t have it? Were the maps not good in the first place. We don’t know what we’re doing in the first place and we’re guessing?

“This is stuff that concerns me though. We’re not basing decisions in science. We’re painting with broad strokes because the agency has to take action, and we should be scared about that.”

Why Now?

The ESA has been the law since 1973 and is now at the forefront due to a change in the regulatory landscape.

One highlight of that is when Jake Li, deputy director of the U.S. EPA pesticide program, acknowledge that the agency had registered and reregistered pesticides without going through the ESA process for decades.

“So, this is the agency admitting that they have not met their obligations. That is the key signal to me that there’s been a major regulatory change in the landscape,” Lacey said.

“What does that mean for us? It means that the EPA has admitted that they’re not doing it. They’ve admitted that because of continued litigation.

“What that means for new active ingredients is that we’re going to see ESA policy labels on all new active ingredients. That’s an order that’s come down through the EPA right now. Anything new is going to have ESA labels.

“It means we’re going to see litigation and court action. We have seen clear evidence that the courts can stop pesticide use. They have the authority under our government to say, ESA didn’t do their job, so we’re going to pull that registration and we’re not going to be allowed to use it.

“It means when pesticides come up for reregistration under EPA, which is every seven to 10 years, an ESA label is going to be applied to them.

“Also, one thing I would really like to characterize about this situation, this landscape, is that we want to think of it as a science-based approach. I think as agronomists, as farmers, we want to believe that things are science-based and traditionally they have been.

“But what we’re seeing now is there’s policy impacts, but there’s also political things at play here, and I’m not going to surprise you with that statement.”