JEFFERSON CITY, Mo. (DTN) -- Ever hear of Attwater's prairie chicken, Mead's milkweed, Okeechobee gourd or the rusty patched bumblebee? These are just four of nearly 1,700 plants and animals listed as threatened or endangered under the Endangered Species Act (ESA). In 2023, federal proposals to protect these species from pesticides -- and the increased cost to farmers to do so -- came in at No. 8 on DTN's list of the Top 10 Ag Stories of 2023.
Back in late January, I attended the Weed Science Society of America's annual meeting in Arlington, Virginia. Sitting there near the banks of the Potomac River, just a stone's throw from our nation's capital, I listened as Jake Li, EPA deputy assistant administrator for pesticide programs, outlined the issue. He acknowledged the agency had registered and reregistered pesticides without fulfilling its ESA obligations for decades.
That's right. Decades. Under administrations led by both Democrats and Republicans. Essentially this editor's entire lifetime.
But, like a driver scared to know what's causing the banging noise under the hood, EPA cranked up the proverbial volume on the radio.
Noise? What noise?
"We believe that over 95% of past pesticide decisions that should have complied with ESA never did," said Li during that WSSA meeting.
Eventually, though, that banging noise -- in the form of a near-constant barrage of lawsuits from environmental groups and others -- grew too loud to be ignored. In January 2022, EPA finally turned off the radio and opened the hood.
It began with the adoption of a new EPA policy: The agency would no longer register new conventional pesticide active ingredients without ensuring ESA compliance. In April 2022, EPA released a work plan detailing which actions it would prioritize for ESA compliance under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The agency published an updated work plan in November 2022, highlighting a "pick list" of 16 interim ecological mitigation measures intended to reduce spray drift and surface water runoff, minimizing pesticide exposure to endangered species.
DRAFT FRAMEWORK RELEASED
Fast-forward to late July 2023. EPA released its Draft Herbicide Strategy Framework, a 96-page proposal outlining how the agency plans to protect listed species and their "designated critical habitats" from agricultural uses of conventional herbicides.
"(The strategy) is 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," said Li during an August webinar. "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."
EPA'S POSITION
Essentially, EPA's position is this: The agency doesn't have the time or resources to comply with the ESA using a traditional pesticide-by-pesticide, species-by-species approach. To meet court-mandated deadlines, it's going to throw blanket protections over everything -- whether they're needed or not -- at a potentially exorbitant cost to farmers.
Criticism of the EPA proposal was universal from those representing agriculture. More than 200 groups -- including the Agricultural Retailers Association, American Farm Bureau Federation and nearly every commodity association -- co-signed a letter submitted in October during the public comment period. The letter stated that the "complex, unworkable proposal would result in significant new, costly regulatory burdens for millions of U.S. agricultural producers."
"We understand EPA has legal obligations related to the Endangered Species Act and support the agency meeting its statutory requirements," the groups wrote. "However, if implemented as proposed, the herbicide strategy would be disastrous for U.S. farmers and our rural communities."
NASDA TROUBLED BY PARTS OF PLAN
The National Association of State Departments of Agriculture (NASDA), which represents the commissioners, secretaries and directors of the state departments of agriculture in all 50 states and four U.S. territories, also commented on EPA's proposal. While voicing support for ESA compliance, the association noted that it remained "very troubled by numerous elements" of the plan.
"State departments of agriculture are troubled by the impacts that the draft herbicide strategy will have on state lead agencies if this effort were to move forward without significant modification," wrote NASDA CEO Ted McKinney. "Our concerns include a lack of sufficient resources, lack of transparency in mitigation measure selection, the complexity of compliance and the enforceability of these measures."
State agencies weren't the only government entities that chimed in during the comment period.
USDA VOICES CONCERNS
"USDA has substantial concerns about the Herbicide Strategy Framework insofar as it proposes complex, and potentially restrictive, mitigations for all outdoor uses of conventional herbicides before full consultation," the agency stated in a letter signed by Kimberly Nesci, director of the USDA Office of Pest Management Policy.
"The proposed spray-drift, runoff and soil erosion mitigations will be an obstacle to the continuing production of agricultural crops in some areas of the U.S., particularly when considering the cumulative mitigations that would be required when growers apply multiple herbicides at the same time, as is commonly done," stated USDA.
MORE SHORTCOMINGS POINTED OUT
Even the Center for Biological Diversity (CBD), one of the original plaintiffs that sued EPA regarding its lack of ESA compliance, pointed out "shortcomings" in the Draft Herbicide Strategy.
"Combined with existing label requirements and other EPA efforts, labels will be very challenging to fully follow," the CBD commented. "In a few years, there will be an herbicide, fungicide and insecticide strategy in place and multiple other programmatic frameworks in place as well. What happens when a farmer wants to apply an herbicide, fungicide and insecticide at the same time? It's just going to start to get really complicated really quickly."
We'll learn just how complicated things will become sometime before May 30, 2024. That's the date by which EPA agreed to issue a final Herbicide Strategy in the settlement of longstanding litigation -- that banging under the hood that's no longer being ignored.
How costly will EPA's repair bill be for agriculture? While we await the mechanic's estimate, it's a safe bet that there will be new requirements that make applying herbicides more expensive, perhaps to the point of being cost-prohibitive in some cases. Other strategies for insecticides and fungicides are expected in the coming years, and those will likely increase the cost, too.
As agriculture enters 2024, a year when farm income is expected to decline, those who rely on herbicides in their cropping systems to control weeds should pay close attention to how these EPA proposals unfold.
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