Top 10 Ag Stories of 2023: No. 8 - EPA's Plan to Protect Endangered Species From Herbicides Draws Criticism

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.

Top 10 Ag Stories of 2023: No. 9 - Supreme Court Rules on Two Major Ag Cases

LINCOLN, Neb. (DTN) -- The Supreme Court rarely weighs in on one agriculture case in a given year, let alone two cases of major significance.

In 2023, the Supreme Court handed down May rulings in Sackett v. EPA and National Pork Producers Council v. Ross, and both cases have affected and are expected to continue to affect agriculture in big ways in the coming years.

Perhaps the most consequential of the decisions came when the court sided with two Idaho property owners in an ongoing wetlands dispute with EPA, in Sackett v. EPA.

The court ruled the agency's use of the significant nexus test when making Clean Water Act determinations was too broad, essentially throwing into question the Biden administration's recently finalized waters of the United States (WOTUS) rule.

As a result, the EPA issued an updated final rule in September 2023, removing the test from the text. That led to new lawsuits by ag groups and others who say the EPA broke the law in finalizing the latest rule.

In writing the 5-4 majority opinion, Justice Samuel Alito said EPA misinterpreted the Clean Water Act's reach on property owned by Michael and Chantell Sackett and illegally had been using the significant nexus test in making determinations.

"In sum, we hold that the CWA extends to only those 'wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right,' so that they are 'indistinguishable' from those waters," Alito said in his opinion.

"This holding compels reversal here. The wetlands on the Sacketts' property are distinguishable from any possibly covered waters."

As has been the case for many years, the waters of the U.S. rule continues to be mired in controversy.

CONTROVERSIAL PROPOSITION 12

That same month, the Supreme Court also upheld California's controversial Proposition 12 -- an animal-welfare law approved by voters in the state.

Prop 12 makes it a criminal offense and civil violation to sell whole pork meat in California unless the pig it comes from is born to a sow that was housed within 24 square feet of space and in conditions that allow a sow to turn around without touching an enclosure.

The law essentially requires farmers from across the country to adapt their confinement operations if their pork is sold in the state.

It remains to be seen how Proposition 12 affects the U.S. hog industry as a whole.

A Rabobank study estimates at least 15% of U.S. producers would face "considerable cost" to convert their operations.

In addition, in the early implementation of Proposition 12 consumers in California are facing higher prices and restaurants and grocery stores face increasing challenges in finding compliant pork supplies.

Top 10 Ag Stories of 2023: No. - 10 Livestock Producers Lean Into USDA's Livestock Risk Protection Coverage (LRP)

OMAHA (DTN) -- One of the biggest underlying stories of 2023 was how livestock producers embraced Livestock Risk Protection policies.

Livestock Risk Protection (LRP) has become a popular risk-management option for producers. The policies are set up to reduce losses from price declines. As prices were dropping in the fall, the policies appear to have been salvation for producers.

LRP policies go back 20 years: USDA's Risk Management Agency (RMA) increased the premium subsidies in 2019 and continued to adjust them in 2020, creating tiered rates based on coverage levels. Policies can range from 70% to 100% with the premium subsidies at 55% for policies up to 79% protection levels, and subsidies declining to 25% for the 95%-and-higher coverage levels.

Producers can cover up to 12,000 head a year, and they can purchase LRP contracts for both feeder cattle and fed cattle. Coverage periods can stretch from as little as 13 weeks to as long as 52 weeks. Producers also must indicate their ownership interests in the cattle that are covered.

LRP operates like hedging, so producers need a handle on how that works. Unlike crop insurance, contracts actually change daily. Prices for new contracts are posted in the late afternoons on weekdays and available until 8:25 a.m. Central Time the next day.

At the end of a policy, an indemnity is generated if the regional/national cash price average is below the insured coverage price. If the cattle are sold more than 60 days before the end of the contract date, producers cannot collect an indemnity or get their premium back unless their share of the cattle is properly transferred.

USDA Risk Management Agency (RMA) data on livestock policies isn't as detailed as crop insurance, but RMA shows livestock policies have jumped from 7,000 policies in 2021 and $14 billion in liability, to more than 16,300 for this year with liability covered at $26.45 billion.

Producers in 2023 focused more heavily on feeder cattle contracts than fed cattle:

-- Feeder cattle insurance contracts: 19,249 policies covering 4.2 million head through Dec. 15, more than twice the total number of feeder cattle covered in 2022.

-- Fed cattle insurance contracts: 6,760 fed cattle policies involving 858,165 cattle, through Dec. 15, up more than 263,400 head from 2022.

Already, producers are lining up in even greater volumes for 2024 policies.

More than 21,000 feeder cattle policies are sold for 2024 covering nearly 2 million head.

More than 8,850 fed cattle policies are sold for 2024 covering 736,600 cattle.

SWINE

Despite all the focus on cattle, swine producers also use LRP, though in smaller volumes. Still, 1,555 policies in 2023 covered 36.5 million hogs. They generated $346 million in indemnity payments, 219% higher than the payout in 2022.

Expect to see more focus on LRP and other livestock insurance policies in the coming years.

FALLING PRICES LED TO QUESTIONS

As DTN Lead Analyst Todd Hultman explained, as live and feeder cattle prices fell on the CME, questions were raised about the role of LRP. "So far, there has been no evidence of a cash flow problem among LRP providers, and it may help to know the LRP program falls under the jurisdiction of the Federal Crop Insurance Corporation and premiums are subsidized by USDA's Risk Management Agency," Hultman explained.

WEANED CALF RISK PROTECTION

RMA also is setting up more policy options for producers. Weaned Calf Risk Protection will be available to livestock producers in four states beginning in 2024.

The policy is part of the USDA's Risk Management Agency (RMA) program that offers Actual Production History (APH) coverage for beef producers to insure revenue from spring calving operations.

This program becomes available to cow-calf producers in the states of Colorado, Nebraska, South Dakota and Texas. Coverage levels between 50% and 85% will be available, as well as catastrophic coverage. The sales closing date for these policies is Jan. 31, 2024.

Prices under Weaned Calf Risk Protection will be set using: (1) USDA Agricultural Marketing Service (AMS) auction price data for the 23 price-determining states to produce a regional-weighted average price series for cattle between 200 and 750 pounds; and (2) Chicago Mercantile Exchange prices for feeder cattle.

The AMS price will consist of daily auction data compiled into weighted average monthly prices for the two respective regions included in this new coverage.

Texas falls into the South-Central region. Colorado, Nebraska and South Dakota fall into the North-Central region.

This Week's Drought Summary (12/21)

Moderate or heavy precipitation amounts fell in three main areas this week: central and northern California, parts of the southwestern Great Plains (especially southwest Kansas through the Oklahoma and Texas Panhandles), and along the East Coast. Warmer-than-normal temperatures occurred this week across much of the central and northern contiguous United States. For areas in drought or abnormal dryness that received heavy precipitation amounts, improvements occurred locally due to lessening precipitation deficits and increased streamflow and/or soil moisture. In areas between the southern Great Plains heavy rain and the East Coast heavy rain, deficits in streamflow, soil moisture, and precipitation worsened, leading to widespread degrading conditions. Heavier rains fell on the northeast half of Puerto Rico this week, and scattered moderate drought and abnormal dryness continued on the island. A mix of degradations and improvements occurred in Hawaii this week, with a wet trade wind pattern bringing needed rainfall to windward slopes of Oahu and Molokai. Alaska remained free of drought and abnormal dryness this week.

Northeast

Heavy rains and some mountain snows fell in the Northeast region this week, especially in the eastern two-thirds of the region. Two-inch precipitation amounts were common, and according to radar estimates, amounts locally exceeded 5 inches. From Pennsylvania northward, temperatures were mostly above normal for the week, with most spots checking in from 4 to 12 degrees warmer than normal.

While much of the region went into the week free of drought, this week’s rains brought widespread improvements to drought or abnormal dryness in Maryland, southeast Pennsylvania, and New Jersey, where precipitation deficits were alleviated. In western New York, where precipitation amounts were lighter, a combination of improvements and degradation occurred, depending on changes in soil moisture, groundwater, and streamflow. Likewise, in Nantucket and Martha’s Vineyard, short-term moderate drought developed where precipitation deficits grew and groundwater lowered.

Southeast

Heavy rains fell this week in eastern parts of Virginia, the Carolinas, Georgia, and central and eastern Florida. At least one location in coastal South Carolina received over 14 inches of rain, resulting in a two-category improvement from moderate drought to no dryness this week. West of these areas, precipitation amounts were either very little or nothing, with a tight gradient between this and the heavier rain amounts.

Due to improving streamflow and lessening precipitation shortfalls, improvements to the drought and dryness picture were widespread in the eastern Carolinas and Virginia, with improvements also occurring locally in Georgia and the Big Bend of Florida. Meanwhile, in Georgia and Alabama, deficits in soil moisture and precipitation worsened, leading to degrading conditions. Temperatures this week were mostly within 4 degrees of normal, with below-normal temperatures most common in areas that received heavier rainfall.

South

A soaking rain event occurred this week in parts of the western Great Plains, especially in the Texas and Oklahoma Panhandles and adjacent western Oklahoma and western north Texas. In these areas, precipitation deficits and soil moisture improved enough for widespread improvement to abnormal dryness or drought. Recent rains from before this week led to a reassessment of conditions and some localized improvements in eastern Tennessee. Drier weather occurred in between these locations, with the exception of some rain across Louisiana (which did little to improve the situation but prevented worsening of conditions). Deficits in soil moisture, streamflow, and short- and long-term precipitation continued to locally worsen in northeast Texas, Arkansas, northern Mississippi, and western Tennessee, leading to degrading conditions in some of these areas. Other than parts of Mississippi and Louisiana, most of the region experienced warmer-than-normal temperatures this week, with western Oklahoma and parts of western north Texas and the Texas Panhandle coming in at 4 to 8 degrees above normal.

Midwest

A mix of dry and wet weather occurred across the Midwest region this week. Temperatures were mostly above- or well-above-normal, except for eastern Kentucky. Temperatures in parts of Minnesota soared to at least 12 degrees above normal for this week. Mostly drier-than-normal weather in Missouri led to degrading conditions northwest of St. Louis and in south-central Missouri, where deficits in streamflow, soil moisture, and precipitation grew. The same occurred in central and southwest Iowa, western Kentucky, parts of Indiana, northwest Ohio, southern Lower Michigan, and along the Ohio-Kentucky-West Virginia border area. In the Kansas City area, recent rains improved streamflow and soil moisture enough for improvements in drought and abnormal dryness, which extended into Kansas just east of Emporia.

High Plains

In parts of southern Colorado, south-central and eastern Nebraska, and much of Kansas, moderate to heavy precipitation amounts fell this week. Improvements to ongoing drought and abnormal dryness occurred in a north-to-south band across central and western Kansas, where this week’s precipitation lessened precipitation deficits and improved soil moisture. Localized improvements to drought also occurred in south-central Nebraska, where this week’s rain was enough to alleviate precipitation and soil moisture deficits somewhat. Low snowpack and dry conditions for the past few months continued in northern Colorado, leading to a southward expansion of moderate drought and abnormal dryness in high elevations.

The wet weather in southern Colorado led to some improvements to drought conditions. Dryness from the past couple of months increased in eastern South Dakota and in the Black Hills, leading to abnormal dryness expanding or developing in both areas. Temperatures in Nebraska, Colorado, and Kansas were mostly 3 to 9 degrees above normal, with a few local cooler exceptions. In the Dakotas, temperatures ranging from 6 to locally 15 degrees warmer than normal were common.

West

Coastal central and northern California, and parts of the northern Central Valley and northern Sierra Nevada, received heavier precipitation this week, exceeding 2 inches in some places. Lighter precipitation amounts fell in coastal portions of Oregon and Washington. In parts of northern and southeast New Mexico, precipitation this week was enough to improve streamflow, soil moisture and precipitation deficits sufficiently for localized improvements to drought conditions. Short-term drying in parts of east-central Utah led to a small expansion of abnormal dryness. In southwest and south-central Montana, low snowpack amounts, short-term precipitation deficits, and soil moisture deficits led to localized expansion in drought and abnormal dryness. A reassessment of short- and long-term conditions in northwest Montana, the northern Idaho Panhandle, and parts of central and western Washington led to localized improvements to ongoing drought and abnormal dryness.

Caribbean

Heavier rain amounts of 1.5 to 3 inches fell across the northeast half of Puerto Rico this week, while the southwest half of the island was drier. A couple sites recorded below-normal temperatures for the week, while most others came in either near normal or 2 to 5 degrees above normal. Drought and abnormal dryness remained unchanged this week.

Beneficial rain fell across the U.S. Virgin Islands (USVI) during this U.S. Drought Monitor (USDM) week (December 13-19), the result of the remnants of a frontal boundary combined with trade-wind showers. Weekly rainfall totals ranged from 1 to 1.5 inches on St. Thomas, half an inch to 2 inches on St. John, and a fourth to two-thirds of an inch on St. Croix. According to USGS well data, groundwater responded favorably with rising levels this week on St. Thomas and St. John, while groundwater levels rose at first then began falling again on St. Croix. The depth to water level was 5.00 feet on St. John and 6.74 feet on St. Thomas, both of which are in the top third of the recent historical record, but 32.83 feet on St. Croix, which is in the lowest third of the historical record. Satellite observations (VHI) showed little stressed vegetation on the three USVI islands.

With year-to-date precipitation totals still well below normal, and December rainfall totals below normal, long-term moderate drought (D1-L) was changed to short- and long-term moderate drought (D1-SL) on St. Croix. A wet (so far) December has reduced short-term dryness on St. Thomas, but long-term precipitation deficits continue, so short- and long-term severe drought (D2-SL) was changed to long-term severe drought (D2-L) on St. Thomas. St. John continued with a D-Nothing status (no drought or abnormal dryness).

Pacific

Temperatures from 2 to 8 degrees above normal occurred in southeast Alaska and on the Arctic Coast. Near-normal or colder-than-normal temperatures occurred in other parts of the state. Generally, east-central and southeast Alaska were wetter than normal this week, while the North Slope and northwest Alaska were drier than normal. The state remained free of drought and abnormal dryness this week.

Temperatures across Hawaii this week were mostly a degree or two below normal, with a few local exceptions. Abnormal dryness expanded across the rest of southern Kauai this week after dry weather in the Lihue area continued. On Oahu, a wet trade wind pattern continued, leading to improving conditions in the northeast facing half of the island. On Molokai, improvements occurred in the west owing to the wet trade wind pattern. On Maui, recent rainfall led to lessening severe drought coverage in the central valley area. Elsewhere, conditions remained the same. On the Big Island, conditions locally improved or degraded, based on stock pond reports and recent rainfall.

In the U.S.-Affiliated Pacific Islands (USAPI), a near-equatorial trough, with circulations moving through it, brought rain to southern portions of Micronesia during this U.S. Drought Monitor (USDM) week (December 13-19), while a dry trade-wind pattern dominated northern portions, except for a shear line/cold front that eventually reached the Marianas. South of the equator, the South Pacific Convergence Zone (SPCZ) moved over American Samoa, bringing heavy rains that ended the abnormally dry conditions on Tutuila.

Weekly rainfall totals were above the 1- or 2-inch weekly minimum needed to meet most water needs in southern portions of the Federated States of Micronesia (FSM), in central and northern parts of the Marianas, in Palau, and in most of the Marshall Islands. They were below the weekly minimum in Guam, western and eastern parts of the FSM, and parts of the Marshalls. In American Samoa, the heavy rains inundated Tutuila and caused flash flood conditions, with Pago Pago reporting over 13 inches of rain for the week and the automated station at Siufaga Ridge recording over 14 inches. Most locations in the USAPI, that were dry this week, were wet (above corresponding mins) either for December so far this month or during previous weeks.

In the FSM, abnormally dry (D0-S) conditions developed at Yap where the last 4 weeks have been dry (below the weekly minimum) and November and December were dry. Based on data available at the time of this report, less than an inch (0.86 inch) of rain was reported at Yap for this week and only 1.67 inches has fallen so far in December. Moderate drought (D1-S) continued at Ulithi, where the last 7 weeks, and November and December, have been dry. Ulithi reported only 0.25 inch of rain this week and 1.76 inches for so far this month.

In the Marshall Islands, moderate drought (D1-S) continued at Wotje, where the last 5 weeks, November, and December have been dry, while abnormal dryness (D0-S) developed at Ailinglaplap, where the last 4 weeks and December to date have been below corresponding minimums.

The remaining reporting locations in the USAPI had no drought or abnormal dryness issues.

Looking Ahead

From Wednesday, December 20 to Christmas evening, the National Weather Service Weather Prediction Center is forecasting three areas of heavier precipitation accumulations. The first, where amounts are likely to be between 0.75 to 3 inches of precipitation, is forecast for far western Oregon and Washington. In the Southwest, 0.75 to 2 inches of precipitation is forecast from Arizona into southern California, with higher amounts possible near and northwest of Los Angeles. From the central Gulf Coast northward to the middle Missouri and Mississippi River Valleys, precipitation amounts are forecast to range from a half inch to 2 inches, with locally higher amounts possible from northeast Texas into western Arkansas, and along the Louisiana, Mississippi, and Alabama coasts.

From December 26-30, the NWS Climate Prediction Center forecast favors below-normal precipitation for most of the region from the Mississippi River and Great Lakes west to the Great Basin. Above-normal precipitation is favored along the West and East Coasts and in deep south Texas. Below-normal temperatures are favored in areas near the Louisiana and Texas coasts. Elsewhere, near- or warmer-than-normal temperatures are forecast for much of the rest of the contiguous United States. Except for southwest Alaska, above-normal precipitation is favored for much of the state. Colder-than-normal temperatures are more likely in the western third of Alaska, while the eastern third is more likely to see warmer-than-normal weather. Drier-than-normal weather is favored across Hawaii, and cooler-than-normal temperatures are favored on the Big Island and the eastern half of Maui.