The recent 5-year approval by the EPA of over-the-top dicamba products for use in cotton and soybeans was widely well-received in the ag industry. Many growers and other industry insiders have expressed relief that they will continue to have dicamba available to them to help fight glyphosate-resistant weeds.
In fact, on Oct. 27, 2020, the American Soybean Association released a statement to this effect, saying “The American Soybean Association (ASA) appreciates that the Environmental Protection Agency (EPA) has announced it will reregister dicamba for 2021 and future use. The product is one of many tools integral to the success of soy growers who face different crop production challenges throughout a diverse growing region spanning 30-plus states.”
The statement concludes shortly thereafter by saying “ASA is reviewing the new registration to have a comprehensive understanding of its impact for U.S. soybean production. Dicamba is an important choice for growers to have available to help manage damaging weeds.”
Upon that review, the ASA is now contending that the new restrictions associated with the dicamba re-registration are too constricting. On Nov. 4, 2020, the ASA, along with the Plains Cotton Growers (PCG) filed a lawsuit against the EPA, saying the new application restrictions would lead to “reduced yield, increased weed management costs.”
At issue are the June 30 and July 30 application cutoff dates (for soybean and cotton, respectively) as well as ESA (Endangered Species Act) and FIFRA (Federal Insecticide, Fungicide, and Rodenticide Act) buffer zones, which require a 310-foot downwind application buffer and a 57-foot omnidirectional buffer to achieve ESA compliance, and a “240-foot, universally controlling, downwind FIFRA application buffer.”
According to the lawsuit, the application cutoff dates “confine Growers’ flexibility, cabining their ability to respond to unforeseeable conditions. Every growing season brings its own unpredictable whims— severe weather, pest and weed infestations, market swings, and more—which often demand farm management flexibility. For example, heavy spring rains, flooding, wind and hail from severe storms, and other acts of God can force soybean and cotton growers into planting or replanting their crops as late as June.”
The suit explains that cotton growers, for example, “need effective weed control options through at least the mid-bloom growth stage — usually 90 days after planting,” which in some cases could be as late as August of September.
Soybean growers are also likely to need to make dicamba applications later in the season. “First, weather, pestilence, and other acts of God often push soybean growers, like cotton growers, into late season planting and replanting. The June 30 cutoff, then, likely leaves thousands of late season soybean growers largely defenseless against weeds.
“Compounding this, soybean growers annually battle late-emerging weeds, many of which are glyphosate-resistant. For example, waterhemp routinely emerges as late as July and August, and often in glyphosate-resistant form. Banning farmers from using dicamba against these doubly dangerous weeds essentially forces farmers to capitulate to these weeds.”
Regarding the increased buffer zones, the lawsuit says the new restrictions could cause the average soybean grower to lose almost a third of their croppable acres. “By way of example, assume the average soybean Grower—who farms a 54- acre field—happens to live in one of the several hundred ESA-restricted counties. Under the Application Restrictions, that Grower loses almost a third of her farmable land to the ESA Buffer. 54 In other words, that Grower, and thousands like her, must either leave 15 acres fallow every year, or sacrifice almost a third of her soybean harvest.”
The suit goes on to contend that extending the buffers exceeded the EPA’s authority under the ESA and FIFRA and that the buffers are “arbitrary and capricious.” In addition, the lawsuit points to an ESA Assessment that found that “registering Dicamba Products would have ‘no effect’ on certain Limited Species and critical habitat.”
The upshot is that the ASA and PCG highlight the importance of dicamba in the fight against weeds and are asking the Washington, D.C. district court to declare that the buffers and application restrictions in the EPA’s latest ruling “exceed EPA’s authority under FIFRA, the APA (Administrative Procedure Act), and the ESA.”