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EPA hands farmers a victory with Dicamba decision

Use winter down time to read up on the many restrictions needed for the weed killer to be used correctly.

Gary Baise, Attorney at Law

November 2, 2020

3 Min Read
MINNESOTA SURVEY: The Minnesota Department of Agriculture is asking farmers to complete a survey about alleged dicamba injury in soybeans that they have experienced.Bruce Potter, University of Minnesota

On October 27, EPA approved the over-the-top (OTT) use of dicamba on cotton and soybeans. On the same date, EPA issued a memorandum which supports the decision to approve the registration for the uses of dicamba on DT cotton and DT soybeans.  

What the courts took away, the regulators restored. This was another “win” for farmers created by the Trump administration.

A little history

You may recall, the U.S. Court of Appeals for the Ninth Circuit ordered on June 3, 2020 that EPA immediately end three pesticide registrations containing dicamba. According to EPA’s incident Data System, there were 1,400 incidents reported in 2017, 2,600 reported in 2018 and nearly 3,000 reported to EPA in 2019.

After the Ninth Circuit Court of Appeals decision, EPA promptly issued a cancellation order, but growers and commercial applicators were allowed to use existing stocks. The stocks had to be in possession by June 3, 2020 and could only be used up until July 31, 2020.

On July 2, 2020, Bayer and BASF submitted new registration applications for XtendiMax and Engenia to be used on DT cotton and DT soybeans.

Worth reading

For dicamba users, EPA’s Oct. 27 Memorandum is worth reading. On pages 4 and 5 of the 28-page document there is a summary of EPA’s decision. Even though this decision is a victory for agriculture, and not likely to be continued under a Biden administration, the Memorandum is helpful.

Related:Losing dicamba in the middle of the growing season

On spray drift, the 2020 decision requires:

-a “240-ft downwind in-field buffer;

-a timing of applications due to volatility;

-a limit of two over-the-top applications of dicamba per field per year; 

-applications are permitted one hour after sunrise and two hours before sunset;

-there is a calendar cut-off date for soybeans of June 30th and July 30th for cotton;

-tank volatility will require the use of a qualified buffering adjuvant in the tank for every application;

-to accommodate the endangered Species Act there is a 310-ft downwind buffer;

-to accommodate the ESA there is also a volatility requirement of 57-ft omni-directional buffer in areas with federally listed Endangered Species;

-label clarity is addressed which includes pre and post emergent uses for cotton and soybean crops;

-a new hooded sprayer requirement is imposed and if a hooded sprayer is used, the 240-ft FIFRA requirement is reduced to 110-ft;

-terms of the registration requires testing and approval of tank mixes, with enhanced reporting of adverse effects;

-there are new training procedures required with specific information on 2020 control measures and of course, there is always additional record keeping requirements.

Related:EPA decision on dicamba expected this month

Did you get all that?

More costly, more restricted

The registrations restrict the application of dicamba to certified applicators and not a person under their supervision. Costs will increase for farmers utilizing dicamba, but it is what you would expect when EPA promulgates the list of control measures required to withstand another Ninth Circuit Court opinion. Agricultural coalitions sent a variety of letters of how important dicamba is to help growers control weeds. Members of the U.S. House of Representatives’ Committee on Agriculture also sent letters arguing that dicamba is a critical tool for agriculture and admitting there must be mitigating measures taken.

One interesting argument was raised involving Right To Farm Statutes (RTF). The argument under RTF is that farmers need to have the right to grow crops “…without concern of loss or damage to an organic or sensitive crop because of offsite movement of dicamba.” This position was opposed by non-governmental organizations such as the Audubon, Arkansas organization, National Wildlife Federation, and the Center for Food Safety.

This is not the last we will hear about dicamba because many of these groups presumably will challenge EPA’s recent decision in court. Immediately!!!!       


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About the Author(s)

Gary Baise

Attorney at Law, Gary H. Baise

Gary Baise is an Illinois farmer and attorney. He also serves as outside General Counsel for several national agriculture organizations, including Agricultural Retailers Association and National Sorghum Producers. Baise organized President Trump’s agricultural team of advisers. He was the first Chief of Staff to the first U.S. Environmental Protection Agency Administrator. He owns a family farm in Jacksonville, Ill.

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