WASHINGTON — American Soybean Association and Plains Cotton Growers representatives voiced their support for the recent five-year registration for dicamba, but don’t agree with the national cutoff dates and larger buffers and have brought it to court.
The lawsuit, brought to the U.S. District Court for the District of Columbia, centers around a handful of new restrictions added by U.S. Environmental Protection Agency to the labels of XtendiMax, Engenia and Tavium herbicides.
The new labels include national cutoff dates for use — June 30 for soybeans and July 30 for cotton — as well as larger buffers than under the previous labels.
The new regulation requires a downwind buffer of 240 feet to protect sensitive areas and 310 feet in areas where endangers species are located.
Under the previous two-year registration that expires this year, in counties where endangered species may exist, the downwind buffer was 110 feet and there was a new 57-foot buffer around the other sides of the field. The 110-foot downwind buffer applied to all applications, not just in counties where endangered species may exist.
The EPA on Oct. 27 approved a new five-year registration for over-the-top application of XtendiMax with VaporGrip Technology and Engenia Herbicide and extended the registration for an additional dicamba product, Tavium Plus VaporGrip Technology.
Bill Gordon, ASA president and Minnesota farmer, said the lawsuit is not intended to vacate the new label.
“The only thing we’re challenging is the date and the buffer. So, nothing is really going to affect a grower who purchased dicamba or is planning to use it next year,” Gordon said.
According to the lawsuit, “EPA’s registration decision will arm growers with an essential weed-management tool for the 2021 growing season and beyond. But some aspects of the registration decision are problematic for growers, who depend on reasonable, consistent access to dicamba for use on dicamba-tolerant soybeans and cotton."
“In particular, several registration conditions impose growing restrictions and disrupt growing seasons, which will diminish crop yields, cut productivity and drive up operational costs. Some of these conditions are significantly more stringent than those found in past dicamba registrations.
“This action challenges those conditions as arbitrary and capricious and beyond the agency’s authority under Federal Insecticide, Fungicide and Rodenticide Act, the Endangered Species Act and the Administrative Procedures Act. More specifically, this case seeks remand of EPA’s temporal dicamba application restrictions and spatial application buffers.
“Resolving these legal uncertainties is important because growers are already making planting and seed-selection decisions for the 2021 growing season. Indeed, growers are already investing billions of dollars into dicamba, dicamba-tolerant soybean and cotton seed and related products — investments that will be lost if EPA’s broader registration decision were undone.”
Date Restrictions
The lawsuit states the June 30 cutoff date is problematic for two reasons.
“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,” the lawsuit noted.
“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.
“Therefore, in any given growing season, some growers will need to make their post-emergent application(s) of dicamba after June 30 (soybean) or July 30 (cotton). If growers are unable to make post-emergent applications, their fields may suffer from weed infestations — which, in turn, would lead to reduced yield and increased weed management costs.”
Buffer Expansion
The legal move also addressed the 240-foot mandatory buffer and the 310-foot buffer in counties where endangered species may exist.
“While some of these buffers might appear to afford some degree of flexibility, they are, as a practical matter, very difficult to manage,” the lawsuit stated.
“Because wind direction changes daily, so too can these buffers. Therefore, in reality, these ‘downwind’ buffers can transform into significant omnidirectional growing restrictions.
“The on-the-ground effect of these ‘buffers’ will lead to significant acreage of farmland being taken out of production for fear of violating the buffer rules. In practice, these buffers chop huge swaths of farmable land off the edges of growers’ fields.”
The lawsuit details that a soybean farmer who farms a 54-acre field and lives in an ESA-restricted county would lose one-third of the farmable land to the ESA buffer of 310-feet. That grower must either leave 15 acres fallow every year or sacrifice almost a third of his soybean harvest.
“These new buffers require growers to leave cropland empty, driving down farm profitability and financially harming growers,” according to the lawsuit.