By Kyle Kunkler, ASA Government Affairs Director 

Kyle Kunkler, ASA director of government affairs, delivered a keynote address at the Endangered Species Act Symposium last year. 

We often can look to the horizon and know when a storm is imminent. And, we have modern forecasting tools that can predict strong weather systems well in advance to help us prepare. However, some storms for which we must prepare are not of the weather variety but are instead on the policy or regulatory fronts. Consider this your advanced warning and buckle up, because things are about to get rocky.

Most who follow U.S. agricultural policy have heard something over the past couple of years about how the Environmental Protection Agency is incorporating Endangered Species Act protections into pesticide registrations. To be clear, this by itself is not a bad thing. Federal judges are losing patience with the agency on ESA. If EPA does not take steps to become ESA compliant, the agency will continue to be sued and the agricultural community will likely lose pesticide registrations to court rulings.

While we want EPA to be compliant, the devil is in the detail on what “becoming compliant” means. Unfortunately, EPA has offered some very complex, burdensome proposals to meet its ESA responsibilities. The proposals, including the Herbicide Strategy and Vulnerable Species Pilot Project (VSPP), would lump together, respectively, 1. herbicides, and 2. endangered species the agency contends are uniquely vulnerable to pesticides. They would then establish a common set of protective restrictions for species and their habitats. Insecticide and Fungicide Strategies will also be offered in the months ahead.

Both current proposals aim to reduce pesticide runoff and spray drift risks, by which these proposals direct farmers or applicators using herbicides (or pesticides in general in VSPP areas) to implement several costly conservation practices and adopt large downwind spray drift buffers. As a result, nearly every pesticide user would have new regulatory obligations, which vary depending on where you are, what you farm, and your proximity to species or habitats. Some conservation practice options include reduced tillage, cover crops, vegetative filter strips, riparian buffers and irrigation management, to name a few. The downwind spray drift buffers can be as large as 200 feet for ground applications and up to 500 feet for aerial.

The concerns are many. First, it is unclear whether these restrictions are even necessary to protect species. EPA uses very conservative assumptions and models in assessing exposure risks to species, which likely overstate risks. These assumptions include that farmers are spraying at maximum label rates and that no protective conservation is currently taking place. The conservation practices EPA offers can be costly, and in many cases, there are insufficient options for farms. Assuming someone has enough options to comply, the cost to do so could be in the millions for an individual operation. USDA estimates Herbicide Strategy compliance costs for corn farmers in Iowa, Illinois, and Nebraska could run as high as $5.5 billion, as an example. This would likely be true for soy.

If there is good news, there were warning alarms, and we do have some time to prepare. EPA will not finalize the Herbicide Strategy until May 2024, and the VSPP later in the year. In addition to directly engaging EPA, USDA and other regulators, we are working with Congress to conduct oversight. We are also carefully studying the legal defects of the proposals, of which we believe there are many. Make no mistake though, there is a species storm brewing and the time to prepare is now.