Thanks to regulations, expert says farmers are running out of options to control weeds
STEVENS POINT, Wis. – The Federal Endangered Species Act (ESA) has negatively affected the livelihood of several Wisconsin livestock farmers in recent years. Now the ESA is likely to also pose problems for the state’s crop farmers.
The Act which lists the state’s expanding gray wolf population as an endangered species, has resulted in the loss of dairy cows, sheep and beef cattle, and prevented farmers from taking lethal measures to protect their animals.
Not only does the ESA provide federal protection for animal species that are considered threatened or endangered, it also protects plants the animals might eat, according to Dr. Jed Colquhoun, a professor of Plant and Agroecosystem Science with the University of Wisconsin-Madison.
Addressing a recent gathering of crop farmers, Colquhoun said, “Even though it’s a fluid situation, some form of additional regulation is going to happen, because the courts are requiring it. Most regulators at USDA, EPA, and even the state of California, have registered objections about what I’m going to share with you.”
Producers need to be aware of the regulatory process
He predicted that there will be significant changes in pest management related to the Endangered Species Act. “We have to deal with this because the court says we have to.”
The Environmental Protection Agency (EPA) is an independent agency of the United States government created in 1970, and tasked with environmental protection matters. The EPA policies and regulation affect virtually all our lives and some manner.
Colquhoun expressed two goals for his presentation. “First, I’m going to attempt to make a complex issue understandable in a short period of time, and second, I want to inform you so that you can be a participant in the process,” he said.
When any pesticide is registered or re-registered, the EPA is obligated to determine if it will have an adverse effect on plants and wildlife. “The agency not only evaluates the effect on animals that are threatened or endangered, it also evaluates the effect on all the plants that the animals might eat,” Colquhoun explained.
Biological evaluation is tedious and time-consuming
This process results in a biological evaluation, which has to occur at least once every 15 years. “The results of the biological evaluation could have one of three outcomes: 1. The pesticide has no effect on the species or critical habitat. 2. The chemical may effect, but is not likely to adversely affect species or habitat, and 3: The pesticide may affect, and is likely to adversely affect, both animals and plants.”
If the evaluation results in a chemical being placed in the second or third category, the EPA has to consult with either the US Fish & Wildlife Service or the National Marine Fisheries Services about the implications of the chemical on the endangered species and their habitat.
After that consultation, two things can happen, according to Colquhoun. “If the changes that are needed to protect the threatened or endangered species and their habitat cover large swaths of area, like the lower 48 states, then language restricting the pesticide use is specifically tagged,” he emphasized. “Information about those chemicals specific to certain pesticide limitation areas are communicated through special bulletins that are available online.”
Currently, there are more than 17,000 pesticides registered with EPA, which contain over 1,200 active ingredients. And there are 1,700 species on the Endangered Species list. “Every combination has to be evaluated individually. – that’s 17,000 X 1,700 – which is why it takes 4 to 12 years to evaluate each pesticide,” Colquhoun stated.
Legal challenges are costly and create confusion
Over the years, several environmental activist groups, particularly the Center for Biological Diversity, have sued the EPA for failing to comply with protections required by the Endangered Species Act. EPA officials have stated that it would take until 2046 to complete the process for just the pesticides that are involved in current litigation, which is roughly only 5% of the total pesticides registered in the US.
In December of 2022, the 9the Circuit Court of Appeals effectively said the EPA was engaging in a “laughable strategy in complying with the ESA.” The court went on to say the EPA “does little to comply and said parties should not have to file a lawsuit to compel EPA to follow the law, and that the agency needs to complete the evaluation process a lot faster.”
EPA proposes several measures to expedite pesticide evaluation
EPA’s proposed solution combines population model strategies with a general list of mitigation measures to reduce the risk to the protected species. It identifies the threatened species, where the species is located and the list of mitigation measures the grower can draw from to be compliant with the ESA.
There are currently three EPA pilot projects underway. There’s the Federal Mitigation Pilot Project; the Vulnerable Species Pilot Project; and the Herbicide Strategy Project.
EPA is working Fish & Wildlife, Marine Fisheries and USDA to develop a menu of what producers can do to reduce their risk. “The agency is laying the groundwork for herbicide, fungicide and insecticide protocols,” related Colquhoun. “Basically, this in an ongoing discussion with all parties involved in regulation at the table.”
The goal was to finalize the mitigation menu by Dec. 2023, according to Colquhoun. “The specific range for protection was not determined. In some cases it was habitat that could support a threatened species but there was no evidence the species was already there,” he said.
After receiving thousands of comments, EPA recently indicated that it’s going back to the drawing board and expects to have a modified plan sometime this year.
Proposed regulations have gone too far expert says
Many of those commenting on the recent EPA proposals criticized the agency for going too far in the other direction. Several said the EPA regulations were too broad, saying, “That’s not the outcome we signed up for.”
Even the Center for Biological Diversity (CBD), which had earlier sued EPA, said the agency had gone too far. They cited the Checkerspot Butterfly in the Pacific Northwest as an example of agency overreach. In its first proposal, the EPA wanted to include 4.8 million acres of land in the butterfly’s protected habitat. The CBD said 165,000 acres would be sufficient, just 3.5% of EPA’s original proposal.
Considering herbicide application protocols
Colquhoun says EPA will start with the herbicide strategy which will be used as a protocol for future insecticide and fungicide regulations. “The draft herbicide strategy addresses agriculture herbicide use in the lower 48 states because herbicides account for the greatest amount of pesticide use,” Colquhoun explained.
The new proposal is aimed solely at agriculture, and doesn’t affect residential or even aquatic use of herbicides.
“Spray drip and runoff erosion are considered to be the greatest risks to endangered species,” said Colquhoun. “The new protocols call for identifying herbicides' effect on specific species populations and the mitigation measures that need to be adopted to reduce impact, and to identify the geographic location where those measures are needed.
“If you didn’t take any mitigation measures you would need a 500-foot buffer for aerial application. A ground application would require a 100-200 foot buffer depending on the droplet size,” Colquhoun explained. “Weather and climatic conditions and how they affect herbicide movement may be able to reduce the size of the buffer zone. Windbreaks could also reduce the buffer area; other mitigation measures could include grass waterways and irrigation management.”
Colquhoun stressed the importance of Identifying geography where mitigation is required. “Some areas will overlap with very specific regulation. Potato growers should be able to continue to use many current herbicides. With soybeans, grass waterways, and reduced tillage should help,” he said.
Future limitations on herbicide application are likely
“Now we’re starting to see some limitations on herbicides for specific crops and areas – 2-4D is already heavily restricted. The problem is we are running out of options to control weeds. We’re going to get into a pinch where we lose the weed control spectrum, and be forced to apply more things more often, which was not the intended outcome of this program. There may be some crops we simply won’t be able to grow,” he said.
“There’s still so much regarding future pesticide regulation that remains unknown. That’s why it’s vital for you to be aware of what’s taking place and for you to become actively involved in the process. I want you to be at the table instead of on the menu,” Colquhoun stressed.