The EPA's Herbicide Strategy and Its Impact on Agriculture

By Brynna Sentel

In 1973, the Endangered Species Act (ESA) became law, requiring federal agencies like the Environmental Protection Agency (EPA) to ensure their actions aligned with ESA's goal of protecting endangered and threatened species.

Since then, the EPA has faced criticism for its inadequate regulation of the use of chemicals on the farm, such as the U.S. pesticide policy, resulting in a surge of legal challenges recently.

The complexity of ESA compliance stems from the vast number of endangered species (over 1,600) and pesticide ingredients (over 1,000). The challenge is understanding the intersection between these species and pesticides, a process conducted under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) for new pesticides before they are registered for use and every 15 years for existing products during the FIFRA reevaluation cycle.

“We've lost a number of lawsuits that threaten to pull pesticides off the market entirely if we don't begin adopting protections for endangered species,” says Jake Li, the EPA Deputy Assistant Administrator for the Pesticides Program. “We're trying to get into compliance now quickly, and we're trying to do so at a scale that we've never done before.”

The first step toward compliance came in July 2023, when the EPA released a draft Herbicide Strategy with the core concept that farmers would attain “points” by adopting specific practices (e.g. reduced tillage, cover crops, vegetative filter strips, contour farming, etc.). Use of most herbicides would require a set number of “points” per field – most herbicides could require six or more points to use.

It is important to note that most practices earn only one or two points, and no single practice would earn a farmer more than three points for a field. Therefore, most farmers would have to adopt at least two new practices to continue using herbicides as they do currently.

One concern many farmers have is if they must implement some of these mitigations that the agency has proposed, they won't produce as much, and the number of farmable acres will decrease. This will eventually affect the average consumer because one would expect food prices to increase over time due to the principles of supply and demand.

Although herbicides are extensively used and potentially threaten endangered species, eliminating them would have adverse environmental consequences, given their numerous benefits.

“Pesticides are effective in doing what they do,” says Dr. Aaron Hager, Extension Specialist, Weed Science/IPM. “It's a cost-effective strategy with many environmental benefits in reducing soil erosion and soil compaction by reducing the extensive amount of tillage, for example. It's a tool farmers have that enables their crops to achieve their maximum genetic yield potential.”

Although Hager acknowledged that the EPA has put “a lot of thought” into the proposed strategy and feels it is a “step in the right direction,” he has also expressed concern that the herbicide strategy isn’t grounded in science.

“We can't necessarily take an endangered plant species, for example, and screen it against 100 different herbicide active ingredients,” says Hager. “So usually, what the agency does is they try to come up with almost worst-case scenarios.”

This conservative approach in their estimates of herbicides' impact on endangered species is sometimes justifiable. Yet the approach can be overly cautious, especially when making the assumption that all herbicides affect endangered species in the same way, a claim that lacks scientific support.

“We simply don't know the sensitivity [of protected species to specific herbicides],” says Hager. “But assuming that virtually every endangered or threatened plant species is equally sensitive to all herbicides, that's kind of a stretch, I think, and not supported by science.”

In many ways, the result of skipping over science is that a significant, possibly unnecessary, burden is being placed on farmers.

After the release of the draft Herbicide Strategy, organizations had the opportunity to submit comments until October 22.

“What we put out there is genuinely a draft,” says Li. “It is not a final version, and we put it out as a draft precisely to get the types of inputs that we've been getting so far. And we can make some significant changes between the draft and the final version of the Herbicide Strategy. So that's why we need this time to go through it all.”

According to Li, the feedback they are receiving suggests additional mitigation measures need to be considered in the draft Herbicide Strategy. This aligns with their goal of expanding the menu of mitigation options for greater flexibility among growers. However, they are also hearing concerns about the cost and applicability of some mitigation measure. They are exploring options to give credit for existing conservation practices aimed at reducing pesticide drift.

“We are also exploring the tool of an offset,” says Li. “This would be applicable in a situation where you just can't avoid impacting the endangered species. And so instead, you are doing a good thing for the species elsewhere, such as restoring habitat elsewhere or maybe funding a zoo that does captive breeding of the species, or maybe funding research or other good things for the species as a way to compensate for the unavoidable impact from pesticide use.”

Still, many questions are on the ag industry's mind.

For example, many Illinois farms depend on retail applicators, who may lack the expertise and resources to guide farmers effectively. Leased farmland adds complexity, and meeting proposed requirements might involve costly actions that tenant farmers can't afford or complete within short lease periods. Landlords might also be unwilling to support changes that reduce their income.

Additionally, imprecise county-level endangered species maps have caused issues for agriculture. Entire counties have faced regulations even when only a small portion had endangered species. Recent mapping advancements have improved precision, but concerns about map accuracy have been raised. For example, in a Minnesota case, an outdated map restricted a product's use due to an endangered species that hadn't been in the state for decades.

Efforts are underway to use more refined maps for specific strategies, particularly for a pilot project focused on 27 vulnerable species. Maps will be updated to ensure accuracy before the project begins. However, for the herbicide strategy involving over 900 species, the timing of updated maps depends on public feedback and extensive analysis.

The ag industry faces the challenge of understanding and adapting to proposed regulations. There are many uncertainties surrounding these proposals, making it a formidable challenge for the industry.

Illinois Soybean Growers (ISG) is actively working to shield Illinois farmers from these burdensome regulations. Their efforts involve educating the EPA and congressional offices about the potential hardships the proposed strategy could impose on farmers. ISG collaborates with state and national farmer organizations to enhance outreach and advocacy. Additionally, ISG is mobilizing farmers to oppose these regulations before they become final.

To learn more and to sign up to receive more information about EPA's actions that could limit farmers' access to crop tools, visit ilsoygrowers.com/advocate/esa/.