EPA’s New Herbicide Strategy: What is it and where did it come from?

Note: The following article was written by Sarah Hoak, an undergraduate student in the College of Food, Agricultural, and Environmental Sciences at Ohio State.  Sarah was a student in the Agribusiness Law Class at OSU this past semester.  Sarah researched and wrote this article to expand her knowledge and understanding of pesticide use policy, a topic of great interest to her.

On August 20, 2024, the EPA announced its final Herbicide Strategy. Many in the agriculture community are wondering what the strategy is, how it came to be and what it means for the industry.

The herbicide strategy is one part of the EPA’s workplan to protect endangered species. It was created in response to multiple lawsuits filed against the EPA for failure to comply with the Endangered Species Act (ESA) by not conducting mandatory consultations under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). FIFRA is the primary federal law that regulates pesticide use in the U.S. and prevents the sale or use of a pesticide in the United States until the EPA approves and registers a label for the product. After a pesticide label is approved, the EPA must review the label every fifteen years to ensure that it continues to meet federal requirements with regards to the environment and human health. However, the EPA has struggled to complete ESA consultations when registering pesticides or reviewing their labels. Just one ESA consultation can take years to complete, and time adds up when there are over 17,000 registered pesticide products on the market.

To better comply with the ESA and reduce the risk of more litigation, the EPA drafted the Herbicide Strategy. This policy was designed to start the protection of endangered species earlier in the regulatory process. Instead of acting after the fact, the strategy aims to mitigate herbicide exposure to endangered species at the start. The strategy lays out a set of mitigation guidelines that growers and applicators will need to follow as they apply an herbicide. These mitigation practices will help limit herbicide exposure to endangered species. A draft policy of the strategy was released in 2023 and underwent the public comment process. Because the EPA is a government agency, they have the power to make and enforce regulations. The public can share their input on drafted regulations during the “comment period,” which is a 30–60-day time frame where government agencies will hear comments from the public¹.

The comments that were submitted for the draft herbicide strategy expressed concern about the restrictiveness and complexity of the policy. The EPA took these comments into account and made changes so that the final policy is easier to understand, includes more flexibility for pesticide users and reduces the amount of additional mitigation needed.

The final policy, taking into account public comments, focuses on targeting pesticide exposure from off-target movement including spray drift, erosion and runoff. The EPA will use a three-step decision framework to implement the policy. The first step compares and identifies a herbicide's potential to have population-level impacts on endangered species as either not likely, low, medium, or high. This step sets the bar for how much mitigation is needed for use of each herbicide.

The second step will determine the level of mitigation needed to sufficiently reduce spray drift, runoff and erosion exposure to listed species. For spray drift exposure, mitigation will primarily be based on buffer distances, and the distance will be determined by a herbicide’s classification (from step one) and the method of application. Applicators have the option to reduce the required buffer size by adopting additional mitigation measures aimed at reducing spray drift.

For runoff and erosion exposure, a point system will be used with growers/applicators having a mitigation menu from which to select practices that aim to reduce off-target movement. Herbicides will require a certain amount of mitigation points based on their classification from step one. Mitigation measures receive a value of either one, two or three points - three being high efficacy and one being low efficacy. Like with spray drift, applicators/growers have the option to gain the required number of points by adopting additional mitigation measures.

Step three will determine where the mitigations identified in step two will be required. This step considers each field's characteristics. Some mitigations may apply across the entire area of herbicide use or may be geographically specific and only apply in certain locations. This step complicates the strategy and its implementation because each field may require different forms of mitigation depending on its characteristics.

Let's look at an example for runoff and erosion mitigation on a field in Franklin County, Ohio with a 2% slope:

Using the EPA’s mitigation menu, we can determine how much mitigation is needed. Using the mitigation relief options in Table 1 of the mitigation menu, the field has a starting point value of 5 points. The field gets 3 points because Franklin County has a low pesticide runoff vulnerability and 2 points because it has a slope of less than 3%. If a grower were to apply a herbicide with a low impact, no additional mitigation measures would need to be taken. Low population impact herbicides require 3 mitigation points, and the base field characteristics cover this already.

However, if a grower were to apply a high impact herbicide, then 9 mitigation points (4 in addition to the field’s starting value) would need to be met. The grower can choose from various mitigation options to reach the 9-point mark. Some of these options include no-till conservation tillage (3 points), contour farming (2 points), in field vegetative strips (2 points), cover crops with tillage (1 point), grassed waterways (2 points), mitigation tracking (1 point) or participating in a qualifying conservation program (2 points). There are even more mitigation measures to choose from that are listed in the mitigation menu. As long as the grower selects and implements enough mitigation measures to reach the 9-point mark, then they will be in compliance with the strategy.

The Herbicide Strategy is a complex and layered policy that will affect growers and pesticide applicators across the United States. Compliance with the ESA has been a struggle for the EPA, but through the Herbicide Strategy, mitigation of spray drift and runoff/erosion exposure to endangered species should be reduced. Remember, geography, proximity to endangered species, method of application, pesticide applied, and farm management will dictate how much of an effect this policy has on a specific operation. Not every grower and applicator will be in the same situation, each will have to adjust and change certain aspects of how they manage their farm or specific fields.

Unfortunately, how this policy will play out and be implemented is unclear.  The agriculture community will have to be vigilant and adapt to the Herbicide Strategy as more information arises and implementation begins.