Since 2016, soybean farmers have quickly adopted dicamba- and 2,4-D-ready crops in their fight against herbicide-resistant weeds. However, the expanded use of these herbicides during the growing season has led to an increased threat of drift damage for neighboring specialty crop growers. Several high-value crops can be damaged by concentrations of 1/300 the labeled rate or lower. Crops with especially high sensitivity to dicamba and 2,4-D include grapes, tomatoes, and soybeans that are not engineered for dicamba-resistance. Recent legal issues have limited the use of three dicamba products for the 2020 growing season, but 2,4-D and other dicamba products are still in use and will continue to pose a risk in areas with diversified or organic production.
A new fact sheet series is available to help specialty crop growers prepare for and respond to possible dicamba and 2,4-D drift. The series provides tips for being proactive, detailed steps for documenting and responding to damage, and a brief background on why dicamba and 2,4-D have been especially problematic. A Frequently Asked Questions fact sheet highlights various concerns pertinent to specialty crop producers. The series sought input from a variety of crop and herbicide specialists across the United States, as well as state regulatory agencies.
Fact sheets are available online at go.osu.edu/ipm-drift.
Preparing for drift
“Vigilance and communications are the two big things,” says Ohio State weed specialist Doug Doohan, “Knowing who your neighbors are, talking to them about your plans, talking to them about their plans, being aware of who’s doing what on the land and when.”
But who is your neighbor when it comes to drift? Just how far can dicamba drift travel? Most spray droplet drift will move short distances. This type of damage is generally limited to adjacent fields. However, dicamba and 2,4-D are likely to drift as a gas or via a temperature inversion. Temperature inversions can be especially damaging, moving suspended pesticides in a fog-like layer for longer distances.
“There’s all kinds of circumstantial evidence of much greater movement,” says Doohan. “When you’re talking inversions, if an inversion is motivated by a 2-3 mph wind, it could go miles—especially if the conditions persist through the evening.”
Doohan has helped investigate several drift cases and was one of the co-authors for the new fact sheet series. He encourages growers to establish a Standard Operating Procedure to prepare for a drift incident, just as they might for food safety concerns. He also stresses the importance of documenting suspected drift quickly, thoroughly, and repeatedly. The new fact sheet series offers detailed suggestions for these activities.
“If you see something, document it,” he advises. “Use your cell phone. You can always delete unneeded photos later, but you can’t go back in time and get the picture you wish you had taken.”
The new fact sheet series was cowritten by specialists at The Ohio State University and Purdue University, with support from the North Central IPM Center Working Group on Herbicide-Drift Risk Management. The working group organized in the fall of 2019 and plans additional projects in the coming year, including more resources and an anonymous survey of specialty crop growers to better assess the extent and frequency of drift damage throughout the north central region. The North Central IPM Center serves Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Nebraska, North Dakota, Ohio, South Dakota, and Wisconsin and is supported by the USDA National Institute of Food and Agriculture through agreement 2018-70006-28884.
Written by Evin Bachelor, Law Fellow, Agricultural and Resource Law Program
The Ohio Specialty Crop Registry connects producers of specialty crops, beekeepers, and pesticide applicators to one another through free online registries. Producers of specialty crops and beekeepers may voluntarily report the boundaries of their specialty crops and beehives. The registry then compiles this information in a mapping tool that also provides the contact information of the registrant. In doing so, pesticide applicators are better able to avoid these areas and minimize spray drift.
The Old System: the Ohio Sensitive Crop Registry
The Ohio Department of Agriculture (ODA) first launched a registry for sensitive crops in 2014 so that pesticide applicators could know the locations of sensitive crops before spraying in a given area. The registry came about at a time when widespread demand for organic foods required more farmers to closely monitor what came into contact with their crops. The original tool allowed commercial producers of at least a half-acre of a single type of sensitive crop to register. Sensitive crops included just about any non-row crop such as fruits, vegetables, and herbs. Apiaries, outdoor aquaculture, brambles, certified organic farms, nurseries, greenhouses, and orchards also could be registered.
The New System: the Ohio Specialty Crop Registry
Now, ODA partners with FieldWatch, Inc. to operate the Ohio Specialty Crop Registry. FieldWatch, Inc. is a non-profit organization that operates three registries: DriftWatch for producers of specialty crops, BeeCheck for beekeepers, and CropCheck for producers of row crops. FieldWatch creates maps based on the information from these registries, and makes those maps available to pesticide applicators in another program called FieldCheck. In summary, the three registries are for the producers and beekeepers, and FieldCheck is for the pesticide applicators.
Ohio currently only uses the DriftWatch and BeeCheck registries. According to ODA, the list of sensitive crops under the old program is virtually the same under the new system, meaning that producers of any non-row crop may utilize DriftWatch. While beekeepers may report the location of their beehives in DriftWatch, ODA recommends that beekeepers with no specialty crops use BeeCheck.
FieldWatch, Inc. continues to update its tools to add features and indicators, and CropCheck represents one such development. New for 2019, this registry allows producers of row crops like corn, soybeans, and wheat to register their crops. Its development comes on the heels of the introduction of dicamba-tolerant seeds. Only Arkansas, North Carolina, Illinois, and Indiana have adopted CropCheck for 2019. Ohio has not yet adopted it.
Connecting the Dots between the Registry and Liability
At this point you may be asking yourself, why is this in the ag law blog? That’s a fair question, and the answer is simple: risk management. As more farmers adopt organic practices, as pesticides and seeds change, and as weather patterns evolve, the risk increases that pesticide drift may come into contact with and negatively impact specialty crops and beehives.
The law expects people to act reasonably and to exercise due care at all times, and this default duty applies to pesticide applicators. Common claims for drift include negligence, nuisance, and trespass. Each of these claims examine whether the parties acted reasonably and with due care. Most often, when a court decides that a pesticide applicator acted unreasonably, it is because he or she failed to apply the pesticide in a manner consistent with the label. Following the label is certainly an expectation, but it is not the only thing a court will consider.
When a pesticide applicator does not use FieldCheck, a perceptive attorney representing beekeepers and producers of specialty crops would likely argue that the use of FieldCheck is an industry standard. If an attorney could establish this, then the failure to use FieldCheck would mean that a pesticide applicator failed to act in a reasonable manner and exercise due care. While we have not seen an Ohio court consider this issue yet, as use of the program continues to grow, this argument will come to hold more weight when a case does arise.
When a pesticide applicator does use FieldCheck, he or she has a stronger argument that he or she acted in a reasonable manner. FieldCheck provides pesticide applicators with a way to know exactly where registered sensitive crops and beehives are located, and allows the applicator to buffer accordingly. FieldCheck provides a quick, cheap, and easy way to manage legal risk, alongside following the label. Applicators who use the program may want to document when they used the program and also how the maps impacted their application plan.
These scenarios presume that the beekeeper or producer of specialty crops has registered the locations of their bees or crop with a FieldWatch registry. When sued by a beekeeper or producer of specialty crops who did not register their locations, a pesticide applicator could use similar arguments as noted above in order to defend against the lawsuit. However, the applicator’s focus would likely regard the lack of notice. Again, these arguments alone would not likely determine the outcome of the case, but they would help the court determine whether the parties acted reasonably.
What about hemp?
Another question that some of our readers will also be asking is: which registry is for hemp? We made a call and left a message with FieldWatch. If or when hemp production becomes legal in Ohio, we’ll be sure to provide an update on which registry is proper for hemp. Ohio’s hemp bill is on the move, and the Ohio Senate Agriculture & Natural Resources Committee completed its third hearing of the bill this week. However, we can’t forget that growing hemp is not legal in Ohio unless and until the bill is passed into law and the regulatory system is created.
Reprinted by permission from the Ohio Agricultural Law Blog. The blog is a service of the Ohio State Farm Office, which provides information for agricultural producers and land owners on agricultural law, taxation, production economics and farm management.