According to Bayer, in 2020 there are 60 million acres expected to be planted with the Xtend system (50 million soybean acres and 10 million cotton acres). According to an AgPro online poll, 81% of respondents were up to 25% done spraying dicamba when the 9th Circuit Court issued its decision vacating the EPA labels for XtendiMax, FeXapan and Engenia on June 3.
As Richard Gupton, Senior Vice President, Public Policy & Counsel for the Agricultural Retailers Association, points out, this decision from the court could not have come at a worse time and carries a unique set of challenges with it.
“The timing of the decision could not have come at a more pivotal time,” he told Clinton Griffiths on Farm Journal Live on June 8. “We are in the height of application season, so it’s a major concern.”
Gupton explains the court’s decision impacts millions of dollars worth of already-planted crops—with many of those seed purchase decisions made last December.
“We want to make sure EPA is legally challenging the court decision as best as possible and minimize any disruption on the current season for our industry,” Gupton says, and he points out that time is of the essence.
ARA has sent a letter to the EPA asking for the agency to take one of two actions:
- Appeal the court decision, which could allow the application season to go forward.
- Use the existing stocks provision, which would provide for any products in the supply distribution chain to still be sold, used and applied.
On June 5, the EPA released a statement saying, ““EPA is assessing all avenues to mitigate the impact of the Court’s decision on farmers.”
“It's just a wait to see. The EPA needs to issue guidance very soon to make sure our members are complying with the law and following the label. Right now, it's uncharted territory for our industry,” Gupton says.
Meanwhile, as the industry waits for clarification from EPA, individual states outside of the 9th district are enabling dicamba spraying to continue. Arizona is the only state that is both located in the Ninth Circuit’s jurisdiction and permits over the top dicamba to be sprayed.
States that are continuing to allow dicamba applications despite the court ruling include: Indiana, Iowa, Kansas, Kentucky, Louisiana, Minnesota, Missouri, Nebraska, North Dakota. Texas, Wisconsin, Alabama, South Dakota and Tennessee.
“We have recommended with members operating in these states to get guidance and clearance from their state agencies. Also, we are asking them to make sure they're contacting and getting written approval from their insurance carriers, to make sure that that is backed up if they continue this application,” Gupton says.
So far, two states are saying affected dicamba products cannot be used until EPA issues further guidance: Illinois and Minnesota.
But even in those states that are proceeding with scheduled dicamba applications, it’s important to note that the EPA label restricts dicamba spraying on soybeans 45 days after planting and cotton 60 days after planting, with some states enacting hard cutoffs by date—some as early as June 20.
Gupton says as the time window closes, it is important applicators---ag retailers and farmers—stick to best practices in applying this herbicide, including the provisions around weather conditions.
“Obviously, we recommend our members to always follow the label. That's the law,” he says. And the delays are not only causing confusion but angst.
“The further this thing gets pushed off, it makes it more challenging for the industry to make these applications and remain in compliance with the label,” he says.
And he emphasizes the ARA and others are focusing right now on this growing season and getting the dicamba technology available to everyone again.
“We're just trying to focus on the current season because even the other products that may that the court cites in their case that the farmer could look at in our industry, they're really not readily available,” Gupton says. “There may be alternatives for up to 10% of the acres that can be covered. There's not available product and you have supply, distribution, logistical issues, that they can't address in this narrow window. So it's a major disruption to our industry.”