dicamba – Maryland Agronomy News

Back in a Wait-and-See Mode With Recent Dicamba Ruling

Paul Goeringer, Extension Ag Law Legal Specialist
University of Maryland

The article is not a substitute for legal advice. Reposted from the Ag Risk Management Blog

A recent Arizona federal district court ruling has vacated the 2020 registrations for dicamba products used over the top in cotton and soybean production. The ruling is based on violations of federal law requiring the public to have an opportunity to comment on the proposed “new uses” in 2020. This ruling currently means for growers that these products might not be available for the 2024 growing season. Based on the ruling, we are waiting to determine what the defendants will do next. Update: On Feb. 14, the EPA issued an existing stocks order to allow for limited continued usage for the dicambas at issue for stocks no longer in control of the pesticide companies. A table of what is allowed is below; to read that order, click here.

Court’s Decision

This litigation stems from the registrations issued in 2020 and amendments made in 2022 and 2023 by the Environmental Protection Agency (EPA) for the “new use” over-the-top applications of dicamba products. At issue in this is did EPA violate the Federal Insecticide, Fungicide, Rodenticide Act (FIFRA), the Endangered Species Act (ESA), and the Administrative Procedures Act (APA) when approving the “new use” registrations in 2020.

The court agreed with the plaintiffs that the 2020 registration was a “new use” because the 2016 and 2018 registrations had been vacated and canceled by an earlier court ruling. EPA had to treat the 2020 registration for over-the-top applications of dicamba products as a new use. This “new use” registration required the EPA to publish the 2020 registrations and allow the public to comment.

Because of the violations in issuing the 2020 registration for over-the-top use of dicamba products, the court turns to whether an exception should be granted to EPA to remand the registrations without vacatur. Vacatur is a Latin term meaning it is vacated. Based on the record, the court determines that vacatur is warranted and an exemption should not be granted. EPA had failed to consider many potential risks when assessing the new uses, and based on prior court rulings, it had effectively allowed the dicamba products on the market with no registrations since 2016.

What Does All This Mean?

We are currently back in a wait-and-see mode regarding whether dicamba will be available for over-the-top uses during the 2024 growing season. It is unclear at this time if EPA will appeal this ruling and request a stay while the Ninth Circuit is hearing the appeal. If the EPA does appeal and receive a stay, this will allow sales of dicambas used in over-the-top applications to continue. If EPA does not appeal, we could see what we did in 2020 with EPA canceling the registration based on a court ruling but allowing already purchased products to be used during the growing season.

One vital issue to note in all this is that Bayer (the parent company of Monsanto) in 2023 began to bring lawsuits claiming growers saved seeds for replanting the new Xtendimax technology. These are similar to those brought when growers would save Roundup Ready technology before the patent expired, but a few have one difference. Several lawsuits highlight that growers additionally violated patents by spraying dicambas that were unapproved for over-the-top applications. Why is it important to note this here? Many growers may assume that they can spray dicambas unregistered for over-the-top applications, but that can come with stiff penalties from state agencies and EPA and, at the same time, may open growers up to claims of patent violations.

Updated: Table from order highlighting what is allowed.

References

Ctr. for Biological Diversity, et al. v. U.S. Envtl. Prot. Agency, No. CV-20-00555-TUC-DCB, 2024 WL 455047 (D.Ariz., Feb. 6, 2024).

EPA Announces Dicamba Registration Decision

EPA press release, abridged

At the Cromley Farm, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced that EPA is approving new five-year registrations for two dicamba products and extending the registration of an additional dicamba product. All three registrations include new control measures to ensure these products can be used effectively while protecting the environment, including non-target plants, animals, and other crops not tolerant to dicamba.

“With today’s decision, farmers now have the certainty they need to make plans for their 2021 growing season,” said EPA Administrator Andrew Wheeler. “After reviewing substantial amounts of new information, conducting scientific assessments based on the best available science, and carefully considering input from stakeholders we have reached a resolution that is good for our farmers and our environment.”

Through today’s action, EPA approved new registrations for two “over-the-top” (OTT) dicamba products—XtendiMax with VaporGrip Technology and Engenia Herbicide—and extended the registration for an additional OTT dicamba product, Tavium Plus VaporGrip Technology. These registrations are only for use on dicamba-tolerant (DT) cotton and soybeans and will expire in 2025, providing certainty to American agriculture for the upcoming growing season and beyond.

To manage off-site movement of dicamba, EPA’s 2020 registration features important control measures, including:

Requiring an approved pH-buffering agent (also called a Volatility Reduction Agent or VRA) be tank mixed with OTT dicamba products prior to all applications to control volatility.
Requiring a downwind buffer of 240 feet and 310 feet in areas where listed species are located.
Prohibiting OTT application of dicamba on soybeans after June 30 and cotton after July 30.
Simplifying the label and use directions so that growers can more easily determine when and how to properly apply dicamba.

The 2020 registration labels also provide new flexibilities for growers and states. For example, there are opportunities for growers to reduce the downwind spray buffer for soybeans through use of certain approved hooded sprayers as an alternative control method. EPA also recognizes and supports the important authority FIFRA section 24 gives the states for issuing locally appropriate regulations for pesticide use. If a state wishes to expand the federal OTT uses of dicamba to better meet special local needs, the agency will work with them to support their goals.

This action was informed by input from state regulators, grower groups, academic researchers, pesticide manufacturers, and others. EPA reviewed substantial amounts of new information and conducted assessments based on the best available science, including making Effect Determinations under the Endangered Species Act (ESA). With this information and input, EPA has concluded that these registration actions meet Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) registration standards. EPA believes that these new analyses address the concerns expressed in regard to EPA’s 2018 dicamba registrations in the June 2020 U.S. Court of Appeals for the Ninth Circuit. Further, EPA concluded that with the control measures now required on labels, these actions either do not affect or are not likely to adversely affect endangered or threatened species.

To view the final registration of the dicamba products, visit docket EPA-HQ-OPP-2020 0492 at www.regulations.gov.

Herbicide Updates

Kurt Vollmer, Extension Weed Management Specialist
University of Maryland

On September 28, Bayer announced that the European Commission has authorized XtendFlex soybean technology for food, feed, import and processing in the European Union. XtendFlex soybeans have tolerance to glyphosate, glufosinate, and dicamba. With this approval, Bayer expects a full launch in the United States and Canada in 2021. However, no dicamba-containing products are currently registered for over-the-top applications in soybean. Previously registered dicamba products including Xtendimax, Engenia, FeXapan, and Tavium are still pending re-registration for use next season.

Over 300 agricultural organizations recently sent a letter (http://wssa.net/wp-content/uploads/Neguse-Udall-FIFRA-letter.pdf) to members of the House and Senate opposing legislation that would drastically amend the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

For more information on H.R. 7940 and S.4406 (the Protect America’s Children from Toxic Pesticides Act of 2020) visit https://www.congress.gov/bill/116th-congress/house-bill/7940/text?r=7&s=1.

To send a letter to your lawmakers opposing the current legislation visit https://www.votervoice.net/CropLifeAmerica/campaigns/77203/respond.

EPA Offers Clarity to Farmers in Light of Recent Court Vacatur of Dicamba Registrations

EPA press release

WASHINGTON (June 8, 2020) — Today, the U.S. Environmental Protection Agency (EPA) issued a key order providing farmers with needed clarity following the Ninth Circuit Court of Appeals’ June 3, 2020 vacatur of three dicamba registrations. Today’s cancellation order outlines limited and specific circumstances under which existing stocks of the three affected dicamba products can be used for a limited period of time. EPA’s order will advance protection of public health and the environment by ensuring use of existing stocks follows important application procedures.

“At the height of the growing season, the Court’s decision has threatened the livelihood of our nation’s farmers and the global food supply,” said EPA Administrator Andrew Wheeler. “Today’s cancellation and existing stocks order is consistent with EPA’s standard practice following registration invalidation, and is designed to advance compliance, ensure regulatory certainty, and to prevent the misuse of existing stocks.”

EPA’s order will mitigate some of the devastating economic consequences of the Court’s decision for growers, and particularly rural communities, at a time they are experiencing great stress due to the COVID-19 public health emergency.

Details of the Order

EPA’s order addresses sale, distribution, and use of existing stocks of the three affected dicamba products – XtendiMax with vapor grip technology, Engenia, and FeXapan.

Distribution or sale by any person is generally prohibited except for ensuring proper disposal or return to the registrant.
Growers and commercial applicators may use existing stocks that were in their possession on June 3, 2020, the effective date of the Court decision. Such use must be consistent with the product’s previously-approved label, and may not continue after July 31, 2020.

Background

On June 3, 2020, the Ninth Circuit Court of Appeals issued an order vacating EPA’s pesticide registrations containing the active ingredient dicamba: Xtendimax with Vaporgrip Technology (EPA Reg. No. 524-617); Engenia – (EPA Reg. No. 7969-345); and FeXapan – (EPA Reg. No. 352-913).

Dicamba is a valuable pest control tool that farmers nationwide planned to use during the 2020 growing season. Since the Court issued its opinion, the agency has been overwhelmed with letters and calls from farmers citing the devastation of this decision on the millions of acres of crops, millions of dollars already invested by farmers, and threat to America’s food supply.

Dicamba Registration Update

Kurt Vollmer, Weed Management Extension Specialist
University of Maryland

On June 3, the Ninth Circuit Court of Appeals issued a decision vacating the registration of three dicamba herbicides, Xtendimax® (Bayer), Engenia® (BASF), and FeXapan (Corteva). However, this ruling does not seem to include Tavium® (Syngenta). This ruling is a result of a lawsuit filed against the EPA’s 2018 registration decision (https://www.epa.gov/pesticides/epa-announces-changes-dicamba-registration) requesting that U.S. registrations of certain low-volatility dicamba formulations be vacated. If the label remains vacated, growers who have planted dicamba tolerant soybeans will not be able to use dicamba-containing products in their weed control program. That is unwelcome news to those who plan to use it to control glyphosate and ALS-resistant common ragweed and Palmer amaranth. As a result, PPO-inhibiting herbicides (Group 14) such as (Cobra®, Reflex®, Ultra Blazer®) are the only labeled products that will provide POST control of these weeds in dicamba tolerant soybeans. Further information and updates on this issue can be found by going to https://www.roundupreadyxtend.com/Pages/xtendimax-updates.aspx?utm_source=Various_Collateral.

2019 Dicamba Update

Erika Crowl, Agriculture Agent Associate
University of Maryland Extension, Baltimore County

Herbicide-damaged soybeans from dicamba drift — *Example of damage when a label rate of 1pt/ac of the herbicide Clarity drifted on to non-tolerant soybeans. Image: Matt Morris, University of Maryland.*

In October 2018, the U.S. Environmental Protection Agency (EPA) approved revised labels for Engenia (EPA Reg. No. 7969-345), FeXapan (EPA Reg. No. 352-913), and Xtendimax (EPA Reg. No. 524-617). While the EPA revised labels, they also announced the registration extension on dicamba for two years for “over-the-top” use on dicamba tolerant cotton and soybean plants.

Changes for 2019:

Only certified applicators may purchase and apply dicamba; no longer may those working under the supervision of a certified applicator may make applications.
For the 2019 growing season and each season thereafter, all applicators must complete the annual dicamba training provided by one of the registrants of a dicamba product approved for in-crop use with dicamba-tolerant crops.
Post- emergent dicamba treatments must be applied prior to 45 days after soybean planting, or R1 stage, whichever comes first.
Applications will be allowed only from 1 hour after sunrise to 2 hours before sunset.
In counties where endangered species may exist, the downwind buffer will remain at 110 feet. There will also be an additional 57-foot buffer required around the sides of the field. For a list of counties requiring additional protection measures check out the EPA endangered species website.

Records must be generated within 72 hours of application instead of 14 days. Must also include planting date on records. Record keeping forms for Engenia, FeXapan, and Xtendimax may be found online on the product website.

Please note this is not a comprehensive list of label changes for each dicamba product. I would encourage all applicators to read in detail all requirements on each specific product label. To find local dicamba trainings, please consult your local extension agent or Maryland residents may take the online training

EPA Announces Changes To Dicamba Registration

On October 31, 2018, U.S. Environmental Protection Agency (EPA) announced that it is extending the registration of dicamba for two years for “over-the-top” use (application to growing plants) to control weeds in fields for cotton and soybean plants genetically engineered to resist dicamba. This action was informed by input from and extensive collaboration between EPA, state regulators, farmers, academic researchers, pesticide manufacturers, and other stakeholders.

“EPA understands that dicamba is a valuable pest control tool for America’s farmers,” said EPA Acting Administrator Andrew Wheeler. “By extending the registration for another two years with important new label updates that place additional restrictions on the product, we are providing certainty to all stakeholders for the upcoming growing season.”

The following label changes were made to ensure that these products can continue to be used effectively while addressing potential concerns to surrounding crops and plants:

Dicamba registration decisions for 2019-2020 growing season

Two-year registration (until December 20, 2020)
Only certified applicators may apply dicamba over the top (those working under the supervision of a certified applicator may no longer make applications)
Prohibit over-the-top application of dicamba on soybeans 45 days after planting and cotton 60 days after planting
For cotton, limit the number of over-the-top applications from 4 to 2 (soybeans remain at 2 over-the-top applications)
Applications will be allowed only from 1 hour after sunrise to 2 hours before sunset
In counties where endangered species may exist, the downwind buffer will remain at 110 feet and there will be a new 57-foot buffer around the other sides of the field (the 110-foot downwind buffer applies to all applications, not just in counties where endangered species may exist)
Clarify training period for 2019 and beyond, ensuring consistency across all three products
Enhanced tank clean out instructions for the entire system
Enhanced label to improve applicator awareness on the impact of low pH’s on the potential volatility of dicamba
Label clean up and consistency to improve compliance and enforceability

The registration for all dicamba products will automatically expire on December 20, 2020, unless EPA further extends it.

EPA has reviewed substantial amounts of new information and concluded that the continued registration of these dicamba products meets FIFRA’s registration standards. The Agency has also determined that extending these registrations with the new safety measures will not affect endangered species.

Learn more: https://www.epa.gov/ingredients-used-pesticide-products/registration-dicamba-use-genetically-engineered-crops

Proper Stewardship by Growers is Essential to Ensuring Dicamba Tolerant Soybeans Continue to be Available

By Matt Morris, Agriculture Extension Educator
University of Maryland Extension, Frederick County

Dicamba tolerant soybeans, marketed under the trade name Roundup Ready 2 Xtend soybeans, are again available to Maryland growers for the 2018 growing season. This line of soybeans will combine previous Roundup Ready technology with tolerance to the herbicide dicamba.

While this new dicamba tolerance may be useful in combating certain tough-to-control weeds, including marestail and palmer amaranth, use caution when applying dicamba. Applications of dicamba may cause problems due to the sensitivity of certain crops to the herbicide. Exposure can occur due to drift, volatility, or a non-target application.

Below are some recommendations to consider when using new dicamba-tolerant technologies.

Dicamba type:

The only dicamba products that will be approved for in-crop use with Xtend soybeans will be XtendiMax from Monsanto, FeXapan from Dupont, and Engenia from BASF. These are lower volatility formulations than other dicamba products and are designed for dicamba-tolerant soybeans. These products will be classified as restricted-use pesticides for 2018 and all users must take dicamba or synthetic auxin herbicide training prior to purchasing these products.

Know the location of sensitive crops:

Talk with your neighbors and know where crops such as tomatoes, grapes, alfalfa, and non-tolerant soybeans are located. Engenia includes woodlands and native vegetation as sensitive crops; any broadleaf cash crop is listed as a sensitive crop in the XtendiMax label. This information will help you decide whether to use dicamba near these crops, especially if a prevailing wind will cause drift in their direction.

In addition, you should maintain buffer zones of 110 feet (220 feet if a 22 oz/ac rate is exceeded), between dicamba application sites and sensitive crops. The two websites below contain a (incomplete) list of some sensitive crops in your area:

http://maryland.maps.arcgis.com/apps/OnePane/basicviewer/index.html?appid=a4e2153518d04317bbac79702aafcd53

www.driftwatch.org

Rates:

Engenia – Dicamba tolerant soybeans – maximum of 12.8 fl oz/application and 51.2 oz/season.

FeXapan and XtendiMax – Dicamba tolerant soybeans – maximum of 44 fl oz/pre-plant application, 22 fl oz/post-emergence application, and a maximum of 88 fl oz/season.

Nozzle selection:

Engenia – Only TTI11004 and TTI11005 are currently approved.

FeXapan and XtendiMax – Apply large droplets with specific nozzles. Do not use flat fan nozzles that produce driftable fines. Use TTI11004 or nozzles listed on the EPA-mandated product websites.

Tank mix partners and water conditioning:

Ammonium sulfate (AMS) CANNOT be mixed with the new dicamba formulations. AMS is commonly used as a water conditioning agent for glyphosate applications. Adding AMS will increase the volatility of dicamba. Also, certain spray adjuvants and herbicide tank mix partners are not compatible with the new dicamba formulations.

Lists of approved tank mix partners can be found at:

http://www.xtendimaxapplicationrequirements.com/Pages/default.aspx

http://agproducts.basf.us/campaigns/engenia/tankmixselector/

http://www.dupont.com/products-and-services/crop-protection/soybean-protection/articles/fexapan-tank-mix-partner.html

Recordkeeping:

For the 2018 season, recordkeeping will be mandatory when applying dicamba in-crop on soybeans. Specific recordkeeping requirements will vary between the three approved, in-crop dicamba products, so always consult the label. However, it is recommended you always record wind speed and direction, air temperature, humidity, location of the application, product(s) used, rate, crop being treated, pests being targeted, and total product amounts used, among other information. Proper recordkeeping can provide essential evidence in the event of herbicide damage to a non-target crop.

Wind speed, temperature, and temperature inversions:

The optimal wind speed for applying the new dicamba products is 3-5 mph. Applications are prohibited when wind speeds are above 10 mph.

As the temperature increases, so does the volatility of dicamba. Use caution when applying dicamba products in hot, humid weather.

Take caution when wind speeds are below 3 mph, since this could indicate the presence of a temperature inversion. This phenomenon occurs when the temperature, which normally decreases with height in a thin layer of the atmosphere, increases with height. Inversions are another cause of vapor drift. Other indicators of a temperature inversion include low-hanging smoke or dust, morning fog or frost, clear and still nights with little to no cloud cover, and ground temperatures cooler than early morning air temperatures.

Multiple applications and weed height:

Multiple herbicide applications with the same mode of action within a single season selects for herbicide resistance. Avoid using dicamba on tolerant soybeans more than once in a season. If possible, a pre-emergence herbicide should be applied before or at planting. It is also important to remember that weeds should be targeted at 4” of height or less for successful control.

Application suggestions:

Keep ground speeds below 15 mph and nozzle pressures as low as possible to maintain the desired application rate. Boom height should be no more than 24” above the crop or weed canopy. If a weed is 4” tall, boom height should not exceed 28.”

Most importantly:

ALWAYS READ AND FOLLOW PESTICIDE PRODUCT LABELING. It is a violation of Federal and state law to use any pesticide product in a manner inconsistent with its labeling.

Approval of dicamba-tolerant soybeans by the U.S. Environmental Protection Agency will run until the end of 2018. At that point, they will consider whether to renew approval based on the number of problems that occur as a result of this new technology.

If you have questions regarding the use of dicamba tolerant soybean technology or dicamba, please contact Matt Morris @ 301-600-3578 / mjmorris@umd.edu or your local Extension office for more information.

Dicamba Changes for 2018:

Classified as a restricted use pesticide that only certified pesticide applicators can purchase.
Anyone applying these products MUST receive dicamba or auxin-specific training.
Applications can ONLY be made between sunrise and sunset.
Recordkeeping is mandatory. Refer to the individual labels for exact recordkeeping requirements.
All applications cannot be done when wind speeds exceed 10 mph (down from 15 mph).
Record of compliance with spray system cleanout is mandatory.
Labels have enhanced language about susceptible crops. This includes non-dicamba-tolerant soybeans.

Things to Consider When Using Dicamba Tolerant Soybeans

Matt Morris, Extension Educator, Frederick County (mjmorris@umd.edu)

Dicamba tolerant soybeans, marketed under the trade name Roundup Ready Xtend will be available to Maryland growers for the 2017 growing season. This line of soybeans will combine previous Roundup Ready technology with a tolerance to the herbicide dicamba. While this new dicamba tolerance may be useful in combatting certain tough-to-control weeds including marestail and palmer amaranth, caution needs to be taken when making applications of dicamba. Problems with dicamba applications may arise due to the sensitivity of certain crops to dicamba. Exposure can occur due to drift, volatility, or a non-target application. Below are some recommendations to consider when utilizing new dicamba tolerant technologies.

Know the location of sensitive crops:

Talk with your neighbors and know where crops such as tomatoes, grapes, alfalfa, and non-tolerant soybeans are located. This will aide in the decision to use dicamba near these crops, especially if a prevailing wind is headed their direction. In addition, buffer zones of 110’ (220’ if a 22oz/ac rate is exceeded), will need to be maintained between dicamba application sites and sensitive crops. These two websites listed below contain a (incomplete) list of some sensitive crops in your area:(Link Here)

Dicamba type:

Rates:

Engenia – Dicamba tolerant soybeans – max of 12.8 fl oz/application and 51.2 oz/season.

FeXapan and XtendiMax – Dicamba tolerant soybeans – max of 44 fl oz/preplant application, 22 fl oz/postemergence application, and a max of 88 fl oz/season.

Nozzle selection:

Engenia – Only TTI11004 and TTI11005 are currently approved.

FeXapan and XtendiMax – Apply large droplets with specific nozzles. Do not use flat fan nozzles that product driftable fines. Use TTI11004 or nozzles listed on the EPA-mandated product websites.

Spray adjuvants and water conditioning:

Ammonium sulfate (AMS) CANNOT be mixed with these new dicamba formulations. AMS is commonly used as a water conditioning agent for glyphosate applications. Adding AMS will increase volatility of the dicamba. Also, certain spray adjuvants and herbicide tank mix partners are not compatible with the new dicamba formulations. Always consult the label before mixing.

Recordkeeping:

Always keep records of where you’ve planted dicamba tolerant soybeans. This can help avoid costly misapplications to a crop that is not tolerant to dicamba. It will be extremely important to convey this information to custom application companies or employees on your farm.

Wind Speed, temperature, and temperature inversions:

When applying these new dicamba products the optimal wind speed is 3-5mph. Applications are prohibited when wind speeds are above 15mph; however, great caution and even stopping spraying when wind speeds are above 10mph would be ideal.

As temperature increases so does the volatility of dicamba. Caution should be used when applications are made in hot, humid weather.

Caution should also be taken when wind speeds are below 3mph as this could indicate the presence of a temperature inversion. Inversions are another cause of vapor drift. Other indicators of a temperature inversion include low hanging smoke or dust, morning fog or frost, clear and still nights with little to no cloud cover, and ground temperatures cooler than early morning air temperatures.

Multiple applications and weed height:

Application Suggestions:

Most importantly:

ALWAYS READ AND FOLLOW PESTICIDE PRODUCT LABELING. It is a violation of Federal and state law to use any pesticide product in a manner inconsistent with its labeling.

The U.S. EPA will allow its approval of dicamba tolerant soybeans to run until the end of 2018. At that point they will consider whether or not to renew approval based on the amount of problems that arise as a result of this new technology. In order to have this technology in the future, proper stewardship by the grower is essential. If you have questions regarding the use of dicamba tolerant soybean technology or dicamba itself please contact Matt Morris @ 301-600-3578 / mjmorris@umd.edu or contact your local Extension office for more information.

References and other Resources:

-University of Illinois Extension. The Bulletin. Dicamba and Soybean: What to Expect in 2017. http://bulletin.ipm.illinois.edu/?p=3765

-Purdue University Extension ID-453-W. 2,4-D- and Dicamba Tolerant Crops- Some Facts to Consider. https://www.extension.purdue.edu/extmedia/id/id-453-w.pdf

-Reviewed by Ron Ritter, Professor Emeritus, University of Maryland

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