NAAA works to educate policymakers and affect congressional and federal agency decisions to ensure their policies for pest control, plant health, environmental protection, and vector control pertaining to the use of pesticides and fertilizers use the best available science, professional techniques, and modern application technologies used by the aerial application industry; as well as the benefits aerial application provides agriculture and the environment. These benefits include efficient and precise applications of agricultural inputs, often to areas inaccessible to ground application; prevention of topsoil compaction and crop damage by spraying above the crop canopy; and yield enhancement through pest control on food, feed, bioenergy and fiber crops on fewer acres of land. This allows for the preservation of large areas of sensitive and bio-diverse ecosystems.

Link to EPA’s Bulletins Live! Two

In September 2021, the U.S. Environmental Protection Agency (EPA) reissued its third five-year Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) Pesticide General Permits (PGP) for pesticide applications made into, over or near jurisdictional water bodies.

The 2021 PGP replaces the permits issued in November 2016 under the same conditions and requirements, and authorizes certain point source discharges from the application of pesticides to the Waters of the U.S.  It is important for NAAA members to review what is involved in this process and the permit requirements. 

NAAA has several important tools to ensure consistency with the 2021-issued PGPs, whether issued by the EPA or any of the 46 state agencies authorized to administer the NPDES program. The PGPs impose additional performance and record-keeping responsibilities and potential legal liabilities on top of those linked to compliance with FIFRA product labels and state pesticide laws. Although compliance with the PGPs can be time-consuming, the alternative is much worse—potential government enforcement, mega fines and/or citizen lawsuits. 

Please use the following links to help you understand the state and federal NPDES PGPs:

Coverage by EPA’s 2021 PGP is automatic now for all that qualify for coverage, however some decision-making entities such as government and larger entities, including some decision-making applicators, must submit a Notice of Intent (NOI) to be covered. Like the 2016 update, for 2021 PGP reporting, including NOIs, you must now be submitted electronically unless a decision-maker is exempted due to physical location in an area identified as under-served for broadband internet access and/or demonstrated computer access limitations. EPA posted web information on reporting using eNOI and a PGP eNOI System User Guide. The PGP applies to the following geographic areas where EPA serves as the NPDES permitting authority: four states (Massachusetts, New Hampshire, New Mexico, and Idaho) and the District of Columbia; all U.S. territories except the U.S. Virgin Islands; federal facilities in Delaware, Vermont, Colorado, and Washington; discharges in Texas that are not under the authority of the Texas Commission on Environmental Quality, including activities associated with oil and gas exploration; and all areas of Indian Country that are not covered by an EPA-approved permitting program (see Appendix A of the Final 2021 PGP for further description). The other 44 states not covered by EPA’s PGP have some form of PGP in place, but they do vary considerably. That means if you have pesticide applications that extend across state borders you may need to comply with much different PGP requirements. Refer to NAAA’s analysis of all States’ NPDES Pesticide General Permits to learn more about state PGPs.

EPA’s published 2021 PGP contains considerations for protection of endangered species that were outlined by the National Marine Fisheries Service (NMFS) in their final Biological Opinion (BiOp). However, EPA has yet to complete consultation with the U.S. Fish & Wildlife Service (FWS). EPA posted updated information on ESA procedures, including an Interactive Mapping Tool to assist with identifying coverage areas that trigger additional ESA-related requirements. 

NAAA is pleased aerial applicators (for-hire contractors that are not also “Decision Makers”) do not have to submit an NOI to EPA for permit coverage, conduct components of integrated pest management, develop a Pesticide Discharge Management Plan, file annual reports, or meet the extra requirements from the NMFS for protecting endangered or threatened species listed under the Endangered Species Act (ESA), or their critical habitat. Those more complex permit compliance requirements are the responsibility of Decisions Makers, such as state and federal agencies, municipalities, natural resource management agencies, and large private organizations directing pest control activities.

Compliance requirements of aerial applicators include the requirement to use only the amount of pesticide and frequency of pesticide application necessary to control the target pest, using equipment and application procedures appropriate for this task. They must also maintain pesticide application equipment in proper operating condition, including calibration, cleaning, and repairing such equipment, and must also prevent leaks, spills and other unintended discharges. Aerial applicators must assess weather conditions in the treatment area to ensure application is consistent with all applicable federal requirements. For-hire applicators must also keep records that document pesticide application equipment maintenance and details of the pesticide application itself (e.g., documentation of equipment calibration; description of each treatment area, including location and size of treatment area and any water bodies present; pesticide use pattern, target pests treated; weather conditions, quantity and name of each pesticide product used including the EPA registration number; application date(s); if visual monitoring was conducted, and if not, why not; and if any unusual or unexpected effects occurred to non-target organisms).

NAAA will continue to work with a coalition of agricultural organizations for a legislative exemption from Clean Water Act NPDES permits, and this effort may be tied to passage of other legislation.

In the meantime, aerial applicators should be aware that they must comply with the EPA or state PGPs in the states where they do business, and may be subject to citizen action suits immediately should they violate either the recordkeeping or performance aspects of the PGP.

NAAA Issue Brief – NPDES PGP

Updated February 2023

The federal requirements for the registration of crop protection products changed significantly when the Food Quality Protection Act (FQPA) of 1996 was enacted. The law required all crop protection products registered under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) also meet several new safety criteria. These include consideration by the Environmental Protection Agency (EPA) and mitigation of potentially cumulative exposures from direct and indirect methods, such as drinking water, bystander spray drift or residential home and garden uses. FQPA also required additional protection of special subpopulations that may be more susceptible, such as infants and children. The law requires the review every 15 years of all crop protection product registrations, considering any new science or exposure information. The aerial application industry and its customers have been and continue to be affected by FQPA. Many product uses have been restricted by requirements for no-spray buffers for aerial applications, or in some cases product registrations have been completely cancelled based on these more stringent (re)registration criteria.  Under the law, EPA was supposed to complete this second FQPA review of all pesticide products before October 1, 2022.  EPA did not meet this deadline. Congress passed and President Biden signed into law an extension of the deadline until October 1, 2026.  Some eNGOs (environmental non-government organizations) were expected file suit shortly after this deadline asking EPA to vacate the registration of products that have not completed registration review. The extension lessens the threat of immediate litigation related to the missed October 1 deadline. 

There are several stages during the registration review process. The risk assessments are the first round of documents written by EPA once a product enters review. The risk assessments rely heavily on models to assess the risks the pesticides pose to the environment and human health. The proposed interim decisions (PID) are the next phase of the review process. They use the risk assessments as basis for deciding whether a product should be re-registered and what restrictions should be placed on how it is used. The final interim decision (ID) follows, after the EPA considers comments received on the PID and makes any changes they deem necessary.

The decisions are considered interim instead of a full re-registration of a product because the biological evaluations and opinions on the potential risks each pesticide represents to threatened and endangered species and their designated habitat as well as pollinator protection assessments still need to be completed, as does an endocrine disruptor screen. The Endangered Species Act (ESA) requires that EPA work with the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) to evaluate the potential risks each pesticide represents to threatened and endangered species and their designated habitat. The process begins with the EPA conducting a Biological Evaluation (BE) of how the pesticide could impact endangered species. Then the FWS and NMFS issue Biological Opinions (BiOps) that further examine how the pesticide will impact endangered species and their habitats. Once the BEs and BiOps are completed, EPA consults with FWS and NMFS to issue a final decision on re-registration for the pesticide being reviewed.  Currently, EPA is in its second round of reassessments for crop protection products since FQPA, and is using conservative models to predict potential human health exposures through drinking water and ecological effects on water and air quality, and potential impacts on threatened and endangered species, bees and other pollinators, and aquatic ecosystems in general. The Agency also began using epidemiological (statistical prediction) studies in reregistration to predict potential effects that pesticides might have on children and other susceptible subpopulations, and worker health (see respective policy sections below). EPA is pressuring some registrants to place additional application restrictions on labels. This pressure is particularly intense for some older products such as organophosphates, as seen by the EPA restricting chlorpyrifos from crops, or for those products EPA has expressed concerns about “bystander risk” to support requirements for even larger buffer zones than what are now on some labels.

NAAA continues work with registrants, other stakeholders, and EPA to preserve key aerial uses during the registration review process. NAAA documents for EPA in person (or virtually) and in public comments and other communications the drift reduction and precision application capabilities of modern ag aircraft and the professionalism inherent in today’s ag pilots. Where aerial uses are threatened, we have also worked with registrants to address EPA’s conservative and sometimes flawed assumptions to provide more accurate “real world” data about aerial uses and precision application methods, this includes urging the agency to use Tier 3 rather than Tier 1 of the AgDRIFT atmospheric software that models aerial pesticide movement after the application.  Tier 3, compared to Tier 1, takes into account much more realistic aerial droplet sizes, aircraft, boom drop systems and other setups and practices standard in today’s aerial application industry. Our data, commitment to drift reduction technologies and education efforts have in several cases prevented the potential loss of aerial use of crop protection products and/or minimizing the use restrictions for products.

NAAA in the past 27 years has collected and passed on to EPA and the Small Business Administration considerable demographic data in the form of six surveys supplied to the Agency (1992, 1998, 2000, 2004, 2012 and 2019) that have provided, among other things: 1) data from aerial applicators on the average number of acres treated; 2) drift mitigation technologies and measures employed; 3) occupational exposure mitigation measures practiced in the field; and 4) industry-wide demographic data of typical aerial application operations.

In addition, NAAA has educated EPA about our industry education and training program results. For example, the PAASS (Professional Aerial Applicator Support System) program and Operation S.A.F.E. (Self-regulating Application & Flight Efficiency) fly-ins and other NAAA activities encourage the use of drift reduction technologies. These programs focus on drift mitigation through education. In addition, the industry supports the USDA-ARS Aerial Application Technology group that develops, and tests new aerial application technologies designed to mitigate drift and make aerial applications more efficacious. NAAA will continue to focus on these programs and will continue to conduct surveys to ensure products remain available for aerial use and without burdensome and unnecessary restrictions.

NAAA also works with USDA’s Office of Pest Management Policy (OPMP) to assist the office as it weighs in with EPA on product benefits and risk assessments. In addition to working with USDA, EPA, registrants and grower groups, NAAA is represented on the EPA is the Pesticide Policy Dialogue Committee (PPDC).  The PPDC is a federal advisory committee that provides a forum for a diverse group of stakeholders to provide feedback to the EPA’s Office of Pesticide Programs on various pesticide regulatory, policy and program implementation issues. Stakeholders include academia, state and local regulatory officials, environmental activists, grower groups and crop protection product manufacturers.

All these activities have allowed us to provide meaningful input into the registration review process and preserve key aerial uses. Over the past few years, NAAA has submitted comments on hundreds of active ingredients (many more than are described below) including the ones below that have done the following:

  • The NAAA has responded to hundreds of proposed registration review interim decisions that resulted in preserving the product for aerial use with minor additional label requirements, such as limiting boom length to 65 percent of the wingspan for fixed wing aircraft or 75 percent of the rotor blade diameter for helicopters. This proposed language shows that EPA recognizes drift mitigating technologies and techniques used by aerial applicators, including reducing boom length. The interim decisions all included NAAA-supported label language that would use the American Society of Agricultural and Biological Engineers standard S572.1 to specify the required droplet size on the label.
  • NAAA opposed additional language dictating nozzle type, orifice size, operating pressure, or deflection because such language adds unnecessary confusion and can inadvertently restrict an aerial applicator from using a setup that can meet the required droplet spectrum. Specifically, NAAA opposed proposed label language that would:
    • Restrict applications of products to wind speeds of 10 miles per hour or less, because many parts of the country during application season experience wind speeds commonly exceeding 10 mph, and restricting applications to this wind speed could reduce the industry’s ability to make timely applications. We also explained the ability to mitigate drift by increasing droplet size in wind speeds of 11-15 mph.
    • Require the release of spray above 10 feet, limiting boom length to 65 percent of wingspan for fixed wing aircraft or 75 percent of rotor span diameter for helicopters, use of a ½ swath displacement on downwind edge, nozzles must be pointed backwards, applications cannot be made when wind speed is greater than 10 mph nor during a temperature inversion. NAAA agreed with the 10-foot release height and not spraying during an inversion. NAAA disagreed with limiting boom length to 65 percent of wingspan for fixed wing aircraft or 75 percent of rotor span diameter for helicopters unless environmental or human health risk assessments showed a need for this reduction. Instead, NAAA proposed the standard should be a boom no longer than 75% of wingspan for fixed wing aircraft and 85% of rotor blade diameter for helicopters.
    • Specify nozzle selection, orientation, or other setup parameters other than the droplet size requirement. NAAA explained to the EPA how aerial applicators have multiple tools with which they can select and set up the appropriate nozzle to create a label required droplet size class, and that additional language simply adds confusion and is unnecessary.
    • In nearly all comments submitted, NAAA continued to remind EPA about the importance of using the proper ag drift model in its risk assessments.  EPA should be using the sophisticated Tier 3 of AgDRIFT when determining aerial off-target product movement rather than the Tier 1 model.
  • NAAA worked with the 2,4-D Task Force and EPA to address proposed mandatory buffer zones for 2,4-D applications, citing concerns about ineffective weed control and the potential for some weed species to develop resistance to 2,4-D if lower rates are used. NAAA supported a droplet size requirement of medium or coarse depending on the droplet size requirements of any tank mix partners. NAAA originally opposed a mandatory boom length restriction of 65% of the wingspan or 75% of the rotor diameter for 2,4-D, but later accepted it as a requirement for applying in wind speeds of 11-15 mph. These comments were accepted by the EPA and incorporated into 2,4-D labels.  NAAA has also made similar comments with the same successful results for the sulfonyl urea herbicides.

In late 2018, many of the proposed interim decisions from EPA began to include proposed label drift mitigation requirements favorable to the aerial application industry and supported by NAAA. These proposed requirements showed the EPA was listening to comments submitted by the NAAA. The drift mitigation requirements typically include the following:

  • Wind speed limit of 15 mph
  • Maximum boom length of 75% of wingspan for fixed-wing aircraft and 90% of rotor diameter for applications in wind speeds 10 mph or less
  • Maximum boom length of 65% of wingspan for fixed-wing aircraft and 75% of rotor diameter for applications in wind speeds of 11 to 15 mph
  • ½ swath displacement upwind on the downwind edge of the field
  • This was later updated to be ½ swath displacement upwind on the downwind edge in wind speeds less than 10 mph and ¾ swath displacement in winds speeds of 11 to 15 mph.
  • Prohibition on spraying during an inversion
  • Droplet size specified by ASABE droplet spectrum categories
  • Maximum application height of 10 feet unless greater height is need for pilot safety

In In mid-January 2022 NAAA had another meeting with EPA to continue the discussion on NAAA’s suggestions for improving the accuracy of EPA’s drift modeling for aerial applications. It appears EPA is receptive to making this change. Feedback from USDA OPMP indicates it is highly unlikely EPA will redo any of the risk assessments already completed during this second product review of FQPA, therefore it appears that the change from Tier 1 to Tier 3, provided EPA continues their current path of acceptance, will occur with the next round of registration reviews. Making all buffer zones based on wind direction was also discussed. It appears that the EPA is seriously considering both the proposed changes. Future meetings will be planned to continue the discussion and keep EPA moving forward towards accepting both the use of Tier 3 and wind directional buffer zones. Follow up to EPA last month indicates that EPA is still digesting all of the information submitted to them and will reach out to NAAA when they are ready to further discuss the two issues.

In March 2022, NAAA staff and board leaders traveled to the North American headquarters of BASF and Syngenta and also visited UPL as part of its efforts to ensure aerial use is allowed on pesticide labels.  Other virtual meetings were held with Bayer and future meetings are planned with Valent, Bayer, Corteva and other major pesticide manufacturers.  The meetings were incredibly successful in making both key contacts and educating the pesticide companies on aerial applications breadth, technologies and use of atmospheric models supporting aerial use on pesticide labels.  Follow up supporting two active fungicides (cyprodinil and fludioxonil) for one registrant on use in aerial and using atmospheric models based on current industry practices resulted in preserving the label and a $70 million value.

The following are just a few of the PIDs that NAAA has commented on in 2022:

  • April 2022: Proposed interim decisions (PID) for ferbam and iprodione. Aerial applications of ferbam were already prohibited and NAAA objected pointing out benefits of aerial application. The PID for iprodione had acceptable drift mitigation requirements as described earlier in this section. It also proposed banning human flaggers which NAAA supported.
  • June 2022: PIDs for spiroiclofen, captan, folpet, and propiconazole. The PID for propiconazole and Spirodiclofen had acceptable drift mitigation requirements as described earlier in this section. This PID also acknowledged the discussions between EPA and NAAA in regard to working towards the use of tier 3 instead of tier 1. The PID for captan proposed banning aerial applications of dry formulations, which NAAA objected to and offered an acreage limit per mixer and loader instead. The PID for captan also proposed a wind speed limit of 10 mph which NAAA objected to. The PDI for folpet proposed banning aerial applications which NAAA objected to.
  • In June of 2022 NAAA was asked to join with grower groups in an amicus brief to support the EPA and their final interim decision for paraquat issued in August 2021. The EPA was sued by environmental groups requesting they reverse the final interim decision.  NAAA was instrumental in reversing EPA’s initial PID to cancel aerial uses of paraquat except cotton desiccation.  NAAA worked with Syngenta, the primary registrant, to propose risk mitigation measures that would preserve all existing aerial uses of paraquat although it did limit each pilot making applications of paraquat to treating a maximum of 350 acres per day. The 350 acre per pilot per day limitation did not include cotton defoliation – that use was unrestricted as to the total number of acres a pilot could treat each day. The EPA did not offer a reason as to why cotton defoliation acreage was not restricted while all other uses were, other than that their use and benefits data indicated the importance of aerial application of paraquat on cotton, although NAAA sent a to the EPA expressing concern with the 350 acre limit.
  • July 2022: PIDs for diuron and fluometuron. The PID for diuron proposed banning all applications (both ground and aerial) except for cotton defoliation, which NAAA objected to. The PID for fluometuron had acceptable drift mitigation requirements as described earlier in this section.
  • In July of 2022 EPA issued proposed revisions to its final interim decision on atrazine which was issued in 2020. The basis for the reversal is a change from the aquatic level of concern for atrazine of 15 parts per billion (ppb) which is supported by science to 3.4 ppb which is supported by environmental groups. Part of the proposed revisions are to ban the aerial application of atrazine. The revisions also proposed banning applications of any kind when the soil was saturated or within 48 hours of rain likely to cause runoff. NAAA submitted comments opposing the ban, highlighting the importance of ag aviation for making quick and timely applications, a restriction on ground applications would increase the need for growers to utilize aerial applications once the soil was no longer saturated, and that there is a difference between saturated soils and soils too wet to operate a ground sprayer on.
  • In July of 2022 EPA requested a voluntary remand of the paraquat interim registration. At this point paraquat is still legal to apply based on the 2021 decision, but EPA will have to go through the entire registration review process for paraquat again. NAAA fully expects a proposed ban on the aerial application of paraquat to be back on the table at some point in the process. Similar to atrazine, the decision to remand the 2021 registration review decision for paraquat was not based on science but instead on a lawsuit from environmental groups.
  • In June of 2022 NAAA began working with CAAA and Syngenta to assist with registering products containing cyprodinil. The EPA had re-registered the pesticide with the drift mitigation requirements described earlier in this section, including a 15-mph maximum wind speed limit for applications. California DPR questioned the data and modeling behind EPA’s approval of this wind speed limit. NAAA provided the data and correspondence that had resulted in EPA approving aerial applications in wind speeds up to 15 mph. Syngenta was then successful in getting products with cyprodinil approved for aerial use in California.
  • September 2022: PIDs for tebuconazole and triadimefon and triadimenol. The PID for tebuconazole had acceptable drift mitigation requirements as described earlier in this section and acknowledged the discussions between EPA and NAAA in regard to working towards the use of tier 3 instead of tier 1. The PID for triadimefon and triadimenol proposed a wind speed limit of 10 mph which NAAA objected to. NAAA also commented on the biological evaluation (BE) for sulfoxaflor, once again commenting on the fact the BE used AgDRIFT tier 1 and that buffer zones should be wind directional based.
  • October 2022: NAAA submitted comments to the EPA on risk assessments for dicamba. The comments focused on the continued use of the erroneous AgDRIFT Tier 1 model.
  • December 2022: NAAA commented on EPA’s proposed revisions to the methomyl proposed interim registration review decision. The changes were proposed as part of EPA’s effort to address their obligations under the Endangered Species Act (ESA). The revisions proposed the use of wind directional buffer zones as a mitigation strategy to protect the three endangered species covered in the proposed revisions. NAAA was highly supportive of this mitigation strategy and has repeatedly requested buffer zones be based on wind direction in past comments. The buffer zone is only required when wind is blowing towards the sensitive area; when the wind is blowing away from it no buffer zone is required. The proposed mitigations will be only required when applications are made either within the range of the endangered species near critical habitat, depending on the specific species being protected. EPA’s Bulletins Live! Two will be used to show applicators the location of ranges and critical habitats for endangered species. Some of the proposed mitigations only apply during certain months based on the biological activity of the species.
  • Since 2017 NAAA has submitted 255 pesticide registration comments for 228 active ingredients.

In December of 2022 EPA released an updated ESA workplan to help them deal with the backlog of ESA risk assessments that need to be conducted as well as ongoing ESA lawsuit. NAAA is currently reviewing the plan for comment, but it does mention wind directional buffer zones as a mitigation strategy which is encouraging.

On December 29, 2022, President Biden signed into law a massive Fiscal 2022 spending bill that extended the October 1, 2022 deadline to October 1, 2026.  Some eNGOs (environmental non-government organizations) were expected file suit shortly after the October deadline passes, asking EPA to vacate the registration of products that have not completed registration review. The extension lessens the threat of immediate litigation. 

In January of 2023 NAAA began assisting California AAA and BASF with registering Sharpen herbicide for aerial use in California. Also in January of 2023, NAAA received word from EPA that they are actively working on NAAA’s recommendation to move to AgDRIFT Tier 3.

Updated February 2023

Chlorpyrifos is a widely used organophosphate insecticide and has been the target of activist group attention and controversy over many years. Chlorpyrifos was used in more than 50 fruit, nut, cereal and vegetable crops including apples, almonds, oranges and broccoli, with more than 640,000 acres treated in California alone in 2016.  Pesticide action Network North America (PANNA) and the Natural Resources Defense Council (NRDC) filed a petition to revoke the tolerances and cancel the registrations for chlorpyrifos in 2007.  After some additional rounds of legal wrangling through the last years of the Obama Administration, the Court stated unequivocally that it would not grant any further extension beyond March 31, 2017, for final action on the petition.

At the time PANNA and NRDC began the court case, EPA had issued a preliminary decision indicating that it intended to deny the petition, but EPA later reversed course and, in the process, issued several controversial documents upon which it relied in support of the 2015 proposal to revoke the food use tolerances for the pesticide.  EPA determinations supporting the 2015 chlorpyrifos proposal sparked significant controversy, and not just amongst chlorpyrifos stakeholders.  Some of the assumptions and analytical approaches used in EPA documents regarding its chlorpyrifos assessment had a significant potential to reach far beyond chlorpyrifos in their potential impact.  For example, EPA issued and relied upon a new determination regarding the interpretation of epidemiological data and how such data are used in making Food Quality Protection Act (FQPA) safety factor decisions.  EPA utilized epidemiological data for chlorpyrifos to select risk endpoints for chlorpyrifos and to determine that the 10X FQPA safety factor must be retained for all organophosphate pesticides.  The FQPA safety factor determination has been the subject of much concern and comment with industry suggesting numerous scientific, legal and procedural flaws in the scientific predicate for the determination and procedure by which it was adopted. This included not making the data public even when scrubbed of identification of the individuals involved in the data collection thereby being allowed per patient rights under the Health Insurance and Portability Accountability Act.

The Trump Administration arrived amid this controversy and only a few months before the court-ordered March 31, 2017, deadline for final EPA action.  As many expected, in meeting the deadline for a decision on the petition, the Trump EPA denied the petition and stated that it would continue to review the safety of chlorpyrifos, noting that the deadline for a conclusive decision would be part of the registration review of the pesticide, due in 2022.  On August 9, 2018, the U.S. Court of Appeals, Ninth Circuit, issued a 2-1 decision vacating the Trump Administration’s March 2017 order and remanded the matter to EPA with instructions to revoke all tolerances and cancel registrations within 60 days.  Such an aggressive decision is unusual. EPA appealed and sought review by the full Ninth Circuit bench. In support of that course of action, NAAA joined with a coalition of industry partners and sent a letter to Agriculture Secretary Sonny Perdue and, at the time, Acting EPA Administrator Andrew Wheeler expressing strong concerns about the ruling from the Ninth Circuit. The letter concluded by respectfully urging EPA to petition for a review by the full Ninth Circuit bench (i.e., en banc rehearing). 

Following a hearing of its full bench, the Ninth Circuit issued an April 19, 2019, ruling requiring EPA to respond by July 18, 2019 to NGO objections to its denial of the petition and the EPA refusal to revoke all tolerances for chlorpyrifos (effectively it would result in a ban).  In doing so, the Ninth Circuit clearly signaled it will no longer accept delays in EPA taking a final and reviewable action.  EPA timely responded to the objections in July denying objections and responding to NGO petitioners’ claims. EPA denied making any regulatory findings that chlorpyrifos tolerances are unsafe.  As expected, the NGO groups along with eight states (NY, CA, HI, MD, VT, WA, MA, and DC) have since filed a new petition to review EPA’s refusal to ban chlorpyrifos. In May 2019, Canada’s Pest Management Regulatory Agency proposed to cancel all uses of chlorpyrifos. 

In another matter related to chlorpyrifos but separate from the court’s decisions, NAAA commented to the EPA on the National Marine Fisheries Service Biological Opinion Issued under the Endangered Species Act. NAAA strongly opposed a proposed 1,000-foot buffer from bodies of water as unreasonable and unnecessary. The impact this egregious buffer would have on the ability to treat farmland using aerial application was documented, as was the ability of agricultural aircraft to monitor wind speed and direction, thus negating the need for a buffer zone not based on wind direction. As it has in previous comments, NAAA also disagreed with the use of the Tier 1 model in AgDRIFT to assess the risk of drift from aerial application.

From a congressional standpoint, many members of the House of Representatives—all Democrats—sponsored or co-sponsored legislation to immediately ban all sale and use of chlorpyrifos.  These politically motivated bills are a legislative meat axe. They would abruptly terminate all remaining chlorpyrifos uses (termite control uses were voluntarily phased out two decades ago) rather than allowing the U.S. Environmental Protection Agency (EPA) Office of Pesticide Programs to mitigate their potential risks with a regulatory scalpel. The bills would destroy the “finely tuned control of pesticides” that Congress intended EPA to exercise under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). See S. Rep. No. 838, 92d Cong. 2d Sess. 1 (1972). Instead, the machinations of politicians who lack any scientific expertise or regulatory experience would short-circuit the ongoing efforts of the EPA scientists and risk managers who are conducting the methodical, FIFRA-mandated, chlorpyrifos Registration Review.  In fact, the bills would pander to the interests of strident anti-pesticide groups, which, as stated above, have unsuccessfully petitioned EPA to cancel all FIFRA registrations for chlorpyrifos, and revoke all of its related agricultural crop tolerances regardless of EPA explaining at great length that the objections “regarding neurodevelopmental toxicity must be denied because [they] are not supported by valid, complete, and reliable evidence.” 84 Fed. Reg. 35555, 35557 (July 24, 2019). 

The chlorpyrifos ban bills would override EPA’s scientific judgments and regulatory discretion. EPA, of course, is an expert federal agency with almost half a century of pesticide-related technical knowledge and regulatory experience. In a recent case, a Supreme Court plurality recognized that Congress is “dependent . . . on the need to give discretion to executive officials to carry out its programs.” Gundy v. United States, No. 17-6086 (decided June 20, 2019), slip op. at 17. “[I]n our increasingly complex society, replete with ever changing and more technical problems . . . Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Id. at 5 (internal quotation marks omitted).  That is what Congress did almost 50 years ago by delegating comprehensive pesticide regulatory authority to EPA under FIFRA. The statute establishes a pesticide registration standard which requires EPA to balance the risks of using a pesticide against its benefits. 7 U.S.C. § 136a(c)(5); see id. § 136(bb). To ensure that a registered pesticide continues to meet the statutory standard, FIFRA requires EPA to conduct a periodic review of every registered pesticide active ingredient. See id. § 136a(g) (Registration Review).

If EPA proposes to cancel or suspend the registrations of a pesticide, FIFRA also guarantees due process to pesticide registrants and other adversely affected parties: the right to object and request an administrative hearing, followed, if necessary, by judicial review. The chlorpyrifos ban bills, and other pieces of legislation statutorily canceling registrations of other pesticieds, however, would deprive EPA of the ability to continue reassessing, and to the extent necessary mitigating, potential chlorpyrifos risks so that they are outweighed by that pesticide’s benefits. And the bills apparently would deprive registrants and other stakeholders of the procedural due process, as well as substantive due process, that Congress built into FIFRA.

After California regulators took aggressive steps to ban the use of chlorpyrifos in the state, Corteva Agrosciences announced in late October 2019 it reached an agreement with California regulators on how the sale and use of the product will be phased out in 2020. The negotiated settlement provides an element of certainty for chlorpyrifos users, provides an opportunity for existing stocks of the product to be used, and for affected growers to have a transition period as they work to adopt alternative crop protection solutions. Registrants ceased chlorpyrifos sales in November 2019, and dealers and distributors were required to end sales February 6, 2020. Existing chlorpyrifos stocks can be used by applicators during the 2020 growing season, but all uses were required to end by December 31, 2020.   Additionally, on the state level, New York Governor Andrew Cuomo vetoed a bill that would ban chlorpyrifos in the state, after NAAA sent him and other state regulators a letter urging him to do so.  However, with his veto, the governor said he supported banning the product, but it could not be done via legislation. Instead, he ordered the New York State Department of Environmental Conservation (DEC) to immediately start the regulatory process to revoke all chlorpyrifos uses. His order to the DEC unfairly targets the aerial use of chlorpyrifos, ordering the agency to expedite the ban of all aerial uses, with other application methods being phased out later. NAAA is closely working with Corteva Agrosciences to ensure the DEC fairly evaluates the science behind the safety of the products, and the safety of its aerial use. 

In February of 2020 Corteva Announced that the company was stopping the manufacturing of Chlorpyrifos due, according to them, a slump in sales.  Corteva did indicate they will continue to work with the EPA on renewing chlorpyrifos’ federal registration and continue to defend the product in ongoing lawsuits, citing more than 4,000 studies and reports examining the product in terms of health, safety and the environment. California has set aside $10 million to find alternatives to chlorpyrifos for growers, but as of March 2020 none had been found.

EPA released its draft PID for chlorpyrifos in December 2020.  NAAA submitted comments to the EPA on the PID in March of 2021. NAAA commented that the proposed ban on the aerial applications of chlorpyrifos was based on risks to mixers and loaders, which in turn was affected by the use of a 10X safety factor that was intended for human health risks of concern related to the potential for neurodevelopmental effects on the young. The exposure path for these risks of concern was given as drinking water. NAAA commented that it is not appropriate to estimate risks to mixers and loaders based on a drinking water exposure concern. Additionally, NAAA pointed out that the worker protection standard (WPS) already prohibits anyone under 18 from mixing and loading pesticides, so human health concerns for the young should not impact risk assessments for mixing and loading chlorpyrifos. NAAA also highlighted the importance of aerial applications of chlorpyrifos and how banning it would negatively affect growers.

In August of 2021 the EPA announced its intention to ban chlorpyrifos for all food uses. The EPA’s decision follows the ruling by the Ninth Circuit Court on April 29th, 2021, that gave the EPA 60 days to decide to either ban the insecticide or write a new rule to allow for its safe use. Instead of following the advice of EPA’s career scientist who feel that uses of chlorpyrifos can be safely maintained, the EPA allowed the threat of additional litigation to drive their decision to revoke all food tolerances of chlorpyrifos. This effectively bans all uses of chlorpyrifos on food crops from all application platforms, including aerial, ground, and airblast. The ban does not affect non-food uses such as forestry, mosquito control, and golf course applications. These uses will continue to follow the registration review process currently underway, which will ultimately decide if aerial application will be allowed for nonfood applications of chlorpyrifos. The order by the EPA calls for canceling tolerances for chlorpyrifos on food crops in six months. The sixth month period will begin after the decision is officially published in the Federal Register. The EPA will also be revising or canceling chlorpyrifos product labels to reflect the prohibition of chlorpyrifos applications to food crops.

In September of 2021 NAAA joined with several other agricultural groups in a letter to the EPA expressing disappointment with EPA’s decision to ban chlorpyrifos, pointing out that the decision contradicted President Biden’s pledge to “make evidence-based decisions guided by the best available science and data,” as the scientific data itself proves chlorpyrifos can be safely used to protect food and feed crops. The letter also pointed out that by revoking the food tolerances before canceling the products registered for food and feed applications the EPA has caused a great deal of confusion among growers, retailers, and applicators. These groups need immediate clarification on what they can do with existing stocks of chlorpyrifos that they have invested in and purchased that are still legally registered. Questions also remain on how the tolerance revocation will apply to chlorpyrifos residue already in the food supply chain that may remain after the six-month period is up.

NAAA joined allied organizations in submitting comments to EPA opposing a petition by a group of eNGOs to revoke the tolerances of all remaining OPs including: Acephate, Densulide, Chlorethoxyfos, Chlorpyrifos-methyl, Diazinon, Dichlorvos, Dicrotophos, Dimethoate, Ethoprop, Malathion, Naled, Phorate, Phosmet, Terbufos, and Tribufos. In addition, the petition requested that EPA take action to protect workers from potential risks of exposure to OPs, update its risk assessments to include a protective regulatory endpoint for children, and complete registration review on the OP class of chemicals by October 1, 2022, although that deadline was since extended to October 1, 2026 through legislation that was signed into law on December 29, 2026. The petition is in response to the EPA delaying the deadlines for finishing the registration reviews for the organophosphates. The petitioners claim this is unacceptable due to their belief that organophosphates poison people. The petition mentioned aerial application several times, claiming it represents the highest risk of drift to bystanders and that mixers and loaders supporting aerial applications cannot be adequately protected. The comment period on the petition closed of August 11.  NAAA commented to EPA that the risk assessments the petitioners refer to were conducted using the Tier 1 AgDRIFT model. NAAA reminded the EPA about the inaccuracies of this model and once again implored them to begin using the Tier 3 model with realistic assumptions as detailed years ago by NAAA in a separate letter to the agency which has included numerous follow up meetings. NAAA also made suggestions on PPE and engineering controls that would reduce the risk to mixers and loaders. In addition to our own comments, NAAA signed on to a letter from a coalition of agricultural groups – including Agricultural Retailers Association, American Soybean Association, American Sugarbeet Growers Association, and California Specialty Crops Council – objecting to the petition. NAAA continues to work with OP registrants and grower groups to encourage EPA to deny the petition.  To date, EPA has not taken any action.

On December 14, 2022, EPA issued a notice to cancel three products containing the pesticide chlorpyrifos and is publishing a notice of receipt of voluntary requests submitted by some chlorpyrifos registrants to cancel 14 chlorpyrifos pesticide registrations and terminate food uses for three chlorpyrifos pesticide registrations.

Updated February 2023

The Pesticide Registration Improvement Act of 2003 (PRIA), as administered by the Office of Pesticide Programs (OPP), established a fee schedule for pesticide registration and amendment applications, and specified decision time periods in which EPA must make a regulatory decision.  PRIA has been reauthorized four times since 2003, most recently as part of a Fiscal 2022 spending bill that was signed into law on December 29, 2022. 

On December 29, 2022, President Biden signed the Consolidated Appropriations Acts of 2023 which included the reauthorization of the Pesticide Registration Improvement Act (PRIA 5). The bill will supplement annual appropriations for OPP with additional funding from industry-paid fees that support pesticide registration, registration review, and other regulatory actions that are pertinent to promoting product innovation. The OPP funding, coupled with a variety of process and information technology improvements, will allow OPP to increase staffing and better meet registration and registration review timeframes to give consumers and applicators the tools they need to manage pests.  The bill will also increase funding for farm worker and clinician training programs and require Spanish translations of pesticide labels within set timeframes. PRIA 5 passed one year early, before the expiration of PRIA 4 on September 30, 2023. It takes effect retroactively on October 1, 2022, and expires in five years on September 30, 2027.

Updated February 2023

FIFRA for decades regulated at the federal level all aspects of pesticide use, and it was, until recently, uncommon for Clean Water Act (CWA) rules to come into play for our industry—for example, avoiding applications within buffer zones set up around specific aquatic habitat and wetlands, or to impaired river segments or lakes covered by Total Maximum Daily Loads (TMDLs) designed to help meet state water quality standards. However, a 2009 decision of the Sixth Circuit U.S. Court of Appeals (National Cotton Council, et al., v. EPA) brought the full weight of the CWA into the realm of FIFRA and aerial application businesses. With this ruling, pesticide applications made into, over or near “waters of the U.S.” according to FIFRA product labels must also comply with the additional requirements of an NPDES pesticide general permit (PGP).

As much as aerial and ground contract pesticide applicators were affected by this ruling, government agencies with pest control responsibilities are even more affected. These include primarily federal, state and municipal water program and pest control agencies, for they are the “decision makers” who must comply with the broadest range of PGP requirements. Also, in this group can be public health agencies and mosquito control organizations; wildlife agencies and large aquatic weed control companies; irrigation districts; managers of highways, roads and utility rights-of-ways; and forest and park managers. Obviously, there is a lot of shared burden, especially for a permit that most states agree contributes little environmental benefits over existing FIFRA and state pesticide programs, and for which many in Congress have worked to overcome.

The types of pesticide applications that are regulated by the permit include: mosquito and other flying insect pest control; weed, algae and pathogen pests in waters at water’s edge, including ditches and/or canals; animal pest control in water and at water’s edge; and forest canopy pest control where a jurisdictional waterbody is under the canopy and may be affected by the applied pesticides. Some state PGPs add other covered uses, such as for control of weeds on right-of-way or in rangeland. An explanation of the types of parties that are likely to fall into these use categories is available on EPA’s pesticide permitting website.
           
To meet the court’s requirement, EPA and 45 separate states first developed PGPs in 2011 and have been implementing them since. These five-year permits vary widely in requirements.   On October 31, 2021 EPA reissued its PGP for another five-year cycle.  Permit fees vary from a few hundred dollars to over $1,000 in some states, and PGPs have increased compliance costs and manpower resource needs for all involved. Worse than these costs, however, is the legal risk – failure to comply with the permits can result in hefty agency fines and penalties, as well as potential citizen suits over alleged violations. For the states in which NAAA members operate, it is imperative aerial applicators know what is needed to avoid violating these PGPs and triggering enforcement action, or worse, citizen suits.

State PGPs Differ Significantly: EPA’s PGPs regulate pesticide applications in Massachusetts, New Hampshire, New Mexico, and Idaho and the District of Columbia; all U.S. territories except the U.S. Virgin Islands; federal facilities in Delaware, Vermont, Colorado, and Washington; discharges in Texas that are not under the authority of the Texas Commission on Environmental Quality, including activities associated with oil and gas exploration; and all areas of Indian Country that are not covered by an EPA-approved permitting program. The other 44 states not covered by EPA’s PGP have some form of state PGP in place, but they do vary considerably. That means if you have pesticide applications that extend across state borders you may need to comply with much different PGP requirements. 

State PGPs fall into three categories: 1) PGPs which have extensive compliance requirements for all dischargers (e.g., NY, CA, KY, WA, WI), 2) PGPs which extend automatic coverage and legal protections to all operators as long as they meet permit conditions (e.g., LA, SD, MD, VA, ND, CO), and 3) PGPs that only have extensive requirements for government agencies and other large entities whose pesticide applications exceed annual treatment thresholds, but modest requirement for others below annual thresholds (e.g., FL, IA, OH, SC, PA, OR). In an effort to compare state permits, NAAA has analyzed each state’s permit and contrasted them in a chart that can be found here.
           
It is important aerial applicators know which PGP requirements apply to their businesses. To help educate members, NAAA has developed a comprehensive document that outlines aerial applicator’s obligations under the NPDES pesticide general permit. In the PGP, applicators have less burdensome requirements than government agencies, landowners and other major pest-control decision-makers who have control over pesticide applications into, over or near US waters. However, if an aerial applicator makes the pesticide application decisions for his clients, that applicator may become a “decision-maker” and then must comply with all applicable requirements imposed on both applicators and decision-makers. It is important that aerial applicators know what distinguishes the requirements of “for-hire” applicators from those of “decision-makers.” Thus, operators and their clients should have an agreement in place clearly delineating the role of the client decision-maker and applicator for each application made. To assist NAAA members, NAAA has developed sample contract language for reference when preparing contract negotiation with clients delineating that the aerial applicator is not the decision-maker found here.

Minimum Requirements: All PGPs include these minimum requirements: 1) carefully handle and store pesticide products to avoid leaks and spills; 2) promptly deal with spills following manufacturer recommendations; 3) comply with the FIFRA labels on products they are hired to apply; 4) properly mix and load pesticides into their aircraft; 5) properly rinse and recycle/dispose of empty pesticide containers; 6) properly clean their spraying system after application; 7) preventatively maintain those pesticide-application systems to avoid leaks; 8) calibrate aircraft spraying systems so they apply the proper amount of pesticides; 9) properly identify and direct the application to desired boundaries using GPS when feasible or on-ground flagging; 10) properly apply the pesticide products to the appropriate location and at the proper rate; 11) keep proper records of all regulated activities; and 12) communicate this information to clients in a timely manner for the permit compliance needs of those organizations, and lastly 13) monitor equipment during application to ensure proper functioning and to avoid off-target application. Records of these activities are necessary, as are spray logs. NAAA has prepared a checklist of compliance activities found here for aerial applicators’ aid in complying with this burdensome task. Should an applicator determine that the manner in which any of these activities is performed is not satisfactory, or should an applicator adverse incident occur, the practices would need to be upgraded before the next pesticide application, and any adverse impact reported to the EPA or the state permitting agency.

PGP 2021 Reissuance: EPA’s issues its 2021 PGP effective from October 31, 2021 through midnight October 31, 2026. In response to the 2016 and the 2021 reissuance, NAAA filed comments reiterating that PGPs are an unwarranted burden on pesticide applicators that already apply pesticides in compliance with FIFRA. NAAA discouraged EPA’s incorporation of additional permit requirements that would only create additional financial and legal burdens for applicators and not result in any additional environmental benefits or protections. NAAA also questioned whether permittees would be able to practicably obtain information on the precise locations of public drinking water sources, which are not always publicized due to potential security issues.  The final proposal, which includes the same conditions of the 2016 PGP was released by EPA on September 8 and becomes effective on October 30, 2021.
           
Legislative Efforts to Repeal NPDES Permit Requirements: Efforts to encourage Congress to address legislative fixes to NCC vs. EPA by NAAA and its ag/pesticide user stakeholder coalition have been underway since the court’s decision in 2009.  The House has passed legislation, titled the Reducing Regulatory Burdens Act, that would create a legislative exemption for NPDES permitting of pesticides several times.  The bill’s language has also been included in the House’s version of the Farm Bill on two separate occasions, but the Democratic leadership in the Senate blocked all attempts to bring up a vote on the Senate versions of the bills.  NAAA continues to support legislation to eliminate duplicate NPDES permits and plans to educate new members of the newly elected 118th Congress about the problems that the permits create for aerial applicators and their customers.

Legal Challenge to NPDES PGP: In late October, the Center for Biological Diversity (CBD) filed a lawsuit in the 9th circuit charging that EPA and the Fish and Wildlife Services violated the law when EPA issued its new NPDES pesticide general permit (PGP) because it does not include an ESA consultation. The new PGP, which contains the same conditions as the current PGP, took effect on October 31, 2021.

The current legal read is that this lawsuit would only impact states operating under ESA jurisdiction since it is a challenge to the federal permit, but the plaintiffs could move to ask EPA to revoke previously approved state permits.  Briefs in the case were due Dec. 23.  
 
The lawsuit reads:
“… EPA and FWS violated the Endangered Species Act by failing to ensure that the issuance of the Pesticide Permit and subsequent uses of the permit will not jeopardize any listed species or destroy or adversely modify critical habitat and by failing to complete required consultation pursuant to Section 7 of the Act prior to finalizing the action, in violations of 16 U.S.C. § 1536 (a)(2). EPA also violated the Endangered Species Act in failing to ensure that it will not “make any irreversible or irretrievable commitment[s] of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures,” by initiating, but not completing, Section 7 consultation prior to its issuance of the Pesticide Permit. 16 U.S.C. §1536 (d). FWS additionally violated the Endangered Species Act because it has unreasonably delayed the completion of Section 7 consultation on the Pesticide Permit until after the permit was issued. Id. at § 1536(b)(1)(A) (consultation to be completed within 90 days).”

As you know, the EPA PGP applies to Massachusetts, New Hampshire, New Mexico, District of Columbia, U.S. territories, and on federal and tribal lands. Other states have been delegated by EPA to issue their own permits.

NAAA is exploring options to get NPDES permit relief included in the 2023 Farm Bill.  We expect the House and Senate Ag Committees have started to hold farm bill hearings and will begin focusing on farm bill reauthorization next Congress.  The current farm bill expires October 1, 2023, but it may be extended while Congress works to reauthorize the statute.

Years of rulemakings and court challenges over several administrations have created a great deal of confusion over which waters are subject to federal regulation.  EPA and the US Army Corps of Engineers issues a new WOTUS rule on December 30, 2022, that continues to include many of the same problematic principles and confusing definitions as 2015 WOTUS rule issued by the Obama Administration. Political wrangling and litigation over the regulatory definitions of federal waters continues.

In 2015, the Obama Administration’s EPA and Army Corps of Engineers (the Corps) finalized a Clean Water Rule to revise the definition of WOTUS and establish seven broad categories of jurisdictional waters. The rule federalized many thousands of minor waters, canals, ditches and other manmade conveyances that are insignificant or were likely already protected by state laws. The rule expanded the CWA’s reach and federal enforcement to include generally dry or seasonally dry “ephemeral tributaries,” neighboring waters “adjacent” to such tributaries, and many other newly jurisdictional flows to be covered by PGPs, state water quality standards, TMDLs, NPDES permits and other policies. These provisions, as well as citizen suit vulnerabilities, would have required additional consideration by aerial applicators when they accept pesticide application contracts.

The Obama rule focused on minor waters, and included many manmade, man-altered and natural non-navigable waters and seasonal conveyances that were either not previously jurisdictional under the CWA or were jurisdictional only after a case-by-case determination by the Corps.

Litigation:  The final Obama Clean Water Rule would have been a major game changer for NAAA members – except for the extensive legal challenges that have been mounted by states, agriculture and industry to force the withdrawal or revisions of the rule.  It was the most significant rewrite of the definition of federally jurisdictional waters in 40+ years of the CWA – and would greatly expand the number of creeks, ditches, ponds, wetlands, and other waters (whether “wet” or “dry” most of the year) that could be subject to federal regulation – and to NPDES PGPs.  The final Obama rule was mired in a lengthy legal battle, brought by 30 states, many counties, cities, Congress, water agencies, farm groups, industry, and dozens of other groups representing nearly all aspects of society.

On February 28, 2017, President Trump issued an Executive Order directing EPA and the Corps to rescind and replace the rule.   On September 27, NAAA submitted timely comments in support of the EPA and Corps proposed rescission of the 2015 Clean Water Rule (CWR) and temporary reinstatement of the pre-existing WOTUS definition.  NAAA’s comments highlighted the procedural flaws with the rulemaking process for the 2015 rule, and its many substantive flaws, including confusing and ambiguous terms included in the final rule that could lead to inconsistent interpretation and regulatory uncertainty; and the rule’s unlawful expansion of federal Clean Water Act jurisdiction to remote, isolated wetlands, water features, and ditches. 

In late 2018, EPA and the Corps released their joint proposal to replace the WOTUS definition. The 2018 proposed WOTUS definition included more bright lines that would have made it easier for aerial applicators and their landowner customers to determine which water features are WOTUS and thus require CWA permitting, including NPDES permitting for aerial spraying. The 2018 proposal also eliminated case-by-case “significant nexus” analyses that require costly technical expertise and left too much room for subjectivity, inconsistency, and regulatory uncertainty. Among the 2018 proposal’s key improvements is the exclusion of ephemeral water features from CWA jurisdictions. Ephemeral features only contain water in response to rain or snow melt and in many cases may be dry all but a few brief times a year, making it difficult for landowners and applicators to recognize them as a water feature let alone a WOTUS.

On April 15, 2019, NAAA timely submitted comments on the Trump Administration’s EPA and Corps joint proposal to revise the definition of WOTUS (i.e., “Replacement Rule”). NAAA expressed overall support for the Replacement Rule as it would eliminate many of the troubling aspects of the 2015 WOTUS Rule, including the case-by-case “significant nexus” analyses that requires costly technical expertise and leaves too much room for subjectivity, and in turn a lack of predictability and reliability for aerial applicators, landowners, and the vast CWA regulated community. NAAA’s comments included suggested improvements to the language surrounding WOTUS categorical exclusions, many of which are long-standing exclusions that pre-date the 2015 Rule. 

On October 22, 2020 EPA and the Corps published their final rule rescinding the 2015 Obama-era rule in the Federal Register. The new Navigable Waters Protection Rule became effective on June 22, 2020.  The WOTUS definition added much needed clarity on which waters are subject to CWA permitting. 

The Biden Administration first called for the review of the Trump Navigable Waters Protection Rule under the President’s January 20 executive order “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” and subsequently called for the rule’s replacement.

On June 9, 2021, EPA and the Corps announced their intention to revise the definition of a WOTUS. This process includes two rulemakings, which EPA describes as “a foundational rule to restore longstanding protections, and an anticipated second rule that builds on that regulatory foundation.” In August 2021, EPA and the Corp held a series of virtual public meetings to solicit stakeholder input on how to define a WOTUS.

On August 30, the U.S. District Court for the District of Arizona issued an order vacating and remanding the Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. In response to this order, the agencies halted implementation of the Navigable Waters Protection Rule and said they are interpreting “Waters of the United States” consistent with the pre-2015 regulatory regime until further notice, while also proceeding with the rulemakings mentioned above.

On November 18, 2021, EPA and the Army Corps of Engineers proposed an interim definition of WOTUS that, according to the agencies, aims to provide “stable implementation” of the Clean Water Act (CWA) while the Biden administration seeks to develop a durable definition. The proposed interim definition interprets WOTUS to mean the waters defined by a collection of Corps and EPA regulations referred to as the “1986 regulations,” with amendments to reflect the agencies’ interpretation of the statutory limits on the scope of WOTUS as informed by Supreme Court decisions. The proposed rule is significant because it is not simply a recodification of the 1986 regulations. EPA and the Corps are still planning a second WOTUS rulemaking which would build upon the foundation of this proposed rule.
 
The Supreme Court heard oral arguments in Sackett v. EPA on October 3, 2022.  The arguments focused on the proper test for determining whether wetlands are “Waters of the United States” under the Clean Water Act. A decision is expected in 2023.  In an earlier decision, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) upheld the U.S. Environmental Protection Agency’s (EPA’s) assertion of jurisdiction over certain wetlands because the wetlands are WOTUS based on prior Supreme Court precedent.    
          
  On December 30,2022, EPA and the Army Corp of Engineers (the agencies) announced a final rule once again redefining “waters of the United States” under the Clean Water Act. The agencies’ definition of “waters of the United States” does not affect the longstanding activity-based permitting exemptions provided to the agricultural community by the Clean Water Act. The final rule includes two long standing exclusions from the definition of WOTUS: prior converted cropland and waste treatment systems. Additionally, six exclusions are included in this rule: ditches, artificially irrigated areas, artificial lakes or ponds, artificial reflecting pools or swimming pools, water filled depressions, and swales and erosional features.  In broadening the federal government’s powers under the CWA once again, EPA Administrator Michael Regan said the agency aimed “to deliver a durable definition of WOTUS that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing greater certainty for farmers, ranchers, and landowners.”  The rule has been a flashpoint because advocates for industry and property rights say it is overly costly and impractical when applied to wetlands that can be difficult to define or streams that run only for part of the year. The U.S. Chamber of Commerce suggested that the Biden rule would only add to regulatory uncertainty and unpredictability.
           
Farm groups joined with the oil, real estate and construction sectors to file a lawsuit in January of 2023 seeking to block implementation of the Biden rule.  The lawsuit, filed in the Southern District of Texas, alleges the rule extends federal jurisdiction to a “staggering range of dry land and water features—whether large or small; permanent, intermittent, or ephemeral; flowing or stagnant; natural or manmade; interstate or intrastate; and no matter how remote from or lacking in a physical connection to actual navigable waters.”  The plaintiffs include the American Farm Bureau Federation, National Cattlemen’s Beef Association, National Corn Growers Association, American Petroleum Institute, Associated General Contractors of America and the National Association of Realtors.  Again, keep in mind: The Supreme Court is currently considering a case that could force the Biden administration to modify the new WOTUS rule.

Updated February 2023

One of the most critical issues besetting pesticide programs is the implementation of the ESA. Over the past decade, EPA has been sued on numerous occasions for its failure to consult with the Fish and Wildlife Service and the National Marine Fisheries Service (the Services) about the impact of EPA-registered pesticides on endangered species and species habitat. These lawsuits cover hundreds of endangered species and numerous pesticide active ingredients. While the focus of these lawsuits is procedural, the regulatory uncertainty that has resulted threatens the ability to use important pest control tools. EPA and the Services have different approaches to pesticide risk assessment and have not been able to resolve their differences despite a continuous effort over the past decade.  The Services also lack the resources to complete ESA consultations for all registered pesticide products. As a result of settlements in various lawsuits, EPA and the Services are required to meet court-ordered deadlines for completing consultations on a variety of pesticide products.

As part of the registration process, EPA reviews pesticide products to ensure that they do not harm endangered species or their habitat, but under the ESA, the agency also must consult with the Services.  FIFRA is a risk-based standard that considers not only the risk of the pesticide, but also the scope of potential exposure and benefits of the product.  The ESA only focuses on the product’s potential harmful effects and does not have as stringent a standard about the validation of data used in assessments.  Disagreements between EPA and the Services about how to conduct pesticide assessments, as well as resource constraints, have hampered the consultation process. Settlement agreements in the various lawsuits resulted in the actions below.

  • One lawsuit resulted in a court-imposed deadline for the National Marine Fisheries Service (NMFS) issued its biological opinions (biops) on chlorpyrifos, diazinon, and malathion.  Just a month prior to the court deadline, NMFS asked that the court grant a two-year extension to complete the biops, citing the complexities of the analyses and need for additional time for interagency coordination.  NMFS later withdrew the request and went ahead with its issuance of the biops, which totaled over 3,000 pages.  NMFS concluded that:
    • Chlorpyrifos is likely to jeopardize the continued existence of 38 of 77 listed species;
    • Diazinon threatened 25 species; and
    • Malathion is likely to jeopardize 37 of those species.

NAAA’s allies in the pesticide and agriculture community criticized NMFS’ rushed release of the biops as hasty and irresponsible as it could impact the continued safe use of pesticides that are critical to agriculture and public health protection. On July 19, 2019, as a result of usage data and other information submitted during the public comment process from NAAA, pesticide registrants and other agricultural stakeholders, EPA re-initiated formal consultation with NMFS. NMFS now plans to issue a revised final BiOp for chlorpyrifos, diazinon, and malathion by June 2022.
 

  • In late 2019, EPA published a partial settlement agreement between the agency, the Center for Biological Diversity (CBD) and the Pesticide Action Network North America (PANNA). NAAA served as a petitioner supporting the defendants in this case. Filed in 2011, the case challenged the effects of over 300 active ingredients on over 600 threatened and endangered species under the ESA. Since this is such a large number of pesticides, this case is known as the “MEGA case.”   In 2018 the case was narrowed to 35 pesticide active ingredients. The partial settlement covers eight of these chemicals.  The settlement, imposed the following deadlines on EPA:
    • February 14, 2021 deadline to complete consultation on the effect the pesticides carbaryl and methomyl have on endangered species; 
    • August 14, 2021 deadline to complete the ESA consultation on atrazine and simazine; and
    • August 14, 2024 deadline for four different rodenticide active ingredients. 

The partial settlement also includes a deadline of August 30, 2021, for all parties to discuss the possible resolution for the remaining pesticide active ingredients included in the suit. 

  • In July 2020, the U.S. Court of Appeals for the Ninth Circuit denied a petition to vacate the registration of Corteva Agriscience’s Enlist Duo herbicide, a 2,4-D-choline and glyphosate premix designed for use over 2,4-D-tolerant Enlist crops filed by several groups including the Center for Biological Diversity, the National Family Farm Coalition, the Center for Food Safety, Beyond Pesticides, Pesticide Action Network and the Natural Resources Defense Council. The plaintiffs argued that when EPA applied the ESA “may effect” standard to determine whether registering Enlist Duo would harm listed species, it used FIFRA methods to reach a “no effect” conclusion. The court disagreed with the plaintiffs claim that EPA violated its duty to “use the best scientific and commercial data available” by using FIFRA methodology to reach a “no effect” conclusion under the ESA. The court further ruled that EPA only needed to fix one oversight with the Enlist Duo registration regarding the herbicide’s risk to monarch butterflies, but that the registration would remain intact while the agency made this change. This ruling and EPA’s approach may provide a template for more timely completion of ESA reviews in the future.

To improve the consultation process, on January 31, 2017, then EPA Administrator Pruitt signed a memorandum of agreement with U.S. FWS and NMFS to establish an Interagency Working Group to Coordinate ESA Consultations for Pesticide Registrations and Registration Review.  The Working Group is tasked with providing recommendations to the three agencies on process improvements. The final version of the 2018 Farm Bill included language to codify this interagency working group to drive process improvements in the ESA consultation process. The working group includes representatives from USDA, the Department of Commerce, the Department of Interior, the Council on Environmental Quality (CEQ), and EPA. It is tasked with developing a set of recommendations aimed at increasing efficiency and predictability for affected stakeholders and reporting to Congress regularly on its progress.  NAAA and its allies’ success in getting ESA reform requirements into the House version of the bill helped turn Congressional attention on this important issue.
The work of the interagency working groups resulted in EPA issuing a revised methodology for conducting biological evaluations in March 2020, with input from the Services and USDA. EPA then issued draft BEs for two chemicals, carbaryl and methomyl using the revised methodology. 

The revised methodology includes the following components:

  • Incorporation of usage information to inform EPA’s effects determinations;
  • Incorporation of probabilistic approaches to determine the likelihood that an ESA-listed species will be adversely affected by a pesticide, given the variability in the range of potential exposures to and toxicological responses of ESA-listed species; and
  • Incorporation of a weight-of- evidence framework for informing effects determinations.

While some progress has been made by the working group, much work remains, and the agricultural community continues to seek greater stakeholder input into the process.

In addition, in late 2019, the Western Caucus rolled out a legislative package aimed at tackling longstanding issues with the ESA process, including the protracted consultation process between EPA and the Services, and frivolous petitions for listing. The Pesticide Policy Coalition, in which NAAA participates, sent a letter of support to the Caucus applauding its efforts to correct decades long issues that detract from ESA’s intended purpose to protect endangered and threatened species. While similar legislation will likely be introduced in the new Congress, we do not expect to see much progress on helpful ESA legislation. 

On December 15, 2020, the U.S. Fish and Wildlife Service announced that listing the monarch butterfly as endangered or threatened under the Endangered Species Act is warranted but precluded by higher priority listing actions.

Lawsuits continue to be filed against EPA and the Services challenging pesticide regulatory decisions or the listing of specific species. 
For example:

  • In March 2021, a group of environmental non-governmental organizations filed suit in the Ninth Circuit Court of Appeals against the EPA challenging the seven-year unconditional registration of the new use of streptomycin sulfate on citrus crop group 10‐10 (covers a range of citrus fruits).
  • In March 2021, the Natural Resources Defense Council, the Center for Biological Diversity, and Friends of Minnesota Scientific and Natural Areas filed a lawsuit to challenge the U.S. Fish & Wildlife Service’s decision not to designate “critical habitat” for the rusty patched bumblebee.
  • In April 2021, the Center for Biological Diversity filed suit against the U.S. Fish and Wildlife Service (FWS) challenging FWS’s decision not to list ten species, including the Monarch butterfly, as threatened or endangered. 

Meanwhile, EPA and the Services are continuing to release biological evaluations (BE) and biological opinions related to a host of pesticides. A BE is a document that contains EPA’s analysis of the effects of a pesticide on federally threatened or endangered species and their designated critical habitat, and any conclusions that the pesticide may affect, and is likely to adversely affect, any species or habitats. The BE is used to initiate consultation with the Services. The Services use the information in EPA’s final BE to develop their biological opinions (BiOps). In their BiOp, the Services document their determination of whether a pesticide jeopardizes the continued existence of the species and whether there will be adverse modification to its designated critical habitat. If jeopardy or adverse modification is determined, the Services, with input from EPA, will propose additional protections. 

The latest analyses from EPA and the Services include:

  • In April 2021, the U.S. FWS released the BiOp for malathion, concluding that 78 listed species could be jeopardized, and 23 critical habitats could be adversely modified by the use of malathion.
  • In July 2021, NMFS released the final BiOps for the following active ingredients: bromoxynil, prometryn, metolachlor, and 1,3-Dichloropropene. NMFS concluded that the proposed action is likely to adversely affect but will not jeopardize the continued existence of all 28 West Coast listed salmonid species or their critical habitat. 
  • In August 2021, EPA released for public comment its draft BEs for three neonicotinoids pesticides, clothianidin, imidacloprid and thiamethoxam.  EPA determined that these chemicals are likely to adversely affect certain listed species or their designated critical habitats.  
  • In November 2021, EPA Released the Final BEs for Glyphosate, Atrazine, and Simazine on Friday. Here is the full release. EPA did not complete a final BE for propazine since the registrant requested to voluntarily cancel remaining product registrations.

NAAA comments on all BEs and BiOps; see section under “(Re)registration of Crop Protection Products.”
The good news is that there does seem to be gaining momentum to fix the broken ESA consultation process. EPA Assistant Administrator for the Chemical Safety and Pollution Prevention, Dr. Michal Freedhoff, testified in her Senate confirmation hearing that addressing the consultation process is priority.  In addition, the appointment of Jake Li to be the office deputy signals the Administration’s commitment to addressing the issue.  Jake focused on this issue in his past roles with Defenders of Wildlife and as the Environmental Policy Innovation Center’s (EPIC) Director of Biodiversity.  During his tenure with those organizations, Jake worked cooperatively with CropLife America to identify common sense approaches to protecting species and streamlining the consultation process.  In addition, President Biden’s budget request and the EPA FY 22 funding bill passed by the House this summer includes additional funding for ESA pesticide consultations.  Finally, CropLife America, Defenders of Wildlife and others convened a the first in a series of workshops with key ESA stakeholders on August 31 to try to reach consensus on ways to improve the consultation process. In addition, the two organizations have been jointly lobbying Congress for additional funding for pesticide consultations. Further, EPA has recently committed to quarterly meeting with stakeholders related to ESA consultations.

On January 11, 2022, the EPA announced that going forward, EPA’s registration process for new active ingredients (AIs) will first evaluate the potential effects of the AI on federally threatened or endangered (listed) species, and their designated critical habitats, and initiate ESA consultation with the U.S. Fish and Wildlife Service and the Services as appropriate. If EPA determines that jeopardy or adverse modification is likely, the Agency will only make a registration decision on the new AI after requiring registrants to implement mitigation measures that EPA determines would likely prevent jeopardy or adverse modification. EPA is also continuing to explore applying these new ESA approaches to new biopesticide AIs and new antimicrobial AIs.  In addition, EPA, USDA and the Services have convened a January 26 stakeholder meeting to solicit input on the consultation process.  NAAA will engage in this meeting.  Working through the Pesticide Policy Coalition, NAAA has also engaged senior EPA officials about the need to find common sense solutions to consultation issue including with EPA Office of Chemical Safety and Pollution Prevention Deputy Assistant Administrator Jake Li and Ad Advisor Rod Snyder.
           
In April of 2022 EPA released a comprehensive workplan to mitigate the impact of pesticides on endangered species. EPA has met its ESA requirement for less than 5 percent of its registration decisions. EPA’s failure to address ESA concerns for most of its decisions has resulted in numerous lawsuits filed against the EPA. The situation has escalated to the point where EPA now has over 50 pesticide active ingredients that have court ordered deadlines or are currently in litigation for alleged ESA violations. The workload to meet the demands for these court orders and lawsuits has overwhelmed EPA’s resources and left it with no ability to meet ESA obligations for other pesticides going through the registration and registration review process. The workplan was developed to allow EPA to better meet its ESA obligations.

The workplan has four strategies to meet this goal:

  1. Prioritize ESA obligations until EPA can increase its overall capacity to handle ESA duties
  2. Improve approaches to identify and require protections for endangered species, especially those at highest risk from pesticides
  3. Improve efficiency and timeliness of ESA consultation process with other federal agencies
  4. Better engage stakeholders to understand pest control practices and how to implement endangered species protection measures     

NAAA met with members of the U.S. Fish and Wildlife Service (FWS) in May 2022 to discuss NAAA’s reasoning behind wanting to switch from the Tier 1 to the Tier 3 model in AgDRIFT. Much of the meeting was devoted to explaining to FWS personnel the technology used in modern agricultural aircraft and how that technology is used to mitigate drift. NAAA especially highlighted aerial applicators ability to constantly monitor wind speed and direction to support our push for wind direction based buffer zones.    

On November 16, 2022, EPA announced an ESA Workplan Update that explains steps EPA is and will be taking to protect non-target species, including listed species, earlier in the process through pesticide registration review and other FIFRA actions. In this workplan, EPA outlines required application restrictions to reduce spray drift. These include wind direction based spray drift buffers to aquatic habitats when there is risk to non-target aquatic species due to spray drift, as well as wind direction based spray drift buffers to wildlife conservation areas when there is risk to non-target terrestrial species due to spray drift. The first exemption is when a 10-foot windbreak is used. For this exemption to apply, the windbreak must have single to multiple rows of trees and shrubs planted linearly between the field and the protected area in a manner that fully partitions the two areas. The second exemption is for pesticide applications made for conservation purposes in or around aquatic habitats. The third exemption is for pesticide applications made by conservation area personnel in the conservation area. The fourth exemption is for landowners of applicators who have completed an ESA section 7 consultation with the FWS and/or NMFS and are using a pesticide product consistent with that consultation. EPA is seeking comments on this workplan until February 14, 2023. NAAA is preparing comments for submission.

Updated February 2023

Approximately one-third of all crops in the United States require insect pollination, and honeybees are an essential part of the pollination process. The United States Department of Agriculture (USDA) estimates pollination is responsible for $15 billion in added crop value annually. According to EPA some beekeepers across the country began reporting colony losses as high as 30 to 90 percent in 2006. Since that time, the estimates of colony losses have not always been reliable and have varied widely but estimates of this higher-than-average loss of honeybees, termed colony collapse disorder (CCD), have accelerated the hunt to determine the cause. While many believe CCD is a new phenomenon, this may not be the case and some experts believe it has been around for the last 50-60 years and termed such things as spring dwindle disease, autumn collapse and disappearing disease. While there is no concrete evidence these occurrences are all one in the same, they do share common symptoms with today’s CCD. In general, collapsed colonies have a loss or absence of adult worker bees with few or no dead bees in or around the colony, a “capped” brood where only the queen and young remain, and enough honey and pollen reserves.

Not surprisingly, many are pointing the finger at pesticides when it comes to assigning blame for CCD. The seeds of various crops are coated with neonicotinoid insecticides, known as seed treatments, to reduce potential risks to workers, minimize potential runoff and overall reduce the amount of insecticide applied in the environment. Because the coatings used are sticky, the seeds are mixed with talc to ensure even seed disbursement during planting and it is the neonicotinoid and talc dust combination that is released into the environment that is causing the uproar. Successful efforts are currently underway, using different seed lubricants, to greatly reduce the fugitive dust from seed treatments. EPA has concluded pesticides may be one of several factors affecting bee health, yet they have yet to determine to what extent pesticides’ role is in the phenomenon. Among the many potential factors the Agency attributes CCD to besides pesticides are: 1) the varroa mite (a parasite to honeybees), 2) new or emerging diseases such as Israeli Acute Paralysis virus and the gut parasite Nosema, 3) bee management stress, 4) foraging habitat modification (especially loss of habitat when commodity prices are high), 5) inadequate forage/poor nutrition, and 6) potential immune-suppressing stress on bees caused by one or a combination of factors aforementioned.

EPA response to pollinator issue: The Office of Pesticide Programs (OPP) at EPA has been involved in the bee issue for some time. In August 2013 EPA developed new pesticide labels that prohibit use of some neonicotinoid pesticide products where bees are present. The new labels have a bee advisory box and an icon with information on routes of exposure and spray drift precautions. The 2013 labels changed affected products containing the neonicotinoids imidacloprid, dinotefuran, clothianidin, and thiamethoxam. For crops under contracted pollination services, the label prohibits applications when bees are foraging, and plants are flowering. If an application needs to be made when managed bees are at the treatment site, the commercial beekeeper must be given 48 hours to remove or otherwise protect the bees prior to spraying. As described below, EPA in 2015 has proposed even more restrictive labels for pesticides used by those with managed bees under commercial contracting services.

For commercially grown crops not under contract for pollination services but attractive to bees and other pollinators, the new labels also prohibit applications when bees are foraging and while plants are flowering. But the EPA has included several exceptions that would allow applications at night and when temperatures are below 55 F (13 C). In addition, applications would also be permitted if approved by state officials and if there is an imminent threat of a significant crop loss.

The increased scrutiny is not just limited to neonicotinoid class of pesticides; activist and government attention is now turning toward all insecticides, claiming some herbicides and fungicides as possible causes of CCD. For example, a study from the summer of 2013 found 35 different pesticides and high fungicide loads in pollen samples taken from honey bee nests. The study was conducted by scientists at the University of Maryland and the USDA. EPA has added data requirements for new and existing pesticides, and still has plans to implement label changes to address pollinator protection. 
EPA cites a positive development listed in its pollinator health strategy is that it registered a varroa control product, oxalic acid, and is diligently “working with the regulated community, other Federal agencies, and the private sector to identify products that may be effective in-hive pest control measures.

In January of 2017, the U.S. Fish and Wildlife Service added a bee to the endangered species list for the first time in U.S. history: the rusty patched bumblebee. This gives EPA the opportunity to amend product labels to protect the bee and opens the door for other bee species to be declared endangered, which in turn would allow the EPA to amend labels to be even more restrictive.

State response to pollinator issue: A panel of state pesticide regulators (SFIREG) finalized its “Guidance for State Lead Agencies for the Development and Implementation of Managed Pollinator Protection Plans.” The best-practices guidance describes how growers and beekeepers can reduce risks to bees through communication and collaboration prior to pesticide applications by discussing pesticide product selection and time of application, and by allowing beekeepers time to move or cover their hives prior to application, if necessary. The guidance also suggests as optional elements for state plans the development of strategies for dealing with hives with unknown owners and for addressing urban beekeeping and non-agricultural pesticide uses, as well as for formalizing financial agreements between beekeepers and growers. The state guidance also calls for flexibility for states to take different approaches, since some states may want to make their program enforceable while others may rely on voluntary best management practices. Meanwhile, EPA and state pesticide agencies are collaborating on how to incorporate state pollinator protection plans into FIFRA pesticide labels, raising concerns about whether following state plans will be mandatory or how label requirements would work in states that do not have a plan.  State pollinator plans are under various stages of development; most states have not completed their plans, but some actions in some states are likely to affect pesticide use.
In May 2017, Maryland became the first state to pass a ban on consumer use of neonicotinoid pesticides.  The legislation includes exceptions for certified applicators, growers and veterinarians.  The ban took effect in 2018. Similar bills have been proposed in several states.

Monarch issue: Other pollinators besides honey bees may be impacted by pesticides, including the iconic monarch butterfly. In December 2014, the USFWS announced it was considering increasing protections for the monarch butterfly under the ESA in response to a petition filed by the Center for Biological Diversity (CBD) in Tucson, AZ.; the Center for Food Safety in Washington, D.C.; and The Xerces Society for Invertebrate Conservation in Portland, OR. The petitions argue that the extensive use of glyphosate on genetically modified organism (GMO) crops – especially corn and soybeans grown in the Midwest, the key summer habitat for the Monarch — has devastated native populations of milkweed, the sole source of food for monarch butterfly larvae. The petitioners claim that the widespread production of GMO crops has effectively cost the monarch some 165 million acres of habitat, roughly one-third of its summer breeding grounds. The petitioners estimate a 90% decrease has occurred in the last 20 years.  On March 10, 2016, CBD and its allies filed a petition in an Arizona federal district court against USFWS for the agency’s failure to formally list the monarch as a “threatened species.”  In early July, the USFWS entered into a settlement agreement that requires the agency to either: 1) issue a finding on whether “threatened” or “endangered” species protection is warranted for monarchs; or 2) assign monarchs to a list of other pending ESA listing decisions.  Many factors are at play regarding the monarch population, especially habitat in the U.S. and Mexico. It is not clear how EPA would base herbicide label directions for application to a treated field to include measures to protect the monarch, especially off-site.

Aerial applicators’ role: Aerial applicators must play a proactive role in monitoring the status of honeybee health in each state as well as nationwide. Beekeepers have reported frustration with the extreme variability in how seriously state lead agencies (SLAs) take beekeeper requests for investigations of possible pesticide-related bee kills, and state investigations in some locations may increase due to the greater public focus on the issue – so the aerial application industry certainly does not need to give beekeepers a reason for investigation.  When possible, it is important that aerial applicators make efforts to identify bee colonies and or contact apiarists, in their area to minimize spraying on or around these hives. Many state agencies track where and when these bees are located. Also, some suggestions from an earlier  PPDC Pollinator Protection Workgroup included requiring greater buffers and night time spraying only in areas where bees may be foraging. Additionally, ag aviation must continue to highlight its excellent drift reduction technologies and commitment to mitigating drift, especially when it comes to fields surrounding or bordering areas where bees are pollinating. Another useful tool for applicators to utilize is a field identification system/sensitive crop registry such as drift watch whereby managers of ecologically sensitive areas and owners of commercial fields and apiaries are able to register so that pesticide applicators can easily locate registered sites before they spray using a Google Maps™ interface. Regardless, managing spray drift is now an aspect of the state management pollinator protection plans that each state may implement in response to the Strategy by the pollinator task force and the language associated with the labels on pesticides that have been found to potentially harm pollinators.

On March 21, 2019, EPA announced it was updating its Residual Time to 25% Bee Mortality (RT25) Data Table for the first time since 2014. RT25 data helps farmers and beekeepers know how long after application a specific pesticide remains toxic to bees and other pollinators. RT25 values are derived based on a number of factors, including application rate, chemical and physical properties, dissipation, pesticide formulation and crops. EPA plans to update the table annually as new information becomes available. The table is accessible on EPA’s website.

In CBD’s and the Center for Food Safety’s litigation challenging USFWS’ failure to list the monarch butterfly as “threatened,” the parties reached an agreement in May 2019 to extend the deadline for a USFWS listing decision to December 2020.  The 18-month extension will allow USFWS to evaluate two additional overwintering monarch population counts before reaching its decision. Last season, monarch counts were up in eastern portions of the U.S. and western areas experienced a decrease in monarchs. The parties contend that additional data will provide a more accurate representation of population trends.

On December 15, 2020, the U.S. Fish and Wildlife Service announced that listing the monarch butterfly as endangered or threatened under the Endangered Species Act is warranted but precluded by higher priority listing actions. With this decision, the monarch becomes a candidate for listing under the ESA and its status will be reviewed each year until it is no longer a candidate. That decision is now being challenged in court.  In addition, on January 20, President Biden signed an executive order requiring the review of Trump Administration rules that relate to “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” The endangered species reforms and a host of species-specific actions were tagged for review including the December 15 decision by the Trump Administration related to the monarch butterfly.  In June, the Administration announced its intention to rescind the Trump ESA rules.

The issue of pollinator protection will continue to be integral in the crop protection industry and NAAA is committed to ensuring aerial restrictions of pesticides are not singled out as the solution.

In Congress, we have seen several pieces of legislation seeking to ban neonics and other pesticides in the name of pollinator protection. Last Congress, U.S. House of Representatives’ Committee on Natural Resources passed a bill (H.R. 2854) that would reinstate a 2014 ban prohibiting the use of neonicotinoid pesticides in national wildlife refuges.  In December, the Pesticide Policy Coalition, in which NAAA participates, sent a letter to Committee leadership expressing concerns with carving out a ban on neonicotinoid pesticides for these specific circumstances as it would undermine the credibility of the science-based and risk-based FIFRA process as well as create uncertainty and confusion around the regulatory status of neonicotinoids.  Rep. Neguse (D-CO) and Senator Udall (D-NM) also introduced the “Protecting America’s Children from Toxic Pesticide Act, which among a host of other problematic things would immediately ban the use of neonic pesticides.  While these bills died at the end of the last Congress, we can expect them to be re-introduced this year. 

  • In March 2021, the Natural Resources Defense Council, the Center for Biological Diversity, and Friends of Minnesota Scientific and Natural Areas filed a lawsuit to challenge the U.S. Fish & Wildlife Service’s decision not to designate “critical habitat” for the rusty patched bumblebee.
  • In April 2021, the Center for Biological Diversity filed suit against the U.S. Fish and Wildlife Service (FWS) challenging FWS’s decision not to list ten species, including the Monarch butterfly, as threatened or endangered. 
  • In August 2021, EPA released for public comment its draft BEs for three neonicotinoids pesticides, clothianidin, imidacloprid and thiamethoxam.  EPA determined that these chemicals are likely to adversely affect certain listed species or their designated critical habitats.  The draft BEs were developed after the release of EPA’s proposed interim decisions (PIDs) for the neonicotinoid pesticides in January 2020. As part of the PIDs, EPA has begun the process of proposing mitigation measures, such as annual application rate reductions and application timing restrictions, which will be finalized after the completion of the final BEs. Additional mitigation measures may be developed through formal consultation on the neonicotinoid pesticides. 
  • In August 2021, the Fish and Wildlife Service (FWS) announced that Franklin’s bumble bee will be listed as an endangered species under the Endangered Species Act.
  • Late last year, Senator Booker and others introduced the “Protecting America’s Children Against Toxic Pesticides Act, which among other things would ban all uses of neonics.

Updated February 2023

On January 29, 2014, EPA proposed draft guidance that would dramatically alter the way bystander exposures to spray drift are calculated and no-spray buffer strips around treatment areas are calculated (Guidance on Modeling Offsite Deposition of Pesticides via Spray Drift for Ecological and Drinking Water Assessments for the Environmental Fate and Effects Division; and Residential Exposure Assessment Standard Operating Procedures (SOPs), Addenda 1: Consideration of Spray Drift). All of this stemmed from a 2009 petition filed by the activist groups United Farm Workers and the Pesticide Action Network against EPA which alleged that EPA failed to consider spray drift exposure to children in registration reviews required under FIFRA. The petition also asked the agency to set “no-spray buffer zones” around schools, residential areas, parks and daycare centers for the “most dangerous and drift-prone” compounds, including organophosphates. The activist groups followed with a suit filed in July of 2013, arguing that EPA unreasonably delayed a response to their petition and the U.S. Court of Appeals for the 9th Circuit in October ordered EPA to respond in which EPA promised it would do so by March 31, 2014.

NAAA realized that the computer modeling and default assumptions incorporated in the proposed guidance would likely result in unrealistically large estimates of bystander exposure and the establishment of mandatory no-spray buffers on product labels. To respond to this challenge, NAAA assembled a team of experienced pilots, academics, engineers, consultants and staff. NAAA’s comments provide EPA with detailed technical data and policy observations, highlighted concerns and suggested improvements to the guidance and spray drift models. In these comments NAAA cited technical studies documenting the drift-reduction opportunities for aerial applicators provided by modern aircraft set up conditions; nozzle and boom technologies; GPS and smoker use; precision in-flight maneuvers; and ongoing education and aircraft tuning by NAAA members. The comments included charts, graphs and photographs documenting modern drift-reduction conditions of aerial application and highlighted the places in the guidance where EPA’s models and default conditions would incorrectly prescribe overly conservative no-spray buffers. NAAA also strongly urged the agency and registrants to consider and consult with experts in the field of aerial application when making decisions affecting the aerial use of crop protection products. 

Policies regarding spray drift guidance remain contentious, with EPA under pressure to evaluate possible risks from non-target exposure in more settings and sub-populations.  This makes the over-estimation of the exposure models even more impactful.

NAAA recognizes the importance of limiting off-target drift to reduce exposure to bystanders and as an aspect of state-developed pollinator protection plans. However, NAAA believes this can best be achieved through the promotion of applicator educational programs and technological advancements, rather than through burdensome, arbitrary and unobtainable standards.

NAAA has provided extensive technical information to EPA and encouraged the agency to maintain an open dialogue with interested parties as the guidance moves forward. Drift remains a key issue to the aerial application community and is referenced by crop protection product manufacturers and federal and state regulatory officials to NAAA as an issue of concern that may result in aerial being left off crop protection product labels and/or more regulatory restrictions, respectively, if drift incidents become too numerous. As a result, NAAA continues to communicate to the EPA aerial technologies and educational efforts to control drift and makes visits to major crop protection product manufacturers to attempt to ensure the (re)registration of aerial labels for crop protection products In August of 2018, it was discovered by Dr. Brad Fritz of the USDA-ARS Aerial Application Technology Research Unit that the new X641 Droplet Size Classification of Aerial Application Nozzles changed the droplet size class for many of the setup and operational scenarios with the 20-degree flat fan nozzle. The goal of the new standard was not to change the classification of aerial nozzles; i.e. if a nozzle and its setup and operational parameters had been classified as medium using S572.1, then X641 should also classify it as a medium. Dr. Fritz has begun a revision of the new standard to rectify this issue.

A meeting was held on September 18, 2019 to discuss the future of AGDISP AND AGDRIFT. Following Harold Thistle’s retirement from the Forest Service, responsibility for maintaining and updating AGDISP and AGDRIFT was given to the USDA-ARS AATRU under the supervision of Brad Fritz. Soon it is expected that the two models will be combined into a single model used by both the research community and the EPA.

In 2020 the company responsible for writing AgDISP, Continuum Dynamics, is moving to a paid subscription-based service for future updates, which are expected to include modeling for UAS. Harold Thistle was able to get a copy of the code for the last version of AgDISP but Continuum Dynamics stripped all descriptive information from the code making it difficult to interpret. NAAA is working to determine how to provide the software to the ag aviation industry in a format that could be utilized by application control systems and GPS for the creation of an autonomous spray system.  The EPA has indicated a potential willingness to move from the Tier 1 model in AgDRIFT to the Tier 3 as per numerous requests from NAAA. EPA has also indicated they may be open to making buffers zone wind direction based.

In August of 2021 NAAA joined several state and national agricultural associations in filing a legal brief urging the Texas Supreme Court to hear a drift case where an egregious decision rendered by Texas’s 11th Court of Appeals would provide relief to claimants alleging drift without using recognized methods of investigation establishing that drift occurred. In the opinion Robert Cox et al. v. Helena Chemical, the plaintiffs asserted that an aerial herbicide application traveled dozens of miles in an erratic pattern causing yield damage to distant crops. The plaintiffs’ experts could not explain the physics of how the herbicide moved such great distances nor how herbicide was found in less than 2% of the 111 fields tested. The trial court granted the defendant’s motion to strike the plaintiffs’ experts’ opinion due to their unscientific and unreliable nature; however, the 11th Court of Appeals reversed the decision, finding for the plaintiff. As such, the decision undermines Texas law, which requires demonstratable proof of actual exposure and industry protocols for proper investigation and providing scientific evidence linking the exposure to the application.

The Texas Supreme Court was asked to review the 11th Court of Appeals’ decision by the defendant, Helena. In support of using sound science and expertise in proving a drift claim, NAAA has joined the Agricultural Retailers Association, CropLife America, the Southern Crop Production Association, the Texas Agricultural Aviation Association and the Texas Ag Industries Association in filing an amici curiae brief in support of granting Helena Chemical Co.’s petition for the Texas Supreme Court to review the case.

In June, Sacramento County Superior Court Judge, James Arguellas, ordered the California Department of Food and Agriculture (CFDA) to suspend its pesticide spray program, ruling that state officials failed to adequately assess the chemicals’ health risks. The California Department of Food and Agriculture (CDFA) authorized the Statewide Plant Pest Prevention and Management Program in 2014, which endorsed the application of pesticides on public lands and some private property to “prevent the introduction and spread of injurious insect or animal pests, plant diseases, and noxious weeds,” as threats to California agriculture. The order halts sprays under the Statewide Plant Pest Prevention and Management Program within two months, exempting projects whose environmental impact reports have already won court approval. This decision follows a state appeals court’s decision in October that found the CDFA understated the amount of pesticide it uses and failed to account for potential harm to waterways, bees and other pollinators. The rulings against CDFA resulted from consolidated suits brought by the North Coast Rivers Alliance and Environmental Working Group. The environmental and health groups have charged that the more than 75 pesticides used by the program didn’t fully look into all the environmental factors. The injunction will stay in place until the agency corrects violations of the California Environmental Quality Act cited by the courts.  
           
 A group of aerial application researchers is working on improving the AGDISP model. The project has three main objectives. The first is to convert the software into a modern computer programming language to make it easier for other parties to utilize the model. The second objective is to improve the accuracy of the model by factoring in changes in aircraft’s weight as it sprays a load off and AOA as the aircraft maneuvers. The third objective is to create a real-time version of the model that could be integrated into ag aircraft GPS to provide real-time drift modeling when used with AIMMS. The USD-ARS AATRU has reached out to EPA to inform them of the project, which coincides with an interest at EPA in updating their version of AGDISP. They haven’t made progress due to a lack of staffing. The group is writing a statement of work and cost estimates.

Updated February 2023

Worker Protection Standards: On September 28, 2015 EPA finalized extensive revisions to its Worker Protection Standards (WPS) under FIFRA, the first major change to these regulations since 1992. EPA stated its proposal was necessary to reduce the incidence of preventable occupational pesticide exposure and pesticide-related acute and chronic illnesses among agricultural workers (workers) and pesticide handlers (handlers). When the rule was proposed, NAAA developed comments in which we expressed concerns with unrealistic expectations (e.g., requiring a 100-foot aerial entry restriction area around fields at the time of application regardless of wind direction; requirements for exchanged communication by an applicator to the farmer within two hours of any programmatic changes to the application; a requirement that pilots wear gloves in the cockpit (EPA informed NAAA that reinstatement of the glove requirement was mistakenly included in the WPS proposals), or use of personal protective equipment while flying), challenged the need for the revised WPS, and highlighted the many improvements that have occurred in the two decades since 1992. Our comments pointed out improved pesticide products and their packaging, sophisticated design of aircraft and on-board GPS and computerized meteorological instrumentation, and widespread use of advanced spray drift reduction technologies (DRTs).

The U.S. Small Business Administration’s (SBA) Office of Advocacy (Advocacy) also submitted comments on the WPS. NAAA worked with SBA Advocacy and issued its concerns with the EPA WPS proposal to help them develop their comments to the EPA. SBA Advocacy has done a lot of good work on NAAA’s behalf to protect our small businesses from proposed regulations that don’t adequately consider the unique operating environment of small businesses. In the past, SBA Advocacy helped to file down several serrated edges of EPA’s initial proposed National Pollution Discharge Elimination System – Pesticide General Permit (NPDES-PGP) that would have required even more burdensome regulations than those currently imposed on operators. SBA Advocacy’s WPS comments included recommending farms be exempt from the 100-foot buffer requirement.

When the rule was finalized, several of the concerns NAAA had expressed in comments had been corrected. The major provisions of the final WPS are:

  • Annual mandatory training to inform farmworkers on the required protections afforded to them. 
  • Expanded training includes instructions to reduce take-home exposure from pesticides on work clothing and other safety topics.
  • Children under 18 are prohibited from handling pesticides, although EPA continued the exemption for farm owners and their immediate families with an expanded definition of “immediate family.”
  • Expanded mandatory posting of no-entry signs for the most hazardous pesticides. The signs prohibit entry into pesticide-treated fields until residues decline to a safe level.
  • New no-entry application-exclusion zones up to 100 feet surrounding pesticide application equipment (not including field borders) will protect workers and others from exposure to pesticide overspray.
  • Requirement to provide more than one way for farmworkers and their representatives to gain access to pesticide application information and safety data sheets – centrally-posted, or by requesting records.
  • Mandatory record-keeping to improve states’ ability to follow up on pesticide violations and enforce compliance. Records of application-specific pesticide information, as well as farmworker training, must be kept for two years.
  • Anti-retaliation provisions are comparable to Department of Labor’s (DOL).
  • Changes in personal protective equipment will be consistent with DOL’s standards for ensuring respirators are effective, including fit test, medical evaluation and training.
  • Specific amounts of water to be used for routine washing, emergency eye flushing and other decontamination, including eye wash systems for handlers at pesticide mixing/loading sites.

The Pesticide Registration Improvement Extension Act (PRIA 4), signed into law by President rump in March 2019, includes language negotiated with Senator Udall (D-NM) and others related to the WPS and applicator training.  The law requires GAO to release a report on the use of the designated representative, including the effect of that use on the availability of pesticide application and hazard information and worker health and safety; and including any recommendations to prevent the misuse of pesticide application and hazard information, if that misuse is identified; and prohibits EPA from revising the Agricultural Worker Protection Standard Revisions final rule published November 2, 2015, and the Certification of Pesticide Applicators final rule published January 4, 2017 except that EPA may propose promulgate revisions to the WPS rule relating to application exclusion zones.

EPA finalized new AEZ requirements on October 30, 2020. The changes became effective on December 29, 2020, but have not been implemented due to a preliminary injunction in two lawsuits that have since been consolidated. The final rule did the following:

  • Clarified criteria and factors for determining AEZ distances of either 100 (aerial) or 25 feet by basing the AEZ on application method. EPA has removed the language and criteria pertaining to spray quality and droplet size, so that all ground spray applications from a height greater than 12 inches are subject to the same 25-foot AEZ.
  • Modified the AEZ so it is applicable and enforceable only on an agricultural employer’s property.
  • Adding clarifying language indicating that pesticide applications which have been suspended due to individuals entering an AEZ on the establishment may be resumed after those individuals have left the AEZ.
  • Excepted agricultural employers and handlers from the requirement to suspend applications owing to the presence within the AEZ of persons not employed by the establishment who are in an area subject to an easement that prevents the agricultural employer from temporarily excluding those persons from that area.
  • Allowed the owners and their immediate family to shelter in place inside closed buildings, housing, or shelters within the AEZ.

Certification of Pesticide Applicators: In 2018 EPA finalized a rule for certification for commercial and private applicators of Restricted Use Pesticides (RUPs), and any non-certified applicators working under their direct supervision.  The rule includes: 

  • Specialized certification requirements for aerial application, soil fumigation, and non-soil fumigation.
  • Persons must be at least 18 years old to qualify as a noncertified applicator using RUPs (Exception: persons under the supervision of an immediate family member and applying non-commercially must be at least 16 years old.)
  • Required pesticide certification at least once every five years through either written exams for each certification or by completing specific training in a continuing education authority for commercial applicators.   EPA estimates the cost for aerial applicators to take another test will be $98,000 annually nationwide, or about $98 per pilot (assuming 1,000 pilots take the exam each year, since there are about 3,000 pilots nationwide).
  • Requires states to adopt Continuing Education Unit (CEU) criteria to for the quantity, content, quality assurance of CEUs, and verification of completed CEU coursework.
  • Allow states to require recertification by exam or completion of CEUs.
  • States must require commercial applicators to maintain the following records for a minimum of two years: Current law mandates that State plans include requirements for certified commercial applicators to maintain operational records with the following information for at least two years: the name and address of the person for whom the pesticide was applied; the location of the pesticide application; the size of the area treated; site to which RUP was applied; time and date of application; product name and EPA registration number of RUP applied; total amount of the pesticide applied; the name and certification number of the certified applicator that made or supervised the application, and if applicable, the name of any noncertified applicator(s) that made the application under the direct supervision of the certified applicator.
  • Requires State certification plans to specify whether and under which circumstances the State would certify applicators based on the applicator having been certified by another state.
  • Defines “use” as in “to use a pesticide” to include any pre-application activities (including arranging for application and mixing and loading), applying the pesticide or supervising use by noncertified applicator, transporting or storing pesticide containers that have been opened, cleaning equipment, disposing of excess pesticides, spray mix, equipment wash waters, pesticide containers, and other pesticide-containing materials. 

The final rule may make reciprocity among states more likely because standardization would make them feel safer.

Certification exams for aerial applicators must test knowledge of the following areas:

  • Labeling – Label requirements specific to aerial application including:
    • Spray volumes
    • Buffers and no-spray zones
    • Weather conditions specific to wind and inversions
  • Application equipment – Understanding of how to choose and maintain aerial application equipment including:
    • The importance of inspecting equipment prior to use
    • Selecting the proper nozzles
    • Knowledge of the components of an aerial application system including hoppers, tanks, pumps and nozzles
    • Interpreting a nozzle flow rate chart
    • Determining the number of nozzles for intended pesticide output using nozzle flow rate chart, aircraft speed and swath width
    • How to ensure nozzles are placed to compensate for uneven dispersal due to uneven airflow from wingtip vortices, helicopter rotor turbulence and aircraft propeller turbulence
    • Where to place nozzles to produce the appropriate droplet size
    • How to maintain the application system
    • How to calculate the required and actual flow rates
    • How to verify flow rate using fixed timing, open timing, known distance or a flow meter
    • When to adjust and calibrate equipment
  • Application considerations – The applicator must demonstrate knowledge of factors to consider before and during application, including all the following:
    • Weather conditions that could impact application by affecting aircraft engine power, takeoff distance and climb rate or by promoting spray droplet evaporation
    • How to determine wind velocity, direction and air density at the application site
    • Potential impact of thermals and temperature inversions on aerial pesticide application
  • Minimizing drift – The applicator must demonstrate knowledge of factors to consider before and during application, including all of the following:
    • How to determine drift potential using a smoke generator
    • How to evaluate vertical and horizontal smoke plumes to assess wind direction, speed and concentration
    • Selecting techniques that minimize pesticide movement out of the area to be treated
    • Documenting special equipment configurations or flight patterns used to reduce off-target pesticide drift.
  • Performing aerial application – The applicator must demonstrate competency in performing an aerial pesticide application, including all the following:
    • Selecting a flight altitude that minimizes streaking and off-target drift
    • Choosing a flight pattern that ensures applicator and bystander safety and proper application
    • The importance of engaging and disengaging spray precisely when entering and exiting a predetermined swath pattern
    • Tools available to mark swaths such as GPS and flags
    • Recordkeeping requirements for aerial pesticide applicators including application conditions if applicable.

States had three years (until March 2020) to submit revised certification plans and then EPA will review the submitted plans by March 2022.  If the revised plan is timely submitted, the state’s existing plan will remain in effect until EPA approves the revised plan. The timeframe for implementation/compliance with the revised certification plan will be decided on a case-by-case basis. At this time EPA is in the midst of reviewing the states proposals and it is too early to observe how implementation will take shape across the states. NAAA will continue to track developments with states’ implementation of the rule in the coming months.

In May 2021 the EPA updated the Occupational Pesticide Handler Exposure Calculator and Occupational Pesticide Post-Application Exposure Calculator with new data. The updates to the occupational handler calculator included exposure estimates from the Agricultural Handler Exposure Task Force (AHETF) that monitored dermal and inhalation exposure for workers using closed systems to load liquid and solid pesticides. When mixing and loading liquids, the dermal exposure value went down (compared to the older exposure calculator) when gloves and engineering controls are used. Inhalation exposure estimates for mixing and loading liquid formulations declined significantly with the new AHEFT data. For mixing and loading granules, both the dermal and inhalation exposure estimates also declined with the new AHEFT data. These values are used for all types of applications including aerial, ground, and airblast. This new Occupational Pesticide Handler Exposure Calculator will be favorable to aerial application because it will result in lower overall exposure values that get used in the EPA’s occupational health risk assessments.

On December 17, 2021, EPA announced an extension to the expiration deadline of federal, state, territory, and tribal training and certification plans. The 2017 Certification of Pesticide Applicators final rule, required that state pesticide agencies with existing certification plans submit proposed modifications to EPA by March 4, 2020, to comply with these new standards that included establishment of an aerial application category with unique continuing education specific for aerial application. The rule also specified that existing certification plans would remain in effect until EPA completes its reviews and approves the proposed plan modifications, or until those plans otherwise expire on March 4, 2022, whichever occurs first. Due to the COVID-19 pandemic along with the complexity of plans, EPA has decided to extend the existing plan’s expiration deadline to November 4, 2022. During this extension period, EPA will issue a proposed rule and seek public comment through a Notice of Proposed Rulemaking (NPRM) on the need for extending the expiration date beyond November 4, 2022.

On August 19, 2022, the U.S. EPA issued a final rule extending the deadline for states, tribes, and federal agencies with existing certification plans to adhere to the updated federal standards under the 2017 Certification of Pesticide Applicators rule. Those with existing certification plans can continue their existing applicator certification programs until November 4, 2023. Once this date passes, only authorities with EPA-approved modified certification plans can continue to certify applicators of restricted use pesticides (RUPs). Of the nation’s 68 certification programs, EPA has reviewed all proposed modified plans and has approved seven plans. EPA had already issued a short-term extension with a deadline of March 4,2022. EPA requested comments on this extension and determined that the agency can finish approving all plans before the new November 4, 2023 deadline.

Before the 2020 revisions to the Application Exclusion Zone (AEZ) could take effect, the EPA was sued in two separate cases over the changes to the AEZ laid out in the revision. A preliminary injunction from the United States District Court for the Southern District of New York stayed the effective date of the 2020 rules, meaning the 2015 AEZ rules are still in effect. The preliminary injunction on the 2020 rules, which are still not being implemented, was to be in effect until August of 2022, but in May of 2022 the EPA announced will be starting a new rule making effort to address the AEZ. This rulemaking process may modify the original 2015 AEZ, the 2020 revisions, or both. The EPA expects to issue a proposal for a new AEZ rules sometime in 2022. NAAA will closely monitor this rule making process to ensure the EPA does not return to the original 2015 AEZ requirements.    

The U.S. Environmental Protection Agency (EPA) has approved 13 state and federal agency certification plans that comply with the improved federal standards to enhance worker safety under the 2017 Certification of Pesticide Applicators (CPA) rule. To date, of the nation’s 68 certification programs, EPA has reviewed all proposed modified plans and has approved eight plans from states and territories and five from federal agencies.
These include:

  • Alaska (Alaska Department of Environmental Conservation)
  • California (California Department of Pesticide Regulation)
  • Nebraska (Nebraska Department of Agriculture)
  • New York (New York State Department of Environmental Conservation)
  • Oregon (Oregon Department of Agriculture)
  • Puerto Rico (Puerto Rico Department of Agriculture)
  • Vermont (Vermont Agency of Agriculture, Food and Markets)
  • U.S. Virgin Islands (U.S. Virgin Islands Department of Planning and Natural Resources)
  • U.S. Department of Agriculture, Animal and Plant Health Inspection Services, Plant Protection and Quarantine
  • U.S. Department of Agriculture, Forest Service
  • U.S. Department of Defense
  • U.S. Department of Energy; Bonneville Power Administration
  • U.S. Department of the Interior, Bureau of Land Management

State, territory, and tribal authorities with existing planes can continue utilizing these plans until November 4, 2023. After this date, only authorities with EPA-approved modified plans can continue to certify applicators of RUPs.      

Updated February 2023

Since 2002 through the current federal government fiscal year of 2023, NAAA has been successful in securing an additional $12,512,500 for the Aerial Application Technology Research Unit (AATRU) within USDA’s Agricultural Research Service (ARS). In 2011 Congress enacted a ban on earmarking money for specific projects, however NAAA was able to keep aerial application research funding steady by having the supportive report language inserted into past appropriation bills and the Farm Bills.  For example, the language from the Fiscal Year 2021 Ag Appropriations Conference Report reads:   

Aerial Application Research.—The Committee recognizes the importance of the ARS Aerial Application Technology Program. The program conducts innovative research making aerial applications more efficient, effective and precise. Research for aerial application serves the public good as a vital tool for the future as agriculture strives to meet the food, fiber and bio-energy demands of a growing population.

NAAA will continue to work for adequate USDA-ARS aerial application technology research funding so long as the research is equitably distributed towards the type of aerial applications that are conducted most.  In addition, so long as the research is being focused on further integrating georeferencing, variable flow control, meteorologic, digital mapping, and aircraft attitude technologies on-board the aircraft to automate the spray systems further resulting in mitigating drift, conserving fuel, and making aerial applications more efficacious, while allowing the pilot to focus on flying the aircraft more safely by allowing that pilot to observing obstacles outside the cockpit.

Favorable committee report language sends a strong message to the USDA to continue to sustain appropriate funding for aerial application research. This message couldn’t be more important as USDA-ARS has had its budget cut over the past few years resulting in the shutdown of 10 research units.

While it is impressive aerial application research funding has remained constant over the years, inflation in salaries, facility maintenance, health care costs and ARS administrative fees have unfortunately resulted in fewer dollars to conduct research at the AATR unit. To adequately fund research costs at the 2002 level the program would need now add an additional scientist in addition to an additional $25,000 per employee or approximately $250,000, added to the annual additional amount of between $600,000 and $750,000 NAAA has been able to secure for the program since 2002. This would push the programs budget up to $1.55 million annually.

Federal aerial application research has significantly benefited the industry over the years.  The AATRU has provided sound reason to the public indicating that ag aircraft equipped for crop applications are not a bioterrorism security threat; has provided mobile technologies accounting for equipment and application setup to calculate the most effective and targeted droplet size; and is educating ag aviators on increasing their fuel efficiency, and applied materials efficiency by utilizing precision ag/variable rate technology and how to utilize sensing equipment to conduct aerial images and crop-sensing by air.
In addition to lobbying the program on Capitol Hill, NAAA has worn out shoe leather at USDA with key officials over the past few years extolling the benefits of the AATRU unit. Officials include administrators, associate administrator and budget officials of the ARS; individuals at the USDA’s Office of Pest Management Programs; and USDA under secretaries of research, education, and economics. NAAA has received some positive feedback from the USDA too. ARS officials have told NAAA the language in the appropriation’s report makes the task of keeping the funding for the AATRU unit easier. USDA statistics affirm the necessity for agricultural research, in that for every $1 invested in agricultural research $20 is returned to the economy.  Founding father Benjamin Franklin once said, “An investment in knowledge pays the best interest.”

The challenges for all agricultural research and federal discretionary programs are great. With no end in sight on the continual growth of the federal debt—$33 trillion and growing—significant spending cuts have been and will continue to be sought. When it comes to federal agricultural research dollars it is almost inevitable we will continue to see a cinching of budgets because only two percent of our country’s population is involved in agriculture and it is also unlikely this small percentage will be able to influence our nation’s policymakers who set ag research spending budgets. This has been proven recently by challenges involved in enacting recent Farm Bills.

NAAA’s efforts urging the federal government to maintain current levels of aerial application research will continue but, again, it will be a challenging undertaking. To support its goal of increasing funding for the program, NAAA initially established a key coalition of national commodity, farm, and crop protection product manufacturers and applicator groups to join to support funding for additional research. NAAA has also retained the outside lobbying sources of the LeMunyon Group to assist on this project. In addition, efforts to promote the AATRU as a green technology have been used because of the fuel conserved and land and natural resources that are and will continue to be preserved as a result of the judicious use of crop protection products that are able to be made as a result of this important research.

So, what are other approaches that can be attempted to address this research situation if federal coffers dry up? There is always the possibility of our industry funding its own research. Many different agricultural commodity interests do this via establishing “checkoff” organizations, which collect funds from its producers and use these funds to promote and perform research on the commodity. The USDA is responsible for overseeing the formation of checkoff organizations under the authority of the Commodity, Promotion, Research and Information Act of 1996. Examples of marketing checkoff programs include the pork industry’s “Pork. The Other White Meat” campaign and the beef industry’s “Beef: It’s What’s for Dinner” campaign.

Establishing industry-wide research programs aren’t without controversy. Congress has permitted producer groups to make check-offs mandatory, and this aspect has generated legal challenges by some producers, who contend they must pay taxes for activities they would not underwrite voluntarily. It is not necessarily a suggestion NAAA is proposing; however, looking forward toward solutions to maintain aerial application research funding is important for this industry and solutions must be found. Another option is to look for help from existing commodity “checkoff” programs. It has been communicated to NAAA that some have resources that could be made available for aerial application technology research. As mentioned, the ARS’ AATRU has done much good work for this industry. Aerial application must continue to technologically evolve to remain a vital component in modern agricultural production and strong consideration must be given to the likely reality our government will not have the wherewithal to continue this same level of research.

Updates since the last board meeting: The House of Representatives Fiscal Year 2023 Agriculture Appropriations Bill again included supporting committee report language for the research conducted at the AATRU, which was incorporated into the final report that accompanies the Consolidated Appropriations Act of 2023, which President Biden signed into law on December 29, 2022.

Updated February 2023

NAAA has been diligently examining the effects global climate change policy could have on the agricultural aviation industry.

The Biden Administration and the slim majority in Congress have debated to legislate many of the Biden campaign’s carbon control initiatives which included pushing for more electric vehicles, which could push down demand for corn and ethanol and also pushing carbon taxes.  California is poised to impose strict vehicle emissions standards and mandate all electricity in the state come from renewable sources by 2035. In 2019, the state raised the excise tax on gasoline by 12 cents per gallon, a 40 percent increase. These polices have not directly affected the ag aviation industry, but NAAA is closely monitoring state activities and federal legislation regarding climate change.

In January of 2021 the EPA adopted greenhouse gas (GHG) emission standards applicable to certain classes of engines used by certain civil subsonic jet airplanes with a maximum takeoff mass greater than 5,700 kilograms and by certain civil larger subsonic propeller-driven airplanes with turboprop engines having a maximum takeoff mass greater than 8,618 kilograms. The rule does not include current certified agricultural aircraft for several reasons:  most agricultural aircraft fall under the weight (18,959 lbs. for turbo prop aircraft) being regulated, firefighting aircraft are listed as an exception and airplanes that are generally designed or modified in such a way that their designs are well outside of the design space of typical passenger or freight carrying airplanes are included as exceptions.  Agricultural aircraft including heavier aircraft such as Air Tractor’s AT-1002, which is under development, are believed to be outside of the GHG emission standards due to its reference geometric factor of zero.  Geometric factor is a non-dimensional measure of the fuselage, generally considered to be the shadow area of the airplane’s pressurized passenger compartment. 

Since taking office, President Biden has sought to reinstate many of the Obama era climate change related rules and regulations. The Administration immediately rejoined the Paris Climate Accords which had been established in 2015.  On January 20, 2021, President Biden signed an executive order requiring the review of Trump Administration rules that relate to “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.”

In March of 2021 the USDA put out a request for comment on the “Executive Order on Tackling the Climate Crisis at Home and Abroad”. As part of that order the U.S. Secretary of Agriculture was directed to collect stakeholder input on a “climate smart agricultural and forestry strategy.” The USDA request for comments asked several questions about how USDA programs, agricultural stakeholders, and research can be used to help reduce greenhouse gases and combat climate change.

NAAA submitted comments to both EPA and the USDA detailing how the efficacy and timeliness of aerial applications protects the environment and reduces the impacts of climate change. This protection occurs because of the higher yield benefit of aerial application, which would require additional cropland to make up the yield loss if aerial application was no longer an option. NAAA also explained the contribution aerial application makes to improving the environment by seeding cover crops.. NAAA suggested USDA continue to support policies that increase the number of no-till or reduced till acres and the acres growing cover crops. Both activities are proven to reduce greenhouse gasses and should be supported. NAAA also suggested that crop insurance programs offered by the USDA Risk Management Agency be expanded to include businesses that support agriculture including aerial application operations.

In January of 2022 the U.S. Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) announced its Environmental Quality Incentives Program (EQIP) will be investing $38 million to a new targeted Cover Crop Initiative in 11 states to help agricultural producers mitigate climate change through the widespread adoption of cover crops. States include Arkansas, California, Colorado, Georgia, Iowa, Michigan, Mississippi, Ohio, Pennsylvania, South Carolina and South Dakota. The initiative is aimed at improving and streamlining the application and contract approval process.

Late in 2021 President Biden signed a $1.2 trillion bipartisan infrastructure bill including $27 billion on climate-ag programs. This includes a provision to pay farmers $25 per acre for growing cover crops (up to 1,000 acres per producer). Cover crops—widely seen as a way to help farmers capture more carbon and improve soil health—are currently only employed on about 5% of U.S. cropland, per the Agriculture Department.  Additional provisions in the massive reconciliation bill related to agriculture include:

  • $27 billion to maintain forests, reduce fire risks and capture carbon in trees.
  • $18.3 billion for rural development and efforts to help rural co-ops transition to greener energies.
  • $10 billion in child nutrition aid.
  • $6 billion in debt relief for underserved farmers and ranchers.
  • $1 billion for new biofuel infrastructure and additional funding to extend biodiesel tax credits.

In late June of 2022, the Supreme Court issued a ruling stating that the Environmental Protection Agency cannot put state-level caps on carbon emissions under the 1970 Clean Air Act. Such authority would, in effect, steer states away from coal and toward other types of power sources that emit less carbon. The Court said that, instead, the authority to decide how power is created in the U.S. must come from Congress.

In August of 2022 President Biden signed the questionably titled Inflation Reduction Act (IRA), which includes major investments in addressing the climate. It would provide $19.5 billion for agricultural conversation. It would add over $18 billion in additional funding for existing Farm Bill conservation programs including:

  • Environmental Quality Incentives Program (EQIP); $8.45 billion
  • Regional Conservation Partnership Program (RCPP); $4.95 billion
  • Conservation Stewardship Program (CSP); $3.25 billion
  • Agricultural Conservation Easement Program (ACEP); $1.40 billion
  • Conservation technical assistance; $1.0 billion
  • Carbon sequestration and greenhouse gas emissions quantification program; $300 million

Lastly, the bill would amend 7 U.S.C. §8103 to provide $500 million for grants to increase the sale and use of agricultural commodity-based fuels through infrastructure improvements for blending, storing, supplying, or distributing biofuels. For example, the bill would provide $5 million to the U.S. EPA to carry out the Renewable Fuel Standard program, in part, for data collection and analyses for lifecycle greenhouse gas emissions of a fuel and would provide $10 million for new grants to support investment in advanced biofuels. The bill would establish a sustainable aviation fuel tax credit that would, after 2024, be absorbed into a new clean fuel production tax credit. Lastly, the bill would extend certain tax incentives for biofuels, including for biodiesel and renewable diesel.
          
In mid-September of 2022, the USDA announced up to $2.8 billion worth of investment in 70 projects under the Partnerships for Climate-Smart Commodities program. The program will now increase to more than $3 billion in total size, after what Ag Secretary Tom Vilsack called “strong and growing interest” in agricultural products grown in a climate-friendly way. The original price tag was $1 billion. The funds will be delivered through the Commodity Credit Corporation. Some of the selected projects include $95 million to accelerate long-term cover crop adoption by creating a platform to incentivize farmers.

NAAA continues to make the case that agricultural aviation is doing its part in reducing total carbon emissions.  The aerial application of crop protection products results in greater harvest yields of crops. This in turn results in less land being used for agricultural production, preserving more wetlands for natural water filtration, forest ecosystems for carbon sequestration and habitat for threatened and endangered species. A Texas A&M study revealed that the total area of cropland needed to replace the yield lost if aerial application was not available for corn, wheat, soybean, cotton, and rice production is 27.4 million acres, an area roughly the size of Tennessee. Aerial applicators seed 3.8 million acres of cover crops annually. This means that aerial applicators are responsible for helping to sequester 1.9 million metric tons of CO2 equivalent annually, which according to the EPA would be the equivalent of removing approximately 412,000 cars with carbon-combustion engines from the roads each year.  Climate change research has shown that growing cover crops on an additional 15% of U.S. cropland would further sequester 11.9 million metric tons of CO2 equivalent annually. NAAA reminds public officials and the public that because aerial application of cover crops can occur while the cash crop is still standing offers a significant advantage over ground seeding in terms of establishing a healthy cover crop. Aerial application will therefore be critical to expanding cover crops on an additional 15% of cropland.

Agricultural producers continue to be solicited by companies to sign up for “carbon programs”.  In these programs, growers are paid to sequester carbon by changing their farming practices.  A November issue of Successful Farming magazine featured 11 different companies offering to pay growers carbon credits.  Almost all of these specifically mentioned growing cover crops as a practice that they would pay credits for.  NAAA’s fall 2022 industry survey indicates that 2 % of aerial applicators work is cover crop. 

Updated February 2023

Lead is an octane booster that prevents pre-detonation (knock) in spark ignition reciprocating engines. In high compression engines, without some type of antiknock additive in the fuel, the engine will sometimes act like a diesel engine and the fuel will self-ignite before it was supposed to be ignited by the spark plug by the temperature increase caused by the compression of the fuel air mixture and may result in rough running engines, and possible damage to the engine, and power loss. 

It’s likely we cannot use leaded gas in piston/reciprocating engines for much longer. In 2007 the Friends of the Earth, an environmental activist group, petitioned the EPA to conduct a study of the effects of lead in avgas.  In 2010, the EPA issued an advanced notice of proposed rulemaking regarding the removal of lead in avgas.  That rule has yet to be formally proposed as no suitable alternative to leaded avgas was available.  The exploration of alternatives to avgas continued after this time through the Piston Aviation Fuel Initiative (PAFI) steering group and (EAGLE) Eliminate Aviation Gasoline Lead Emissions Group.  The most pressing concern at this time is that the EPA announced that they are expected to issue a proposed endangerment finding regarding avgas this year.  If the proposed endangerment finding is issued, it could lead to the banning of leaded avgas within the next couple of years.      

The agricultural aviation industry is less dependent on avgas because of the continued move from avgas powered piston engines to Jet A powered turbine engines. The number of piston agricultural aircraft went from 46.3 % to 27.8% and the Piston hours flown went from 27.9% to 14.2% from 2012 to 2020, however, while the decrease in piston aircraft was significant, we absolutely do not want to lose those aircraft or the acres that they treat. 

As far back as 2006 a coalition of aviation interests such as airlines, aircraft and engine manufacturers, energy producers, researchers, international participants, and U.S. government agencies have been working on a project called the Commercial Aviation Alternative Fuels Initiative. Their stated goal was to find an alternative to petroleum-based jet fuel.  Today’s sustainable push is mostly based on reducing carbon output both in the use of and the production of the fuel regardless of the energy source. It is primarily looking at fuels for jet engines, however hydrogen is being looked at as an energy source that could possibly be used in both reciprocating piston engines and jet turbine engines. And although it has already been determined to not be safe with avgas, ethanol is still being tested in these programs. 

The recently passed (August 7, 2022) Inflation Reduction Act included incentives for sustainable aviation fuel.This is accomplished directly by a sustainable aviation fuel tax credit and indirectly by supplying $500 million in grants for blending, storing, supplying, and distributing biofuels and $10 million to support investments in advanced biofuel.

Any avgas alternative needs to be functionally useable for aviation. Agricultural and other industry acceptance of bio diesel has been limited due to real or perceived problems such as gelling in cold weather, engine component damage and reduced fuel efficiency. Fuel efficiency as measured by power output to weight and volume is important as useable weight and volume are often in short supply on an aircraft. As with unleaded avgas, NAAA will insist that any alternative developed meet or exceed current safety standards and be a practical power source.  

On September 1, 2022, General Aviation Modification Inc’s (GAMI) 100 octane unleaded avgas, G100UL received complete approval for the use of its fuel in all spark ignition piston engines in the FAA’s type certificate database and every airframe powered by those engines.This includes both low and high compression engines used in agricultural aviation such as the P&W 1340 and horizontally opposed engines used in Cessna and Piper agricultural aircraft and in several helicopter models. 

Any qualified refiner or blender of fuel may be licensed to produce this fuel.  Ann Arbor, Michigan-based fuel supplier AvFuel is standing by to manage the logistics and distribution of G100UL.  According to GAMI, the blending process is simple, and any competent refiner or blender will be able to produce G100UL. Initially G100 is expected to be more expensive than current 100 LL avgas, but the price should come down as volume of sales increases. In addition, an unleaded avgas will potentially cause fewer maintenance issues, spark plugs should remain clean, and oil change intervals may be extended.  GAMI had the current formula developed and tested 6 years ago, but the last 6 years has been spent dealing with the FAA.  The timeline for when the fuel would be readily available nationwide has yet to be determined, however, deliveries will start in California where some airports have banned the use of leaded avgas. G100UL is a “drop in” fuel that does not require any changes to the airframe or engine. It is completely fungible with 100 LL in any concentration. An STC will have to be obtained by aircraft owners to use G100. 

In October of 2022 the EPA, under the Clean Air Act (CAA), released its proposed finding which concluded that lead emissions from aircraft using leaded aviation fuel endangers public health. However, the CAA requires the EPA to consult with the FAA on any proposed changes to emission standards to ensure aviation safety is not adversely affected. NAAA and a coalition of aviation associations has commented to the EPA that focus needs to continue to be directed at finding a safe alternative to leaded aviation fuel and transitioning the U.S. fleet to such a fuel rather than develop more strict standards for the current leaded aviation fuel or worse yet ban such fuel.

Updated February 2023

The International Organization for Standardization (ISO) is developing aerial application standards/best management practices that U.S. aerial application technicians need to be involved in the process. ISO is the world’s largest developer and publisher of international standards and is a network of the national standards institutes of 163 countries, one member per country, with a Central Secretariat in Geneva, Switzerland, that coordinates the system.

NAAA has been asked to be involved in developing these standards. In recent years, the European Union (EU) parliament banned the use of aerial application within the EU with a few exceptions. Since that ban took place EU member countries have raised concerns with the ban and their ability to effectively treat crops such as vineyards on hillsides, etc. Prompting the ISO to develop these standards, it is believed, will provide more allowance for aerial application in the EU. Furthermore, it will diffuse political pressure EPA is experiencing from U.S. environmentalists to ban aerial application in the U.S. U.S. environmentalists believe that due to the EU banning aerial application EPA is behind the regulatory trend.

Those involved from the U.S. in the development of these standards include Dr. Harold Thistle, formerly with the USDA Forest Service, and Dave Valcore, a former Spray Drift Task Force member and employee of Dow. Dr. Brad Fritz with the USDA-ARS, Dr. Clint Hoffman, formerly with the USDA-ARS, and Dr. Scott Bretthauer provided input to Dr. Thistle and Dave Valcore.

The ISO standard process moves at a snail’s pace since many countries using a wide variety of agricultural practices are involved in the ISO organization. Thistle believes our input to this standard is vital since we could use our compliance with an internationally approved ISO standard to justify food safety on exported products.

In early September 2017 Dr. Fritz provided two documents from Dave Valcore that reflect the status on this project. One is the current draft of ISO/DIS 16119 Agricultural and forestry machinery – Environmental requirements for sprayers – Part 5: Aerial spray systems. The second is ISO/DIS 16122 Agricultural and forestry machinery- Inspection of sprayers in use – Part 5: Aerial spray systems – Environmental protection. The first document, ISO/DIS 16119, is an ISO for agricultural aircraft manufactured after the date at which the ISO is adopted. This document has been reviewed and commented on several times by NAAA and the current draft reflects our comments. The second document, ISO/DIS 16122, is more recent, and is intended for agricultural aircraft already in use.

NAAA established a committee consisting of Joe Coppick (operator), Anthonie York (Air Tractor), Eric Rojek (Covington), Damon Reabe, and Bradley Reed (operators) to review ISO standards relating to aerial application. Comments on ISO/DIS 16122 were completed and submitted to the U.S. ISO working group on February 21, 2018. Before the 2018 fall board meeting NAAA received an updated draft of ISO/DIS 16122 with a request to offer comments. Comments were submitted that recommended removing the requirement for a grate over hopper openings. In addition, NAAA received a request to comment on language in ISO/DIS 16119 relating to the emergency dump valve control. NAAA offered comments to improve the language so it prevents unintended operation but does not restrict existing agricultural aircraft.

The latest draft of ISO/DIS 16122 was shared with NAAA staff member Scott Bretthauer in June of 2019, who was asked to review language developed by the U.S. working group relating to emergency dump valve control and filters. Based on prior input from the NAAA ISO committee, the current draft language was deemed acceptable. An expert consultant with European Committee for Standardization is causing delays based on the proposed language for the emergency dump valve control. The introduction was also modified to list both NAAA and NAAREF as providing input to the development of the document. Unfortunately, the language requiring a barrier of some sort over hoppers is still included but has been changed to include the option of a bar in addition to the grating. A statement has also been added to indicate the purpose the bar or grate is to prevent operator exposure, i.e. falling into the hopper.

Both ISO/DIS 16119 for new aerial application equipment and ISO/DIS 16122 for agricultural aircraft already in use were set to be approved but were instead canceled. Both standards were set to go through harmonization for acceptance in the European Union, which requires a consultant. The consultant for both aerial standards delayed the process, and then died before work could be completed. The delay caused the working groups to miss their deadline, which in turn resulted in both standards being cancelled. There is hope that ISO/DIS 16119 and ISO/DIS 16122 can both be revived but the effort will likely require new financial support.

Work to advance both aerial ISO standards began again in the spring/summer of 2021 via efforts of Dan Cederberg with Spraying Systems. Harold Thistle notified NAAA and USDA that there is now a specific clause on an “Emergency Stop” needed for the aerial standards in order to harmonize them with European Union machinery directives. The description of what is required for an emergency stop does not easily match up with aerial application technology and practices because of the phrase “disengaging the device (emergency stop) must not restart the machinery but only permit restarting”. While the spray handle is the obvious choice for an emergency stop, disengaging it does restart the spraying process. Harold Thistle, with input from NAAA, came up with the following description for an emergency stop for aerial applications:

Spray systems shall have an emergency stop with immediate accessibility to the pilot. In the case of aerial spraying, the forward movement of the aircraft cannot be instantly stopped nor the pressure in the system instantly changed.  The emergency stop procedure is to divert away from the hazard using the aircraft’s control stick and rudder and turn the spray-off using the spray handle.

Updated February 2023

In the fall of 2016, environmental activists garnered enough signatures to hold a ballot initiative that would ban aerial application in Lincoln County Oregon. The ballot initiative was not supported by the Lincoln County Board of Commissioners because of the vagueness of key terms and the ability for citizens to use “direct action” to enforce the ban.

NAAA worked closely with Oregonians for Food and Shelter (OFS), a group supporting ag and forestry production in the state and dedicated to stopping the ballot initiative. To combat misinformation, OFS worked with Hilltop Public Solutions to campaign against the measure and built a broad coalition of trade associations, businesses, and industries ranging from fishing to timber to aerial application. Additionally, NAAA donated $2,000 to defeat the ballot measure.

The measure was voted on in May of 2017 and passed with 50.2 percent, a difference of just 61 votes. A few weeks later, Rex Capri, a Lincoln County landowner, filed a lawsuit arguing that a ban on aerial pesticide spraying in the county is preempted by state law. Almost two years after oral arguments were made against the Lincoln County aerial herbicide ban, Judge Sheryl Bachart ruled that Oregon’s Pesticide Control Act prevents local government regulation of pesticides, including aerial application. Activists have said they intend to appeal the ruling. During the summer of 2021the Oregon Court of Appeals issued its decision on the Lincoln County aerial spray ban (Capri et al. v. Jenkins and Lincoln County and Lincoln County Community Rights et al.). The court upheld the trial court’s decision that 1) the county was preempted from regulating the use of pesticides and 2) that the “Siletz River Ecosystem” could not join the case as a party.

While the result of the case is favorable, the Court of Appeals declined to address the question of whether a county has the authority to adopt such a measure in the first place when the measure is preempted by state law. Oregonians for Food and Shelter, a farming and forestry advocacy group that NAAA has been working with on this issue, is working to discuss an appeal to the Supreme Court to attempt to get a ruling on this, which would impact other local ballot initiatives and could discourage future efforts to circumvent state laws.

Last Congress Sen. Tom Udall (D-N.M.) and U.S. Rep. Joe Neguse (D-Colo.) introduced a bill that would, among other things, allow local communities to ban pesticides, essentially dissolving states’ preemption and as aforementioned, Senator Cory Booker (D-NJ) introduced S. 3283 to amend FIFRA in several deleterious ways. It would allow individual citizens the ability to petition the EPA to identify pesticides the citizen deems to be too dangerous for use. It would ban the use of special local needs and emergency exemptions, registration tools that can provide quick access to pesticides that growers and land managers might need during an outbreak of a new pest or on a specialty crop not included on the original label. S. 3283 would eliminate state preemption for pesticide registration, meaning municipalities or counties could ban pesticides on their own despite the pesticide being approved by the state. NAAA joined more than 350 organizations engaged with pesticide products in a letter sent to members of the U.S. Senate and House of Representatives that opposed S. 3283 and affirmed these organization’s support of the pesticide regulatory system in place today under FIFRA.  An effort is underway by ag coalition efforts of which NAAA is a part of to include in the Farm Bill next year language to preserve state and federal preemption of pesticide legislation.

In January of 2023 a bill was proposed in Virginia that would require all agricultural aviators making an aerial application west of the Blue Ridge Mountains to provide a seven-day notification for all such applications. The notifications had to include both the specific date and time the aerial application was intended to be made. NAAA responded by putting together a fact sheet that laid out the importance of aerial applications in Virginia and highlighted some of the severe consequences of forcing all aerial applications to be postponed seven days in order to comply with the proposed law. NAAA sent the fact sheet to the Virginia Department of Agriculture and Consumer Services, the Virginia Farm Bureau, Crop Life America, and a Virginia based aerial application operation.  The member of the Virginia Assembly that introduced the bill ultimately withdrew his bill.

Updated February 2023

The Federal Insecticide Fungicide and Rodenticide Act (FIFRA) provides for federal regulation of pesticide labeling, distribution, sale, and use and establishes stringent safety standards and oversight.  All pesticides used in the United States must be registered by the Agency.  EPA-approved pesticides protect our food supply from pests and disease.  They also protect people and pets from germs, viruses and disease-carrying pests such as mosquitoes.  In addition, they protect waterways, trees, and wildlife from harmful invasive species. Pesticides are also regulated by the States.  EPA and the state lead agency should be the only regulatory entities responsible for registration, sale, and use of pest control products.  When localities without scientific expertise seek to regulate pesticides, it creates a confusing patchwork of laws that are often in conflict with each other, creating confusion for aerial applicators and their customers that work in more than one county or municipality. Pests and diseases that harm crops, threaten the integrity of our food supply and the public health do not respect local borders.  The handful of states without a pesticide preemption law allow individual localities to regulate pesticides differently, creating unequal protection for citizens and crops based on their zip code.

Legislation is needed to clarify the exclusive role of state lead agencies to prevent localities from imposing a patchwork of conflicting regulatory restrictions without scientific assessment, economic analysis, consideration of the consequences to the food supply or responsibility of public health agencies to control disease vectors.  A provision should be included in the Farm Bill to reinforce the intention of FIFRA that only the state lead agency may act as a coregulator in the state with EPA, ensuring that the highly technical work of determining how pest control products are used are made by those with technical knowledge. In states with preemption, the state lead agency already works with the EPA on all pesticide usage, sale, and/or distribution. The handful of states without a pesticide preemption law allow individual localities to regulate pesticides differently, creating unequal protection for the food supply and citizens based on their zip code.

Ensuring that pesticides are properly regulated is imperative for all our health and safety. Since the 1970s, State lead agencies have worked with the U.S. Environmental Protection Agency (EPA) through cooperative agreements to administer and enforce FIFRA laws and support the development of scientifically based pesticide labels. State level pesticide control officials are career employees with extensive scientific training and are therefore best situated to prevent pesticides from having adverse effects to the environment. Forty-six states have adopted some form of pesticide preemption and are working cooperatively with local officials to enforce robust oversight of state pesticide laws.  It is time to codify into federal law the role of the States in regulating pesticides and to eliminate the confusion and negative consequences for agriculture, our food supply and public health that are associated with a patchwork on confusing and often conflicting local laws.

This targeted fix will ensure that those with expertise at state lead agencies and EPA are the ones to determine pesticide usage and protect the status quo of 46 States where robust oversight of pesticides is already occurring, including Arkansas, California, Georgia, Michigan and Pennsylvania.

There is precedent for including similar language in the Farm Bill, as demonstrated in H.R. 2 the Agriculture Improvement Act of 2018, where the House included such language in its initial 2018 Farm Bill. However, it was ultimately not included in the final conferenced version signed into law on December 20, 2018. It is therefore important the language be included, and remain in, the final 2023 Farm Bill.

 NAAA has joined over 150 national and state ag and pesticide user groups to the House and Senate Ag Committee chairpersons and ranking members expressing strong support for including in the 2023 Farm Bill reauthorization language under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) codifying state oversight of pesticides at the state level.

Updated February 2023

NAAA, working with CropLife America and the Agricultural Retailers Association (ARA), has been involved in attempting to strengthen crop registry systems that are being designed to inform applicators of nearby crops and hives that might be more sensitive to a pesticide. One registry system, known as FieldWatch was designed by staff from Purdue University with the intent of helping pesticide applicators, specialty crop growers, and beekeepers communicate more effectively to protect pesticide-sensitive areas. The site features a Google Maps™ interface that shows applicators the locations of registered areas so they can take the appropriate precautions before they spray.

FieldWatch (originally known as DriftWatch) was spun off as an independent nonprofit organization affiliated with but not formally part of Purdue University. In the spring of 2013 the NAAA Board passed a motion in support of nine governing principles to use to advocate for in any crop registry/field identification system to ensure maximum user participation of such technology. These principles are as follows:

  • The brand name and communications outreach for any sensitive crop registry should carry a positive connotation focused on stewardship and improved communication.
  • Accurate, current and independently validated data that is kept secure must be the cornerstone of any sensitive crop registry.
  • Governance of a crop registry system should be transparent and representative of its users.
  • Any crop registry must have a business plan that ensures long-term sustainability and supports operational effectiveness.
  • Any crop registry must be a tool to promote and develop stewardship and improved communication at the field level.
  • Any crop registry program must encompass sufficient geographic scope and cover adequate percent of acres inside given geographies.
  • Any crop registry should be voluntary and support collaboration with state and federal regulators.
  • Any crop registry should not create or increase liability for all stakeholders.
  • A crop registry should not expand beyond the original intended crop registry mission.

Meeting the intent of some of these principles would include ensuring the registry has a positive brand name connotation focused on stewardship and improved communication; accurate, current and independently validated data that is kept secure; governance that is transparent and representative of its users; and a sound business plan that ensures long-term sustainability and supports operational effectiveness.

Early efforts by FieldWatch to meet the criteria above raised concerns as to whether it can be a viable crop registry. Another concern registered with the site initially was its hive marking platform. NAAA has been frequently invited to FieldWatch meetings to hear how the organization is proceeding. Since the first 2013 meeting NAAA attended the FieldWatch and DriftWatch websites have been changed to include different forms of application pictures (before this, only pictures of aerial application were depicted). FieldWatch is accepting new memberships from stakeholders of field registries, so one consideration that would allow NAAA members to have a greater influence in updating the registry to ensure it considers aerial applicators’ concerns would be to join the organization as a member.

Registries, such as FieldWatch are likely to remain part of the drift stewardship universe. Twenty-two U.S. states and the province of Saskatchewan utilize the crop registry—with California, Maryland and Pennsylvania joining in 2019 to make 22 states. South Carolina has a crop registry using a platform designed by Kelly Registration Systems. That registry system also includes hives, schools and other residential areas. NAAA, CLA and NAAA met with Kelly to present its principles to the firm. There are aspects of the Kelly crop registry system that are attractive, for example crops aren’t shown publicly and can only be seen by those applicators that might be treating adjacent to them and the farmers that posted the field. Also, hives and field contents are confirmed by a third party.

Applicators should be aware that these registries may become part of a standard of care that must be followed to avoid negligence claims in the event of a drift incident. One legal opinion pertaining to these registries is that “as long as an applicator follows label directions for measures related to avoiding drift, as well as any statutes or regulations related to the avoidance of drift, an applicator’s failure to use DriftWatch™ should not be a stand-alone basis to establish a claim for negligence or gross negligence. An argument that DriftWatch™ somehow creates a higher standard of care, beyond a duty of care framed by a pesticide’s label instructions and statutes/regulations related to drift avoidance should be rejected based on the prevailing case law. On the other hand, an applicator may effectively argue that its use of DriftWatch™ prior to application is evidence, as part of a broader evidentiary showing of due care, that the applicator met the standard of care in a negligence suit. If DriftWatch™ is incorporated into a product label or state statute or regulation concerning pesticide applications, then an applicator must follow that label or statute/regulation’s instructions or references on the use of DriftWatch,™ or face higher risk of negligence per se claims if damage results from drift to sensitive crops.” 

Recently, with the Zika virus outbreak, media attention has focused on applications to combat the virus—including aerial applications.  One incident, reported in the Southeast’s Low Country, stated that millions of honeybees were casualties of an aerial application of Naled to combat Zika-carrying mosquitoes.  This does highlight a benefit of using crop-site registries to locate hives or crops sensitive to certain pesticides to avoid any undesirable application repercussions.

BeeCheck® has been incorporated into the FieldWatch website, and is a registry specific to apiaries. In 2019, FieldWatch is expanding their row crop registry pilot program, CropCheck™, from Arkansas to North Carolina, Indiana, and Illinois.

Clarification of names: FieldWatch is the name of the overall organization and includes DriftWatch, BeeCheck and now CropCheck. DriftWatch is where commercial specialty crop producers can register and map the locations of their specialty crops; BeeCheck is where beekeepers can register and map their apiaries; and CropCheck is a pilot program to map row crops in states that have volunteered to participate.

FieldWatch is also considering adding a layer that would include state prairies and preserves, at least in the states of Illinois and Indiana that are interested in those publicly owned areas being included.  There is also a consideration to include field workers, such as corn de-tasselers in the state of Iowa.
During the winter of 2019/2020, FieldWatch added industrial hemp to their Registry.

In 2020 NAAA suggested Joel Meyer as an aerial application representative on the FieldWatch Board of Directors; FieldWatch accepted the suggestion and Joel Meyer is now on their Board of Directors. FieldWatch also launched a new program called SeedFieldCheck that will be a site where seed companies and pesticide applicators can communicate about the location of fields where workers are present. This will increase pesticide stewardship and better ensure seed field worker safety. The program will operate as a pilot in the state of Iowa in the 2020 growing season with the intention of expanding the program in 2021 and beyond. The registry integrates into the existing FieldWatch crop and apiary registry and enables seed companies to more effectively communicate the location and presence of seed fieldworkers to pesticide applicators.

In early 2021 Fieldwatch released Fieldcheck, a new site on FieldWatch for applicators where they can access data from DriftWatch, BeeCheck, CropCheck, and SeedFieldCheck.  In December of 2021 SeedFieldCheck registry was expanded to four new states: Nebraska, Illinois, Indiana, and Michigan.
The 2022 report for FIeldWatch provided examples on the scope and success of the platform. As of the end of 2022, there are over 35,000 specialty crop growers and 36,000 beekeepers registered on the site. Seed companies have over 400,000 acres registered to protect workers from misapplication. Overall, the individual registries on FieldWatch there are over 1.6 million acres mapped and the site has over 72,000 individual users. FieldWatch is used by 24 states, one Canadian province (Saskatchewan), and Washington DC. The states currently using FieldWatch are: AR, CA, CO, DE, IL, IN, IA, KS, MD, MI, MN, MO, MT, NE, NJ, NM, NC, OH, PA, SD, TN, VA, WV, and WI.

Updated February 2023

The above is not intended for publication. NAAA requests that should any party desire to publish, distribute or quote any part that they first seek the permission of the Association.