Although the Endangered Species Act (ESA) is not a new law, it feels new with the recent chatter in the agriculture community. Passed by Congress and signed into law in 1973 by President Richard Nixon, the ESA was designed to prevent the decline of endangered and threatened (E&T) species and their critical habitats. The ESA protects E&T species by requiring federal agencies to consult with the U.S. Fish and Wildlife Service (USFWS) or the National Marine Fisheries Service (NMFS) to determine if a federal action will jeopardize or adversely affect the species or its critical habitat.
This law has been in effect for more than 50 years. During that time, as the Environmental Protection Agency (EPA) registered pesticide products, it failed to comply with the consultation requirement with the USFWS. This failure led environmental non-governmental organizations (NGOs) to sue the EPA. After several lawsuits, the EPA announced a plan to comply with the ESA when registering new pesticide products and re-registering existing ones. The EPA developed strategies focused on biological evaluation to reduce off-target pesticide movement through runoff and erosion mitigation measures and spray drift mitigation practices. These strategies include herbicide, insecticide, rodenticide and fungicide strategies that provide label-specific instructions for product use.
The final herbicide and rodenticide strategies were released in late summer and fall 2024, respectively; the final insecticide strategy is expected in spring 2025, and a draft fungicide strategy is likely to follow in 2026. Since the herbicide strategy has been released, all new pesticide products that go through EPA registration will include ESA language on the label, along with all products and active ingredients that are re-registered every 15 years. This past winter, Liberty Ultra, a new glufosinate formulation, was introduced as a new product and the first herbicide to go through the herbicide strategy. The ESA language on its label addresses preventing off-target product movement through runoff and erosion mitigation practices and spray drift mitigation measures. Sections 9.0–12.0 of the Liberty Ultra label outline the practices needed to comply with the ESA when using the product. There are three main categories to remember: mitigation points, buffer distances and accessing Bulletins Live! Two to determine if the field is within a Pesticide Use Limitation Area (PULA).
The Liberty Ultra label requires three runoff and erosion mitigation points to use the product. The EPA provides a mitigation menu on its website listing all qualifying practices and exceptions when points are not needed. Common Missouri conservation practices such as cover crops, reduced tillage, no-till farming, field terraces, and grass waterways count toward the required points, along with many other options. Although the Liberty Ultra label requires three points, the herbicide strategy states that future products will not require more than nine. Given Missouri’s diverse topography, soil textures and conservation practices, most farmers should be able to meet the nine-point requirement.
Along with runoff and erosion mitigation practices, the herbicide strategy outlines how the EPA will determine if a spray buffer is required for each product. Per the herbicide strategy, the required buffer size will not exceed 320 feet for aerial applications and 230 feet for ground applications. Section 9.2 of the Liberty Ultra label requires a 10-foot buffer for ground applications and a 50-foot buffer for aerial applications. The EPA has identified additional practices that can reduce the required downwind buffer distance. For example, if a ground application is made using a drift-reducing agent, 15% can be removed from the 10-foot buffer requirement. When combined with other practices addressing droplet size distribution and boom height, buffer distances can be significantly reduced.
The last requirement is to access the EPA’s Bulletins Live! Two website to determine if your field is within a PULA. If it is, additional mitigation measures will be communicated, or you will be informed if the field falls within a total avoidance area. Currently, Missouri does not have a PULA for Liberty Ultra. However, you must still check the website within six months of application and document (via screenshot, printout, etc.) that the field is not within a PULA.
As more changes arise, Missouri Soybeans is committed to keeping you informed and in compliance. We will continue to publish updates, provide information at meetings and host workshops to help our members document their mitigation points.