Farmers have been relying on herbicides to control weeds for generations. Twenty years ago, Monsanto introduced genetically modified seed that grew into plants that would not die when sprayed with glyphosate, a chemical known to kill all living plants. This technology (called “Roundup Ready”) created some of America’s first weed-free farms.
However, if the glyphosate was not properly applied, the glyphosate could “drift” or “migrate” to neighboring yards and fields, which resulted in the death of all living plants in those areas. In response, advances were made to sprayer technology and applicator “best practices” in order to increase accuracy in the application of glyphosate and other herbicides.
In other words, accuracy in herbicide application has increased along with the potency of the herbicides being applied.
Nonetheless, as we all would expect, weeds have become more resistant/tolerant to glyphosate since glyphosate’s use began to increase. Those glyphosate-tolerant weeds in Ohio are generally marestail, ragweed and waterhemp. To combat more weeds’ tolerance to glyphosate, Monsanto recently modified a new class of herbicides under the umbrella of “dicamba” and thereafter introduced dicamba-resistant seed.
The challenge with this newest evolution in crop technology is that dicamba is incredibly potent. Dicamba is not available everywhere, and only some types of dicamba herbicide are legal to use in Ohio. However, dicamba-resistant seed is readily available.
A non-dicamba-resistant plant’s contact with even a single molecule of dicamba can cause the plant’s leaves to shrivel, resulting in what agronomists call cupping or puckering.
Additionally, the chemical composition of dicamba makes it much more susceptible than most other herbicides to drifting or migration to neighboring properties. Dicamba-drift from one 40-acre field can contaminate up to a thousand other acres near that field.
Beginning last year and increasing significantly this year, more dicamba use in the United States has greatly amplified the likelihood of herbicide drift and the consequences that come with it. Eventually, technology will likely improve so as to further decrease the risks of dicamba drift. However, for now, herbicide drifting, led by dicamba use, has re-emerged as a significant practical and legal issue.
An applicator of herbicide, whether that herbicide is dicamba or not, who allows for any drifting of herbicide off the intended land will almost always find himself or herself liable for the drift.
If there is damage to neighboring land from herbicide drift, the financial consequences can be severe. An injured party can be entitled to reasonable costs to restore the property to its original condition, as well as compensation for the value of the loss of use of the property between the time when the injury occurred until the time of restoration. Of course, for high-investment crops on neighboring properties (such as greenhouses or specialty crops) this damage calculation process can result in very large dollar amounts.
Insurance can sometimes assist in covering the damages from unintentional herbicide drift, but insurance companies increasingly attempt to avoid coverage in these situations. Nonetheless, herbicide applicators should ensure that dicamba-drift liability is literally included in the applicators’ insurance policies.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.