Legal-Ease: Consequences from agricultural pesticide drift increasing


LEGAL-EASE

By Lee R. Schroeder - Guest Columnist



Lee R. Schroeder

Lee R. Schroeder


Agriculture, like the rest of our world, is growing and changing at a pace seldom seen in history. Crops and animals are genetically modified to correlate to each field and each pen of a production facility.

In producing crops, a pesticide applied to one field can sometimes drift onto another, nearby field. The risk of pesticide drift has increased lately with the use of new pesticides like dicamba (due to the small size of the droplets of dicamba) being more likely to drift onto nearby fields.

Traditionally, the negative outcome of a pesticide drift incident was the killing or growth stunting of plants in the nearby field upon which the pesticides drifted. In fact, in Ohio, damages to a neighbor’s growing crops due to pesticide drifts almost always constitutes negligence, with damages calculated as the loss of the neighboring field’s crops and profits that year.

Thirty years ago, drift from one soybean field to another caused very little damage, because soybeans are soybeans, right? If a pesticide does not kill soybeans in one field, it likely would not kill soybeans in another field. However, with genetic modifications to soybeans (and other crops), one field of soybeans can be entirely, genetically different from another field of soybeans. Thus, genetic modification can make the quantity of the incidents of pesticide drifts causing damage to increase.

Independently, the magnitude or size of damages due to pesticide drift is also expected to increase very significantly in coming years. This is due to weed resistance, which is also a consequence of genetic modification of crops. In fact, there are three weeds that have become almost “unkillable” in some western states due to those three weeds becoming resistant to the only pesticides that previously could kill those weeds.

Specifically, marestail, ragweed and waterhemp are three weeds that can become resistant to almost all forms of weed control. Those weeds’ genetic makeup means that they are incredibly hardy in their ability to develop tolerance to pesticides. These weeds live the motto that, “What does not kill me, makes me stronger.”

Thus, if a small amount of pesticide drifts onto another field, that minor drift might cause much more damage than a large drifting incident, because the aforementioned weeds in the adjacent field may actually become more resistant when pesticides are applied slowly, without completely eradicating those weeds.

Therefore, those adjacent fields to which pesticides may have drifted may not see any immediate plant (yield) damage from the drifted pesticides. However, the damage would demonstrate itself in future years when pesticide-resistant weeds proliferate and choke out future crops.

Otherwise stated, in the past, the worst damage from pesticide drift was the lost of a year of crops. Now, the damage could literally be the loss of decades of future crops.

Ohio law requires pesticide applicators to refrain from application if there is any risk of drift, and a failure to comply with that law will have more consequences in the future than ever before.

Lee R. Schroeder
https://www.limaohio.com/wp-content/uploads/sites/54/2020/01/web1_Schroeder-Lee-RGB-2.jpgLee R. Schroeder
LEGAL-EASE

By Lee R. Schroeder

Guest Columnist

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.

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.

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