A financial hammer -- a 25-fold increase in fines -- to deter Arkansas farmers from spraying illegal formulations of dicamba and putting their neighbors' crops at risk won't be available for several months.
Lawmakers have approved Senate Bill 501, raising fines from $1,000 to up to $25,000 for "egregious" violations, defined as "when significant off-target crop damage occurred" after dicamba or other auxin-containing herbicide is sprayed illegally. The bill has been on Gov. Asa Hutchinson's desk since Tuesday. A spokesman said Thursday the governor intends to sign the bill.
However, because it lacks an emergency clause, the law won't take effect until 90 days after the General Assembly formally adjourns. A formal adjournment in late April would put the law into effect in late July -- deep into the growing season. With an emergency clause, the law would take effect immediately upon the governor's signature.
The delay could prompt a repeat of last summer, when thousands of acres of crops were damaged, culminating in the shooting death of an Arkansas farmer during a dispute over the herbicide's use.
"That makes this bill an absolute joke," Ford Baldwin, of Austin (Lonoke County), a farm consultant and former weed scientist with the University of Arkansas, said Thursday. "The good farmers needed a law with some teeth that would make believers out of the people who would cut corners to save a few bucks," Baldwin said. "The good farmers needed a good law right now."
Some farmers, because of dry ground, already have started to plant soybeans, Baldwin said. Farmers across the state will be spraying herbicides in earnest from mid-April into June. It usually takes about two weeks for signs of dicamba damage to appear, he said.
Whenever the new law takes effect, it can't be applied retroactively to illegal spraying.
"I didn't know what the appetite was [in the General Assembly] for an emergency clause on that particular bill, considering its consequences," said Sen. Blake Johnson, R-Corning, who sponsored SB501. "My co-sponsors didn't know either. Anytime you put an emergency clause on a bill, it causes more scrutiny."
The bill was approved 35-0 in the Senate and 79-1 in the House, where 20 members didn't vote. With an emergency clause, the bill would have required a two-thirds majority vote in each chamber -- 67 votes in the House, 24 in the Senate.
Co-sponsors of Johnson's bill include Rep. David Hillman of Almyra (Arkansas County) who, for a time, had a competing bill to increase fines for misapplication of all herbicides, including dicamba. A farmer, Hillman dropped his bill, which also lacked an emergency clause, and signed on with Johnson's bill in the Senate.
Hillman said his bill lacked an emergency clause because of an oversight. He said he believes SB501 will still serve as a deterrent, even if it's not in effect this spring, because of "the fact that it's on the books and people know it's there."
Thousands of Arkansas farmers planted Monsanto's new dicamba-tolerant cotton and soybeans last year, even though Monsanto's accompanying herbicide, claimed by the company to be less susceptible to drift, hadn't yet been approved by the federal Environmental Protection Agency. When faced with herbicide-resistant pigweed and without a legal dicamba-based herbicide, some of those farmers turned to older, more volatile dicamba formulations not registered for in-crop use.
Whether by drift, tank contamination or a process called inversion, the chemical or its residue spread to neighboring crops, fruits, vegetables and ornamentals not dicamba-tolerant. The state Plant Board, a part of the Department of Agriculture, received its first formal complaints about dicamba damage in mid-May. Six more complaints came in June, 16 more followed in July.
After a series of meetings, the Plant Board voted to allow the in-crop use of registered dicamba herbicides only from April 15 to September 15 -- five key months of the growing season.
The first, and only, dicamba herbicide registered for in-crop use in Arkansas this season is Engenia, made by BASF, but there are restrictions on its use, such as buffer zones, the height of spray booms, droplet size and wind direction. (Monsanto's new dicamba, called Xtendimax with VaporGrip, gained EPA approval late last year, but Arkansas regulators refused to allow it for in-crop use this season because the state's weed scientists hadn't been allowed by Monsanto to study the chemical for any tendencies to drift.)
Baldwin said many farmers, potentially facing another season of low commodity prices and without stiffer fines in place, will be tempted, again, to use the illegal formulations of dicamba directly, or in a tank mix with Engenia.
Dicamba can be used on pastureland outside the April 15-September 15 window but with several restrictions.
Reed Storey of Marvell (Phillips County), a farmer who told the Plant Board last fall he sustained about $70,000 in lower soybean yields because two neighboring farmers sprayed dicamba illegally, said Thursday he welcomed the higher fines even if they're not in place for the entire growing season.
"I hate that it potentially won't be effective this whole farming season, but it will be in the future," he said. "But, yeah, an emergency clause would have made it better."
The current $1,000 fine, set in 1947, was no deterrent to some farmers who weighed the fine against possibly losing an entire field to pigweed infestation, various Plant Board members said during the height of the controversy. Adjusted for inflation, $1,000 in 1947 is equivalent to about $11,000 today.
"They had no concerns about the Plant Board [fines]," Maleisa Finch, of Jonesboro, a cousin of Mike Wallace, 55, the Monette (Craighead County) farmer who was killed in October during a dispute over dicamba damage, told Plant Board members during a public hearing.
"Why would the regulations of today be followed next year?" Finch asked, unless those farmers faced higher fines, possible jail time or having to compensate damaged farmers. (A tentative trial date for the Missouri man charged in Wallace's death is set for June 5.)
Prohibited by law to raise fines itself, the Plant Board asked legislators to tackle that issue this session. In backing the Plant Board's restrictions on dicamba in January, Hutchinson also called for higher fines that "will actually serve as a deterrent to misapplication."
Johnson farms rice, corn and soybeans in Clay County and didn't suffer damage from dicamba drift. "In retrospect, it would have been nice to have an emergency clause in there," he said. Johnson said he believed the law would still have an impact, despite its late start.
Fines levied by the Plant Board traditionally go into a scholarship program. That practice will continue, but also with 40 percent of the higher fines going to the University of Arkansas Cooperative Extension Service.
The state Administrative Procedure Act further complicates the timeline around SB501. Like the Plant Board's restrictions last year on dicamba, implementing the increase in fines will require work by the board's pesticide committee, a 30-day public notice, a public hearing and certain filings involving the governor, the secretary of state and the Legislative Council.
All that work can be done between the time the bill is signed into law and its effective date, Terry Walker, director of the state Plant Board, said Thursday. "The bottom line is, the increased penalty won't help this spring. If somebody is going to knowingly violate the law, they'll go back to the old [dicamba] formulations and will still be looking at the $1,000 fine."
If SB501 had an emergency clause, the Plant Board could have issued an emergency rule, effective for a maximum of 120 days, temporarily bypassing the requirements of the administrative procedure law, Walker said. The stiffer fines would have been in place immediately under that process, he said.
SundayMonday Business on 04/02/2017