The process behind the state Plant Board's proposed dicamba rules, which are set for a public hearing on May 3, is legally flawed and should be halted, according to a group of farmers.
In documents and exhibits sent Wednesday to Plant Board members, the Freedom to Farm group asserted several problems with the proposed changes. The documents are the group's contribution to a 30-day public-comment period that ended Thursday. The May 3 public hearing is through the Zoom online platform; anyone wishing to comment must register by 4:30 p.m. April 29.
The group asked the Plant Board for a hearing on its complaints.
Terry Fuller, the Plant Board's chairman, said Thursday that he was uncertain of what the board needs to do in response to the claims. Fuller said he will consult soon with the in-house attorney for the Department of Agriculture, which is the board's umbrella agency, the attorney general's office or both.
Freedom to Farm says the proposed rules on the Department of Agriculture's website weren't the ones recommended by the Plant Board on an 8-7 vote on March 3. That vote, by law, triggered the posting of a legal notice in the Arkansas Democrat-Gazette about the proposed rules change and the opening of the public-comment period. The process is required under the state Administrative Procedure Act, which governs how state boards and commissions can change rules.
The motion approved by the board on March 3 concerned reduced-volatility dicamba formulations registered by the federal Environmental Protection Agency for use on cotton and soybeans after plants have emerged, Freedom to Farm said, citing a transcript from the meeting. In comparison, the proposed rules posted on the Agriculture Department's website refer to "all pesticides containing dicamba" rather than the lower-volatility, in-crop dicamba formulations involved in the Plant Board's vote, the group said.
"Thus, the proposed rule submitted for public comment also includes lifting the Plant Board restrictions on dicamba 'burn down' products, and not just the restrictions on 'in season' products," Cal McCastlain, a Little Rock attorney for Freedom to Farm, wrote. "...[T]his simple all-inclusive statement will create regulatory and environmental havoc in Arkansas."
"Burn down" refers to when farmers prep their fields before planting. It's legal, during burn down, for farmers to use older, less expensive, though more volatile formulations of dicamba that can't be used once crops emerge.
Richard Mays, a Little Rock attorney representing a group of farmers, made similar arguments in a 24-page submission to the Plant Board on Thursday as part of the public-comment period.
"The public is not being given an opportunity to comment ... because nowhere in the proposed rule or background information is there a reasoned explanation for the proposed rule," Mays wrote. "This is a fatal flaw in these proceedings."
The rule change proposed by the Plant Board on March 3 set cutoffs of June 30 for using in-crop dicamba formulations on soybeans and July 30 for cotton. The cutoffs reflect those set by the EPA last fall when it granted registrations for three in-crop dicamba formulations; states generally are allowed to set stricter standards, such as cutoffs based on the calendar or high temperatures.
The EPA and weed scientists in Arkansas and other states say dicamba's tendency to move off target, hours or days after application, increases as temperatures rise deeper in the growing season.
The proposed June 30 and July 3o cutoffs relax dicamba rules set by the Plant Board over the past four years as the board found itself flooded with complaints of dicamba damage to crops and vegetation not tolerant of the herbicide.
Farmers had a May 25 cutoff in 2019 and 2020 on using in-crop dicamba and an April 15 cutoff in 2018. There was no cutoff in 2017, until the board set an emergency midseason ban because of the number of complaints that summer. Dicamba complaints in 2017 ultimately topped 1,000, many filed by backyard gardeners and fruit growers.
Monsanto, now owned by Bayer, developed dicamba-tolerant soybeans and cotton as weeds developed resistance to other herbicides. Other soybean and cotton varieties, along with tomatoes, sweet potatoes and other produce, are susceptible to dicamba.
The Plant Board last December voted 8-7 to retain the May 25 cutoff for this growing season and other restrictions, including buffers to protect specialty and organic crops and research fields operated by the University of Arkansas System's Agriculture Division. That decision was reversed three months later, during the March 3 meeting and also on an 8-7 vote, with the vote flipping because of a membership change.
The Freedom to Farm group says the March decision was legally flawed because, unlike in December, no scientific, economic, or technical testimony was presented, as required by law. The March meeting and vote were spurred by a "petition for rule making" filed with the board by H. Tyler Hydrick, a Jonesboro crop consultant. Hydrick asked the board to change its rules to reflect the EPA standards. The board is required to consider such petitions.
By adopting the federal regulations, the board also eliminated the buffers that were intended to protect specialty and organic crops and the UA research farms. Field plots at UA research stations in Mississippi, Phillips and Desha counties have been hit by dicamba since 2017, rendering the plots worthless.
Freedom to Farm cited a third reason for the Plant Board to halt the process leading to the May 3 public hearing -- that a March 6 legal notice triggering the public-comment period was illegally vague. The notice read, in part: "The proposed changes will be to consider changes for the use of dicamba in the State of Arkansas."
"Given the history and complexity of the dicamba saga, this general statement falls far short of the statutory requirement for a statement of the terms or substance of the intended action," Freedom to Farm wrote. "There is not even a hint of what kind of changes are [at] issue or who might be affected."
The March 24 legal notice setting the May 3 public hearing was similarly, and illegally, vague, the group said.