Gov. Asa Hutchinson on Wednesday approved the state Plant Board's proposed tighter restrictions on dicamba, a herbicide that damaged thousands of acres of soybeans, cotton, fruits and vegetables when some farmers illegally sprayed it.
Hutchinson also said he supports higher fines for illegal use of dicamba, which for years has been restricted to post-harvest "burn down" operations on fields because of the chemical's high volatility and tendency to drift.
Hutchinson also said the restrictions "will not unnecessarily burden businesses." The board had "worked diligently" on the matter and had served the state's agriculture community well, Hutchinson said.
Hutchinson's endorsement of the restrictions is a blow to Monsanto Co. and a potential boon to BASF, a competitor.
Both companies have new dicamba-based herbicides -- Xtendimax with VaporGrip by Monsanto and Engenia by BASF -- for in-crop use on soybeans and cotton developed by Monsanto to be tolerant of the herbicide.
Monsanto marketed the new seeds before the federal Environmental Protection Agency had approved either of the companies' new herbicides.
When some farmers with the dicamba-tolerant crops faced an onslaught of pigweed, which has grown resistant to most herbicides, they turned to the older, more volatile formulations of dicamba. Whether by drift or vaporization, the herbicide allegedly damaged the crops of neighbors who hadn't planted the new Monsanto seeds in Arkansas and 10 other states last summer. A dispute over alleged dicamba damage to soybeans led to the Oct. 27 fatal shooting of a farmer in northeast Arkansas.
Both companies say their new herbicides are less volatile than older dicambas. However, only BASF made its new herbicide available for study by weed scientists with the University of Arkansas System Agriculture Division. Monsanto restricted its volatility tests of Xtendimax to crops in five states, and Arkansas was not one of them.
That lack of study by the UA scientists was a major debate point as the Plant Board and a committee met several times last summer. The board's work included a 30-day public-comment period and a three-hour public hearing in November that attracted a crowd of about 120.
In a statement sent by email early Wednesday evening, Monsanto called the governor's decision "unfortunate" because "growers in Arkansas won't have access to this new tool during the crop season, the time for which it was developed and is so desperately needed in Arkansas." The statement didn't mention the availability of Engenia.
Monsanto said 23 states have approved the Xtendimax label since the EPA's approval in early November.
The Plant Board's restrictions include a ban on any dicamba product, except for Engenia, on crops from April 15 through September 15 -- five key months of the growing season. Few crops are in the ground before April 15, and farmers often use dicamba before that date to kill weeds just prior to planting. Engenia, according to the restrictions, would be allowed for in-crop use in Arkansas only when there's a quarter-mile downwind buffer and 100-foot buffer in all other directions.
The use of dicamba on pastureland would be allowed anytime, as long as there is a 1-mile buffer between the target pasture and any susceptible vegetation.
Of 245 comments received from the public, 192 supported the Plant Board.
"Due to the public interest of this issue, I met with both the proponents for and the opponents against this proposed regulation, and I reviewed and considered all of the public comments," Hutchinson wrote Wednesday in his letter to the board.
He said he studied three issues:
• A ban on all dicamba in the state.
• Whether the board should allow the new Monsanto herbicide.
• Whether volatility tests on Xtendimax by the EPA were sufficient.
Although the governor didn't address those questions point by point in his letter, he said none would be an undue burden on businesses. The "undue burden" is a factor Hutchinson cited a year ago when he signed an executive order requiring all proposed new or revised regulations by state boards under his control be reviewed by his office. The state Plant Board is an agency of the Arkansas Agriculture Department.
Hutchinson also gave the Plant Board 45 days to "set clear rules to industry as to what the Plant Board expects in terms of prior study and testing by independent third party research."
Monsanto praised that decision in its email.
"The governor stepped up and did the right thing, and he should be commended," said Ford Baldwin of Stuttgart, a former UA weed scientist and crop consultant who was involved in the dicamba discussions all summer. Baldwin said both the Plant Board and the UA scientists did "outstanding work, and the governor used those resources very well."
With BASF's Engenia now the only dicamba-herbicide labeled in Arkansas for in-crop use, Baldwin said it will still be up to farmers to not use the illegal formulations of dicamba for in-crop use. He also said farmers who use Engenia on their dicamba-tolerant crops must follow the label on its usage. Even then, there is no promise that the drift issues of last summer won't be repeated, he said.
The current maximum fine for illegal application of a pesticide or herbicide in Arkansas is $1,000 per incident, which several Plant Board members -- and many farmers -- have said is too low to be a deterrent when compared with the costs of losing an entire crop to pigweed or other pests.
Although any increase is up to the Arkansas Legislature, another committee of the Plant Board recommended a fine of up to $25,000 per violation.
Hutchinson said the board "should have an adequate and an effective enforcement mechanism." He said he will encourage legislators to increase the fine to an amount that "will actually serve as a deterrent to misapplication."
A Section on 01/05/2017