JEFFERSON CITY, Mo. (DTN) -- Farmers in 10 states currently banned from using Enlist One and Enlist Duo may get access to the herbicides. This is after a draft biological opinion from the U.S. Fish and Wildlife Service (USFWS) determined the registration of the products, as proposed, is not likely to jeopardize the continued existence of endangered or threatened species.

On May 24, EPA initiated a 60-day public comment period on the 155-page document, which calls for the removal of county prohibitions in Arizona, Colorado, Louisiana, New York, Pennsylvania and South Carolina and the establishment of sub-county level restrictions in Alabama, Georgia, Tennessee and Texas. Florida is the only state where no changes are proposed to the current prohibition.

The biological opinion considered 22 threatened or endangered species, from the Attwater's greater prairie chicken and dusky gopher frog to Virginia sneezeweed and the Panama City crayfish. While USFWS concluded that all species in the opinion have vulnerabilities, the herbicides were not likely to jeopardize their continued existence.

In January 2022, EPA granted seven-year registrations and labels for Enlist Duo and Enlist One herbicides. Both contain 2,4-D choline and are intended for post-emergent application over genetically modified corn, cotton and soybeans.

The labels were among the first to include mitigation measures intended to protect federally threatened and endangered species. This "pick list" included off-field conservation buffers, such as vegetative filter strips, grassed waterways and field borders intended to reduce runoff and erosion. Also included were on-field conservation practices, such as reduced tillage in the form of no-till and strip-till, as well as planting cover crops.

However, the labels also included county-level restrictions to ensure that the herbicides did not harm federally threatened and endangered species or adversely modify their designated critical habitats. Initially, use of Enlist Duo was banned in 217 counties in 21 states, with the bulk falling in Arkansas, Florida, Kansas, Nebraska, Ohio, Oklahoma and Texas. Enlist One was prohibited from use in 169 counties in 14 states, many of which overlapped with the list of banned counties for Enlist Duo.

Most of the counties were banned due to the agency's concern over risks to the American burying beetle, an endangered insect, as well as potential threats to the Eastern Massasauga, a species of rattlesnake. After Corteva brought new data to EPA on the beetle, and the agency discovered updated maps for the rattlesnake's range, the agency reversed course. In late March 2022, the labels for Enlist Duo and Enlist One were amended, allowing use of the products in 134 counties where it was previously prohibited.

However, several dozen counties remained banned from Enlist One and Enlist Duo applications in Alabama, Arizona, Colorado, Florida, Georgia, Louisiana, New York, Pennsylvania, South Carolina, Tennessee and Texas.

REACTION TO DRAFT OPINION

In a statement sent to DTN, Corteva said the company is pleased the USFWS's draft biological opinion concludes that the proposed registration of Enlist One and Enlist Duo herbicides is not likely to jeopardize the continued existence of any of the species analyzed.

"We will continue to take appropriate actions to ensure that growers continue to have access to these and other technologies critical to their operations, while also protecting human health and the environment," the statement read.

News of the USFWS's preliminary findings was encouraging to soybean farmers who have rapidly adopted Enlist E3 soybeans as a means of combatting herbicide-resistant weeds.

"While we are still reviewing the draft biological opinion, we are initially optimistic this proposal would move the Enlist and Enlist Duo registrations in a positive direction," said Alan Meadows, American Soybean Association director and Tennessee soybean farmer. "We appreciate EPA and Fish and Wildlife Service for considering revising restrictions that, when viewed with the best available science, are found unnecessary to protect endangered species.

"The American Soybean Association has long believed that when more data is used in Endangered Species Act reviews, it will result in better regulatory decisions that only require protections that are truly necessary and justified by sound science," Meadows continued. "We look forward to further reviewing it and offering comments in the days ahead."

Not everyone was pleased with the draft biological opinion.

"The Fish and Wildlife Service has completely dropped the ball by failing to include on-the-ground conservation measures for this dangerous pesticide," said Brett Hartl, government affairs director at the Center for Biological Diversity. "The agency expects the pesticide to cause serious harm to endangered butterflies like the Dakota skipper but plans to do nothing about it. Despite minimal measures required to reduce runoff, the Fish and Wildlife Service is giving the EPA 18 months to implement them. These measures need to be in place for this growing season, not 2025. What's the point of doing this work if species are left without a safety net for years as the agencies sit on their hands?"

MEASURES TO MINIMIZE EXPOSURE

According to EPA, the draft biological opinion describes measures to minimize potential exposure and effects to endangered species. It also accounts for measures that are included as part of the registration decision that are intended to ensure that Enlist products are not likely to jeopardize listed species or adversely modify critical habitats. The draft includes actions EPA must take to minimize incidental harm to listed species and critical habitats.

In its announcement of the 60-day public comment period, EPA stated the agency is particularly interested in feedback on the feasibility of the pick list of conservation measures that are intended to further reduce movement of Enlist One and Enlist Duo off treated fields after application. After the public comment period ends on July 24, EPA will provide USFWS with the comments for its consideration before it finalizes the biological opinion. The issuance of the final biological opinion is the last step in EPA's formal consultation process with USFWS. Once USFWS issues its final biological opinion, EPA will work with the registrants to implement it.

The Enlist draft biological opinion can be found here: https://www.epa.gov/….

Those who wish to comment on the opinion may do so here: https://www.regulations.gov/….

Jason Jenkins can be reached at jason.jenkins@dtn.com

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