Law

The Ohio Noxious Weed Law – A Tool in the Prevention of Waterhemp and Palmer Amaranth

Source: Dr. Mark Loux

Waterhemp and Palmer amaranth are both now listed on the Ohio noxious weed law, which means that landowners must take steps to control infestations and prevent further spread.  Since these are annual weeds, preventing spread is achieved by preventing plants from reaching maturity and producing seed.  This is the basis for our “No pigweed left behind” effort, for which the goal is to create an understanding that the only way to beat these weeds is to prevent seed.  Prevention needs to occur in any area that might be subject to infestation, such as roadsides, parks, conservation seedings, parks, etc, in addition to agricultural fields.  The entities managing these areas are responsible for recognizing and controlling infestations of waterhemp and Palmer amaranth, but this does not always occur.  Not everyone involved in crop production or land management is aware of the waterhemp/Palmer problem to begin with, and many managers are busy enough that preventing noxious weed problems has low priority.

Our advice is to pay attention to what’s happening in your area or in the areas that you farm, with the goal of becoming aware of new infestations early enough that plant maturity and seed can still be prevented, regardless of where they may be occurring.  We recommend as a first step contacting the land manager or owner to explain the issue, make them aware that they have an infestation, and request that action be taken.  However, where it’s not possible to have this conversation, or there is a refusal to take action, the Ohio noxious weed law can be used to try to force action.  A two-page summary of the noxious weed law that can be found here on the OSU Ag Law Blog, and also links directly to the law itself.

The basic idea here is that following an unsuccessful attempt to work with a landowner or manager, noxious weed issues should be reported to township trustees, and this must be done in writing.  The trustees then have the responsibility to deal with the issue, and the method for doing so varies depending upon what the land is used for and who is managing it.  If it’s necessary to use the noxious weed law, be sure to start the process early enough in summer, well before potential seed production.  There is a need to allow time for all of the steps in the process to occur, and for notifications to be received and acted on (or not).  Our experience is that not all landowners and managers will take action upon first notification, and in addition to action, their response to notification can include minimal response of protesting their need to act.  Waiting too late to start the process can result in lack of resolution of these issues in time to prevent plant maturity and seed production.  The noxious weed law has been used several times within the last two years to force managers to control Palmer amaranth, and could be used to accomplish the same for waterhemp, which was recently added to the list.  Consider the law a tool to prevent the establishment and spread of these weeds when other methods are ineffective.

You can search this blog for a complete description and pictures of all the weeds on the Ohio Noxious weed list.

No pigweed left behind

No pigweed left behind

Noxious Weeds in Cover Crop Seed and Seed Germination

Source: Alexander Lindsey, Laura Lindsey, Mark Loux, Anne Dorrance, Stan Smith, John Armstrong, OSU Extension

Seed quality is key to establishing a good crop (or cover crop). Some of the critical components of seed quality are percent germination, mechanical analysis for purity (% other crops, % inert, and % weeds), and a listing of noxious weeds identified by scientific/common name and quantity found. As producers are looking for seed sources to provide living cover on acreage this year that was previously earmarked for corn or soybeans, it is important to pay attention to the quality. These tests may also be required on seed lots for use in some relief programs as well. Commercial or certified seed used for cover crops should have a seed tag that shows variety and the seed quality measurements above. However, if the seed is sourced from out of state, the noxious weeds listed (or NOT listed) on the tag by name may differ from those had the seed been sourced from Ohio.

Only the noxious weeds for the state where the seed was originally going to be sold are required to be listed on the tag by name and quantity (Federal Seed Act, part 201.16). Each state determines which species are included on this list, and can differ from state to state. If seed is outside of Ohio for use on-farm, producers may want to have the seed tested for an “all state noxious-weed exam” prior to planting if this was not done previously on the seed lot. Only 1.1-1.2 lbs of seed is needed for the test, but it is critical the sample is representative of the lot to ensure quality test results. This test would screen the seed sample supplied for the weed contained in this list: https://www.ams.usda.gov/sites/default/files/media/StateNoxiousWeedsSeedList.pdf, and may serve as a more comprehensive exam than was conducted at the time of initial seed lot labeling. One service provider that can conduct this exam is Central Ohio Seed Testing (a subsidiary of the Ohio Seed Improvement Association; https://ohseed1.org/about-our-lab/). Samples can also be sent to ODA for an Ohio noxious weed exam (https://agri.ohio.gov/wps/portal/gov/oda/divisions/plant-health/grain-warehouse-feed-and-seed/). Depending on the source of seed and the planned use, a seed lot may be eligible to be tested for free through ODA between June and December (up to three per farmer). Conducting a noxious weed exam could help slow the movement of problematic weeds throughout the state and minimize future weed problems.

Another issue to consider is the quality of seed in storage that was not planted this year due to weather. Storing seed in an environment where the temperature (in F) plus the % relative humidity are less than 100 (Harrington’s rule) helps to minimize the rate of seed deterioration (or loss in germination and vigor). Seed germination is an important consideration for determining seeding rate to ensure the critical final stand for yield is achieved for crops like corn and soybeans. Most seed germination percentages on a seed tag for agricultural seeds (like corn and soybeans) are valid for 12 months from the last date of the month in which they were completed, with the exception being cool season grasses which are valid for 15 months beyond the month of testing (Ohio Revised Code, Chapter 907.07). Be sure to check the seed tag for both the date of the test as well as the germination when planning seeding rates.

You can search this blog for a complete description and pictures of all of the weeds on the Ohio Noxious weed list.

It’s All About the Weed Seedbank – Part 1: Where Has All the Marestail Gone?

Source: Mark Loux

For the second year in a row, we are scrounging to find enough marestail at the OARDC Western Ag Station to conduct the research we had planned on this weed.  After years of having plenty of marestail, we have had to look around for off-site fields where there is still a high enough population.  Which, since we are scientists after all, or at least make our best attempts, left us thinking about reasons for the lack of marestail, and our overall marestail situation, and seedbanks.

While the short game in weed management is about getting good enough control to prevent weeds from being a yield-limiting factor and interfering with harvest, the long game is about preventing seed production and managing the soil seedbank.  One of the characteristics shared by marestail, giant ragweed, and the nasty pigweeds, waterhemp and Palmer amaranth, is a rapid decline in seed viability in the soil within the first year, and an overall decline to 5% or less viable seed within 3 to 4 years.  Another characteristic of marestail and pigweed seed is a relative lack of dormancy, which results in the potential for an almost immediate increase in population the year following a year of substantial escapes and seed production.  How big that increase is depends upon how many plants go to seed and how many seeds are produced per plant, with the potential of up to about 200,000 seeds per marestail plant and one million per waterhemp or Palmer amaranth plant.  The net result of these two characteristics, though, is that these weeds can ramp up population fast following a year of poor control, but populations can also decline rapidly with good control that prevents seed.

Continue reading →

What’s Legal to Apply to the LL-GT27 Soybean – The (maybe almost) Final Story

by: Dr. Mark Loux, OSU Extension

Having to issue a retraction to previous C.O.R.N. article where we thought we had it right is always fun.  About a month ago we ran an article that covered the legality of POST glyphosate and glufosinate applications to the LL-GT27 soybean, which is resistant to both herbicides.  The issue at that time was the legality of applying a mix of both herbicides, based on questions we had received.  Cutting to the quick, our conclusion was that because it was legal to apply the mixture since both herbicides could legally be applied and labels did not prohibit mixing.  We were naïve apparently, because that article caused the issue over whether it was actually legal to apply glyphosate to the LL-GT27 soybean to be raised.  Since then, ODA, USEPA, and the companies who are the involved registrants have been working to come to a solution that clarifies this issue and keeps us all moving forward toward a resolution.  The issue here seems to be this – wording on most glyphosate labels specifies application is allowed to “Roundup Ready” and “Roundup Ready 2 Yield” soybeans, and since the LL-GT27 soybean is not designated as such, those glyphosate products could not legally be applied.  After a month of deliberation, the USEPA issued some guidance which took the form of the following:

“Users of pesticide products containing glyphosate should refer to the pesticide product labels of herbicide products containing glyphosate for the specific registered uses on pesticide-resistant crops such as soybeans with glyphosate-resistant trait(s).  Regardless of the herbicide product name (brand name), if the label of the glyphosate product states it is for over-the-top (post-emergent) use on glyphosate-resistant soybeans, and it is not otherwise restricted by other label statements/directions for use, it can be used on any soybean that has a glyphosate-resistant trait.  However, if the label of the glyphosate product states it is for use on crops such as soybeans, with specific glyphosate-resistant traits by name, then the glyphosate product can only be used on those crop(s) with those traits specifically identified on the label.  Ultimately, growers and commercial applicators must comply with the entirety of the pesticide label.  Please let us know if you have any questions.”

Questions – yes – excuse us while we look for the head scratching emoji.  We can try to interpret in real-life speak.  Here’s what it comes down to:

– the important part of the glyphosate label here is the use-specific directions, or the section within the larger “Roundup Ready” part of the label that deals with soybeans.

– If the soybean section of the glyphosate product label does not mention specific genetics by trade name, but just the wording “glyphosate-resistant” or “glyphosate-tolerant”, then it is legal to apply that product to the LL-GT27 soybean.

– if the soybean section of the label restricts use to certain genetics by trade name –  “Roundup Ready”, “Roundup Ready 2 Yield”, etc, then it would not be legal to apply to the LL-GT27 soybean.

– if the wording on the label is along the lines of “For Use on Soybeans with the Roundup Ready gene”, or similar wording with other specific genetics, it would not be legal to apply to the LL-GT27 soybean.

Our not exhaustive search through glyphosate product labels indicates that most if not all do not contain any wording about “glyphosate tolerance” in the soybean section, and indicate use is specifically on “Roundup Ready” or “Roundup Ready 2 Yield” or “Soybeans with the Roundup Ready gene”.   This includes Roundup PowerMAX, Durango DMA, Abundit Edge, Credit Extreme, and Cornerstone to name a few.  Manufacturer reps with a glyphosate product label that varies from this are free to contact us so we know.

The inability to use glyphosate on the LL-GT27 soybean affects primarily growers who bought it for the genetics or other traits and not the LibertyLink trait, who might have planned to use only glyphosate POST.  Most of the utility of this soybean on problem broadleaf weeds comes from the LibertyLink trait though (and it’s definitely legal to apply glufosinate POST).  There’s plenty of generic clethodim around to help out with grass.  We assume label language will adapt over time to take care of the glyphosate issue.  We’re not even sure this issue would have come up if we hadn’t tried to clarify the tank-mix legality and stepped right in it.  There appeared to be some confusion in the field about this though, with different stories being told, and better to just clear it all up way in advance of the season.  Stay tuned for the next chapter.  Offer void where not legal.  Legality may vary by state.  Your mileage may vary.  Side effects may include confusion, apathy, anger, and spontaneous profanity.

Legal defenses for agricultural production activities

Source: Ohio Agricultural Aw Blog

Whether producing crops, livestock, or other agricultural products, it can be challenging if not impossible for a farmer to completely prevent dust, odors, surface water runoff, noise, and other unintended impacts.   Ohio law recognizes these challenges as well as the value of agricultural production by extending legal protections to farmers.  The protections are “affirmative defenses” that can shield a farmer from liability if someone files a private civil lawsuit against the farmer because of the unintended impacts of farming.  A court will dismiss the lawsuit if the farmer successfully raises and proves an applicable affirmative legal defense.

In our latest law bulletin, we summarize Ohio’s affirmative defenses that relate to production agriculture.  The laws afford legal protections based on the type of activity and the type of resulting harm.  For example, one offers protections to farmers who obtain fertilizer application certification training and operate in compliance with an approved nutrient management plan, while another offers nuisance lawsuit protection against neighbors who move to an agricultural area.  Each affirmative defense has different requirements a farmer must meet but a common thread among the laws is that a farmer must be a “good farmer” who is in compliance with the law and utilizing generally accepted agricultural practices.  It is important for farmers to understand these laws and know how the laws apply to a farm’s production activities.

To learn more about Ohio’s affirmative defenses for agricultural production activities, view our latest law bulletin HERE.

Agriculture Improvement Act (Farm Bill) of 2018: Summary

Source: Carl Zulauf, Emeritus Professor, and Ben Brown, Program Manager – Farm Management Ohio State University, Department of Agricultural, Environmental, and Development Economics

Some information is beginning to come out regarding the new Farm Bill.  The complete farm bill is 807 pages.  Click on the following link to read the complete 9 page summary compiled by Dr. Carl Zulauf and Ben Brown  Farm Bill-196wwqa

Ohio Agricultural Law Blog–In the Weeds: Taking a Closer Look at the Lake Erie Bill of Rights

Evin Bachelor, Law Fellow, Agricultural and Resource Law Program

If You Are Involved in Agriculture – You Need to Read This!!

Lake Erie once again made headlines when the Ohio Supreme Court recently decided that a “Lake Erie Bill of Rights” (LEBOR) initiative could be placed on the Toledo ballot on February 26, 2019.  The decision raised alarm in Ohio’s agricultural community and fears that, if passed, the measure will result in litigation for farmers in the Lake Erie watershed.

The OSU Extension Agricultural and Resource Law Program took a close look at LEBOR.  Specifically, we wanted to know:

  • What does Toledo’s Lake Erie Bill of Rights petition mean?
  • What does the petition language say?
  • What happened in the legal challenges to keep the petition off the ballot?
  • Have similar efforts been successful, and if not, why not?
  • Who has rights in Lake Erie?
  • What rights do business entities have?

We examine all of these questions, plus a number of frequently asked questions, in a new format called “In the Weeds.”  While many of our readers know of our blog posts and law bulletins, explaining this issue required something different.  Using “In the Weeds” is a way for us to dig into a current legal issue more in depth.

For answers to the questions above and more, CLICK HERE to view the new “In the Weeds: The Lake Erie Bill of Rights Ballot Initiative.”

The LL-GT27 soybean – what’s legal?

Source: Dr. Mark Loux, OSU Extension

We are starting to see the availability of soybean varieties with more than two herbicide resistance traits, which can expand the herbicide options, improve control, and allow multiple site of action tank mixes that reduce the rate of selection for resistance.  One of these is the Enlist soybean, with resistance to glyphosate, glufosinate, and 2,4-D.  As of this writing, full approval for the Enlist soybean is still being held up by the Philippines (because they can apparently).  The other is the LL-GT27 soybean, which has resistance to glyphosate, glufosinate, and isoxaflutole (Balance).  There is no label for use of isoxaflutole on this soybean yet, but it is legal to apply both glyphosate and glufosinate.  In Ohio, as long as neither label prohibits applying a mixture of two herbicides labeled for a specific use, it’s legal to apply the mixture.  So, it’s also legal to apply a mixture of glyphosate and glufosinate to the LL-GT27 soybean.  There is no label that actually mentions or provides guidance for this mixture, which does not affect legality, but could affect who assumes liability for the recommendation to apply a mixture if that matters to you.  Some seed companies are making the recommendation for POST application of the mix of glyphosate and glufosinate to the LL-GT27 soybean in printed materials.  Our interpretation after discussion with ODA, is that these materials are essentially supplements to labels, and so the seed company would assume some liability for the recommendation.

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Does Your Pesticide or Fertilizer License Expire in 2019?

The Knox County Re-certification Dates are listed below

Knox County

Pesticide & Fertilizer Re-Certification

January 29, 2019 – 5:30 p.m.

March 27, 2019 – 9:00 a.m.

Cost – $35, includes all materials & PIZZA

Conference Room – Advantage Ag & Equipment

1025 Harcourt Rd., Mount Vernon, Oh.

Check http://u.osu.edu/knoxcountyag for updates

 

New Requirements For Dicamba Use

Revised label and new training required before use in 2019

If you are planning to use Engenia (BASF), XtendiMax (Monsanto) and FeXapan (DuPont) in 2019 there are major changes to the labels for the products that you need to be aware of.  The biggest change is only license applicators can purchase, mix, load, apply or clean application equipment.  Previously these tasks could have been completed by an unlicensed applicator if they were “supervision by a certified applicator”.  Below is the ODA news release pertaining to the new regulations.

REYNOLDSBURG, Ohio (Jan. 16, 2019) – The Ohio Department of Agriculture (ODA) is reminding farmers of revised labels and new training requirements for applicators who intend to use dicamba herbicide products this year. In October 2018, U.S. EPA approved revised labels for the three dicamba products that are labeled for use on soybeans: Engenia (BASF), XtendiMax (Monsanto) and FeXapan (DuPont).

“Like any other product, we want to ensure licensed applicators are properly following label directions as they get ready for this growing season,” said Matt Beal, chief of the ODA Division of Plant Health. “This not only helps ensure the safe use of pesticides, it also helps prevent misuse and mishandling.”

The manufacturers of these dicamba products also agreed to additional requirements for their products. Some of the requirements include:

  • 2019 labels supersede all prior labels for these products. Applicators must obtain a copy of the new label and must have that label in their possession at the time of use
  • Only certified applicators may purchase and apply the products
    • Those operating under the supervision of a certified applicator may no longer purchase or apply.
    • Anyone who mixes, loads or cleans dicamba application equipment must become licensed.
    • ODA will host additional “Dicamba Ag Only” exams in February and March for those looking to become a certified applicator. Visit agri.ohio.gov for more details.
  • Applicators must complete dicamba-specific training
  • Increased recordkeeping requirements
  • Wind speed restrictions
  • Temperature inversion restrictions
  • Sensitive/susceptible crop consultation
  • Spray system equipment clean-out

More details on these revisions can be found in the attached fact sheet. Applicators looking for a list of ODA-approved trainings can visit www.agri.ohio.gov. For questions, applicators can contact the ODA Pesticide and Fertilizer Regulation Section at 614-728-6987 or pesticides@agri.ohio.gov.