Pesticide drift is not a new issue, but it has taken center stage this summer as we hear widespread reports of crops damaged by dicamba. Dicamba presents a special issue, because it isn't always traditional pesticide "drift" that causes damage. Normally, pesticide drift occurs when a substance is applied to the target field on a windy day, but blows over and accidentally harms a neighboring crop. Dicamba can spread to unintended areas via the wind, but it seems more likely a temperature inversion may cause dicamba to volatilize and move to affect unintended areas. In theory, this means dicamba applied on Monday could sit for a week, and then volatilize and move in response to a temperature inversion several days later. This phenomenon extends the window during which the herbicide could affect nearby unintended crops. Thus, there is a risk of affecting other crops even if a farmer applies dicamba to his target field on a cool, still day.
There are many issues surrounding the use of dicamba. This post focuses on the initial steps a farmer should take if he or she believes their crop has been damaged by another person's Dicamba use.
- Document the loss. Take photos of the affected crops, including close ups, comparisons with healthy crops, and pictures of the whole field(s). Write down information regarding when you noticed the damage, what you saw in your field and neighboring areas, and whether there was any evidence of dicamba or other chemical application in the vicinity. Make sure photos are geo-referenced so that you can later pinpoint where they were taken.
- Notify the applicator. You should notify the person you believe caused the damage and ask them to inform their liability insurance carrier. This affords the insurer the opportunity to promptly inspect the damage and, hopefully, adjust the claim.
- Sample affected plants. Consider taking plant tissue samples from leaves exposed to the herbicide and any new leaves and shoots that have since developed. Keep a chain of custody document for any sample specimens. Some state officials will test subject plants to determine whether that plant was affected by a specific pesticide or herbicide. These tests must be carried out soon after the alleged exposure to provide accurate results. Don't rely on state officials if you believe the damage is significant, as they will likely only care about determining whether there was off-target drift, not the extent of the damage. Therefore, it is best to take your own samples or have your agronomist do so for you.
- Save records. Save your labels, containers, application records, and photographs. Most states have laws regarding retention of pesticide applications. Even if your state does not, it is a good idea to retain records showing what you applied to your crop and when. This will help rule out other causes of the damage if later disputed.
- Contact an attorney. Negligence, nuisance, trespass, and "use inconsistent with a label" are potential claims related to unintended Dicamba exposure. An attorney can help you sort out your claims and/or defenses. An attorney can also communicate with your insurance company and the insurance company of a potentially liable neighbor who applied dicamba to figure out whether there is coverage for your losses.
- Report. Contact your state department of agriculture or other appropriate agrency to report suspected off-target dicamba damage.
I expect to see more dicamba claims as we move into harvest season. If your crops were damaged by another's dicamba use, time is of the essence. You should take pictures, obtain samples from the plants, and contact an attorney to determine your rights.