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Herbicide risks force conventional farmers to seek higher coverage limits

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Agricultural chemical drift is a darkening cloud on farmers' horizons. Organic and conventional growers have long dealt with crop damage caused by drifting herbicides sprayed on neighboring farms. The exposure — which can shut down an organic farm for four years — has created a crazy quilt of state- and county-level regulations and led to numerous court rulings on liability issues.

While farmers, equipment manufacturers and chemical companies have taken steps to reduce drift damage, the emergence of genetically modified crops resistant to more powerful herbicides may soon make the problem worse, agricultural and legal sources say.

At the same time, many farmers are significantly underinsured for drift liabilities, and insurers and agents often don't explain the risk, experts say.

“The insurance industry is not looking at this anywhere near as strongly as they need to be,” said Steve Smith, director of agriculture for Elwood, Ind.-based tomato processor Red Gold Inc.

“It's an education thing,” said Jim Craig, chairman and chief underwriting officer of James Allen Insurance Brokers, a farm and ranch managing general underwriter in Carmel, Ind. “Most farmers think they're covered. That's the sad part.”

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Along with direct damage caused by drift during spraying, non-target crops also can be damaged indirectly by volatilization, or evaporation and migration, of herbicides from target plants.

The overall frequency and size of drift incidents is hard to determine. Many incidents never are reported to regulators, and damages are settled privately between farmers, experts say. In a 2005 survey of regulators in 40 states, the Association of American Pesticide Control Officials tallied 5,055 drift complaints over the preceding three years, with enforcement action taken against applicators — mostly for-hire sprayers — in 1,869 cases. The herbicides most commonly involved in these incidents were 2,4-dichlorophenoxyacetic acid, or 2,4-D; glyphosate, the active ingredient in Monsanto Co.'s Roundup weed killer; and dicamba.

Most incidents of drift damage are small, involving just a portion of a farmer's acreage, Mr. Craig said.

But the damages can add up: In 2008, Red Gold's growers suffered losses of more than $800,000 in five separate incidents of glyphosate drift, Mr. Smith said.

The damage can be more severe if drift contaminates an organic farm. Under U.S. Department of Agriculture certification rules, contamination exceeding a defined level requires a farmer to wait three years after an incident to plant an organic crop.

“You're not just paying for that crop, you're paying for three (more) years of crops,” Mr. Craig said of the lost planting opportunities.

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Big drift losses have triggered trespass, nuisance and negligence lawsuits against farmers and commercial applicators, though states' common law governing these claims varies. The Minnesota Supreme Court, for example, ruled in 2012 that pesticide drift does not constitute trespass, but the law on trespass differs from state to state, said Ted Feitshans, extension associate professor in the Department of Agriculture and Resource Economics at North Carolina State University in Raleigh. In four states — Louisiana, Oklahoma, Oregon and Washington — high courts have applied strict liability to aerial pesticide applications, according to a review of state laws by Mr. Feitshans.

Farmers and chemical applicators have taken steps to prevent drift incidents. For example, Red Gold and Purdue University teamed to create DriftWatch.org, an online registry that maps the locations of sensitive crops in nine states to alert neighboring farmers who might be using herbicides.

Manufacturers, meanwhile, have redesigned spray equipment to minimize drift, and farmers have taken precautions such as creating buffer zones between fields.

However, the spread of genetically modified corn, soybeans and other crops is raising fears that drift damage — and litigation — may increase in coming years, experts say.

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Monsanto is awaiting regulatory approval of dicamba-tolerant soybean and cotton seeds, while Dow AgroSciences, a unit of Dow Chemical Co., is nearing approval of 2,4-D resistant corn and soybeans.

While Dow has reformulated its branded 2,4-D to be less volatile than previous versions, farmers could use Dow's seeds with volatile generic 2,4-D, raising the odds of damaging drifts, said Jean Sieler, an attorney with Robison, Curphey & O'Connell L.L.C. in Toledo, Ohio who has represented farmers damaged by drift.

“I do think GM seeds will result in some initial flurries of litigation by those who are unconvinced by the extensive scientific study that has gone into” the seed/herbicide technology, said Kim Burke, a partner with Taft Stettinius & Hollister L.L.P. in Columbus, Ohio, who has defended farm interests in drift cases. The flurry would likely die down after a few years, he said.

Red Gold's Mr. Smith said he is less concerned about Dow's 2,4-D technology than Monsanto's dicamba-tolerant seeds. In negotiations with farmers, Dow has agreed to add spray application warnings to its labels — including warnings not to spray when winds could create drift — and has committed to track sales of seeds and its branded 2,4-D to try to prevent farmers from using a generic alternative, he said.

Monsanto has offered no similar concessions in talks with farmers, Mr. Smith said.

A Monsanto spokesman said its dicamba labeling, once approved by regulators, “will contain requirements in order to prevent unreasonable adverse effects from off-site movement.”

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Farmers, meanwhile, are often underinsured for the ongoing risks, sources say.

The standard Insurance Services Office farm liability form provides drift coverage with a $25,000 aggregate limit, said Chris Accetta, agribusiness product director with Travelers Cos. Inc. in Hartford, Conn. The policy excludes coverage for aerial spraying, though, and covers only direct damage to crops, not consequential damages such as an organic farm's loss of income from future crops.

Many insurers offer larger limits than the standard $25,000, but even the $50,000 to $100,000 that some farmers buy is probably not enough, particularly if defense costs are included within the limit, as is the case in many policies, Ms. Sieler said.

Farmers would be better off paring back umbrella liability coverage, which often doesn't include drift, she said, and using the money to buy additional drift liability limits.

“$25,000 is never going to cover it, especially with an eroding limit,” she said.