Spray Drift! It Could Happen To You...
Spray drift does happen to organic farmers. Due to the three year loss of certification following such an incident, it is no small matter. NPSAS makes the following recommendations to prepare for a possible spray drift accident and what steps to take should one occur on your farm.
1.) Register your certified organic land with the Aeronautics Commission in your state. This list is sent to all aerial applicators in your state.
2.) If your land borders that of conventional growers, send them a notice (preferably by certified mail) at the beginning of each growing season letting them know that you farm organically and what is at stake should a drift accident occur. This notice should be cordial so you don't offend your neighbor. If you have a personal relationship with your neighbor, you may want to speak with him/her face to face out of respect for your friendship. See sample letter below. In addition post signs that state this land is organically farmed and that spray drift is not allowed. Check with your certifying agent for availability of these signs or call NPSAS.) REMEMBER THE OLD ADAGE: AN OUNCE OF PREVENTION... You are protecting your neighbor's interests as well as your own! You can use that approach when sending out your notices or meeting with them personally to avoid any possible hard feelings.
3.) Purchase a good camera. One that prints the date on the picture is preferable.
4.) Purchase a good windsock with which to document wind direction and strength.
5.) Should an incident occur, take pictures of the applicator, if possible, whether plane or spray coupe. If not possible, try to get a picture of the drift itself and/or of anything that will help to document that a drift occurred.
6.) Find out the name of the person spraying, their address, phone number, who they work for, what chemical they are applying and at what rate they are applying the spray.
7.) Report the incident to your state Ag Department immediately. If the incident occurs on a day the Ag Department is closed, report it to a place of authority (the sheriff's office, for example). File a complaint with the State Ag Dept. immediately the next business day.
8.) Estimate the wind speed of the day of the incident . Take a picture of your wind sock the day of the occurrence.
9.) Take a sample of the soil for testing the day of the incident or the next day. Ask the person spraying or the land owner to be present at the time of the sampling. Call an uninterested party (an extension agent, for example) to come out to the field and view the damage that was done and witness the sampling. The farmer or the pilot should also be present when you mail the sample to the lab. (The Pesticide Division of your State Ag Department can give you the contact information of a lab to send the samples to.) If they will not accompany you to the post office, have them sign an affidavit that they were not present but had the opportunity to be present and chose not to be.
10.) Keep good notes of all conversions, phone calls, and any other contact. Include the time of the contact, date, and a summary of what was said and done. Write down everything, no matter how unimportant it may seem at the time. Save copies of any letters, certified mail receipts, and any other related documents. There is no such thing as too much information.
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Protect Yourself from GMO and Chemical Drift
NPSAS members have recently developed a general memorandum on preventing drift from agricultural chemicals and genetically modified crops such as Roundup Ready soybeans, corn, and canola. Organic farmers are at risk from contamination of genetically modified crops because any crops that show GMO contamination will not be certifiable for sale as organic. Sources of contamination can be the wind, bees, combines, seed cleaning facilities, trucks, etc. The memorandum discusses such issues as farmer liability for drift, developing appropriate buffers or "fences" to prevent drift, and other means of preventing drift.
We hope that you will share this information with your neighbors and use it as a tool to begin discussing these issues with them. Any discussions or notices should be cordial so you don't offend your neighbor. If you have a personal relationship with your neighbor, you may want to speak with him/her face to face out of respect for your friendship. Discussion and mutual understanding now may help you both avoid frustration and conflict later. In addition, your best legal protection in the face of GMO or spray drift may be to notify your neighbors of your organic intentions.
Following is a sample letter that may be used to introduce the subject of genetic drift and spray drift with your neighbors. The memorandum below may be reproduced as needed.
Sample Accompanying Letter
Dear :
As farmers who have worked hard to develop a special market niche we have become increasingly worried about the potential for our crops to become contaminated by the new technologies that are now on the market. Frankly, we can't afford to lose our markets.
Certainly we do not want to make life more difficult for our farming neighbors who choose to use these new technologies, and we believe that we can live together in the same neighborhood with our diverse ways of farming. But it will take some thoughtfulness and advanced planning, as well as respect for the different ways we have each chosen to farm.
We deeply appreciate your past efforts to protect our crops from the kind of contamination that would cause us to lose our markets and we hope that we can continue to count on you to work together with us to continue to protect our crops from the new technologies now available to you.
Attached to this letter you will find a memorandum prepared by the grower group to which we belong. We hope it will be helpful. Please call if you have any questions.
GENERAL MEMORANDUM
It is now generally accepted that if I as a farmer have animals on my property, I am responsible for fencing that will prevent them from trespassing on my neighbor's property. Some time ago Robert Frost captured this tradition of respecting each other's property and the activities within such property with his now famous phrase, "good fences make good neighbors."
But we have not always applied this same tradition to crop agriculture. Since crops don't move about, we sometimes think that "fences" aren't required in crop agriculture. Yet the same "fencing" requirement holds true. If I apply toxic chemicals on my crops, for example, I have the responsibility to prevent chemical "drift" that could damage a crop that is not tolerant to that chemical on my neighbor's land.
The advent of new technologies has made this "fencing" requirement more difficult. New classes of chemicals which can cause damage to some crops and gardens up to 15 miles away, has made it more difficult to be good neighbors. But the principle still holds true. Any activity on my farm that causes a yield-loss or market-loss on my neighbor's farm makes me liable for that trespass.
Legal precedents now exist. When chemical drift onto an organic farm causes the loss of that farm's certification and therefore the loss of that farmer's premium markets the full cost of that loss can be collected from the farm from which the drift originated.
Organic farmers are not the only farmers who have secured premium markets. Farmers now grow crops for "clean" or "below detectable level" markets. Using certain farming practices, they can certify by means of inspection and testing that crops they produce do not contain chemical residues. In some cases such crops command substantial premium prices. If chemical drift from a neighbor's farm causes contamination of these crops, and therefore the loss of those premiums, the affected farmers have a right to collect for damages.
New technologies, of course, always bring new liabilities. In addition to using new classes of chemicals, farmers now also have the option of planting genetically modified seeds. This memorandum is intended to apprise farmers of the need to maintain good "fences" when they plant such "transgenic" seeds.
It has now been documented that seeds that have been genetically modified can "out-cross" into crops that have not been so modified. This creates new potential "trespassing" problems.
An increasing number of farmers have found premium markets for crops that have not been genetically modified, and they stand to lose those premiums if the genetically modified crops out-cross and contaminate them. This is not only true for organic farmers, who are required by international standards, to keep their land, animals and crops free of genetically modified organisms, it is also true of many other farmers who have found market niches in Europe, Japan and elsewhere for non GMO crops. Certification and testing programs are already in place to verify that their crops are genetically natural.
The fences required to maintain this genetic purity are more complicated then fencing in our cattle or even the fences required to prevent chemical contamination. Genetically modified crops may "out-cross" not only by wind borne pollen, but by insects. So the "fences" required to prevent "genetic drift" have to be specific to the crop and the conditions. Genetically modified soybeans, for example, can probably be "fenced in" with a simple 50 foot buffer strip of non-genetically modified soybeans around the outside of the field. Corn, on the other hand, may require a two-mile buffer zone. Canola, which is insect pollinated, may require a 7 or 8 mile "fence."
There are several things that we can all do to make sure that our "fences" are adequate. Following are a few simple steps we can all take:
1. If you plan to seed transgenic crops, check with all of the neighbors who might be adversely affected. Try to work out common cropping plans that will prevent the out-crossing of your transgenic crop to any crop your neighbor is producing that needs to be free of genetically modified organisms. Find out if your neighbor is growing a crop for a specialty, premium market that could be affected, and than make sure your cropping plan provides an effective "buffer zone" so that your crop will not contaminated your neighbor's.
2. Check with your insurance company to make sure your liability coverage protects you in the event that your crop or cropping practices inadvertently causes a neighbor to suffer losses to his crops or markets.
3. Get accurate information about the "drift" potential of any crop, crop input, or cropping practice that could make you liable for a neighbor's loss. Don't just rely on the information provided by seed or chemical salespeople. In the case of an organic farming neighbor, check with an accredited organic certifier. They can tell you what you need to do to prevent your organic farming neighbor from losing his certification. Ask your Extension Service to get you the latest, documented information on genetic drift for various crops. Check with your insurance company and ask for accurate information about what you need to do to protect yourself from liability for each crop you plant and each input you use.
4. Use equipment that will "contain" the materials you use. Avoid aerial spraying. Use "hooded" ground sprayers. Avoid spraying on windy days. Keep spraying equipment away from your neighbor's adjoining crop, even if that means a few weeds on the edges of your own field. Notify your neighbor on the day you intend to spray, and what sprays you intend to use, so that he/she can take protective action. Remember that your neighbor's garden plants and fruit trees are always much more vulnerable to spray drift than most crop plants. And your neighbors may be relying on their garden to feed their families.
5. It is our belief that ultimately the liability for genetic drift should sit with the company that created the technology and brought it into the market. Ask for your attorney's advice as to who would be held liable for drift.
As time passes, some of these issues may be decided in the courts. But we believe it is better to honor the insight of Robert Frost. We believe that good fences and good neighbors are always preferable to contests in court to determine who wins and who loses. If we talk and plan together, we can live together and honor diverse farming systems in the same neighborhoods. That way everybody wins.
