Spray drift damage: What landowners need to know

Writer: Kay Ledbetter, 806-677-5608, skledbetter@ag.tamu.edu
Contact: Tiffany Dowell Lashmet, 806-677-5600, tiffany.dowell@ag.tamu.edu

AMARILLO – With summer crop production in full swing, pesticide spray drift can cause damage to neighboring property owners, but they aren’t without recourse, according to a Texas A&M AgriLife Extension Service specialist.

“‘Tis the season for application of pesticides to increase throughout Texas,” said Tiffany Dowell Lashmet, agricultural law specialist in Amarillo. “It is important for landowners to understand the rules and to know what to do before applying pesticides or in the event they suffer damages due to spray drift.

“Farmers on both sides of the issue—those applying pesticides and those neighboring landowners—should take care to understand the rules and responsibilities involved with pesticide application,” Lashmet said. “In almost every instance, both farmers and neighbors have the same goal: avoiding drift issues and ensuring that everyone can harvest a good crop.”

As with every legal issue, it is always a good idea to try dealing with neighbor issues over a cup of coffee instead of in a courtroom, she said.

“Talking to your neighbor about these issues is a good place to start and can sometimes resolve problems without ever needing to get the legal process involved.”

Ideally, she said, this type of conversation would occur before pesticides are ever applied. Discussing when and where application may occur, particularly near sensitive crops, can help avoid damage altogether. Making sure neighboring landowners know what crops may be growing nearby is also important.

For farmers preparing to apply pesticides, following the rules is key, Lashmet said.

“The label is the law, and it is critical that applicators strictly follow label requirements.”

Additionally, applicators should be familiar with all Texas Department of Agriculture rules for spraying in their location, she said. Keeping accurate logs and records is extremely important for all applicators.

Unfortunately, sometimes drift does occur, Lashmet said. In that event, the damage should be carefully documented.

This should include taking photographs or samples of damaged crops or foliage, documenting wind speed, direction, temperature, and getting statements from any witnesses who might have seen the application.

“The more documentation an injured farmer has, the better his chances of recovery will be,” she said.

Lashmet said application of pesticides is governed by the Texas Department of Agriculture. In the event that someone is illegally applying the product—meaning an application in violation of the label requirements or TDA rules—the TDA has the authority to levy a fine and/or impose restrictions against that person.

Upon receipt of a complaint, the TDA will send someone to investigate the alleged drift incident, conduct interviews, inspect records and collect evidence, she said. If TDA finds a violation has occurred, it may fine the violator and impose restrictions on his or her ability to continue applying pesticides.

“It is important to note any fines imposed by TDA are paid to the TDA, rather than serving as payment for damages to the neighboring landowner,” Lashmet said.

She also noted that before calling TDA, it is important that the injured landowner insure his or her own records are complete and accurate, as TDA will likely inspect them during their investigation.

“Unfortunately, TDA’s investigation and determination may take an extended period of time to complete, which can lead to frustration for the injured farmer,” Lashmet said.

The injured landowner might want to consider a civil lawsuit against the applicator, she said. Unlike a TDA fine, a judgment in a lawsuit between the injured landowner and applicator will go to the landowner to compensate for damages.

“There are a number of potential claims that may be considered depending on the factual situation, including nuisance, trespass, negligence and others,” Lashmet said. “In the event that a lawsuit is filed, having the documentation and evidence discussed will be extremely useful for the landowner.”

Landowners should not wait to seek legal advice, as statutes of limitations apply to these claims and generally begin running at the time the damage occurs, she said.

“With consideration for other landowners, careful preparation and ensuring that rules are followed, farmers should have no problems with pesticide application to crops in Texas,” Lashmet said.

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