Author: Nicholas Brown

On July 23, 2025, the EPA opened the public comment period for the proposed registrations of three over-the-top (OTT, i.e., post-emergent) dicamba herbicides to be used with dicamba-tolerant cotton and dicamba-tolerant soybeans.  This announcement was accompanied by several updates to the labels originally proposed by the applicants (i.e., pesticide companies submitting proposed labels based on their own data).  While those updates by the EPA include a litany of factors ranging from runoff and irrigation mitigation to personal protective equipment (PPE) for applicators, the most interesting change in the label can be found in the new mechanism for application cutoffs.

Under the labels submitted by the pesticide manufacturers, there was either an application cutoff date or a complete prohibition on OTT applications.  For example, per Bayer’s submitted application for registration, the XtendiMax label would have prohibited any OTT applications on soybeans but allowed OTT applications on cotton through July 30^th.  These application cutoff dates were originally set in place by state agricultural agencies in 2018, in the immediate aftermath of dicamba drift issues.  However, the EPA in 2020 restricted the powers of those state agencies by scrutinizing FIFRA Section 24(c) registrations that state agricultural agencies had used to create application cutoff dates.  The EPA still maintains the position that state agricultural agencies cannot use FIFRA Section 24(c) to enact additional restrictions on a pesticide’s use.  As such, any application cutoff dates for OTT dicamba since that date have been applicable nationwide (e.g., a June 12^th application cutoff date would be put in place for farmers from Georgia to North Dakota).   

Under the EPA’s latest proposed OTT dicamba labels, the date-based cutoffs have been replaced in favor of temperature-based restrictions on applications.  Under the latest proposal, an applicator will have to know both the highest forecasted temperature for the day of the application as well as the highest forecasted temperature of the day following the application.  Temperature forecasts are required to be conducted by the National Weather Service (NWS) or the National Oceanic and Atmospheric Administration (NOAA).  If both of those temperatures are forecasted below 75 degrees Fahrenheit, the applicator can apply up to the maximum application rate of OTT dicamba, which is 0.5 pounds per acre with 20 fluid ounces of a volatility reducing agent (VRA). 

When the highest relevant temperature of the day of the application and the following day is between 75 degrees Fahrenheit and 85 degrees Fahrenheit, the applicator can still apply up to 0.5 pounds per acre but must increase the VRA to 40 fluid ounces.  When the highest temperature of the two relevant days is between 85 degrees Fahrenheit and 95 degrees Fahrenheit, the applicator must abide by the prior restriction but now must choose between reducing the area treated by 40% or eliminating tank mix partners (the VRA must still be included).  When the highest forecasted temperature of the day of the application or the day following the application is 95 degrees Fahrenheit or higher, any application of OTT dicamba herbicides is prohibited.     

Per the EPA, these temperature-based restrictions are intended to simplify the application process for farmers, ideally alleviating the oft-made complaint that the dicamba labels – which could reach 40 pages in length – were too complicated for farmers to effectively abide by.  Still, at least one state regulator has stated that a lack of specificity on dates and times in which farmers can spray OTT dicamba will be problematic for farmers who are preoccupied with every other matter that inevitably arises when crops are in the ground.

The timing of this announcement by the EPA indicates that OTT dicamba herbicides may be available for the 2026 growing season, though environmental groups have promised to fight such registrations just as those groups have successfully done with the prior two registrations of OTT dicamba.  

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Brown, Nicholas. “Latest Proposed Dicamba Labels Move to Temperature-Based Cutoffs.” Southern Ag Today 5(39.5). September 26, 2025. Permalink

Succession can be a very sensitive topic for farmers to discuss.  Some farmers want their children to take over the farm and operate it in the same manner.  Other farmers, either due to a lack of interested children or due to skyrocketing land prices, would rather sell the whole farm for a non-agricultural use such as neighborhood development.  Regardless of anyone’s farm succession plan, everyone has at least one similar goal: minimize (or, ideally, eliminate) their estate tax burden.  

Tool #1: Estate Tax Exemption

            Generally speaking, an individual’s taxable estate includes all assets owned by that individual at the time of death, including assets owned through an LLC that the individual owns or through a revocable trust in which the individual is a beneficiary.  So, if a farmer establishes a revocable trust that owned the LLC that owns the farm (a common probate avoidance-liability protection strategy), the farmer’s estate would still be deemed to own the farm, including its land (measured at fair market value), equipment, livestock, buildings, and so forth.

            Unlike the other tools which will necessitate an attorney, the estate tax exemption is something that every taxpayer automatically utilizes at death.  The estate tax exemption in 2025 is $13.99 million for individuals and $27.98 million for married couples.  In other words, if an individual were to pass away in 2025 with less than $13.99 million in their estate, that individual’s estate would not be responsible for paying estate taxes.  While Congress may change the law for 2026 and beyond, the estate tax exemption for 2026 is set to revert to pre-2017 Tax Cuts and Jobs Act levels, putting the individual exemption at approximately $7 million and the married exemption at approximately $14 million.  

Even at these lower amounts, most farmers have nothing to worry about.  Still, some farmers place estate taxes as their primary concern when conducting succession planning, so hopefully this first tool alleviates those worries.  

Tool #2: Family LLCs

            The estate tax exemption is reduced by any reportable gifts made during the decedent’s lifetime.  In 2025, a donor must report to the IRS any gifts to individuals that are worth more than $19,000 and gifts to married couples that are worth more than $38,000.  As such, a farmer can gift shares of their farm LLC to their children that are under the gift tax reporting thresholds over a period of time, ideally decades, to reduce their taxable estate once the farmer does pass away.

            A few aspects of family LLCs are noteworthy.  First, the farmer should be gifting shares of the farm LLC that lack voting rights, which the IRS will view as less valuable than normal LLC shares, thereby allowing the farmer to gift a higher percentage of the LLC each year without exceeding annual gift tax limits.  Second, farmers with children who are married can conduct this strategy more efficiently than farmers with children who are not married.  Moreover, the children who receive shares are not necessarily obligated to retain the shares – the children can sell the shares, including amongst themselves.  

Tool #3: Internal Revenue Code 2032A 

            At its core, IRC 2032A allows for an additional estate tax exemption of up to $1.42 million in 2025 (i.e., thus increasing an individual’s estate tax exemption to $15.41 million and a married couple’s estate tax exemption to $29.4 million).  Concisely, there are both pre-death and post-death requirements that must be met for the IRC 2032A increase to be utilized.  The State of Washington Department of Revenue has a very readable frequently asked questions page on IRC 2032A which more comprehensively details the requirements.  

            With respect to just the high points, the decedent must have been farming the land for five of the last eight years of his or her life.  Specifically, the decedent must have been providing ‘material participation’ on the farm, not just leasing land to third parties.  The land and equipment used on the farm must also constitute significant percentages of the farmer’s estate.  After death, the decedent’s ‘qualified heir’ (usually a child) must continue farming the land for the next ten years.  Like the decedent, the qualified heir must materially participate on the farm – not just lease it out to a third party.  If the qualified heir ceases farming operations at any point during those ten years, the qualified heir will be personally liable for the estate tax burden and must pay it within six months of the deviation.  

Tool #4: Irrevocable Life Insurance Trusts (ILIT)

            For high-net-worth farmers who will not avoid the estate tax through the above tools, an irrevocable life insurance trust (ILIT) is an option.  While both assets in a revocable trust and some life insurance policies are included in a decedent’s estate, assets placed in an irrevocable trust more than three years before death are not included in the estate.  For an ILIT, a farmer would set up an irrevocable trust, purchase a life insurance policy, and place that policy within the trust.  When the farmer dies, the ILIT would receive life insurance proceeds that were excluded from the estate and distribute them to the surviving spouse or children in order to pay the estate taxes and otherwise provide liquidity to the farm.

            ILITs can be very expensive, however.  It will cost several thousand dollars for the initial document drafting to be done, and then anywhere from a few hundred dollars to tens of thousands of dollars for the annual life insurance premiums.  In short, farmers who will never approach the estate tax exemption levels should not invest in ILITs.

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Brown, Nicholas. “Four Ways for Farmers to Avoid Estate Taxes in 2025.“ Southern Ag Today 5(14.5). April 4, 2025. Permalink

In February, a federal district court in Arizona vacated the only three post-emergent formulations of dicamba on the marketplace, marking the second time post-emergent dicamba registrations were vacated since their 2017 commercialization.  When the EPA subsequently clarified that existing stocks of post-emergent dicamba could be used in 2024, all eyes promptly turned to what would be available in 2025.

The court opinion noted that the EPA failed in its 2020 registrations of post-emergent dicamba to provide a public notice and comment period.  To avoid a third potential vacatur of registrations, the EPA required a public notice and comment period, which in prior registration efforts signaled the start of a 17-month countdown to approval.  

However, there has been a growing trend of courts scrutinizing and even vacating other pesticide registrations when the EPA failed to comply with requirements associated with the Endangered Species Act (ESA) in addition to requirements associated with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  Combining the potential need for an ESA consultation with the United States Fish and Wildlife Service (USFWS) with agency funding issues, it is ambitious to hope that the EPA will meet the 17-month approval timeframe on the undergoing post-emergent dicamba registrations before the 2025 planting and growing seasons.

Commentators on both sides of the dicamba debate have already started making their voices heard.  The public comment period for Bayer’s XtendiMax, BASF’s Engenia, and Syngenta’s Tavium generated over 27,000 comments in total.

Advocates of post-emergent dicamba products were dismayed by the XtendiMax label not having any on-label uses for post-emergent soybeans.  XtendiMax for cotton allowed applications through June 30.  There was also concern that the labels for Tavium and Engenia only permitted over-the-top (OTT) applications through June 12 or until the crop reaches the V2 growth stage, with comments noting that the plants are still very small at that stage.  

It is worth noting that, though the 2020 registrations of post-emergent dicamba products were vacated, the EPA’s new position that precludes state agency restrictions on pesticides through Section 24(c) of FIFRA is still maintained on the EPA’s website.  In other words, barring state action through Section 24(a), the EPA will still be the entity responsible for setting restrictions such as application cutoff dates.

Critics of post-emergent dicamba once again expressed their frustration that the EPA was in the process of re-registering the herbicide.  These individuals and groups have repeated their calls that the product was inherently dangerous and stated that the new formulations were no different than previous products that had been taken off the market.  

If post-emergent dicamba is not approved for use by the 2025 growing season, there is also a fear that a repeat of the 2015 and 2016 growing seasons will occur.  In 2015 and 2016, the USDA had approved dicamba-tolerant seeds but the EPA was still undergoing the registration process for post-emergent versions of dicamba.  Despite this, dicamba drift symptoms started to occur throughout the nation, leading many to speculate that some producers had used pre-emergent dicamba in an off-label use for post-emergent applications.  

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Brown, Nicholas. “Post-Emergent Dicamba Likely Unavailable in 2025, Controversial Beyond Then.” Southern Ag Today 4(42.5). October 18, 2024. Permalink