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Texas: Spray Drift Damage – What Injured Landowners Need to Know

Ernst Undesser
By Tiffany Dowell Lashmet, Texas AgriLife Extension Ag Law Specialist July 11, 2017

Texas: Spray Drift Damage – What Injured Landowners Need to Know

Dicamba drift injury versus healthy cotton without injury.

Unfortunately, as many farmers know all too well, applications of various pesticides can result in drift and cause damage to neighboring property owners.  In the event this happens, it is important for an injured farmer to know what steps to take and what options are available to remedy the situation.

First and foremost, the injured farmer should document any evidence, including 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 a farmer has, the better his chances of recovery will be.

Second, it is always a good idea to try and deal with neighbor issues over a cup of coffee instead of in a courtroom.  Talking to your neighbor about these issues is a good place to start and can sometimes resolve issues without ever needing to get the legal process involved.

Ideally, this type of conversation would occur before pesticides are ever applied, but even if the damage has been done, trying to work out some sort of resolution may still be possible.  If this type of conversation is successful, it will likely save both parties a great deal of stress, time, and money that would have been spent with legal options.

If unsuccessful, then the landowner can always pursue the legal remedies mentioned below.

Third, the 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 restrictions against that person.

Upon receipt of a complaint, the TDA will send someone out to investigate the alleged drift incident, conduct interviews, inspect records, and collect evidence. If TDA finds a violation has occurred, it may fine the violator and may impose restrictions on his or her ability to continue applying pesticides. Importantly, any fines imposed by TDA are paid to the TDA, rather than serving as payment for damages to the neighboring landowner.

Additionally, before calling TDA, it is important that the injured landowner insure that 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 be completed, which can lead to frustration for the injured farmer.

Fourth, an injured landowner may want to consider a civil lawsuit against the applicator. Unlike a TDA fine, a judgment in a civil lawsuit between the injured landowner and applicator will go to the landowner to compensate him for damages. There are a number of potential claims that may be considered depending on the factual situation, including nuisance, trespass, negligence, and others.

In the event that a civil lawsuit is filed, having the evidence discussed above will be extremely useful for the landowner.

‘Tis the season for application of pesticides to increase throughout Texas.  It is important for landowners to understand the rules and to know what to do in the event they suffer damages due to spray drift.


Source: : http://agrilife.org/texasrowcrops/2017/07/10/spray-drift-damage-what-injured-landowners-need-to-know/

Ernst Undesser
By Tiffany Dowell Lashmet, Texas AgriLife Extension Ag Law Specialist July 11, 2017