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Remedying the Effects of Spray Drift. Ask an Ag Attorney

Question: What can I do to stop my neighbor or a crop duster from spraying my property?

Answer:  Unfortunately, applications of various pesticides can result in spray drift and damage neighboring property.  In the event this happens, it is important to know what steps may be available to remedy the situation.
First and foremost, the neighbor who is suffering drift should document any evidence including taking photographs or samples of damaged crops or foliage, documenting wind speed, direction, and temperature and getting statements from any witnesses who might have seen the application.
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 one’s neighbor about these issues is a good place to start and can sometimes resolve issues without ever involving lawyers and the legal system. 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 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.  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 ensure that his or her own records are complete and accurate, as TDA will certainly inspect them during its investigation.
Fourth, an injured landowner may 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 or her 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.
As the growing season nears, both aerial and ground application of pesticide will increase across 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.
Ask an Ag Attorney Spray Drift by Tiffany Dowell Lashmet

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