BILL ANALYSIS
AB 2595
Page 1
Date of Hearing: April 21, 2010
ASSEMBLY COMMITTEE ON AGRICULTURE
Cathleen Galgiani, Chair
AB 2595 (Huffman) - As Amended: April 8, 2010
AS PROPOSED TO BE AMENDED
SUBJECT : Irrigated agriculture: pesticide use: operator
identification number: water quality: waste quality: waste
discharge requirements: waivers.
SUMMARY : Requires, after January 1, 2012, county agriculture
commissioners (CAC) to withhold an operator's pesticide use
identification number upon notification by the State Water
Resources Control Board (SWRCB) or a Regional Water Quality
Control Board (RWQCB), of a grower or operator's failure to
comply with water quality requirements and all the operator's
administrative appeals have been exhausted. Specifically, this
bill :
1)Requires an operator or their representative to obtain a
pesticide use identification number from a CAC for each county
in which pesticide work is to be preformed for the production
of an agricultural commodity, pursuant to California Code of
Regulations (CCR) Title 3, Section 6622.
2)Requires, as of January 1, 2012, a operator's pesticide use
identification number to be withheld by CAC if the grower or
operator has been found to be in violation by SWRCB or RWQCB
of any of the following water quality requirements and all
administrative appeals have been completed:
a) Failure to furnish a report required pursuant to Water
Code (WC) Section 13267 within the required timeframe;
b) Failure to obtain an individual or general waiver of
waste discharge requirements relating to irrigated
agriculture pursuant to WC Section 13269; and,
c) Failure to obtain an individual or general waster
discharge requirements related to irrigated agriculture,
pursuant to WC Section 13263.
3)Prohibits the requirements above from applying to any county
in which RWQCB has not adopted requirements for growers or
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operators to obtain coverage under a waste discharge or waiver
of waste discharge requirements or waste discharge
requirements relating to irrigated agriculture.
4)Permits Department of Pesticide Regulation (DPR) to adopt
regulations to carryout these requirements, in consultation
with SWRCB and CACs, to ensure minimum disruption to the
process if issuing pesticide use identification numbers.
5)Requires SWRCB or RWQCB to notify DPR and the appropriate CAC
if, after all administrative appeals have been completed, an
operator of a property is in violation of any water quality
requirements as listed in Food and Agricultural Code (FAC)
Section 12979 (as described in #2 above).
6)Defines "operator of the property" to mean the same as set
forth in Section 6000 of tile 3 of the California Code of
Regulations (CCR).
EXISTING LAW requires pesticide use reports be submitted to DPR
or CAC on a form and manner described by DPR (FAC Section 12979)
and provides that penalties for violations relating to pesticide
statutes, or any regulations issued pursuant to its provisions,
is a misdemeanor punishable by a fine of not less than $500 nor
more than $5000, or imprisonment of not more than six months, or
both the fine and imprisonment. Upon a second or subsequent
conviction of the same provision, the fine will be not less than
$1,000 nor more than $10,000 or imprisonment of not more than
six months, or both the fine and imprisonment (FAC Section
12996).
Defines, among many other definitions, "operator of the
property" as a person who owns the property and/or is legally
entitled to possess or use the property through terms of a
lease, rental contract, trust, or other management arrangement
(CCR Title 3, Section 6000).
Requires, prior to purchase and use of pesticides for production
of an agricultural commodity, the operator of the property or
their representative, must obtain an operator identification
number from CAC of each county where pest control work is to be
preformed and provide that number to each pest control business
applying pesticides to that property (CCR Title 3, Section
6622).
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Statutes establish SWRCB and RWQCBs and require the formulation
and adoption of state policies for water quality control;
permits the development of regional plans as approved by SWRCB;
designates SWRCB as the state water pollution control agency,
thereby authorizing it to exercise any powers delegated under
the Federal Water Pollution Control Act (WC Division 7, Chapter
3, Section 13100 et. seq.).
Defines boundaries for RWQCBs; authorizes the promulgation of
regulations; permits the issuance, modification or revocation of
any water quality plan, water quality objectives, or waste
discharge requirement; the issuance, modification or revocation
of any cease and desist order; and, seeks judicial enforcement
as described. Authorizes civil penalties and fines for a
violation of this chapter. (WC Division 7, Chapter 4, Section
13200 et. seq.)
FISCAL EFFECT : This bill is keyed "fiscal" by Legislative
Counsel.
COMMENTS : SWRCB was created by the Legislature in 1967. The
joint authority of water allocation and water quality protection
enables SWRCB to provide comprehensive protection for
California's waters. Under the Porter-Cologne Water Quality
Control Act (Porter Cologne) and the federal Clean Water Act,
SWRCB and RWQCBs are the lead agencies with the authority to
regulate water quality in California. SWRCB and RWQCBs have
been designated the principal state agencies with primary
responsibility for the coordination and control of water quality
in California. There are nine RWQCBs responsible for the
development and enforcement of water quality objectives and
implementation plans that will best protect the State's waters,
recognizing local differences in climate, topography, geology
and hydrology. RWQCBs develop "basin plans" for their
hydrologic areas, issue waste discharge requirements, take
enforcement action against violators, and monitor water quality.
The task of protecting and enforcing the many uses of water,
including the needs of industry, agriculture, municipal
districts, and the environment, is an ongoing challenge for the
SWRCB and RWQCBs.
In 1999, the Legislature passed SB 390 (Alpert) that became law,
requiring RWQCBs to review their existing waivers and to renew
them or replace them with Waste Discharge Requirements (WDR).
Under SB 390, waivers not reissued automatically expired on
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January 1, 2003. To comply with SB 390, RWQCBs adopted revised
waivers. The most controversial waivers were those for
discharges from irrigated agriculture. Discharges from
agricultural lands include irrigation return flow, flows from
tile drains, and storm water runoff, and can affect water
quality by transporting pollutants, including pesticides,
sediment, nutrients, salts, pathogens, and heavy metals from
cultivated fields into surface waters. According to SWRCB, many
surface water bodies are impaired because of pollutants from
agricultural sources.
As a result of SB 390, SWRCB developed the Irrigated Lands
Regulatory Program (ILRP) to regulate discharges from irrigated
agricultural lands and provide a waiver in accordance with the
law. ILRP's purpose is to prevent agricultural discharges from
impairing the waters that receive the discharges. To protect
these waters, RWQCBs have issued conditional waivers of waste
discharge requirements to growers that contain conditions
requiring water quality monitoring of receiving waters, and
corrective actions when impairments are found.
RWQCBs have responded in various manners to control and assess
the effects of discharges from irrigated agricultural lands.
The Los Angeles, Central Coast, Central Valley, and San Diego
Regional Water Quality Control Boards have adopted comprehensive
conditional waivers. The Colorado River Basin and North Coast
Water Quality Control Boards have adopted conditional
prohibitions as a total maximum daily load (TMDL) implementation
plan incorporated into their respective basin plans. The Santa
Ana Region Water Quality Control Board is in the initial phase
of developing an irrigated lands regulatory program. An
estimated 25,000 growers, who cultivate over nine million acres,
are subject to conditional waivers in these regions. These
RWQCBs have made significant strides to implement their programs
and are committed to continue their efforts to work with the
agricultural community to protect and improve water quality.
Regional Water Quality Control Boards 2 and 6 have no immediate
plans to adopt waivers for agricultural discharges, but may do
so eventually to implement TMDLs. The number of acres and
agricultural operations will increase as other RWQCBs adopt
conditional waivers for discharges from irrigated agricultural
land.
RWQCBs acknowledged that management practices that are
protective of water quality in one specific location for a
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particular type of crop or farming practice may not be
protective under other circumstances. Further, it should be
recognized that agriculture is not the only user of pesticides,
with significant amounts also used on golf courses, cemeteries,
urban landscapes and state right-of-ways that contribute to the
non-point sources of discharges.
According to the author, AB 2595 is attempting to address the
delays in enrollment in ILRP by agricultural dischargers by
increasing the participation in the program through the
conditioning of the issuance of a pesticide use identification
number (by CAC) only to those participating in the program. The
author states that this program has been in place since January
2000; however, the initial years were spent identifying and
enrolling growers in the program, causing delays in implementing
the program to improve water quality, adding additional costs to
both the SWRCB and RWQCBs to track and issue enforcement orders.
Further, the author states that it is unfair to those that have
cooperated and paid their fees. AB 2595 would reduce these
delays by adding a new incentive for compliance by leveraging
issuance of an operator's pesticide use identification number by
CAC.
Opponents state that the proposed amendments extend RWQCB's
authority to require all of agriculture to participate in ILRP
even though the grower does not fall into the category of a
discharger and could hinder a growers due process rights, create
unintended consequences, and jeopardizing productivity.
Additional concerns are that this could increase fees to farmers
and that there is not a clear path for a grower/operator to
obtain a pesticide use identification number after RWQCBs has
notified DPR and CAC.
Each of RWQCBs participating in ILRP is in different elements of
the enrollment process. The Central Valley (Region 5) is
finalizing enrollment by sending postcards to potential owners
of irrigated lands and conducting exemption inspections. Their
enrollment compliance is estimated at 70% of all irrigated
acreage. The Central Coast (Region 3) just released its
preliminary draft order for regulation of discharges from
irrigated lands and has estimated enrollment compliance to be
95%. The Los Angeles (Region 4) continues to pursue significant
administrative civil penalties from growers and/or landowners
for failure to enroll, with their enrollment compliance at 90%.
San Diego (Region 9) and Santa Ana (Region 8) are developing
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basic monitoring criteria that will be required in the
monitoring plans and public outreach and education. (Compliance
calculations are based upon acreage and not individuals. RWQCBs
can figure participation by acreage but not by individuals.)
During the beginning of ILRP, response and participation by
agriculture was slow, partly due to the information originally
requested by RWQCBs, the difference implementation plans by
RWQCBs, and the complicated nature of the program. In an effort
to become compliant, farmers formed water quality coalitions and
compliance has improved significantly.
The committee may wish to ask if RWQCBs are doing the
appropriate follow through to determine non-participants. The
failure to comply with RWQCB's requirements brings large fines
and penalties, which several RWQCBs have pursued.
As written, AB 2595 will codify regulations requiring the
obtaining of an operator's pesticide use permit. These
regulations are an end product of the statutes requiring
pesticide reporting and can be modified easily anytime, if
needed. By codifying them, it removes that flexibility and
timeliness response to a need. The committee may wish to
consider if it is appropriate to codify this CCR.
This bill provides a consequence but not a remedy. An operator
can lose the ability to obtain a pesticide use identification
number, which would seriously jeopardize one's ability to
protect their crop from pests, potentially causing crop failure,
but there is no requirement for RWQCBs to notify DPR and the
appropriate CAC of an operator's compliance, with respective
RWQCB's ILRP. Lack of notification by RWQCBs would put the
farmer's livelihood in jeopardy. The committee may wish to
consider if a notice be provided to an operator of the
consequence of not participating in the program, prior to the
removal of their pesticide use identification number, and if
procedures for reinstatement should be defined.
RELATED LEGISLATION : AB 897 (Jackson), Chapter 683, Statutes of
2003. This bill made changes to the Porter-Cologne Water
Quality Act to conform to provisions of the federal Clean Water
Act. A number of amendments were made to clarify and streamline
the administrative processes by SWRCB and RWQCBs, including,
among other changes, making any person who knowingly fails to
furnish technical information or monitoring reports, or who
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falsifies such information subject to misdemeanor penalties of
up to $25,000; repeat offenders who were previously convicted
for the same violations, have uncapped penalties; and,
established civil liability for any person who violates a cease
and desist order or cleanup and abatement order.
SB 923 (Sher), Chapter 801, Statutes of 2003. This bill
authorized SWRCB and RWQCBs to waive waste discharge
requirements if the waiver is consistent with applicable state
or regional water quality control plans and the waiver is in the
public interest. It required an annual fee be paid as a
condition of issuing a waiver and required monitoring to verify
the adequacy and effectiveness of the waiver's conditions.
SB 390 (Alpert), Chapter 686, Statutes of 1999. This bill
revised the authority of regional water quality control boards
to waive waste discharge requirements; required enforcement of
conditions for waivers; required public hearings as a condition
of waiver renewal; revised liability provisions; and, eliminated
the cap on waiver fees charged by the board.
REGISTERED SUPPORT / OPPOSITION :
Support
California Coastkeeper Alliance
Clean Water Fund
Community Water Center
Monterey Coastkeeper
Sierra Club
Opposition
California Cattlemen's Association
California Chamber
California Farm Bureau
California Grape & Tree Fruit League
California Tomato Growers Association
California Association of Nurseries
& Garden Centers
California Citrus Mutual
California Forestry Association
California Grain & Feed Association
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California Cotton Ginners
& Growers Association
California Bean Shippers Association
California Warehouse Association
California Seed Association
California Pear Growers
California State Floral Association
California Association of Wheat Growers
Regional Council of Rural Counties
Nisei farmers League
Western Agriculture Processors Association
Western Growers
Western Plant Health Association
Analysis Prepared by : Jim Collin / AGRI. / (916) 319-2084