BILL ANALYSIS
SENATE FOOD and AGRICULTURE COMMITTEE
Senator Dean Florez, Chairman
BILL NO: AB 2595 HEARING: 6/15/10
AUTHOR: Huffman FISCAL: Yes
VERSION: 4/22/10 CONSULTANT: John Chandler
Irrigated agriculture: pesticide use: operator identification
number: water quality:
waste discharge requirements.
BACKGROUND AND EXISTING LAW
California Food and Agriculture code requires that pesticide use
reports be submitted to the Department of Pesticide Regulation
(DPR) or county agriculture commissioner (CAC) on a form and in
a manner described by DPR. The code also provides that
penalties for violations relating to pesticide statutes, or any
regulations issued pursuant to its provisions, are 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.
California Code of Regulations requires that 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 the 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.
The State Water Resources Control Board (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 regional water quality
control boards (RWQCB) are the lead agencies with the authority
to regulate water quality in California. SWRCB and RWQCBs have
been designated as 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
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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
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 waivers 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 in order 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 toward
implementing their programs and are committed to continuing
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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.
PROPOSED LAW
AB 2595 would do the following:
Require the operator of a property or their
representative to obtain an operator identification number
(OIN) for pesticide use from the CAC of each county where
pest control work will be performed, pursuant California
Code of Regulations (CCR) Title 3, Section 6622.
Specify that as of January 1, 2012, a CAC shall not
issue a OIN if the SWRCB or RWQCB issues a notice to the
CAC that the property operator is in violation of the
following water quality requirements:
o Failure to obtain an individual or general
waste discharge requirements.
o Failure to furnish technical or monitoring
program reports.
o Failure to enroll in the Irrigated Lands
Conditional Waiver Program or obtain an individual or
general waiver of waste discharge requirements.
Require a CAC to immediately issue an OIN for pesticide
use upon receipt of a certificate of compliance issued by
SWRCB or RWQCB.
Prohibit a CAC from withholding an OIN for noncompliance
with waste discharge requirements in any county in which
RWQCB has not adopted requirements for growers or operators
to obtain coverage under a waste discharge waiver, waste
discharge requirements, or waste discharge requirements
relating to irrigated agriculture.
Authorize a county agricultural commissioner to levy a
civil penalty of up to $5,000 against an operator who
fraudulently obtains an OIN.
Authorize DPR to adopt regulations, in consultation with
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SWRCB and CACs, for implementation of this bill that
minimize disruption of issuing OIN for pesticide use.
Require the SWRCB or RWQCB to notify DPR and the CAC if,
after exhausting all administrative proceedings and
appeals, the operator of the property is found to be in
violation of the following water quality requirements:
o Failure to obtain an individual or general
waste discharge requirements.
o Failure to furnish technical or monitoring
program reports.
o Failure to enroll in the Irrigated Lands
Conditional Waiver Program or obtain an individual or
general waiver of waste discharge requirements.
Specify that SWRCB or RWQCB may not transmit a violation
notice to DPR or CAC until 30 days after all administrative
proceedings and appeals are exhausted and the operator of
the property has not complied with the order or paid any
administrative or civil liability imposed violation.
Require SWRCB or RWQCB to issue a written certificate of
compliance to the operator of the property if the operator
has remedied the violation and paid any administrative or
civil liability imposed for a violation.
COMMENTS
1.Supporters of AB 2595 state this bill would provide an
additional incentive for agricultural participation in water
quality programs by withholding a pesticide use OIN if the
operator is not participating in the proper water quality
program. The conditional agricultural waiver program passed
by the legislature in 2000 is intended to improve water
quality from discharges on irrigated agricultural lands.
Since implementation in 2003 and years of litigation, warning
letters and Notices of Violation the SWRCB estimates 75%
participation in the Central Valley and 95% participation in
the Central Coast. This leaves an estimated 40,000 acres and
500-700 growers not complying with water quality regulatory
programs. AB 2595 will provide an extra incentive by
withholding the growers' ability to use pesticide products
until they are in compliance with the proper water quality
program. Further, in areas of the state that have yet to
implement a conditional waiver program, AB 2595 would help
them reduce the potential costs of initiating the program,
AB 2595 - Page 5
increasing the penalty by limiting an operators ability to use
pesticides if they are not participating in a conditional
waiver program.
2.Opponents of AB 2595 state that current water law provides the
SWRCB and RWQCBs with enforcement authority and the ability to
levy civil penalties to ensure compliance and enrollment in
water quality programs. Requiring the CAC to withhold an OIN
for a grower not participating in a water quality program
would turn the CAC into the enforcement officer for water
quality programs with which CACs are unfamiliar or funded to
enforce. Some counties contain more than one RWQCB which
could lead to a lack of uniformity of enforcement by a single
CAC for a particular county as the different boards may have
significant differences in agricultural waivers. CACs have
raised concerns regarding the lack of funding for the
increased enforcement responsibilities of AB 2595. Without
the needed funding with the additional responsibility of AB
2595 CACs feel they would be challenged to effectively
implement the provisions of this bill. Further, water quality
programs monitor more than just pesticide runoff. AB 2595
could withhold an operator's ability to use pesticides for
problems unrelated to pesticide use.
3.Growers that use pesticides are commonly required by weather
or pest thresholds to apply pesticides in a timely manner. AB
2595 requires that the CAC immediately issue an OIN when
notified that a grower is in compliance. Further, the bill
requires the RWQCB and the SWRCB to issue a certificate of
compliance to the operator of the property when the operator
has remedied the violation. There is no requirement for
urgency from the RWQCB or the SWRCB to issue the certificate
of compliance, and the bill requires the boards to issue the
certificate to the operator but not the CAC. The committee
may wish to consider if the bill should specify that RWQCBs
and the SWRCB issue a certificate of compliance immediately
and include the CAC in the required distribution of the
certificate and not just the operator.
4.The Senate Rules Committee has doubled referred this bill to
the Senate Environmental Quality Committee as the second
committee of referral. Therefore, if this measure is approved
by this committee, the motion should include an action to
re-refer the bill to the Senate Committee on Environmental
Quality.
PRIOR ACTIONS
AB 2595 - Page 6
Assembly Floor 66-1
Assembly Appropriations 16-0
Assembly Agriculture 7-0
Assembly Environmental Safety 6-3
and Toxic Materials
SUPPORT
California Coastkeepers Alliance
California Rural Legal Assistance Foundation
Clean Water Fund
Community Water Center
Environmental Justice Coalition for Water
Monterey CoastKeeper
Sierra Club California
OPPOSITION
California Agricultural Commissioners & Sealers Association