BILL ANALYSIS
AB 2595
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2009-2010 Regular Session
BILL NO: AB 2595
AUTHOR: Huffman
AMENDED: April 22, 2010
FISCAL: Yes HEARING DATE: June 28, 2010
URGENCY: No CONSULTANT: Caroll
Mortensen
SUBJECT : IRRIGATED AGRICULTURE: PESTICIDE USE
SUMMARY :
Existing law :
1)Establishes the State Water Quality Control Board (SWQCB)
and Regional Water Quality Control Boards (RWQCBs) and
requires the formulation and adoption of state policies for
water quality control; and permits the development of
regional plans as approved by SWRCB. (Water Code Division
7, Chapter 3, 13100 et seq.).
2)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 requirements; the issuance,
modification or revocation of any cease and desist order;
and, seeks judicial enforcement as described. Civil
penalties and fines for a violation of this chapter are
authorized. (Division 7, Chapter 4, 13200 et seq.).
3)Authorizes a RWQCB, in establishing or reviewing any water
quality control plan or waste discharge requirements, or in
connection with any action relating to any plan or
requirement to investigate the quality of any waters of the
state within its region. (13267).
4)Authorizes a RWQCB to require that any person who has
discharged, discharges, or is suspected of having discharged
or discharging, or who proposes to discharge waste within
its region that could affect the quality of waters to
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furnish, under penalty of perjury, technical or monitoring
program reports and provides for related penalties.
(13267, 13268).
5)Authorizes SWQCB and the RWQCBs to waive certain waste
discharge requirements as to a specific discharge or type of
discharge if they make a specified determination. (13269).
6)Authorizes SWQCB and the RWQCBs to waive the monitoring
requirements for discharges that it determines do not pose a
significant threat to water quality. (13269).
7)Requires pesticide use reports be submitted to Department of
Pesticide Regulation (DPR) or County Agriculture
Commissioners (CACs) on a form and manner described by DPR.
(Food and Agriculture Code 12979).
8)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. (12996).
9)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. (California Code of Regulations
(CCR) Title 3, 6000).
10)Requires, prior to purchase and use of pesticides for
production of an agricultural commodity, the operator of the
property or their representative, to obtain an operator
identification number from CAC of each county where pest
control work is to be performed and provide that number to
each pest control business applying pesticides to that
property. (CCR Title 3, 6622).
This bill :
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1)Requires 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.
2)Specifies that as of January 1, 2012, a CAC shall not issue
an 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:
a) Failure to obtain an individual or general waste
discharge requirement.
b) Failure to furnish technical or monitoring program
reports.
c) Failure to enroll in the Irrigated Lands Conditional
Waiver Program or obtain an individual or general waiver
of waste discharge requirements.
3)Requires a CAC to immediately issue an OIN for pesticide use
upon receipt of a certificate of compliance issued by SWRCB
or RWQCB.
4)Prohibits 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.
5)Authorizes a CAC to levy a civil penalty of up to $5,000
against an operator who fraudulently obtains an OIN.
6)Authorizes DPR to adopt regulations, in consultation with
SWRCB and CACs, for implementation of this bill that
minimize disruption of issuing OIN for pesticide use.
7)Requires 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 water quality requirements in #2 above.
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8)Specifies 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.
9)Requires 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)Purpose of Bill . According to the author, AB 2595 would
improve water quality of agricultural discharges by
increasing participation in existing agricultural water
quality programs. Specifically, the bill would require
pesticide use operator identification numbers to be withheld
if the operator was found in violation of required water
quality regulatory programs, after all administrative
appeals had been exhausted.
2)Background . SB 390 (Alpert) Chapter 686, Statutes of 1999,
requires 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 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.
As part of this, 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 (ag waivers) to growers that contain conditions
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requiring water quality monitoring of receiving waters and
corrective actions when impairments are found.
According to the SWRCB, 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 RWQCBs
have adopted comprehensive conditional waivers. The
Colorado River Basin and North Coast RWQCBs have adopted
conditional prohibitions as a total maximum daily load
(TMDL) implementation plan incorporated into their
respective basin plans. The Santa Ana RWQCB 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 their efforts to work with the agricultural
community to protect and improve water quality. RWQCB's 2
(San Francisco Bay) and 6 (Lahontan) 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.
Significant progress has been made to identify and enroll
growers in the four regions that have an ag waiver program
but some areas are still behind. For example, according to
SWRCB, the Central Valley is at 80% enrollment and the
Central Coast is at 90-95% enrollment. In the Central
Valley there are areas of 100% enrollment but also areas
closer to 50-60% enrollment. In the Central Coast, 10% of
the growers are not enrolled. This equates to about 40,000+
acres and an estimated 500-700 growers not complying with
water quality regulatory programs.
Many of the initial years of the program were spent
identifying and enrolling the growers in the program.
According to the author, this delay in enrollment is causing
several problems including: delays in implementing the
program to improve water quality, additional SWRCB and
RWQCBs costs to track down and issue enforcement orders, and
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burdens on those growers that are cooperating and paying
their fees.
3)Pesticide Reporting . Existing law requires that pesticide
use reports be submitted to DPR or a CAC on a form and in a
manner described by DPR. The code also establishes
penalties for violations relating to pesticide statutes, or
any regulations issued pursuant to its provisions.
Regulation 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.
4)Support and Opposition Arguments . Supporters of AB 2595
state that this bill provides 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. Further,
in areas of the state that have yet to implement a
conditional waiver program, this bill would help reduce the
potential costs of initiating the program, increasing the
penalty by limiting an operator's ability to use pesticides
if they are not participating in a conditional waiver
program.
Opponents argue 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 officers for
water quality programs. Also, some counties are under the
purview of 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. Funding is also an
issue and CACs have raised concerns regarding lack of
funding for implementing the program. The Monterey County
Farm Bureau states that it would unfairly target operations
on the Central Coast where individual operators enroll
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directly under an ag waiver unlike other regions where they
can enroll as groups or coalitions.
5)Suggested Amendments . While it is implied, amendments
should be made to clarify that this bill does not transfer,
diminish or otherwise effect the ability and requirement of
SWRCB and the RWQCB's to enforce applicable provisions of
law. Also, it should be clarified that the notice from the
SWRCB or RWQCB to DPR or the CAC to withhold the operator
identification number should not occur until all appeals and
administrative processes have been exhausted.
SOURCE : Assemblymember Huffman
SUPPORT : California Coastkeepers Alliance, Community Water
Center,
Environmental Justice Coalition for Water,
Monterey CoastKeeper
OPPOSITION : California Agricultural Commissioners & Sealers
Association, Monterey County Farm Bureau