Commercial organic farming operations located on or near an urban-rural interface can in some cases support the development, attraction or harborage of eye gnats in numbers that cause human discomfort in nearby communities. Eye gnats will not breed on all organic farms in numbers that cause human discomfort, but farms with sandy soil conditions that are cultivated and watered can breed high numbers of eye gnats. Eye gnats seek the eye, nose and mouth of humans and pets, and when they are present in large numbers they cause discomfort and can limit the activities of persons living or working nearby. There may be significant related economic harm.
Chapter 2 of this division defines "vector" to include eye gnats, and provides that the Director may exercise state law vector control district powers as to eye gnats except as provided in this chapter 4. This chapter limits and conditions the exercise of Vector Control Program powers as to eye gnats. This chapter does not limit the right of any person affected by an agricultural operation that is a nuisance to seek judicial abatement of that nuisance pursuant to the California Civil Code.
It is recognized that more research related to eye gnats and eye gnat abatement is necessary to identify additional best management practices and abatement measures that are compatible with the operation of organic farms in San Diego County.
(Added by Ord. No. 10240 (N.S.), effective 1-4-13; amended by Ord. No. 10927 (N.S.), effective 1-10-25)
The definitions set out in chapter 2 of this division shall apply to this chapter. In addition:
(a) "Abatable source" means any property that supports the development, attraction or harborage of eye gnats in numbers that cause human discomfort.
(b) "Applicable eye gnat abatement measure" means a validated eye gnat abatement measure that is technically suited to a crop or crops and to conditions and practices at a specific commercial organic farm, and that would reduce eye gnat development, attraction, harborage, or off-farm flight if used at that farm.
(c) "Barrier crop" means plants grown in a specified area for the purpose of intercepting eye gnats, which can be treated with conventional pesticides. (Barrier crops treated with pesticides can be used by farmers on a voluntary basis, but the Director cannot order that they be used.)
(d) "Commercial organic farm" means a farm that grows and sells certified organic products.
(e) "Cultural control method" means any farming practice that is selected at least in part to reduce or prevent eye gnat development, attraction or harborage.
(f) "Department" mean the Department of Environmental Health and Quality.
(g) "Director" means the Director of the County Department of Environmental Health and Quality and any person appointed or hired by the Director to administer and enforce this chapter.
(h) "Eye gnat breeding hazard" means an avoidable or mitigable condition on a commercial organic farm that is likely to contribute to the development of eye gnats in numbers that could contribute to a nuisance in a nearby community.
(i) "Eye gnat source identification testing" means any reliable technical method for determining whether a farm or other property is developing, attracting or harboring eye gnats, and includes but is not limited to emergence trapping on the farm or other suspected sources, grid trapping to determine concentrations of eye gnats in the vicinity of the farm, and the use of trap count patterns to determine whether eye gnat populations are greater closer to the farm or other property than further away.
(j) "Grower" or "farmer" means any person who can direct changes in practices on a commercial organic farm.
(k) "Last resort situation" means a public nuisance as defined in Chapter 4, for which a commercial organic farm alone is a predominant cause, which has not been abated within nine months after the implementation of abatement measures by that farm pursuant to an agreed voluntary plan or abatement order. Where a commercial organic farm is a predominant cause of a public nuisance only in combination with other sources, a last resort situation does not exist until those other sources also take or are ordered to take abatement actions the Director determines are appropriate. Notwithstanding any other provision of this ordinance, the Director may also exercise the last resort powers described in section 64.403 where a farmer fails or refuses to participate in the voluntary plan process or fails or refuses to comply with a previously issued abatement order or approved voluntary plan.
(l) "Predominant cause" of a public nuisance means any cause or combination of causes contributing substantially more to the existence of that nuisance than other causes, which, if mitigated, would substantially reduce nuisance conditions in the community.
(m) "Public nuisance" means conditions that constitute a public nuisance as defined in section 3480 of the California Civil Code, predominantly caused by the development, attraction or harborage of eye gnats on a commercial organic farm and by the migration of eye gnats from that farm.
(n) "Reasonable precautionary and protection measures" means the use of any inexpensive, convenient, and relatively non-invasive practice by an individual property owner to abate eye gnats on that owner's property and shall include the use of abatement traps in good condition and maintained at least once a week in structure and bait by the individual property owner, provided traps and bait are furnished free of charge to such property owner.
(o) "Validated eye gnat abatement measure" includes any farming practice, cultural control measure, or other eye gnat abatement measure that has been reviewed as set out in section 64.405 and determined by the Director to be effective in some organic farming situations. As of September 2015 those measures include proper fertilizer use and irrigation practices, as described on the DEH eye gnat web page. Any subsequently validated measures will also be shown on that page.
"Validated eye gnat abatement measure" also includes the following measures which research and experience had shown to be effective before the County's eye gnat program was adopted:
1. Reduced tilling of fresh or dry organic matter into soils
2. Barrier crops
3. Flight barriers
4. Trapping to intercept eye gnats or to reduce eye gnat numbers
5. Fallow or dry periods
(p) "Voluntary plan" means the written proposal submitted to the Director by an organic farm or other agricultural operation describing the owner's or grower's plan to control eye gnat breeding. The voluntary plan includes any changes requested by the Director and agreed to by the owner or grower.
(Added by Ord. No. 10240 (N.S.), effective 1-4-13; amended by Ord. No. 10257 (N.S.), effective 5-10-13; amended by Ord. No. 10412 (N.S.), effective 2-26-16; amended by Ord. No. 10709 (N.S.), effective 1-15-21; amended by Ord. No. 10927 (N.S.), effective 1-10-25)
The Director may exercise the powers established in chapter 2 of this division except as otherwise provided in this chapter 4. The specifications and limitations set out below are generally applicable to the Director's use of state law vector control district powers and the powers established in chapter 2 to address eye gnats.
(a) The Director may enter into a stipulated order to abate with any person subject to this Chapter.
(b) The Director may not issue any order to abate eye gnats to a commercial organic grower unless the grower has been given a reasonable opportunity to implement the voluntary plan procedures set out in Section 64.404. After written notice to the farmer, who shall have 15 days to respond and a reasonable opportunity to cure the deficiencies specified in the notice, the Director can terminate the voluntary plan process and issue an order to abate if a grower does not participate in that process diligently and in good faith. When issuing that order, the Director shall state the deficiencies in diligence or good faith that were not cured.
(c) A new owner or operator of a commercial organic farming operation is not required to develop a new voluntary plan solely due to the conveyance of the farming operation, but if an approved voluntary plan or abatement order was in place for a specific operation prior to its transfer or sale, the new owner or operator will be subject to the requirements of the prior voluntary plan or order in accordance with this chapter, unless a new plan or order is approved by the Director.
(d) The Director may not issue an order to abate eye gnats to a commercial organic grower unless that grower's operations are a predominant cause of a 'public nuisance' as defined in this chapter.
(e) The Director may not order a commercial organic grower to use any pesticide to abate eye gnats, or to use any abatement measure that would cause the grower to lose certification as an organic grower for the affected field or crop. The Director may not order a commercial organic grower to cease organic farming operations, or to use any abatement measure that is not validated. Except as provided in subsection (h) of this Section, these limitations apply even in last resort situations.
(f) The Director may order a commercial organic grower to implement a flight barrier or trapping measure that the Director has determined would be an applicable and practicable eye gnat abatement measure for that farm even if implementation of that measure would require the use of land on which organic crops could otherwise be grown.
(g) The Director may order a fallow period or non-irrigated period, unless the fallow period or non-irrigated period would prevent a crop from being grown, e.g., by precluding the completion of a crop cycle within the growing season.
(h) Except in a last resort situation, the Director may not order a commercial organic grower to limit or to cease organic production of a particular crop or type of crop. In a last resort situation, if validated eye gnat abatement measures applicable to a crop will not sufficiently abate eye gnat development, attraction or harborage associated with that crop, the Director may issue an order to limit or to cease growing that crop to the extent necessary (in combination with other measures) to abate the nuisance.
(i) Notwithstanding the limitations in this section and in section 64.405, in last resort situations the Director may order the use of eye gnat abatement measures without regard to practicability. The limitations in subsection (d) shall apply.
(j) Except in a last resort situation, the Director may not issue any order to abate eye gnats to a commercial organic grower if a voluntary plan that includes all validated and applicable eye gnat abatement measures has been fully implemented and is being maintained by the grower.
(k) If voluntary measures result in changed conditions such that the presence of nuisance conditions in the community can no longer be verified by County staff, taking available data, direct observations by staff, and evidence provided by the community into account, the Director shall advise the farmer concerning validated and applicable eye gnat control measures that should be used in the subsequent year to prevent the recurrence of a nuisance.
(l) The Director must review any abatement order in November of each year, or otherwise at the end of the eye gnat season, and determine the efficacy of that order and the need for an abatement order in the following year.
(m) This chapter does not limit or condition the authority of the Director to obtain an inspection warrant.
(Added by Ord. No. 10240 (N.S.), effective 1-4-13; amended by Ord. No. 10257 (N.S.), effective 5-10-13; amended by Ord. No. 10927 (N.S.), effective 1-10-25)
Prior to issuing an order to abate to a commercial organic grower, the Director shall provide the grower an opportunity to take effective action voluntarily. The procedures set out below apply.
(a) If the Director receives a substantial number of eye gnat complaints from a community near the farm, the Director shall investigate. The Director shall endeavor to complete this investigation within 30 days. If completion of the investigation is interrupted by seasonal or other factors, the investigation may resume when feasible without requiring new community complaints. The Director shall proceed with the process set out in this section if the investigation:
i. Verifies through eye gnat source identification testing that the farm supports the development, attraction or harborage of eye gnats; and
ii. Verifies through observations by County staff or through evidence provided by community members that nuisance conditions exist in the community; and
iii. Determines through surveillance, eye gnat source identification testing or other testing whether other abatable sources of eye gnats in the area may also be, alone or in combination, a predominant cause of the development, attraction or harborage of eye gnats.
(b) If the conditions in subsection (a) are satisfied, the Director shall promptly contact the farmer, state that action to abate eye gnats is required under state law, and offer assistance to the farmer to undertake such action voluntarily.
(c) The assistance offered shall include consultation with an Eye Gnat Advisor, as detailed in section 64.412 (Eye Gnat Advisor), to assess the eye gnat problem on the farm and to identify eye gnat abatement measures that are likely to be effective and to be practicable for that farm. The Director shall inform the farmer that, if the offer of assistance is accepted, the conclusions and recommendation of the Eye Gnat Advisor will be shared with the Director. The farmer may retain independent scientific experts to consult on preparation of a voluntary plan.
(d) If the farmer agrees to accept assistance from the Eye Gnat Advisor, the farmer shall have such time as specified by the Director, but not fewer than 60 days, to submit a voluntary plan for eye gnat abatement to the Director. The Director may extend the period for submission of this plan if an extension is requested by the Eye Gnat Advisor.
(e) During development of the voluntary plan the grower and Eye Gnat Advisor shall consider and discuss at least the following strategies: the management of weeds and crop residues, the selection of fertilizers, watering practices, soil covers, flight barriers, barrier crops, trapping strategies, fallow periods or non-irrigated periods. The voluntary plan shall address both the prevention of eye gnat breeding and the interception of eye gnats on the farm, and shall include both appropriate cultural control measures and other appropriate control measures.
(f) The voluntary plan must include a combination of validated measures applicable to and practicable for that farm that the Farm and Home Advisor, after consultation with any experts hired by the farmer, determines are likely to significantly reduce eye gnat development and migration from the farm. The plan may include additional eye gnat abatement measures that have not yet been validated. The plan shall include provisions for monitoring the effectiveness of control measures on the farm and in the community. Plans typically should cover a one year period, however, a two-year plan can be submitted to and approved by the Director if the Eye Gnat Advisor advises the Director that the most significant eye gnat abatement measures in that plan will take two or more years to achieve the effects intended.
(g) The Director shall approve the plan as submitted if the Director determines that it is likely to be sufficient to alleviate nuisance conditions in the affected community, or if the Director determines that the plan includes all validated, applicable and practicable measures for that farm. If the Director does not respond to or approve a plan within 45 days of receipt of the plan, the plan shall be deemed to have been approved.
(h) The Director may approve any plan that the Director determines constitutes an appropriate effort for that farm that year.
(i) In the event the Director determines that the voluntary plan submitted will not adequately abate eye gnats, the Director after review with the commercial organic farmer may request modifications to the plan to incorporate additional validated, applicable and practicable measures. The Director shall provide written notice of any requested modification to the farmer. Additions can include requirements to use on-farm and offsite trapping strategies. If the submitted or modified plan includes providing traps and bait free of charge to affected residents, the Director shall inform recent and subsequent complainants that free traps and bait are available from the farmer.
(j) The Director may request that a plan be modified at any time if the plan requires clarification or refinement, or if additional eye gnat abatement measures are validated while that plan is in place, and those measures are determined by the Director to be applicable and practicable for that farm. In addition, the Director may request that the second year of a two year plan be modified if the success of that plan is in jeopardy because significant eye gnat abatement measures in that plan did not perform as anticipated in the first year of the plan.
(k) If a farmer declines to add additional measures to a voluntary plan as requested by the Director, the Director may issue an order to abate, subject to the limitations in section 64.403. The farmer may appeal the order to abate as set out in this chapter.
(l) If the approved voluntary plan is implemented by the farmer on a timely basis and if there is substantial and continuous conformance to that plan, the Director may not issue an order to abate eye gnats to that farmer during the remainder of the calendar year or years in which the plan was implemented. If substantial progress is made by the end of the plan period the Director after consultation with the Eye Gnat Advisor and consideration of any input provided by experts hired by the farmer may approve a voluntary plan for an additional full calendar year. The Director can request modifications to any approved plan at any time to the extent provided in subsection (j) of this section.
(m) Whether to issue an order to abate after the first voluntary plan period (whether one or two years) is in the Director's discretion, subject to the limitations in section 64.403.
(Added by Ord. No. 10240 (N.S.), effective 1-4-13; amended by Ord. No. 10704 (N.S.), effective 1-8-21; amended by Ord. No. 10927 (N.S.), effective 1-10-25)
Procedures for validating abatement measures in addition to the measures listed in Section 64.402(l), and for determining where they are applicable are set out in this section.
(a) Within one month of the effective date of this section, and approximately annually thereafter, the Director shall compile a list of eye gnat abatement measures that are candidates for validation. Candidate measures shall be limited to measures that have been tested for effectiveness under controlled conditions, or that have been observed to be effective by a qualified scientist in a farm or test farm setting. Candidate measures shall include on-farm measures that are compatible with organic farming, measures to address other sources of eye gnat development, and measures to reduce eye gnat populations from all sources within affected communities. The Director shall consider input from the Eye Gnat Advisor, as detailed in section 64.412 (Eye Gnat Advisor) and any input provided by other qualified experts when compiling this list.
(b) The Director shall confer with the Eye Gnat Advisor to determine for each candidate measure whether a scientific peer review process has been completed and supports the conclusion that an abatement measure is effective. If the Director determines that an abatement measure has been peer reviewed and is effective, the Director may validate that measure.
(c) Within three months of the effective date of this section and from time to time thereafter, the Director shall arrange for two or more Professors of Entomology or similarly qualified persons, not employed by the County, to review the effectiveness of candidate measures identified by the Eye Gnat Advisor that have not been validated based on prior peer reviews. Where new information is available concerning the effectiveness of a previously validated eye gnat abatement measure, that information shall also be reviewed. If feasible, this accelerated informal peer review shall be conducted orally through questions posed to a representative of the Eye Gnat Advisor in a forum that the public can observe. If a participating reviewer is unable or unwilling to participate in a public forum, the Director can accept and consider a written review by that Professor of Entomology or similarly qualified person. Any written review shall be made available to the public while it is being considered by the Director.
(d) Based on the advice of the Eye Gnat Advisor and the reviewing Professors of Entomology or similarly qualified persons, the Director shall determine whether specific eye gnat abatement measures are likely to be feasible and effective, and in what circumstances. The Director shall validate only those measures that are sufficiently proven to warrant mandated use in one or more applicable situations. The Director may determine that additional eye gnat abatement measures are suited to implementation by the Vector Control Program or by others on a voluntary basis.
(e) Before issuing an order to abate to a commercial organic farmer, the Director shall determine, in consultation with the Eye Gnat Advisor, which validated eye gnat abatement measures are practicable and applicable to the farm and situation at issue. In making this determination the Director shall consider, in consultation with the Eye Gnat Advisor, whether implementation at that farm is technically feasible or appropriate, whether a noticeable reduction in eye gnats is expected to result, whether costs are disproportionate to the benefits achieved, and other relevant factors. The Director may not require the submission of cost information or financial information by a farmer for consideration in making this determination, but may consider any such information a farmer chooses to submit.
(Added by Ord. No. 10240 (N.S.), effective 1-4-13; amended by Ord. No. 10257 (N.S.), effective 5-10-13; amended by Ord. No. 10704 (N.S.), effective 1-8-21; amended by Ord. No. 10927 (N.S.), effective 1-10-25)
(a) Where eye gnat impacts to a community are jointly caused by a commercial organic farm plus other properties that develop, accumulate or harbor eye gnats, the Director shall consider whether to order the abatement of those other properties. The Director may also expend Vector Control Program funds to abate eye gnats on such properties.
(b) The Director may expend Vector Control Program funds for eye gnat monitoring and abatement measures in or near a community affected by eye gnats from a commercial organic farm, to assist in alleviating an eye gnat nuisance. The Director may not compel any specific property owner to accept the use of abatement measures on that owner's property, unless that property itself supports the development, attraction or harborage of eye gnats. The Director shall consider the overall level of community acceptance of abatement measures deployed within that community and the implementation of reasonable precautionary and protection measures in the community in determining the eye gnat abatement measures which are appropriate to require a commercial organic grower to implement.
(c) The Director may include validated and applicable offsite eye gnat abatement measures in any order to abate eye gnats issued pursuant to this division. A grower ordered to deploy abatement measures offsite cannot be required to deploy such measures on land not owned by the grower, unless off-site property owners consent to that deployment without compensation by the grower.
(d) This chapter does not require the Director to abate or to order the abatement of other eye gnat nuisances in the vicinity of a commercial organic farm prior to requiring action by a commercial organic farmer.
(Added by Ord. No. 10240 (N.S.), effective 1-4-13; amended by Ord. No. 10257 (N.S.), effective 5-10-13; amended by Ord. No. 10927 (N.S.), effective 1-10-25)
(a) Any order to abate eye gnats issued to a commercial organic grower may be appealed within 30 days of its initial issuance, or within 30 days before or after the first anniversary of its initial issuance, but not otherwise. All such appeals shall be heard by the Eye Gnat Abatement Appeals Board established in the chapter, rather than by a hearing officer, unless the grower elects when the appeal is filed or within 14 days thereafter to have the appeal heard by a hearing officer.
(b) An appeal of an abatement order shall only stay those terms of the appealed order that are more stringent than the voluntary plan or abatement order that was in place for the prior calendar year. Except as provided in this chapter, all other aspects of the appeals process are as set out in chapter 2 of this division.
(c) If the Director makes or requests modifications to a voluntary plan pursuant to subsections (i) or (j) of section 64.404 that a farmer believes are not appropriate, the farmer or the Director may petition the Eye Gnat Abatement Appeals Board for an advisory opinion. Petitions must be filed within 10 days. If an abatement order is subsequently issued, the time allowed for an immediate appeal of that abatement order shall be 10 days not 30 days.
(d) Appeals of civil penalties imposed on a commercial organic grower by the Director are governed by chapter 2 of this division, and shall be heard by a hearing officer.
(e) If a governmental agency disputes the need or the method and materials to be used to abate or prevent a public nuisance under this chapter with respect to land that such governmental agency is owner, lessor, or otherwise has a legal interest in, the matter shall be subject to appeal to the State Department of Public Health or his designee within 10 days from the final decision on an appeal to the Eye Gnat Abatement Appeals Board or hearing officer, as applicable; provided that such governmental agency participated in the appeal hearing before the Eye Gnat Abatement Appeals Board or hearing officer, as applicable. A Notice and Order to Abate shall remain stayed during the pendency of an appeal under this subdivision, and if the State Department of Public Health consents to hear the appeal, a Notice and Order to Abate shall be stayed under this subdivision until the issuance of the State Department of Public Health's final decision on the appeal. If the State Department of Public Health determines that it does not have jurisdiction to hear such an appeal, or does not consent within 60 days of the final decision of the Eye Gnat Abatement Appeals Board or hearing officer to hear the appeal, the Notice and Order to Abate shall no longer be stayed.
(Added by Ord. No. 10240 (N.S.), effective 1-4-13; amended by Ord. No. 10257 (N.S.), effective 5-10-13; amended by Ord. No. 10927 (N.S.), effective 1-10-25)
(a) The Board of Supervisors shall appoint five persons to serve on an Eye Gnat Abatement Appeals Board (EGAAB). Nomination and appointments shall be made as set out in the Administrative Code.
(b) The EGAAB shall choose a presiding officer for each appeal hearing or petition hearing that it conducts.
(Added by Ord. No. 10240 (N.S.), effective 1-4-13; amended by Ord. No. 10927 (N.S.), effective 1-10-25)
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