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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)
(a) The EGAAB, or hearing officer if elected by the farmer pursuant to Section 64.407(a), shall have the authority to hear appeals of abatement orders issued by the Director to commercial organic farmers as provided in this section.
(b) When an appeal from an abatement order is heard, the EGAAB can determine whether an eye gnat breeding hazard exists and whether any applicable limitations on the issuance and scope of abatement orders set out in section 64.403, 64.404 and 64.405 have been violated. If any of these three legal requirements have not been met, the EGAAB can vacate or modify the order.
(c) When an appeal from an abatement order is heard and the farmer asserts that required abatement measures are not practicable for that farmer's operations, the burden of proof to show impracticability shall be on the farmer.
(d) The EGAAB can consider whether a commercial organic farm is the principal cause of an eye gnat public nuisance in a community, whether the measures required by an abatement order are likely to substantially alleviate that nuisance, whether those measures can be implemented at a reasonable cost, and whether it is reasonable for the farmer to bear any disruptions in farm operations the order would cause, taking into account the degree to which the surrounding community is participating in abatement efforts. The EGAAB cannot vacate or modify an order based on these considerations, but can advise the Director to modify an abatement order based on these considerations, including advising the Director concerning making the order more or less stringent.
(e) The EGAAB may advise the Director to take action to abate other sources of eye gnats it finds are contributing to an eye gnat public nuisance.
(f) Appeals shall be heard in public. Petitions pursuant to subsection (c) of section 64.407 may be heard informally or by teleconference. Advisory opinions in response to such petitions may be provided orally or in writing, on behalf of the Eye Gnat Abatement Appeals Board as a body or by each sitting member of that board individually.
(g) Three members of the EGAAB, including at least one farmer and one community representative, shall constitute a quorum. An action by the EGAAB requires a quorum to be present and except as provided in subsection (f) at least three concurring votes.
(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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