Eye gnat ordinance modified

The San Diego County Board of Supervisors approved a modification to the county’s eye gnat ordinance.

Supervisor Bill Horn recused himself since he owns an organic farm; the other four county supervisors all approved the first reading and introduction of the ordinance amendments March 20. A second reading and adoption is scheduled for April 10, in which case the amendments would take effect May 10.

Eye gnats are approximately 1/16 of an inch long and feed on protein from body fluids including the eyes, noses, and mouths of humans and animals. They are native to San Diego County and breed in organically-rich soil. In response to complaints from neighbors of two organic farms (one of those, Bornt Farms, had been leasing land in Jacumba and vacated the site in June 2012), the Board of Supervisors directed county staff to develop an approach to the problem.

County staff from the Department of Environmental Health (DEH) and the Farm and Home Advisor met with a working group consisting of Farm Bureau leaders, organic farmers, community members, and a technical expert. A draft program and ordinance underwent a public comment period which included community meetings, and in March 2012 the county supervisors voted to receive the report on intervention options and directed county staff to complete the California Environmental Quality Act (CEQA) process and return with an implementing ordinance.

The environmental Negative Declaration resulted in modifications to the initial proposal, including the removal of forced pesticide use.

On Dec. 5, the county supervisors approved the second reading and adoption of the eye gnat ordinance, which became effective on Jan.4. The ordinance gave DEH authority over eye gnats as vectors while creating an Eye Gnat Abatement Appeals Board. Abatement is to be implemented in response to complaints with priority for voluntary abatement measures and inspections to verify compliance.

Regulatory orders will be issued if necessary. The “last resort situation” if the nuisance persists despite maximum effort or failure to participate in a voluntary plan or comply with an abatement order will allow the county to restrict the type of crops grown, and abatement measures may be issued without regard to grower costs.

The county will be involved in abatement action only after public nuisance complaints are investigated and DEH finds that a source, alone or in combination with other sources, was the predominant cause of the nuisance. DEH cannot base a conclusion solely on community complaints; direct observations by staff and consideration of collected data are also required.

In the absence of a “last resort situation” DEH may not order a grower to cease organic operations or cease growing particular crops, and initial orders would be limited to those which would be economically feasible for the farmer.

Commercial growers can work with the Farm and Home Advisor to develop and implement a voluntary plan. The voluntary or mandatory abatement measures could include trapping eye gnats, installing barrier fences, and preventing fresh vegetation from being turned into the soil.

When the county supervisors approved the first reading Oct. 31, they also certified the Negative Declaration. The county had authorized an extension of the CEQA statute of limitations to allow for negotiations with Be Wise Ranch in an effort to avoid a lawsuit challenging the ordinance and CEQA process, but negotiations were not originally successful. On Jan. 18, Be Wise Ranch, Inc., and Friends of San Diego Organic Produce filed a suit challenging the ordinance and the Negative Declaration.

On Jan. 24, Be Wise Ranch submitted a settlement offer to County Counsel which was consistent with the guidance County Counsel and DEH had provided as potentially acceptable terms. Subsequent negotiations produced a settlement which amended the ordinance to maintain the integrity of the eye gnat abatement program but provide additional clarification on how the process would work. The Board of Supervisors approved that settlement in closed session on Feb. 5.

Two of the changes modify the definition of “public nuisance” in the County Code. One of those expressly makes “public nuisance” subject to the limitations of the California Health and Safety Code which provides that a mosquito abatement director cannot declare a farming operation to be a public nuisance based on the presence of immature flies if the farmer is using accepted standards and practices for similar operations as determined by the state Department of Public Health, the University of California Cooperative Extension, or a local health officer.

The County Code would also replace “nuisance conditions in the community” with a reference to the California Civil Code section stating “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.”

The changes also elaborate upon the term “predominant cause” to define the predominant cause of a public nuisance as any cause or combination of causes which contribute substantially more to the nuisance’s existence than other causes and which if mitigated would substantially reduce nuisance conditions in the community.

The changes also add a restriction that the DEH director cannot issue an abatement order to a commercial organic grower unless the DEH director finds that the grower was a predominant cause of a public nuisance.

Although those four changes alter the conditions which must be met before the DEH director can issue an abatement order to a commercial organic farm, the current ordinance requires the director to determine that nuisance conditions in a community are predominantly caused by eye gnats leaving a farm and the changes are not expected to affect the eye gnat program since substantially similar conditions were already in place.

Two additional changes cover what the DEH director must consider in deciding what to include in an abatement order. “Reasonable precautionary and protection measures” would become a defined term which would include the use of traps on a resident’s own property if traps and bait were provided by the grower at no charge to the resident.

That term could also include other measures as determined by the director. The director would also be required to consider community participation when determining the scope of an order issued to a commercial organic grower. Under the original ordinance the director was authorized to consider “community acceptance” of abatement measures while the changes require the director to consider the extent to which a community used reasonable abatement measures. The changes do not require property owners to use the free traps.

Two other changes are related to abatement orders. The DEH director would be required to consult with the Farm and Home Advisor before determining whether an abatement order was practicable for and applicable to a particular farm, and any public agency which owns land for which an abatement order was issued (Be Wise, which is in the San Pasqual Valley, leases land from the City of San Diego) could appeal the Eye Gnat Abatement Appeals Board decision to the California Department of Public Health.

Current DEH director Jack Miller has announced his intention to consult with the Farm and Home Advisor prior to any abatement order, so making that mandatory will not affect the program. The other change would result in implementation delays if the City of San Diego opted to appeal the decision.

During 2012, Be Wise Ranch operated under a voluntary plan which significantly reduced both eye gnat counts in monitoring traps and community complaints about eye gnats. In late 2012, Be Wise proposed a voluntary plan for 2013 which would continue implementation measures from the 2012 plan, and under the settlement that plan will be treated as a voluntary response to the ordinance.

The amendments do not alter plans to continue research on additional eye gnat abatement measures.

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