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Home My WebLink AboutMINUTES - 02272007 - C.95 is TO: BOARD OF SUPERVISORS Contra FROM: Edward P. Meyer,Agricultural Commissioner, Costa Director of Weights and Measures x,_ e _ ; DATE: February 27,2007 County SUBJECT: Correspondence with Department of Pesticide Regulations and Mount Diablo Audubon Society SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATION(S): ACKNOWLEDGE Correspondence from Chief Counsel for the California Department of Pesticide Regulations to the County Agricultural Commissioner regarding the state's preemption of the local regulation of pesticides. ACKNOWLEDGE Correspondence from the County Agricultural Commissioner to the Mount Diablo Audubon Society in response to their letter to the Board,dated January 23, 2007, regarding illegal use of poison bait for ground squirrel control at Roddy Ranch Golf Course. FISCAL IMPACT: None BACKGROUND: A letter addressed to the County Board of Supervisors,Antioch Mayor and City Council was sent by the Mount Diablo Audubon Society on January 23,2007.The letter alleged the illegal use of poison bait for ground squirrel control at Roddy Ranch Golf Course and noncompliance with a land use permit condition intended to protect endangered or threatened species. The County Department of Agriculture was copied on the letter to the Board and has investigated the alleged illegal use of poison bait.The investigation found that the application was performed in compliance with the label and in compliance with the Endangered Species Bulletin that was issued for Contra Costa County. The Endangered Species Bulletin was developed through a review process involving the U.S. Fish and Wildlife Service,California Fish and Game and the California Department of Pesticide Regulations to establish restrictions and guidelines for pesticide use in Endangered Species habitat areas. It has been approved by all three agencies. The condition on the land use permit prohibiting the use of rodenticides is preempted by the state and is considered void and of no force or effect. CONTINUED ON ATTACHMENT: —,:frES SIGNATURE: ffILCOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE ✓APPROVE OTHER SIGNATURE(S): --------------------------- - -------- ------------------------------------------------------------- ------------------------------ ACTION OF BOARD ON APPROVE AS RECOMMENDED _ OT R VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN UNANIMOUS(ABSENT 1j41Xe_-- ) AND ENTERED ON THE MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE AYES: NOES: SHOWN. ABSENT: ABSTAIN: ATTESTED �l CONTACT: JOHN CULL,CLERK OF THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR CC: County Administrator's Office BY EPUTY , 1 Department of AgricultureP. Meyer Contra Agrculu al Commissioner 2366 A Stanwell Circle Director of Weights and Measures Concord, California 94520-4807 Costa (925) 646-5250 CosJ FAX (925) 646-5732 County Branch Office County Knightsen Farm Center Delta Road @ Second Street P.O. Box 241 `f { Knightsen, CA 94548 _ (925) 427-8610 FAX (925) 427-8612 ;��`: ST'r COi1A� February 15, 2007 Jimm Edgar,President Mt. Diablo Audubon Society P. O. Box 53 Walnut Creek,CA 94597-0053 Re: Letter regarding use of poison bait for ground squirrel control at Roddy Ranch Golf Course On January 23r`'you faxed a letter to my office that was addressed to the County Board of Supervisors, Antioch Mayor and Antioch City Council regarding the allegations of illegal use of poison bait for ground squirrel control at Roddy Ranch Golf Course. The County Department of Agriculture serves as the local enforcement arm for the California Department of Pesticide Regulation, which is part of the California Environmental Protection Agency. As a result of your letter, we have investigated the incident for compliance with applicable Federal and State laws in regard to the legal use of pesticides. Our investigation focused on two primary issues: 1. Was a ban on the use of rodenticides that was included in a Land Use Permit issued by the County, enforceable? 2. Was the application, including timing and method, performed properly according to the label and were existing Endangered Species guidelines-for applications in habitat areas followed? ISSUE# 1 The California Food and Agricultural Code Section 11501.1 (a) addresses the first primary issue over the enforceability of provisions of a Land Use Permit that prohibit the use of rodenticides. This code section states: "This division and Division 7 (commencing with Section 12501) are of statewide concern and occupy the whole field of regulation regarding the registration, sale, transportation, or use of pesticides to the exclusion of all local regulation. Except as otherwise specifically provided in this code, no ordinance or regulation of local government, including,but not limited to, an action by local governmental agency or department, a county board of supervisors or a city council, or a local regulation adopted by the use of an initiative measure,may prohibit or in any way attempt to regulate any matter relating to the registration, sale, transportation, or use of pesticides, and any of these ordinances, laws, or regulations are void and of no force or effect. " Our Department is charged with enforcement of regulations within the Food and Agricultural code. As a result of your letter pointing out the provision of the Roddy` Ranch Golf Course Land Use Permit banning the use of rodenticides, we consulted with the Department of Pesticide Regulation to determine if this condition of approval was enforceable. Their counsel has indicated that it is not. As a further explanation, the State Legislature has recognized that the regulation of pesticides is of statewide concern. They wanted to ensure that the regulation of pesticides is consistent through out the State and based on science. They also wanted to ensure that .11 the system is not confusing for industry to deal with. Pest Control Operators,Pest Control Advisors, and growers operate in numerous counties and cities throughout the State. Pest control businesses and advisors are required to register with my office before performing pest control work anywhere in the county. Even if not using restricted materials,growers are required to get a grower ID number issued by my office in order to purchase agricultural formulations of pesticides. The system is set up to ensure that any local conditions and issues regarding pesticide use can be obtained by visiting the County Department of Agriculture in the county where the individual is working. The obvious concern is that if individual businesses are suddenly required to check with a variety of local government entities or review land use permits to determine what local restrictions may exist, that the regulatory system would be weakened and made confusing. The pesticide regulatory system in California evaluates the conditions under which a pesticide may be,used. Public and applicator safety as well as environmental impacts have been considered in the process. As the County Agricultural Commissioner, I have full authority to condition Restricted Materials that require me to issue'a permit for use. However,most materials are not restricted and just like any other local government entity; I have no authority to condition their use. I would need to petition the State for authority to condition use of a non-restricted material and in doing so, I would have to document that a condition exists locally that makes us unique when compared with other areas. The bait used at the Roddy Ranch Golf Course was a non-restricted material. The applicator is required by the Federal Insecticide,Fungicide&Rodenticide Act as well as California Law promulgated from the Act to follow all label requirements and restrictions that our Department is charged to enforce. ISSUE#2 As a result of your letter,Biologists from my office visited the Roddy Ranch Golf Course,looked at the sites where treatment had occurred and questioned the applicator about the procedures and techniques that were used. They also contacted Mr. Fickett to compare descriptions of the application. The findings, as a result of the investigation, are that the poison grain was used properly in accordance with the label and that the application followed the Endangered Species Bulletin guidelines for Contra Costa County. Endangered Species Bulletins for each county have been adopted and approved by the U.S. Fish and Wildlife Service, California Fish and Game and the California Department of Pesticide Regulations. The Endangered Species Bulletin for Contra Costa County establishes the conditions for the use of rodenticide bait in habitat areas such as that of the San Joaquin Kit Fox. The Bulletin for our County went through a thorough review process and California Fish and Game worked closely on its development. US Fish and Wildlife gave a ruling on the rodenticide portion of the bulletin of"Not likely to adversely effect". This ruling was described to me as the agency's "gold standard", as it is the highest level of concurrence by the Fish and Wildlife Service. Your description of the application in your letter tends to verify that the golf course employees followed proper methods in using the poison bait. Your letter states "When asked why they were spreading the grain broadly and not placing it in squirrel,dens he. indicated that `the County Ag folks told them to spread it widely'." We do recommend that the applicator scatter the bait widely and although it wouldn't technically be a label violation, we would view any application placing grain in ground squirrel burrows as a poor application..Ground squirrels will forage for grain scattered on the ground rather than feed on bait placed in their burrows. They have a tendency to clear the entrance to their burrows; this activity essentially buries the bait around their burrow opening if bait were placed in the burrow. In most cases we would prefer the grain to be lightly scattered over an area rather than to place the grain in bait stations. The bait used has a low toxicity to most birds and is rolled and dyed so that it isn't attractive to them. Lightly scattered, non-targets aren't able to consume enough grain to be poisoned.The treated bait is formulated at such low concentrations that ground squirrels need to feed on the bait numerous times over a 5 day period in order to obtain control. Studies have shown that there is more chance for killing a non-target species when bait is concentrated in one location rather than scattering it. Studies have also shown that the ground squirrels themselves will carry higher concentrations of the rodenticide in their system and as a result present a greater threat for secondary kill if allowed to gorge themselves from a pile rather than when they are forced to forage for scattered grain. Our investigation also looked at the timing and conditions for the application. We generally do not recommend poison grain applications in the winter due to the availability of other feed and the inactivity of the ground squirrels. So being notified of an application occurring in January was a concern. However, our Biologists found that the ground squirrels were very active in the area and that the treatment sites had little or no available feed due to a lack of rain and also due to a fire that had occurred adjoining certain areas next to the golf course. An examination of the application site found no remaining bait, indicating active feeding by the squirrels. Since the application was stopped after the first treatment due to Mr. Fickett's complaint, the treatment did not control the ground squirrels. Our Department has a policy of going over the Endangered Species Bulletins and the conditions for use of pesticides when meeting with property owners located within Endangered Species Habitat Areas. When questioned, the employees applying the rodenticide clearly knew procedures outlined in the Endangered Species Bulletin, including daily survey and removal of any squirrels that are found^above ground (although most will remain in their burrows). There was no evidence of any violation occurring. My office would be happy to meet with you to provide more details about our pesticide enforcement program or ground squirrel control program. I can berreached in our Concord Office at 646-5250. Sincerely, Ed Meyer Contra Costa County Agricultural Commissioner/ Director of Weights and Measures cc: County Board of Supervisors John Cullen, County Administrator Antioch City Council Donald Freitas,Mayor of Antioch Jerome Campbell, Assistant Director California Department of Pesticide Regulations dor Department of Pesticide Regulation Mary-Ann Warmerdam Amold Schwarzenegger Director Governor February 13,2007 - Edward P.Meyer Contra Costa County Commissioner/Sealer 2366"A"Stanwell Circle Concord,CA 94520 Dear Mr. Meyer: I have reviewed conditions number 42 and 51 in the Contra.Costa County land use permit issued in October 1998 in connection with the development of Roddy Ranch golf course that prohibit the use of rodenticides and herbicides in the project area. These restrictions on the use of pesticides on private land constitute the local regulation of pesticides that is expressly preempted by the state. The relevant law is Food&Agricultural Code section 11501.1 which reads in relevant part as follows: " . . . no ordinance or regulation of local government, including,but not limited to, an action by a local government agency or department, a county board of supervisors or a city council,or a local,regulation adopted by the use of an initiative measure,may prohibit or in any way attempt to regulate any matter relating to the registration, sale, transportation,or use of pesticides, and any of these ordinances, laws, or regulations are void and of no force or effect." The restrictions in the permit would be considered,in the words of the statute, an action by a local government agency to prohibit ox attempt to regulate the use of pesticides. While the golf course may voluntarily agree not use rodenticides and herbicides, any action to enforce the permit would likely be successfully defended on the basis of this code section. I hope this is of some assistance in resolving at least some of the issues surrounding this matter. Sincerely, Polly Frenkel Chief Counsel (916) 324-2666 10011 Street • P.O.Box 4015 • Sacramento,Califomia 95812-4015 • www.cdpr.ca.gov 1 A Department of the California Environmental Protection Agency