Purpose of Presentation

To provide the Board with projected costs for County implementation of GMO Measure No. 15119, Ordinance to Ban Growing of Some “Genetically-Engineered” (defined) Plants. To describe for the Board some of the unique and potentially significant enforcement challenges the GMO Measure presents.

Purpose of Presentation - Qualifiers 

Cost projections necessarily involve estimation of multiple enforcement factors including, without limitation, cost variables, frequency of enforcement actions and difficulty of interpreting and defending the Ordinance.

◦ Cost projections represent staff’s best efforts to identify cost factors associated with enforcement and to estimate costs as accurately as possible.

Because of the significant and complex estimation variables, I cannot assure ultimate accuracy of the cost projections.

Purpose of Presentation - NOT Advocacy Material 

Presentation is NOT intended to promote approval or rejection of the GMO Measure. Staff is NOT urging voters to vote in a particular manner. Presentation has been approved by State Elections staff as not promoting or opposing the GMO Measure and it is in compliance with ORS 260.432. ADV 14-026

Assumptions and Considerations
Many Variables to Consider

Assumptions/Considerations

The County’s enforcement efforts will be complicated due to undefined terms and vague terminology used within the proposed Ordinance. In order to enforce the proposed Ordinance, the County is going to have to make policy/legal judgments on the various terms that are not defined, increasing the risk of litigation.

Assumptions/Considerations

Example #1, Section 635.10 Jurisdiction states “The circuit court of the State of Oregon shall have jurisdiction for all violations of this Ordinance.” Yet, Section 635.20 of the proposed Ordinance states, “This abatement procedure may be pursued as an alternative to the judicial remedies for a violation of any of the provisions of this Ordinance.”

Assumptions/Considerations

These statements are contradictory and it will be up to the Development Services Department, with the assistance of County Counsel, to determine the meaning of terms and to develop a specific enforcement procedure that is different than Code Enforcement’s current procedures. This will be difficult and costly.

Assumptions/Considerations

Example #2, Section 635.04 purports to exempt educational or scientific institutes (e.g. OSU Extension) provided the “activities are conducted under secure, enclosed indoor laboratory conditions with the utmost precautions to prevent release [of genetic material]. . .” “Utmost precautions” is not defined. Does it require “reasonable” precautions or measures incorporating the most recent technological advancements, or something else?

Assumptions/Considerations

It is not clear that this Ordinance would apply only to the unincorporated areas of Jackson County. ◦ The Jackson County Code Enforcement Division currently has no jurisdiction within incorporated cities. ◦ If this will be a county-wide program, it would be a significant addition of area to cover and would necessitate the addition of more than a full-time staff person.

Assumptions/Considerations
◦ It could create confusion for citizens as Jackson County would enforce for a certain type of violation within a city limits and the city will enforce for all other violations.

Currently the Code Enforcement Division is, for the most part, capable of enforcing the County’s Codified Ordinance regulations (identification of solid waste, abandoned vehicles, illegal construction, etc.) without assistance from outside agencies or utilizing independent contractors.

Assumptions/Considerations

This will not be the case with enforcement of the proposed Ordinance. Jackson County will require assistance carrying out the following tasks related to enforcement: ◦ Identification and testing of plants. Currently there is no place in Oregon that has the ability to test for genetic modification of plants;

Assumptions/Considerations
◦ Abatement. Section 635.11(i) requires the County to ensure that the abatement of the genetically engineered plants is done in a manner that will “minimize genetic contamination or other harm.” The County will need to utilize an independent contractor to ensure that this Section of the Ordinance is met as methods will vary depending upon many factors including, but not limited to, the growth cycle at time of violation, type of crop, and season;

Assumptions/Considerations
◦ Identification of “Utmost Measures” for
educational or scientific institutes (e.g. OSU Extension), or medical researchers, to qualify for the enforcement exemptions set forth in Section 635.04;

◦ Expert witnesses for testimony in Circuit Court
or during Hearings Officer proceedings; and

◦ Utilizing County Counsel more extensively than
is currently the case.

Assumptions/Considerations

Abatement Costs: Currently, the County does not have an abatement program due, in part, to a lack of funding. Abatement is likely to be very expensive and there is no funding within the Development Services’ budget to pay for it. Appeals on Notices of Abatement 635.21(c) Notice of the hearing may also be given to anyone the Hearings Officer determines to be interested.

Assumptions/Considerations
◦ Currently the Hearings Officer does not make a decision on who receives notice. This step will add cost to the hearing, adds potential liability, and is procedurally awkward.

Other Issues
Considerations That Affect the Ability to Determine the Cost of Enforcement

Medical Marijuana

Growing most potent strains of marijuana is now a crime again under newly enacted county ordinances on Kauai and the Big Island. If Maui County follows suit and passes a proposed ordinance modeled on the Kauai law, marijuana growers will be subject to stiff new penalties there as well. The changes are due to the recent enactment of anti-GMO legislation by county councils. In all three anti-GMO bills, “gene doubling” is expressly identified as a form of genetic modification subject to the law.
The Hawai’i Free Press, 12/8/13.

Medical Marijuana

The most potent forms of marijuana are modified by a primitive genetic modification technique which involves soaking the seeds in colchicines – a carcinogenic derivative of crocus bulbs – until the DNA doubles (or even quadruples), which in turn doubles or quadruples the production of THC. This method produces the highest potency marijuana varieties and the seeds commonly sold by online vendors.

The Hawai’i Free Press, 12/8/13.

Residential Grass Seed

Scotts Miracle-Gro is a genetically modified grass seed that has been modified to protect it from being killed by Roundup, the weed killer.

The Columbus Dispatch , 01/31/14

Year One Program Operating Costs Not Including Abatement
*Election Costs Estimate = Program Costs 1 FTE Code Inspector .1 FTE Office Assistant Vehicle (4x4 pickup) Direct Materials and Services Travel and Training Hearings Officer Contract for Testing/Witness County Overhead (chargeback's) Departmental Overhead **Total program costs = 40,000 80,000 7,000 6,500 15,000 1,000 9,400 22,050 32,366 58,927 232,244 12,941 219,302 259,302

Hearing Officer Imposed Fines and Fees
Net program costs = Total Projected First Year Cost =
* Election cost might not be charged out **Assumes current average rate of compliance

Abatement Cost and Recovery Considerations
Considerations That Affect the Ability to Determine the Cost of Enforcement

Abatement Cost Considerations

(i)…the County shall thereafter take all action necessary to ensure that genetically engineered plants are destroyed or removed from Jackson County in a manner that will minimize genetic contamination or other harm.

Jackson County is Responsible for the Initial Cost of Providing for Abatement

While this cost is assumed to be born by the violator, in the case of the Jackson County Ordinance, the Development Services Department initially shall be responsible to pay for the cost of abatement.

“The Board of Commissioners may make the cost a special assessment against the property involved or a personal obligation of the generator.” This language does not appear to give the County a first priority lien and does not appear to authorize a tax on the property.

Recovery of Costs

Sections 635.11(j) and 635.23 allow for recovery of certain costs from violators.
◦ § 635.11(j) allows recovery of “all administrative and abatement costs” if violators are “knowingly and willfully responsible for the violation . . .” ◦ § 635.11(j) also provides that “[c]osts of enforcement shall not be imposed upon any person whose violation is not knowing and willful.” ◦ Definitions of terms (in italics) are not clear. ◦ Cost recovery may be an expensive/difficult process; No guarantee that violator will actually pay. ◦ Clear that some of the costs will not be recoverable.

Ability to Recover Abatement Costs

According to the Jackson County Assessor, large farms with very good farm land have a real market value of about $1,000 an acre. Farm land with average soil is about $500 an acre. Remember that this is highest and best use farm land. These acres are outside the UGB and no future development is very likely to occur. Non farm rural land, say a 5 acre, RR-5 zoned piece of land, has a real market value of around $20,000 an acre.

Ability to Recover Abatement Costs

Examples of developable land inside city limits include Medford with a real market value of about $40,000 to $50,000 per acre, and Ashland is about $80,000 and up per acre. The County does not enforce in the city limits so these are not comparable. Depending on the circumstances, abatement costs will vary. According to information published by Sonoma County in 2005, the California Agricultural Commissioner estimated cost to remove, dispose, and replace the soil of one acre contaminated by GMOs would be approximately $86,915. Other soil treatment options include chemical soil fumigation and heat treatment with an approximate cost of $15,000 per acre.

Ability to Recover Abatement Costs

If the aforementioned cost estimates are realistic for Jackson County in 2014, and assuming a 20 acre abatement, it could cost the County somewhere between approximately $300,000 ($15,000 x 20 acres) to $1,738,900 ($86,915 x 20 acres) to abate. Under the same 20 acre assumption for abatement, this would mean the real market value for 20 acres would be somewhere between $10,000 ($500 x 20 acres) and $20,000 ($1,000 x 20 acres). Even in what would likely be a best case scenario in terms of value, the case of 20 acres of RR-5, the real market value would be around $400,000 ($20,000 x 20 acres).

Ability to Recover Abatement Costs

This could create a deficit for the County with a low likelihood to recover costs in the range of somewhere between $290,000 to $1,338,900 depending on the circumstances required in a 20 acre abatement activity. It is likely that if abatement requires high cost mitigation activities, then Jackson County could not recover the cost incurred to abate the property, even with a special assessment resulting in an actual payment, and it may result in land being foreclosed upon.

Ability to Recover Abatement Costs

The entire Jackson County Code Enforcement budget is currently approximately $538,000.

REMINDER - NOT Advocacy Material 

Presentation is NOT intended to promote approval or rejection of the GMO Measure. Staff is NOT urging voters to vote in a particular manner. Presentation has been approved by State Elections staff as not promoting or opposing the GMO Measure and it is in compliance with ORS 260.432. ADV 14-026

Questions…?