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Testimony Regarding Claims Of Farm Impacts

April 30, 2020

Yamhill County Board of Commissioners and Planning Department 525 NE Fourth St McMinnville, Ore. 97128

Dear Commissioners and Planners:

I am submitting written testimony for the public hearing schedule for April 30, 2020 regarding the LUBA remand of Board Order 19-94 (planning docket G-01-18).

I am a board member of the Friends of the Yamhelas Westsider Trail, have submitted testimony previously, and am now presenting additional testimony.

My wife and I have been personally growing and harvesting filberts/hazelnuts in Yamhill County since 1992, on our 60 acre farm. We have also farmed wheat, vetch, oats, hay, Christmas Trees, and ornamental plants, on this farm, or on the farm my wife and I purchased in Washington County in the mid-eighties. My brothers and I recently sold our 160 acre family tree farm, which we co-managed for years.

I would like to address some of the inaccuracies that have surfaced concerning the Yamhelas Trail.

I recently read the statements of some of the farmers that say they will not be able to farm next to the trail.

This is far from the truth. If you farm next to a neighbor, or a road, you can farm next to a trail. There is absolutely NO difference! You must follow/maintain the same procedures/requirements no matter what is adjacent to your farm. You may have to modify a procedure to insure your safety and the safety of your neighbors, but there will be no significant change to farming practices.

Some of the farmers have said that litter and trash from the trail will contaminate hazelnut and blueberry crops. This is hogwash. If this was true all filbert/hazelnut and blueberry crops would be fenced; to keep out "litter and trash". Using their arguments, any crop next to a road would have to be fenced because any construction activity, or person walking/biking next to the crop would "contaminate" the crop. If this is true why aren't all blueberry and filbert crops fenced?! You will have to look long and hard to find one.

I have never felt the need to fence my filbert orchard. In the 28 years that I have farmed Hazelnuts, I have never received any directive telling me to keep my orchard clean or I "would be jeopardizing USDA food certification" But I have been told to insure that I minimize any debris in the nuts that I send to the wholesaler, or I might be charged a "dockage" fee. At any one time, I have elk, deer, bobcat, fox, coyote and bear in my orchard. I don't worry about them, or what they leave behind. I do not go out and sterilize the ground. I do go out and clean up debris each time prior to performing a spraying or mowing operation, or prior to harvesting.

My nuts are harvested after they fall to the ground. We run a sweeper and then a harvester through the orchard, and then take the nuts to the wholesaler. The first thing they do is wash and sterilize/dry the nuts, in the shell.

Litter and trash is picked up throughout the year. The nuts are cleaned and dried at the wholesaler. Contamination/ debris has never been a problem for me.

Another statement that I recently read concerned spraying; it stated that "spraying" of insecticides, fungicides and herbicides could not be performed on crops adjacent to the trail, because of "spray drift". The first thing that should be noted is that it is the ultimate responsibility of the sprayer is to ensure that his spray does not trespass….on anyone's property. When I spray my fields or orchards I cannot tell my neighbors that they cannot work on their property (and I have a neighbors house extremely close to my filbert orchard.) The neighbor could have a picnic on their property line. Or a party…or whatever. If my filbert trees are close enough to a property line that the spray could affect anything that any neighbor is doing, then I simply cannot spray, or I have to modify my usual spraying procedures to ensure that my neighbor, or anyone walking/ biking, etc on adjacent property remains safe. If you drive throughout Yamhill, Washington, or Clackamas County you will notice many filbert orchards come right up to the road, and may be 20 to 50 feet from the road. Many filbert farmers have orchards adjacent to County and State roads. How is that they can maintain safe spraying procedures, and the farmers next to the trail cannot?

For a filbert grower, or any other farmer, to say that he will be irreparably harmed, because his neighbor wants to utilize his own property, and then that grower expects LUBA to shut down the neighbor's use, just so the grower can trespass on the neighboring property, strikes me as totally insane. The chemical labels on the Lorsban and Yuma4E insecticides ( that can be sprayed on filbert orchards) expressly state: "Avoiding spray drift at the application site is the responsibility of the applicator".

The labels don’t say that your neighbor must evacuate the use of his property in order to accommodate the farmer doing the spraying. it makes no difference who the neighbor is, or how the neighbor wants to utilize his property. If Yamhill County wants to build a bridge, and they are working adjacent to the property line, no one can tell them: "sorry I want to trespass on your property, and you can't use it while I trespass".

Another inaccuracy about spraying was the statement that federal "Agricultural Exclusion Zone or AEZ requirements state that all spray applications must be suspended when "any "person comes within 100 feet of the spray operation"… (using Lorsban, Yuma 4E,Gramoxone, Parazon and similarly restrictive chemicals.)

That is not exactly true. Those AEZ requirements apply only to the property and workers of the agricultural enterprise. And per Dale L. Mitchell Pesticides Program Manager, Oregon Department of Agriculture

"OR-OSHA scope of enforcement is specifically directed to the protection of workers and the agricultural operation. While the Oregon WPS AEZ encompasses property beyond the boundaries of the agricultural operation, the enforcement of complaints/concerns or enforcement of the AEZ requirements off of the agricultural operation would be jointly evaluated to determine compliance with OR-OSHA WPS, Oregon Pesticide Control Law (ORS 634) and the Federal Insecticide, Fungicide and Rodenticide Law (FIFRA).

All pesticide applications shall be performed in a manner that do not impact adjacent non-target sites (Roads, Trails, private property. etc. ). As required by the current Oregon AEZ requirements, when performing pesticide application activities adjacent to a public road or trail the applicator must take the following actions for compliance with the AEZ . 1) Suspend, pause the application 2) Evaluate the situation and conditions to determine if you can resume without impacting individuals or adjoining areas 3) Resume the application only you can continue without resulting in impact to individuals or adjoining sites/properties."

It should be noted that the operative word is "suspend", not "completely cease all activities." Evaluate and then resume is the operative function when spraying. Conditions constantly change, and the spray operator must be alert and compensate for any change in circumstances or environment.

By far the most glaring inaccuracy was the statement by Ben Van Dyke that he must use an application rate of "greater than 4 lbs per acre" when he sprays the insecticide Lorsban and/or Yuma 4E with a medium or course nozzle, and thus must maintain a "50 foot buffer from where I spray, " using his power blast sprayer in his filbert orchard.

Lorsban and Yuma 4E have the active ingredient Chlorpyrilos. Chlorpyrilos was outlawed by the EPA this year, but the Trump administration reversed that decision. (Oregon House Bill 4109, which would have outlawed it, failed as a result of the denial of quorum.)

I have never used either of these two chemicals in my orchard; they are just too toxic. Oregon State University Hazelnut Pest Guide lists over a dozen other recommended sprays that can be used in place of Chlorpyrilos. Chemicals that may even do a better job than Chlorpyrilos. Many are much less toxic. And this is why Oregon State Pest Guide ( states: "Rotate pesticides by mode of action (group); do not become reliant on a single group for control". It is only a matter of time before Chlorpyrilos is outlawed. Bio-controls (using beneficial insects to kill pests) are rapidly evolving. (see" Background info" below)

I am not a chemical expert, but my training has taught me that the chemical label is the "Bible". In fact, all "restricted use" chemicals (Lorsban and Yuma 4E, etc) can only be applied as per the label:

Each restricted use chemical label tells the sprayer what crop the spray/chemical is approved to be used on, exactly how much can be used, and in some cases, how many times it can be used.

If we look at the Yuma/Lorsban label we will see that it is approved for filberts, but ONLY 3-4 pounds (3-4 pints) per acre can be applied. If we look at the OSU Hazelnut Pest management guide, we can see that it says the same thing; only 3-4 pounds (3-4 pints) per acre, and……. that Chlorpyrifos can only be applied three times a year. NOTE: 1 pound =16 fluid ounces=1 pint

Now, Ben Van Dyke stated that he was applying Yuma4E/Lorsban at rate "greater than 4 lbs per acre with medium or course" spray. Applying greater than 4, is a violation of Federal law! *

But….. if he applied it at the lower end of the recommended amount (3 pints/pounds), he is only required to have a setback of 10 feet.

If he increases the amount to the maximum allowed by law (4 pints/pounds), he is only required to have a setback of 25 feet.

(See Yuma4E label setback info below:)

Viewing the amount of chemicals required to eliminate the pests it can be seen that a 10 foot setback is all that is really needed.

Another thing to note is that, per label, Chlorpyrifos spray is not allowed at the end of the rows: i.e. the applicator must only power blast spray into the orchard. Outward pointing nozzles MUST be shut off, per label (see Yuma4E label excerpts below).

One option to mitigate overspray on a neighbors property has an applicator shutting off his outward pointing nozzles, and then starting his spaying paralleling the rail right of way, and using the 20-50 plus feet of vacant area that is at the end of each orchard row ( There must be a vacant area on all edges of a field, allowing equipment to turn corners) Then no spray would enter the Yamhelas right-of-way, but would be blasted into the center of the orchard. The balance of the orchard could be sprayed normally. It would only take a few minutes to spray the edge of the orchard with all the outward nozzles shut off. When I spray the edges of my orchard, no matter what chemical I use, I always shut off my outward pointing nozzles. It is a simple way of keeping your spray on your property.

Another option, if the wind isn't cooperating or a toxic spray must be used; shut down the trail while the edges are being sprayed. Other trails shut down while a pesticide will be sprayed. We could make it quicker and easier by just spraying the first 100 feet adjacent to the ROW, and go over to the next two rows and do the next 100 feet. It might add 15 to 30 minutes to the total spray time to do an orchard. An inconvenience, but not a game stopper. The farmer can coordinate with the County. We know when we should be able to spray, and there are excellent aps with wind forecasts, which is what most farmers use.

Over the years at least four people have been killed riding bikes on Highway 47. This trail will eliminate that problem and become a tremendous asset for the Yamhill Valley, and its environs. It will be especially beneficial to the towns of Yamhill and Carlton; allowing the safe passage of children to and from the schools. There is no reason why this trail cannot be built. The trail will pose no significant change to farming practices. Everyone can be accommodated if we work together, and make a few changes. Yes, there will be a few inconveniences, but there is no reason to not develop the trail because we will be inconvenienced.

Thank you,

Stephen J. Wick 29250 NW Olson Rd Gaston, Oregon 97119

*Mr. Van Dyke later amended his testimony to say he does not apply more than 4 lbs per acre


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