Regional Water Board Proposes Rules to Protect Water Quality from Impacts Associated with Marijuana Cultivation

A substantial crowd was on hand May 7 at Eureka’s Wharfinger Building as the North Coast Regional Water Quality Control Board (generally known as the Regional Water Board) held a public workshop at its board meeting to discuss a draft framework for regulating water quality impacts associated with cultivation of marijuana and similar crops. The proposal will be open for public comment through June 8, 2015. If adopted by the Board, as early as its August meeting, the new program could go into effect as soon as the fall of this year.

The proposed program is framed as a waiver of the general requirement that polluters obtain a permit before discharging anything that would impair the beneficial uses of California’s surface waters. Though incomplete, it represents by far the most serious effort yet undertaken by any California state agency to regulate the marijuana industry and its increasing environmental impacts. Indeed, the draft rules strike us as thoughtful and realistic, a good step in the right direction.

That’s not to say that the proposal would not benefit from additional improvements. We would emphasize the need to create incentives to drive cleanups at watershed scales; to discourage additional increases in the number or growth in the size of the mega-grows often associated with the most severe environmental harms; and to bar the use of water-hauling trucks that merely relocate unsustainable water diversions, while damaging road systems and amplifying their already severe sediment discharges.

Even with such amendments, however, the fundamental problem confronting the Regional Board is the same one facing all agencies seeking to control the booming marijuana industry: a lack of enforcement resources. Across the board, we hear that current staffing and budgets would need to increase by an order of magnitude to provide for even basic oversight of the industry under existing environmental law. For example, Department of Fish and Wildlife staff, responsible for writing permits for any alteration of a stream or its bed under section 1600 of the Fish and Game Code, have estimated their North Coast office could write 50 such permits annually – if they did nothing else. A rough estimate suggests there are at least 5000 marijuana grows visible on Google Earth in Humboldt County alone.

The suggestion that the Regional Board could seek to license several thousand grow operations in Humboldt County as soon as possible, as I heard from one member of the board itself, seems in this context not only vastly ambitious and hopelessly unrealistic, but also badly misplaced. Because the majority of current grows across the region won’t qualify for the board’s low-impact template, evaluating the risks and mitigation needs of particular parcels will require staff time and attention be invested in site-specific analysis.

Actually getting the attention, much less the conscientious compliance, of many marijuana growers would appear to require not just passing new rules atop the existing ones already being ignored, but having someone with a badge show up in their driveway. The Board’s desire to lead with outreach and education shows a good faith on its part, but may also reflect a dearth of bitter experience in these instransigent fields.

The framework establishes a set of ‘standard conditions’ – best management practices – that would apply to all grows with more than six plants. Existing operations would be sorted into three tiers. Tier 1 sites are defined as those that don’t divert water from surface sources from May 15 to October 15, are smaller than 2000 ft2, are sited on slopes less than 35%, and are more than 200 ft from a watercourse. These are sites where following the standard conditions should yield minimal impact on water quality.

Tier 2 sites, which don’t meet one or more of the Tier 1 standards, are where existing operations could cause impacts to water quality without at least some changes to the site. Tier 2 operations would be required to create and follow a ‘water resource protection plan.’ Tier 3 sites would be those where application of the standard conditions would not suffice to prevent current impacts to water quality; where some cleanup, restoration, or remediation must be done. For these sites, a ‘cleanup and restoration plan’ would be required. All sites would have to pay registration fees, follow the standard conditions, and would be subject to fines, penalties, or even property liens if they failed to comply.

Growers’ organizations have indicated a willingness to work within the new framework, though they seem to think that the 2000ft2 limit in Tier 1 is much too low. Our suggestion: if growers want permits for larger commercial operations, we should consider granting them – but only in watersheds where all Tier 2 and 3 sites are addressed, or on designated agricultural and industrial lands.

Other improvements we’d like to see in the final draft would include a blanket ban on the use of water trucks; disincentives for Tier 2 and Tier 3 site owners who wilfully fail to comply with the new rules; and a requirement that Tier 1 grows be associated with a homestead that existed before, say, 2014.