November 4, 2015
Humboldt County Planning & Building Department Attn: Steve Lazar, Senior Planner
3015 H Street
Eureka, CA 95501-4484
RE: Medical Marijuana Land Use Ordinance – Phase IV
Dear Mr. Lazar,
The following comments are offered on behalf of the board, staff, and supporters of Friends of the Eel River. FOER advocates for the protection and restoration of our Wild and Scenic Eel River, with a focus on the fisheries that are the keystone of ecosystem health in our watershed. FOER has been working for years to identify effective solutions to the environmental impacts resulting from the ongoing explosion in commercial marijuana cultivation, nominally for medicinal purposes, in the Eel River watershed.
Over the last several years, the South Fork Eel River, focus of decades of restoration work undertaken at significant public expense, has suffered the loss of several year-classes of coho salmon in tributaries critical to the hope of population recovery as diversions to marijuana gardens continued despite severe drought.1 Not only does each fish killed by dewatered streams amount to a ‘take’ under the Endangered Species Act, these losses threaten to so severely undermine the viability of coho in the region as to constitute ‘jeopardy’ – the highest level of threat under the ESA.
The central causes of the harms to our streams and fisheries come down to people taking too much water out of creeks, and allowing too much dirt, and even poisons, to go into the water. However, the range of operations and practices generating these harms are wide and diverse.
Many small-scale growers operate in a generally reasonable way. Most are likely to be operating in violation of state water law, and to be causing unnecessary environmental harms. But by storing their water and forbearing from dry-season pumping, fixing relatively inconsequential grading, drainage, and road maintenance issues, and following the suite of best management practices outlined in the North Coast Regional Water Quality Control Board’s (Regional Board) waiver, most can reasonably be expected to effectively minimize their watershed impacts. The County should permit such operations, but must effectively regulate them.
Other growers operate at similar scales, but use artificial lights to grow inside houses and other strutures. “Indoor” grows require very large amounts of electric power, incurring substantial, wholly unecessary carbon footprints where fossil fuels are used to produce electricity. Because indoor grows create excellent conditions for plant pests, they are often associated with the use of pesticides and fungicides that have been detected at alarming levels in marijuana products. The county should not permit indoor or ‘mixed light’ grows, with the sole exception of nursery operations. Moreover, allowing indoor operations on TPZ and agricultural zoned parcels, as the County’s current draft provides, is wholly irresponsible under a mitigated negative declaration as the impact of further conversion of resource lands to other uses – and, specifically, the net loss of prime agricultural land – has not been addressed. Nursery operations should be closely regulated, restricted to industrial sites serviced by the electrical grid, and required to fully offset their carbon footprints.
Other operations, generally at larger scales, often involve substantial amounts of unpermitted grading on steep, unsuitable sites; poorly designed road construction and maintenance; inadequate stream crossings; and ponds that have not been properly engineered or appropriately sited. Many such operations need to be removed and remediated to effectively protect public trust values, particularly including clean water.
The county must provide clear means to distinguish the minority of such operations which may be permitted under an effective system of regulation from the majority which should never have been established. Given the county’s long history of feckless land-use regulation, it is particularly important that the county establish straightforward enforcement mechanisms, including the use of common-law nuisance, that can and will be used to shut down thousands of large, damaging operations which cannot be, should not be, or simply are not properly permitted.
At the furthest extreme, but sometimes established in conjunction with the more abusive large-scale operations on private parcels, are very large plantations grown without landowners’ permission, and generally described as “trespass” grows. Trespass grows present the most severe problems associated with pesticides and fertilizers, including the widespread use of rat poisons now rippling through regional ecosystems, causing alarming increases in the mortality of already-threatened predator species like the Pacific fisher and northern spotted owl.2 The county may not permit such operations, of course, but it should actively discourage trespass grows where it can do so.
County regulations must ensure permitted grows at larger scale don’t generate significant environmental impacts. If significant impacts can’t be prevented with a reasonable level of certainty, CEQA requires that the county prepare an Environmental Impact Report (EIR), and consider mitigations capable of reducing impacts to a less than significant level.
However, while controls must be implemented at the level of the individual operation, it is not sufficient merely to insure that no single operation has significant impacts. To insure the cumulative impacts of all permitted operations do not rise to the level of significant impacts, the county must consider how the impacts of similarly situated permitted operations will affect the environmental values at risk, at the scales appropriate to the resources at risk (e.g. at the subwatershed level for imperiled fish runs), given the number and scale of operations contemplated for permitting, and given proposed restrictions to the extent they are certain of enforcement.
All of these different kinds of growers are selling primarily to the black market, and the black market remains the critical driver of land and water abuse by the commercial marijuana industry. While Humboldt County cannot by itself do away with the black market, it can and should build regulations that recognize the threat that continued black market operations pose to its environment, public health, and safety. A regulatory scheme that would allow most current large-scale grows to continue under a pretense of permitting will only fail to protect public health, safety, and the environment less catastrophically than today’s entire absence of regulation.
It is hard to overstate the challenge Humboldt County faces in moving from laissez-faire governance and an anything-goes culture to responsible management and accountable stewardship. Decades of inconsistent enforcement and generations of spirited outlawry mean neither the county nor its citizens have much experience of effective land-use regulation. The Green Rush has attracted thousands of people to the North Coast whose primary interest appears to be making a great deal of money as quickly as possible.
Substantial numbers of Green Rush growers appear to be entirely indifferent to the whole question of legalization and regulation, except as it may affect their ability to sell their product. But the moment is upon us.