Tuesday, May 9, 2017
Humboldt County Planning & Building Department
Attn: Steve Lazar, Senior Planner
3015 H Street
Eureka, CA 95501-4484
via email to firstname.lastname@example.org
Re: Scoping Comments – Environmental Impact Report for Amendments to Humboldt County Code Regulating Commercial Cannabis Activities
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, until now nominally for medicinal purposes, in the Eel River watershed.
The South Fork Eel River has been the focus of decades of restoration work undertaken at significant public expense. Though already listed under §303(d) of the Clean Water Act for both high temperatures and excess sediment, tributaries of the South Fork Eel River vital to the recovery of coho have been subject to significant diversions even in historic drought, and to unplanned development that often results in significant and continuing increases in fish-killing sediment loads throughout the watershed.
As a consequence, key South Fork tributaries have 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 Because Eel River coho and steelhead, as well as chinook salmon, are listed under the federal Endangered Species Act as a Threatened species, not only does each fish killed by dewatered or dirt-filled streams, and every instance in which salmon and steelhead reproduction is impaired, 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. It is long past time that the County initiated consultation with the National Marine Fisheries Service (NMFS) to insure that jeopardy will be avoided and take limited to the extent possible by Humboldt County’s commercial cannabis industry.
We have repeatedly written to the County on these matters, expressing variations on a theme we have repeated many times in our public statements: the existing marijuana industry in Humboldt County is causing significant, often effectively irreversible, impacts to key public trust resources in the Eel River watershed, especially to the fisheries of coho salmon and steelhead. The rapid rate of increase in the number of new growing operations, and their average size and concomitant impacts, generally shorthanded as the Green Rush, is making these problems worse, and more intractable, every year.
While we strongly support legalization and regulation as the best hope of addressing these impacts, we must continue to insist that regulation which fails to effectively address the overwhelmingly larger black market industry must fail to protect the public trust resources, including clean water and functional fish habitat, for which the county and the state are jointly responsible.
We outlined the nature of the impacts that most concern us in our comments to the Planning Commission in November of 2015:
There can be no question that substantial evidence exists of the significant environmental harms which have accompanied the dramatic expansion of commercial marijuana cultivation, for allegedly medical purposes, in Humboldt County since Proposition 215 provided a defense to growers charged under state law.
These harms include a dramatic increase in sediment loads in creeks which had previously been laboriously restored after decades of abusive industrial logging; streams diminished, and even entirely dewatered, by unpermitted water diversions; and by loss of their habitat, runs of native fish lost to extinction, with potentially catastrophic implications for the recovery of coho salmon and steelhead in the Eel River watershed, among others. Poorly designed and maintained roads, stream crossings, grading sites, and ponds have, are now, and will continue to discharge sediment into tributaries of the Eel River, all of which are already listed by the State Water Board under §303(d) of the Clean Water Act as “impaired” by both sediment and high water temperature.
As well, there is substantial evidence that the use of pesticides and fungicides by commercial marijuana growers has led to the release into the ecosystem of highly toxic substances, including poisons deadly to fish at very low levels, as well as bioaccumulating rodenticides that are causing predator mortality to increase rapidly, and that workers and consumers are being exposed to potentially harmful levels of quite dangerous materials. (Note, for example, that the EPA is now moving to ban the use of chlorpyrifos, a neurotoxin used to kill mites.2 Chlorpyrifos is one many pesticides and fungicides recently detected in tests of concentrated cannabis product sold in Oregon.3) Even the unregulated use of less toxic materials, such as fertilizers, has led to aquatic impacts that could readily prove cumulatively significant under close scrutiny.
These harms rise in some instances to violations not only of the county’s existing ordinances, but of state and federal law, including the Clean Water Act, the Porter- Cologne Water Quality Control Act and the associated Basin Plan; the California Fish and Game Code; and the California and federal Endangered Species Act. Such impacts are without question potentially significant under the California Environmental Quality Act (CEQA).
Unfortunately, the County has responded to our concerns with a combination of empty assurances that state agencies will surely get right on dealing with those issues and its own “regulatory framework,” which appears devised more to insure that the County collects revenue and growers who want to be legal get a permit than to actually limit the watershed impacts of Humboldt’s incredibly lucrative pot industry.
Our fundamental problem appears to be that the County has no guiding vision, no articulable principles which control the construction of our new legal weed industry – other than the industry’s familiar maxim: whatever you can get away with. The question is, does this mean we are looking to state agencies to set the limits? To what the land, and the rivers, and the fish, can bear? Or to the limits of the law? One fact seems indisputable: the black market industry is driving a real estate boom, which is making many of the county’s elected leaders and their supporters quite happy.
The County seems more than reluctant to take any steps that will deter the golden goose from laying all she wants. But the golden goose is crapping in the creek. The real estate boom is just another face of the cumulative effects which are now, today, killing Humboldt’s real treasure – its watersheds, fisheries, wildlife and wild lands.
Thus far, the County’s strategy for dealing with the black market industry has been almost entirely carrots – attempts to guide behavior by incentives and rewards – combined with only a few flimsy enforcement sticks, whose lack of use only reinforces their impotence. We deserve better leadership than this. The basic questions about Humboldt’s commercial cannabis industry are land use issues. It is the County’s responsibility to regulate land use, even if some of its officials would prefer not to.
In our November 2015 comments to the Humboldt County Planning Commission, we noted that:
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. (emphasis added)
The County has not only failed to establish such mechanisms; it has continued to tolerate (and even to create incentives which invite) the establishment of additional new, large, commercial marijuana growing operations across the county, leading inevitably to new and increased environmental impacts.
Optimally, the county would systematically use the contemplated ordinance to shut down and force remediation of the vast majority of the class of large operations that generate disproportionate harms. Such enforcement would itself constitute perhaps the most effective potential mitigation of the environmental impacts generated by the commercial marijuana industry.
But there can be no question that significant environmental harms could – and should – have been prevented if only the county had seen fit to enforce its existing regulations as the Green Rush swept over the Humboldt hills.
In our comments to the Board in December of 2015, we wrote that:
That those operations decline to obtain permits does not allow the County to ignore their impacts in order to determine that operations it does permit will incur no significant watershed impacts. We note here that the County’s practice of ignoring violations of its grading ordinance may have some relationship to the significant sediment inputs that are causing continuing harms to the Eel River and its fisheries.
The environmental and social consequences of a legal pot industry operating at a given scale in Humboldt cannot be meaningfully evaluated in isolation from the key questions about the (still booming, bigger this year than ever) illegal industry, which operates on the same landscape, takes water from the same sources, and puts the same dirt in the same fish habitat as the legal industry – except all at a much larger scale.
Thresholds matter. If the impacts of the illegal industry can be, and are, sharply reduced – as a whole, or at least at a watershed scale, not merely on the level of this or that specific operation – then there may be ‘room’ for the impacts of an enlarged legal industry. But if the illegal industry remains unrestrained, its impacts remain unbearably large, and the addition of even limited impacts, however legal they may be on a per-operation basis, must be considered at least potentially intolerable for watersheds already over thresholds.
For the purposes of CEQA analysis, the county has claimed the benefit of moving operations into legal status, claiming that results in net lower impacts. But if the whole industry is actually evaluated as it actually exists, it is far from clear that the effect of the County’s strategy is actually net lower impacts on the watersheds and fisheries which are the ultimate object of FOER’s concerns. By bringing many of the lower impact operations into legal status, but failing to effectively restrain the still-growing black market sector, which almost certainly generate higher impacts both on average and by their much greater number, we may not have actually reduced the amount of dirt reaching spawning grounds, or increased the number and improved the condition of the young fish that make it out of our watersheds every year. Those are the numbers that matter to us – not how many permits the County has issued, or the fees it has collected.
Evidence of ongoing harms is abundant and readily available to the County.
The most important index of cumulative effects – the increase in the number and size of commercial cannabis operations — is plainly visible over time on Google Earth and other remote sensing data, now widely available. The Department of Fish and Wildlife, FOER and our partners, the Regional Board, and even the Lost Coast Outpost have all conducted similar evaluations of Google Earth and other remote sensing data and reached broadly congruent conclusions about the scale and rate of growth of the marijuana industry in the county.
We must note that all these studies show the Butsic study dramatically underestimates the number of operations in the county. This is because that study chose to randomly sample watersheds to examine. Such a technique is useful and appropriate where impacts can be assumed to be evenly distributed. However, it is very clear that the marijuana industry is not randomly distributed in Humboldt County. Two of the watersheds Butsic et al did not examine – Redwood Creek and Salmon Creek – have long had some of the highest concentrations of operations found in the county. (See Fig 1 below.)
Thus, Butsic’s estimates are not likely to prove useful guides for policy makers. The county should assemble all of the information and analysis available and reach its own conclusions. We note that the Assessor’s office has had remarkable success in identifying structures on Humboldt County parcels when other parts of the county have been unable to do so. Maybe they can help.
In addition, the County should be considering what part Humboldt will play in California’s legal marketplace. The California Growers Association has estimated that the state will need 1100 acres of legal pot production to meet the new recreational demand.4 Assume they’re off by a lot, and that 2000 acres will actually be needed. How many acres has Humboldt County already got in the permitting pipeline? 500? Can Humboldt reasonably expect to have fully a quarter of the whole state’s production in the future? Or are we planning to permit most of the estimated 15,000 outdoor operations in the County? To what market will they be selling? How are they going to compete with places that don’t need to truck in their soil?
1 See, e.g., State Water Board Comments on Sproul Creek Inspection at
2 See EPA Proposes to Revoke Chlorpyrifos Food Residue Tolerances at http://www2.epa.gov/pesticides/epa-proposes-revoke-chlorpyrifos-food-residue-tolerances
3 See A tainted high – Lax state rules, inconsistent lab practices and inaccurate test results put pesticide-laced pot on dispensary shelves at http://www.oregonlive.com/marijuana-legalization/pesticides/
4 “Allen said the industry estimates 1,100 acres of marijuana farms will be needed to meet the state demand.”
See The push to legalize pot for all has deeply divided the medical marijuana community, http://www.latimes.com/politics/la-pol-ca-proposition-64-recreational-pot-opponents-20161004-snap- story.html