FOER Comments on Hum Co Cannabis Ordinance Final EIR

Wednesday, March 28 2018

Humboldt County Board of Supervisors
via email to

Re: Commercial Cannabis Land Use Ordinance and FEIR

Dear Supervisors;

Friends of the Eel River (“FOER”) submits the following comments to supplement our previous comments, particularly with respect to County staff’s proposed alternatives regarding “watershed caps” and restrictions on permitting new commercial operations in watersheds identified as critically important to imperiled fisheries.

As we noted in oral comments to the Board March 18, great weed can be grown almost anywhere in California, often far more cheaply and with many fewer environmental impacts than in Humboldt County. Humboldt’s streams and creeks are, however, the only places where our native coho salmon and steelhead can recover and thrive again.

The proposal to limit permits in identified critical fishery watersheds to existing operations is an important step toward establishing a more sustainable commercial cannabis industry in Humboldt County. However, the implementation of a very similar restriction under the County’s 2015 Medical Marijuana Land Use Ordinance (MMLUO) has left many unresolved questions around whether, and how, the County has in fact limited its permitting to operations that did in fact previously exist.

For such a restriction to be meaningful in the CEQA context as a limit on additional impacts, and for citizens to be able to rely on it as a matter of policy, it must be made enforceable. The Board could do this by including the restriction in its findings. Absent such formal incorporation, the experience of the MMLUO only reinforces our understanding that unenforceable restrictions may, in fact, go unenforced by the County. Bitter experience has taught us that the County only follows the rules it wishes to follow or can be made to follow.

While the move to restrict permits to existing operations in critical fisheries watersheds is important, the number of permits being proposed are still far too high even in the most conservative proposal, which would provide for 3,000 additional permits across the County. Some 1600 of these 3000 permits would be issued in tributaries to the Eel River. Absent the meaningful analysis of cumulative watershed impacts we have repeatedly requested be conducted before additional cultivation permits are issued, it is impossible to support the County’s implicit assertion that watersheds like Salmon Creek and Redwood Creek will be able to support critical public trust resources like clean water and viable fisheries habitat – and avoid take of listed species – with the proposed level of permitting.

Again, we would respectfully emphasize that while it is true that, as County staff write in describing “CCLUO Permit Cap Alternatives,” that “(c)ertain subwatersheds are considered impacted by low streamflows due to high concentrations of cannabis cultivation activities,” (emphasis added) low streamflows are not the sole – or even the most significant – category of cumulative watershed impact relevant to understanding the impacts of commercial cannabis cultivation activities on watersheds and fisheries.

Water diversions and associated low streamflows are an acute impact to be sure, deadly to fisheries in the same way that a heart attack can be deadly to an untreated human. But sediment impacts are a chronic problem, deadly to watersheds and fisheries in the same inexorable way that cancer affects our bodies. And sediment impacts are about an order of magnitude more salient to the survival of fisheries in Eel River tributaries than are water diversions.

That we are still attempting to explain this basic fact reflects on the complete failure of the FEIR to address sediment impacts as an element of cumulative watershed impacts. Because the FEIR fails to adequately characterize baseline conditions, it cannot serve as the basis for meaningful and enforceable measures to reduce impacts which already rise to the level of causing take of listed species.

Nor do these proposed permitting levels reflect careful consideration of the information available to the County about the development of California’s domestic pot market. Issuing a large number of additional permits to operations which have no realistic prospect of competing economically in a market facing massive oversupply and declining prices will neither benefit Humboldt’s economy nor protect our environment. Operations that go bankrupt are unlikely to implement BMPs, but very likely to leave messes in their wake.

The County’s fundamental challenge remains that it does not want to deal with the vast majority of the black market cultivators across its landscape. In a ham-handed effort at misdirection, members of the Board have repeatedly demanded state agencies clean up the mess the County has allowed to develop by failing to effectively regulate land use. But it is the County’s responsibility to establish land uses consistent with California law and to enforce those restrictions.

To date, the County has found it convenient to decline to enforce land use regulations and to reap the benefits of an enormously profitable black market marijuana industry. Unfortunately for the County, it is now very difficult to effect meaningful reductions in the often significant environmental impacts of this industry without shutting down the thousands of operations it has allowed to become established. It is understandable that the County would prefer not to be the bad guy at this moment of economic transition. But California law provides no exceptions for counties that would prefer not to abide.

As part of our most recent comments, submitted on March 18, 2018, we provided a basic summary of a GIS analysis of Redwood Creek, tributary to the South Fork Eel River. This analysis shows a very high level of road density (at least 6 miles of road per square mile), counts miles of road in close proximity to watercourses (riparian roads), counts watercrossings, and provides an preliminary accounting of the magnitude of grading operations in the watershed. Various methods of assessing cumulative watershed effects have been established, reflecting the differing priorities of different kinds of land managers. All will use this kind of data.

For example, the US Forest Service uses a method that combines road mileage and graded area into an Equivalent Roaded Area metric, which it then compares to standards (thresholds) the agency has established to ensure that it will avoid causing irreversible cumulative watershed impacts in any given area by its management actions. (See, e.g., USFS 2000 South Fork Trinity Watershed Analysis at pp. 6-2 et. seq; USFS 2005 Upper Trinity River Watershed Analysis at pp. 38 et. seq.) The County has neither collected nor considered such data, nor sought to establish meaningful thresholds of any sort for watershed impacts.

The Board clearly wishes to provide some degree of security or assurance to smaller cultivators. We understand why the Board would wish to do so. The problem arises when smaller cultivators are exempted from relevant environmental analyses and/or protections, but the County makes no meaningful effort to document, analyze or to mitigate the potentially significant impacts that may be entailed in such operations. Such impacts might be present even with small operations because of their location (e.g. on unstable features) or relatively high-impact access roads.

This is also a problem with the County’s proposal to limit the overall acres covered by permits: simply put, not all acres are remotely comparable in terms of their watershed impacts.

We remain concerned that the County is allowing commercial cannabis cultivation permits to become, effectively, entitlements. At the Board’s March 18 hearing, Planning Director Ford noted that permits will not expire unless licensees refuse to allow annual inspections. It cannot be the case that this Board can bind a future Board in permitting land uses which may in the future be shown to be inconsistent with the requirements of law, or even of wise public policy. The County must retain the authority to reduce, condition, or otherwise modify any permits issued under this ordinance if it is to ensure that public trust resources will be protected.

As we have previously explained in detail, the DEIR is inadequate, must be withdrawn, and must be supplemented; even if it is not, the FEIR must be recirculated. Thank you for your attention to these vexing questions.




Scott Greacen
Conservation Director