Jun 112015

Water regulations aimed at cannabis farmers in the Emerald Triangle could soon find their way to the Central Valley.

Cris Carrigan, director of the State Water Board’s Office of Enforcement, described the agency’s “Cannabis Cultivation Enforcement Initiative” at a January meeting of the North Coast Regional Water Quality Control Board in Santa Rosa. The Regional Water Board is set to adopt an expansive set of regulations in August as an outgrowth of a pilot program approved by the Legislature last year. The regs represent the first shot across the bow in an planned salvo of cannabis-focused enforcement by state agencies, covering everything from water rights to pesticide applications.

Although the State Water Board is leading the pack, Carrigan told the North Coast board that the impetus came straight from the office of Gov. Jerry Brown.

“This is the governor’s proposal,” he said. “Even though it seems like I may be taking ownership of it or the Water Board’s maybe taking ownership of it, this really is the governor’s proposal.” Other state agencies weighing in include the Attorney General’s Office, the California Department of Fish and Wildlife (CDFW), California Department of Forestry and Fire Protection (CAL FIRE), the California Environmental Protection Agency and several Cal-EPA subagencies, including the Department of Pesticide Regulation, Department of Toxic Substances Control, Cal Recycle and the Division of Water Rights.

Assembly Bill 243, which is pending in the Legislature, would direct the Water Board and Fish and Wildlife agencies to “continue their enforcement efforts on a statewide level and permanent status.” However, no funding stream is provided, and cities and counties are authorized to opt out of enforcement.

While the political pressure continues to build in Sacramento, Carrigan has gone on a public outreach blitz with stakeholder groups and local officials. He appeared in December before the Yuba County Board of Supervisors, the odd man out in a room filled with cannabis growers upset about proposed changes to the county ordinance. In March, the same board adopted an outdoor cultivation ban as an urgency ordinance, effectively pulling inspections by state agencies off the table.

So far, the joint CDFW-Water Boards pilot program has received a warmer reception in the Emerald Triangle. Local government officials have been supportive, Carrigan said, and so have “clone shops” and grow shops. The Humboldt County-based Emerald Growers Association and the Ukiah-based Small Farmers Association in Mendocino County have both provided positive feedback.

“We’re finding that there’s a very large segment of the population that’s hungry for this information and wants to engage with us,” he said.

At a May 7 forum held in Eureka, questions ranged from possible interference by the U.S. Department of Justice (cannabis cultivation is illegal under federal law) to whether discharge waivers should be granted only to farmers holding county permits to grow.

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KMUD radio coverage: Draft of requirements for cannabis farmers released by NCRWQCB

Those outreach efforts haven’t reached the Central Valley yet, although an April report to the Legislature says the reported problems there are equally as serious. To date, the pilot program’s reach in the Central Valley is limited to the Redding field office, which serves the region roughly north of Highway 20. The Central Valley Regional Water Quality Control Board hasn’t posted any public notices about proposed regulations, but it invites people to file complaints when water-quality problems are observed.

UPDATE: Cannabis water rules get Fresno hearing.

“Your region is out in the lead on this,” Carrigan told the North Coast board, “along with the Central Valley region who is going to be dragged along behind you a few months behind.”

Hard data on cannabis farming is elusive

The true scope of the problem is difficult to pin down, according to this fact sheet. Cannabis cultivation is “growing exponentially,” it states, but it also says, “No one knows the true scope of the increased growing activity and the related quantity of water being diverted from local streams, because most growers do not register or apply for permits from the various agencies involved in protecting water quality, existing water rights, and wildlife.”

Anecdotal data is much easier to come by. When Sproul Creek ran dry in Humboldt County last year, much of the blame was pinned on water diversions by cannabis growers. (Drought was the other primary suspect.) In January, 14 private property owners in the Eel River watershed received a surprise visit from staff from six state and local agencies, including the Humboldt County Sheriff’s Office.

Although the inspections were billed as voluntary, the task force carried property inspection warrants just in case. Several water-quality and water-rights violations were found, but no plants were eradicated. A PBS film crew and reporter just happened to be on scene.

“For our program to be critical, law enforcement has to agree that there’s a pathway to compliance and civil enforcement in this area,” Carrigan told North Coast board members. Sheriffs in Humboldt, Mendocino and Trinity counties have been supportive of the civil approach, he added.

Yet if the approach seems more civil on paper, the end goal of shutting down or curtailing large-scale cannabis cultivation sites runs roughly parallel to criminal enforcement operations. The Water Board’s Sprout Creek follow-up will be limited to cleanup and abatement orders, Carrigan said, but “there may be some fines and penalties coming out of the inspections” from other agencies including the Division of Water Rights.

“We do want to have enforceable cleanup orders in place for these sites, and that’s basically what holds people’s feet to the fire in terms of timely coming into compliance. We’re going to skip that first step of asking nicely in a lot of cases and just issue a friendly cleanup and abatement order and hope that people can meet the terms and conditions of it.”

New ‘tools’ of cannabis enforcement

The State Water Board’s cannabis initiative has four components, according to Carrigan:

  • Development and enactment of new regulations
  • Education and outreach to the ‘regulated public’
  • Multi-agency coordination, including federal agencies
  • Enforcement, primarily ‘proactive enforcement in impacted watersheds’

So far, the educational component has consisted of public forums, appearances before local governments and distribution of brochures, including a flier aimed at earthwork and paving contractors who may cause damage to streambeds. More materials are posted on the Cannabis Enforcement Unit website. While the new rules are complex, their desired outcomes are straightforward and common-sense.

“Make sure you don’t have sediment discharges. Store your fuels appropriately. Don’t have undersized stream crossings,” Carrigan said. “No recreational bulldozing. It’s a bad term but I will say that it’s all too common of a practice in some of the areas up here.”

Enforcement will be the more difficult task, and the issues are many. Local officials worry that the federal government will view the water board permits as cannabis cultivation licenses, the same mindset that led to a federal subpoena being issued against Mendocino County’s zip-tie inspection program. Water board staff acknowledged at the Eureka meeting that 100-200 inspections would be conducted in the first year of the program in a region that has an estimated 20,000 grow sites. Funding for the pilot program expires this month, so new funding will have to be secured from the Legislature.

The enforcement itself will focus on “compliance assistance,” Carrigan told the North Coast board. Where growers or property owners fail to show good-faith efforts to comply with the regulations and an 18-page list of Best Management Practices, the Regional Water Board can issue a notice of violation and subsequently file a lawsuit of sorts that’s called an administrative civil liability action (ACL). Most ACLs result in settlements after the violations are corrected, but the State Water Board is weighing whether to create new “mandatory minimum penalties” that would apply to cannabis growers specifically.

Questions about compliance with state and local regulations also remain unresolved. Carrigan acknowledged the regulations wouldn’t reach “trespass grows” on public lands, and illicit growers on private lands could simply leave without paying any penalties or doing cleanup.

“What we can do is regulate activities on private land where landowners have an interest in preserving the value of their land, or where business owners want to operate a business successfully,” he said. “If it’s somebody that just wants to trash the land, that doesn’t care about it, and is willing to fly out of country if they’re caught, our model is not going to be an effective model.”

The effectiveness of the regulations in the Central Valley is also subject to question, since many cities and counties ban outdoor cultivation. Fresno County bans all cultivation, both indoors and outdoors, as does the City of Fresno. Such ordinances could limit or block Water Board enforcement in those counties, and potentially worsen environmental impacts.

“The experience from the North Coast county leadership is that that type of a ban generally pushes the activity further out, away and out of sight, into the more pristine areas of the environment,” Carrigan said. “Without the cooperation of the counties that we’ve had in your [North Coast] district, they could just shut down this operation and we could continue to see the kinds of degradation we’re seeing and the proliferation of environmental problems. County land-use regulations and the cannabis regulations in the counties are really important.”

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