[env-trinity] Trinity Journal: State Water Board plans to tackle environmental issues

[Tom Stokely]

http://www.trinityjournal.com/news/marijuana/article_55c9fe04-280c-11e4-a0f9-001a4bcf6878.html
State Water Board plans to tackle environmental issues
By Sally Morris The Trinity Journal | Posted: Wednesday, August 20, 2014 6:00 am
Water quality and supply impacts from marijuana cultivation in Northern California have prompted the State Water Resources Control Board to undertake a pilot project and hire more staff to investigate problem grow sites and develop a regulatory strategy to tackle the environmental issues.
Director of the State Water Resources Control Board’s Office of Enforcement Cris Carrigan from Sacramento shared the details, some of which are still being decided, at a meeting last week with the Trinity County Board of Supervisors in Weaverville.
He said the pilot civil enforcement project grew out of a governor’s drought task force where concerns about illegal drafting and de-watering of streams associated with marijuana cultivation were highlighted. He said the one-year pilot program, approved by the state Legislature and signed by Gov. Jerry Brown, involves a partnership between the State Water Board’s enforcement branch and California Fish and Wildlife Service to engage in enforcement, develop a statewide regulatory program and an educational outreach component “to try to eradicate the environmental damage of marijuana cultivation occurring under Prop. 215,” California’s Compassionate Use Act approved by voters in 1996 to exempt medical marijuana from federal prohibition.
The goal of the pilot enforcement project is to identify and document the needs and within three years develop an ongoing regulatory program paid for through permits issued and penalty fines. Costs and details of the permit scheme are yet to be determined and will be done through a public process.
Regarding the scope of the problem, Carrigan said current marijuana operations are causing enormous harm on both private and public lands where site preparation activities can cause erosion and stream habitat degradation; unlawful water diversions can severely limit the amount of water available to the public and wildlife; and fertilizers/pesticides used at the sites are often mixed in the water source, contaminating streams.
“The State Water Board is a regulatory agency, not law enforcement. We can look at the water quality and supply side, regulate discharge of pollutants and also curb illegal diversions, fining those who refuse to stop, but we’re not really involved in law enforcement operations on public lands,” Carrigan said.
He added the State Water Board also has some funds available to assist in clean up and abatement of problem sites, the Toxic Substances Control Department can remove rodenticides and CalRecycle can remove trash.
“We all have a little money to help with site clean up, but I’m not sure any of us has enough,” he said.
The State Water Board is in the process now of filling 11 new staff positions to implement the pilot program within the North Coast (Humboldt, Mendocino and Trinity counties) and Central Valley regions. Fish and Wildlife is hiring seven additional staff members to help with enforcement efforts as well.
“We believe boots on the ground is the appropriate way to address environmental degradation in these watersheds,” Carrigan said, adding “if people are growing on private land under 215, we want to make sure it’s environmentally sound. If they’re on public land, that’s illegal. No one has a permit to do that.”
Where illegal diversions of water are discovered, the department can issue a cease and desist order against the landowner and fines of up to $1,000 per day that a violation continues. Fines for illegal discharge of sediment or pollutants can be up to $10,000 per day.
Carrigan said investigations will target areas where streams are diminished and large numbers of grow sites are detected.
“None of my guys has a gun or a badge so we have to have property owner consent or warrants and we will rely on local law enforcement for backup,” he said.
He noted recent investigations conducted in a single watershed in Butte County detected that two operators were working only on flat areas far away from streams using water they had a right to extract while three others required a lot of teaching regarding stream setbacks and fuels containment, receiving cleanup and abatement orders to ensure follow up actions are taken.
Carrigan said the last site “was a real problem, causing almost all of the problems in that watershed. There were graded road cuts well in excess of any engineering, a waste pit near the creek, fuel stored in plastic and no right to divert the water they were taking. In that case, a cease and desist order was issued along with clean up and abatement and we are taking civil enforcement action.”
He added, “We don’t think we can really solve the problem just by doing this. Our scheme is to develop a regulatory program and permit plan with targeted enforcement. We want people to enroll, pay a fee and comply with best management practices and then if they violate, we’ll probably give them a one-time pass with a notice of violation to comply or face further enforcement. If they aren’t enrolled, we’ll take immediate enforcement action.”
He estimated there are somewhere between 50,000 and 100,000 people “in the Emerald Triangle who will want to get permits from us. That’s a lot of gardens.”
“We know the problems with marijuana cultivation. Our biggest problem is enforcement and who pays for this, you or the counties? What are you looking for from us?” asked Sup. Judy Pflueger.
Carrigan said there is no expectation for counties to pay and the goal is for permit fees and penalty fines collected from the regulated operators to pay for enforcement.
He acknowledged there will be some impact on local law enforcement, “but we see their involvement as a key component. Interagency communication is critical to our mission. You know where the problems are and where it’s safe to go, but we are not looking for any financial reimbursement for the pilot and we want to become a self-sustaining regulatory program in three years.”
Pflueger commented that issuing permits for cultivation “appears to be getting into legalization.”
“No. We’re not. We’re prohibiting discharge of pollutants, not permitting or sanctioning marijuana grows. Our approach is content neutral, governing pollutants and illegal diversions of water. We will establish a suite of best management practices to ensure setbacks, a ban on rodenticides, identify pesticides you can’t use and make sure you demonstrate a water right. It will be a regulatory program that has conditions and if you meet the conditions, we won’t bother you,” Carrigan said.
Asked how sites will be targeted for state inspection, Carrigan said waste discharge will be the focus.
“There’s a lot of low hanging fruit in that area and if I can’t show there is discharge occurring, it won’t be a priority site for me,” he said, adding grading too close to streams is a common problem, “but the majority of people I’ve engaged with want to do the right thing from an environmental perspective.”
The fact that Trinity County doesn’t have a grading ordinance doesn’t prevent the state from issuing citations where sediment from improper road-building or excavation is being discharged into a stream.
Asked if the state can focus on water theft or illegal sales of water, Carrigan said it is a difficult case to make unless “we happen to catch someone pulling up to streams and filling a tank and even then, you may catch someone for one truck load. It is illegal to sell water from your own property. Under a riparian right, you cannot take the water off the property to use somewhere else.”
He added that getting each grower to demonstrate a water right “is key for us. We want to force this down to the flat, agricultural lands like a big corn field. The problem now is it’s container growing out in the woods because it has to be a secret and that is causing the water and the environmental problems.”
Regarding the education and outreach component, Carrigan said one of the new hires will be completely dedicated to that function, working with various environmental groups, water agencies and grower coalitions “to reach deeper than we can as a quasi-enforcement agency. It is a critical part of our program.”
District 1 Sup.-elect Keith Groves said “if you’re requiring a permit, then you’re requiring someone to admit to unlawful activity. How do you get around that?”
Carrigan said, “It is a difficult tension, but I feel the state of California has no choice. We need to deal with the situation in a responsible way, making the parties that will become regulated the ones to pay and we are looking at ways to make the enrollees anonymous. I think there’s a sense that people want to legitimize the activity and that may be coming. For those that enroll, I’m really going to try and help them comply with responsible environmental practices. For those that don’t and their sites are in perfect compliance, fine, but if not, they’re not going to get a break from me.”
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