Two comment letters submitted to the Humboldt County Planning Commission responding to the proposed Humboldt County Commercial Cultivation of Cannabis for Medical Use Land Use Regulation. The first letter is a coalition letter from EPIC, NEC, SAFE and Humboldt Baykeeper; the second letter is from EPIC only.
October 30, 2015
Dear Planning Commissioners,
This letter is on behalf of the Environmental Protection Information Center (EPIC), Humboldt Baykeeper, Northcoast Environmental Center, and Safe Alternatives for our Forest Environment.
We wish to thank the Board, staff, and the Planning Commission for their attention to this matter. We appreciate the opportunity to participate in the development of the county’s commercial cannabis and use ordinance and believe the open inclusion of multiple voices will ultimately result in an ordinance that will result in higher industry participation and ultimately yield greater conservation success.
Based on our review of the existing regulatory landscape, including the North Coast Regional Water Quality Control Board waiver, new statewide legislation and signing statements, Department of Fish and Wildlife regulations, and current Humboldt County land use regulations, we do not believe the current regulatory regime is sufficient to adequately ensure environmental resources are protected. In developing a land use ordinance, we urge the county to consider the following recommendations:
Place a Cap on Total Number of Operations: We suggest a total cap of operations within the county. We suggest after five years, the county could revisit if and where it could allow new cultivation areas. By limiting the total number of operations, we believe it will provide encouragement for existing operations to come into compliance and will limit the number of legal operations within the county.
Require Water Storage Between May 15 through November 12: Water diversions associated with cannabis production are one of the most pressing environmental issues facing the county. The county’s first draft ordinance proposed a forbearance period from March 1 to October 30. A forbearance period more likely to protect water quality resources should extend from May 15 to November 12.
Discourage “Generator Grows”: Off the grid generator use associated with “mixed light” operations are of great concern. Generators used to power artificial lights produce localized noise, land air pollution—a significant nuisance to neighbors and wildlife—as many off-the grid operations are within the wildland urban interface, and improper fuel storage and/or fuel spills are a threat to water quality. Because of the significant concerns related to so-called “generator grows,” we urge the Board and the Planning Commission to require mixed-light operations be properly contained, connected to the municipal power grid and/or have proof of an adequate supply of alternative energy
No New Cultivation in TPZ: We do not support the further conversion of working forests for commercial agriculture because it threatens our vision of creating a well connected and restored forest ecosystem. That said, we understand that many cannabis cultivators are already on TPZ land. A cursory GIS exercise conducted by our organizations estimates that around 25 percent of cannabis farms are on TPZ land. A successful ordinance should be to bring as many cultivators, including those cultivating on Timber Production Zone (TPZ), who are willing to take immediate action to ensure baseline environmental standards are met into compliance with all applicable laws and stop the further proliferation of cannabis operations on TPZ land by prohibiting new operations.
Discourage and limit Indoor Operations: We are generally opposed to indoor cannabis operations because of the high associated carbon costs. We believe the future of Humboldt’s cannabis economy should be based on sun-grown cannabis. However, given the importance of indoor operations for the cultivation of certain types of medical cannabis, we understand that a full ban on indoor operations is undesirable and that a full ban would likely go ignored, pushing otherwise responsible cultivators to the black market. As a reasonable compromise, we suggest the following responsible additional regulations designed to minimize impacts from indoor operations.
The county ordinance should restrict indoor operations to areas zoned commercial or industrial. By limiting indoor to these areas, we can ensure that prime agricultural land will not be converted to other uses.
The county should require all indoor operations be connected to the municipal power grid and to a municipal water supply with adequate surplus water to support indoor operations. By requiring connection to the grid, the county can limit impacts associated with generators and by requiring connection to a municipal water supply with adequate surplus water, the county can ensure that communities, such as Redway, who already struggle to supply adequate domestic water to their residents, will not add additional users it cannot support.
Lastly, the county should limit the total size of indoor operations to 10,000 sq. ft. in order to reduce carbon impacts associated with individual farms and to promote a small-scale, diversified cannabis industry for the region.
Discourage Water Trucking: Non-potable bulk water delivery has been identified as a major environmental concern. Water trucks increase sedimentation through heavy use and disturbance of dirt roads, contribute to greenhouse gas and other air pollution, and pose a danger to residents traveling on rural roads. A standard trip between Fortuna, the closest location to Southern Humboldt where non-potable bulk water can be purchased for individuals outside of a municipal water district, and Sproul Creek near Garberville, would emit approximately 240 pounds of carbon dioxide for the 70 mile trip. Non-potable water delivery has also been tied in several instances to illegal water diversions as trucks fill directly from streams or fire hydrants under the cover of night. The ease of water delivery also disincentives water storage and proper planning. The county should not allow water deliveries as part of demonstration of proper planning for adequate water storage.
Ensure Adequate Funding: The regulation of cannabis is dependent on adequate funding of inspection and enforcement. While we understand the desire to complete a land use ordinance first to meet the state March 1, 2016 deadline, we urge the county to diligently pursue a separate funding measure so it may be included on the June 2016 ballot for voter approval.
These recommendations reflect the joint policy recommendations of our organizations. Additional and more specific policy recommendations may also be made by our organizations in their individual capacity.
Thank you for your consideration of our comments. We look forward to cannabis farmers being able to come into the regulatory light, legitimizing the craft and custom of North Coast farmers and improving environmental conditions for all.
Should you have any questions or comments, Natalynne DeLapp of EPIC can act as a point person to communicate with the larger group. She may be reached at (707) 822-7711 or Natalynne@wildcalifornia.org
Executive Director, Environmental Protection Information Center (EPIC)
Executive Director, Humboldt Baykeeper
Board President, Northcoast Environmental Center, Executive Director, Safe Alternatives for Our Forest Environment
October 30, 2015
Board of Supervisors’ Chambers
Humboldt County Courthouse
825 5th St.
Eureka CA, 95501
Dear Planning Commissioners,
EPIC appreciates the opportunity to comment. Based on our review of the first draft commercial cannabis land use ordinance, we have the following thoughts and recommendations. These are in addition to and complimentary to those presented the joint recommendations presented by EPIC, the Northcoast Environmental Center, Humboldt Baykeeper, and Safe Alternatives for our Forest Environment. Because county staff is developing an additional alternative or alternatives, most of these comments are not directed towards the particular language of the first draft. Instead, these comments are broadly directed towards what we believe would be included in a successful land use ordinance.
Public Nuisance as an Enforcement Tool:
Public nuisance is an enforcement tool. EPIC appreciates the inclusion of public nuisance as an enforcement tool in the first draft and encourages its inclusion in subsequent drafts. The inclusion of public nuisance as an enforcement tool will allow the county to clean up problem areas swiftly without shifting costs to taxpayers.
Incorporate Elements of the Water Board Waiver:
We believe the County’s ordinance could strengthen water quality protections by requiring cultivators that fall within Tier 1 (operations between 500 and 5,000 square feet of cultivation area, on a less than 35% slope and not within 200’ of a waterway) to produce a plan similar to a Water Resource Protection Plan as defined in Section I.B. #4, 6 & 8 of the Water Board Waiver (Order No. 2015-0023). These elements would serve to improve water quality while imposing little burden on operators.
These elements, and their potential benefit, are described below:
Detailed list of Specific Management Conditions Designed to Meet Standard Conditions: The Water Board waiver contains a list of conditions that all sites must meet. However, only Tier 2 and 3 sites need to develop a plan on how to meet these conditions. We believe it is important that all sites consider how thy will meet these conditions. As with the water use plan, we believe that this “look before you leap” strategy will improve water quality conditions by requiring farmers to consider how they will address erosion control, stream crossings, riparian protection, road construction, spoils storage and disposal, chemical handling and management, waste disposal, irrigation runoff, and water storage and use.
Maintain List of Chemicals on Property: The NCRWQCB waiver does not require Tier 1 operations to maintain a list of chemicals kept on property and a record of their use, as it does for Tiers 2 and 3. All operations larger than 500 feet should be required to maintain such a document. We believe this will reduce pesticide usage on non-cannabis crops/property and reduce risk of cross-contamination of cannabis associated with pesticide drift.
Water Use Plan and Documentation: We believe that a water use plan and documentation is critically important for all operations greater than 500 sq. ft. for multiple reasons. A water use plan requires farmers to “look before they leap.” Pursuant to the Water Board waiver, a water use plan requires cultivators to “describe water conservation measures and document approach to ensure that the quantity and timing of water use.” In doing so, farmers will be able to more realistically predict their anticipated water needs and to plan for conservation measures at the outset. We believe that the inclusion of such planning requirements will result in better watershed conditions and a reduced likelihood of water diversions to supplement or “top off” stored water. Similarly, water use plan would discourage use of expensive and environmentally-costly trucked water by encouraging greater foresight into water sources, application rates, and amount stored. Water use plans would also provide better information on the amount of water actually used in cannabis cultivation on the North Coast and the sources for this water. Per the Water Board waiver, a water use plan “shall record water source, relevant water right documentation, and amount used monthly,” including “alternative sources such as rain catchment and groundwater, and/or hauled water.” With increased information, the county may be able to revise the ordinance in the future to better fit actual conditions on the ground.
Regulations and Stringency of Review Should Correspond with Relative Risks to the Environment:
The stringency of site-specific review—whether conditional use permit, special conditional permit, or zoning clearance certificate—should correspond to the relative risk of the operation. While numerous metrics may influence a farm’s potential risk, the clearest and easiest metric on which to base review of individual operations is based on cultivated areas, the perimeter around disturbed ground. As stated by the Water Board, “Size of cultivation areas is a relevant indicator of threat to water quality because level of threat is proportional to the area of disturbed or exposed soil, the amount of water used, the potential for storm water runoff, and the potential for groundwater impacts.” (Response to Public Comments at 13). It is unclear whether the initial county draft bases its site categories on cultivated area or canopy size. We urge the county to clearly define cultivated area to be consistent with the Water Board waiver: “Cultivation area: the sum of the area(s) of cannabis cultivation and/or operations with similar environmental effects as measured around the perimeter of each discrete cultivation area of a single parcel of land.” (Waiver at 6, n. 9)
We suggested the following tier structure for “Outdoor” and “Mixed Light” cultivation:
|500–5,000 sq. ft.
||Zoning Clearance Certificate
|5,000–10,000 sq. ft.
||Conditional Special Permit
||Conditional Use Permit
We advocate for a graduated system of site-specific review based on the relative risks. This serves two critical purposes.
First, it allows emphasis of greater site-specific attention to operations with greater risk potential. It allows limited staff resources—particularly given the lack of a funding mechanism—be directed more towards operations with greater potential risk. Additionally, it preserves for the Planning Commission review over operations with the greatest risk, those over 10,000 sq. ft., while still allowing site-specific review by the Planning Commission for operations between 5,001-10,000 sq. ft. if staff or neighbors feel that such additional site-specific scrutiny is warranted.
Second, it promotes smaller operations. In our discussions with CCVH, other cannabis advocacy groups, and individual farmers, they have expressed that there is a strong view within the cannabis community that conditional use permits are overly-burdensome. We suggest that requiring a conditional use permit may be an incentive for cultivators to either reduce their operations below 10,000 sq. ft. or to not expand their operations above 10,000 sq. ft.
The current county draft does not provide any incentive for smaller operations. Under the draft county ordinance, a person growing cannabis on 2,001 sq. ft. and a person growing on 43,560 sq. ft. would both need a conditional use permit. If a cultivator would need to go through the hassle and public affair of a conditional use permit, what incentive is there to stay small?
Cannabis Processing Plan
In addition to these size requirements, more stringent review should be given for facilities that process large amounts of cannabis—so-called “trim scenes.” Cannabis processing requires large numbers of workers and the work, unlike outdoor cultivation, stretches into late fall to winter. The increased number of workers and the prolonged season invites greater potential environmental risks not mitigated by the Water Board waiver. Large numbers of workers require sanitation facilities connected to an adequate septic system or sewer system to avoid issues of sewage seepage into groundwater and surface water. Additionally, large numbers of workers can impact sedimentation by the prolonged heavy use of dirt roads, often into the wet weather season.
For all operations larger than 5,001 sq. ft., the amount a “mom and pop” farm can reasonably process without significant hired help, the county should require as a condition a “cannabis processing plan.” This plan would either detail where off-site the farm will take its cannabis to be processed or, if processing on-site, will show that it has adequate facilities (hand washing stations, restrooms connected to adequate septic systems or sewer lines, ventilation and heating) to support workers in a safe environment while not otherwise contributing to environmental risks. .
Discourage Cultivation on Timber Production Zone:
As EPIC wrote in an op-ed in the Eureka Times-Standard:
Forests are important to California. Not only do they provide us humans with jobs, wood products, and recreation, they also provide important habitat for California’s rare and native species, like the Humboldt marten and the northern spotted owl; fight climate change by sequestering carbon; and help to supply clean, cool water. But our forests are at risk. Increased forest fragmentation — the breaking of large intact tracts of forests into smaller clumps — is driven by the desire to make way for new residences or commercial ventures by clearing forest land. And further fragmentation poses a serious threat to the values our forests provide.
To promote the conservation of California’s forested landscape, in 1976 the state ordered counties to identify forestlands where timber management is the “highest and best use of the land” and categorize them as Timber Production Zones or TPZ. By law, use of TPZ land is restricted to timber harvesting and other “compatible uses” — those activities, as defined county-by-county, that do not “detract from the use of the property for, or inhibit, growing and harvesting timber.” In exchange for limiting the uses of TPZ land, and knowing that sustainable timber management is not a “get rich quick” scheme, the state offers TPZ landowners significant breaks on property taxes.
While EPIC is opposed to commercial cannabis production on TPZ, we believe to a large degree that the cat is out of the bag. It exists now and in large numbers. EPIC estimates that approximately 25 percent of cannabis farms in Humboldt County are on TPZ. We do not believe it is likely that banning these operations would actually cause them to leave. (Despite being federally illegal, against state law, and in violation of county zoning codes, many farms have existed on TPZ for decades.) Rather, for existing operations, it is more important to bring them into the regulatory fold. We believe that many operations on TPZ will voluntarily participate in regulatory programs, such as the Water Board waiver, and in doing so, many of the impacts associated with these operations will be minimized or mitigated.
As such, we believe that existing operations on TPZ should be allowed to participate under the same Standard Conditions of Approval as all other specifically enumerated zones in which general agriculture is permitted. New operations, by contrast, should be prohibited on TPZ.
Large Operations Should Be Located on AG Use Districts
EPIC supports the first draft’s requirement that all operations larger than 10,000 sq. ft. be located on “parcels over 5 acres in AG Use districts with Class I or II soils, on slopes of 15% or less, and with documented current water right or other non-diversionary source of water.” These lands are the most appropriate for commercial agriculture and will present the lowest risk for large operations.
Cannabis Land Use Ordinance Should Not Be Used as Vehicle for Other Code Enforcement:
The first draft cannabis land use ordinance requires that “violations of any building or other healthy, safety, or other state or county state, ordinance, or regulation” by abated or cured no later than “one (1) year after the date of the issuance of the clearance or permit.” (§ 55.4.11). We believe that it is inappropriate to use this clearance/permit program to enforce other code issues. While EPIC believes that code enforcement is important and serves environmental values, we are concerned that the inclusion of this provision would discourage participation in this ordinance and other regulations, such as the Water Board waiver. EPIC believes that maximum participation is important to minimize environmental impacts; unnecessary obstacles which keep farmers in the shadows will only cause further environmental harm.
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EPIC is deeply committed to finding solutions that will meaningfully improve environmental conditions by fostering voluntary participation and compliance by the cannabis community. Should you have any questions, please contact me at (707) 822-7711 or Natalynne@wildcalifornia.org.
Additional comment letters:
Click here to read EPIC’s comment letter to California Cannabis Voice Humboldt on July 30, 2015.
Click here to read the Environmental Coalition’s comment letter to California Cannabis Voice Humboldt September 2, 2015.
Click here to read, “Existing North Coast Cultivators Come Into Compliance” September 29, 2015.