cannabis cultivation and the protection of public...

Cannabis Cultivation and the Protection of Public Resources

Presented by: The Central Valley Regional Water Quality Board & The California Department of Fish & Wildlife

PRESENTATION FOR:

FRESNO CANNABIS ASSOCIATION’S

FRESNO CANNABIS & HEMP CONFERENCE

APRIL 26, 2017

Presenters Central Valley Water Board Griffin Perea Senior Engineering Geologist Robert Ditto Environmental Scientist Michael Parker Engineering Geologist

CDFW – Region 1 Tobi Freeny Senior Environmental Scientist Ashley Worth Environmental Scientist

BRIEF PROGRAM BACKGROUND:

May 2013, Butte County Requested Assistance

Summer 2013, Legislators & Governor’s Office

Fall 2013, Formed Working Group

November 2013, Joint BCP for Positions

Technology Development (CIPS)

Comprehensive Strategy

Cannabis Pilot Program Initiated in 2014 Central Valley Water Board

Department of Fish and Wildlife Region 1

North Coast Water Board

PILOT PROGRAM BOUNDARIES

STATEWIDE REGIONAL BOUNDARIES

Protection of Public

Trust Resources

CA State & Regional

Water Boards

CA Department of Food &

Agriculture

CA Department

of Fish & Wildlife

MEDICAL CANNABIS REGULATION & SAFETY ACT (SB 837)

AND

ADULT USE OF MARIJUANA ACT (PROP 64)

IDENTIFYING THE ISSUES

Unauthorized Water Diversions Illicit Grading & Site

Development Activities Improper Storage, Use, and

Disposal of Chemicals, Nutrients, Fertilizers, and Pesticides

Untreated Domestic Wastes Threats to Wildlife Timber Conversion Public Safety

GRADING/ SITE DEVELOPMENT

TIMBER CLEARING/ CONVERSION

POOR ROAD DESIGN

EROSION & SEDIMENT DISCHARGE

IMPROPER STORAGE & DISPOSAL

UNAUTHORIZED DIVERSION & STORAGE

WATER BOARDS’ AUTHORITY: WATER QUALITY & WATER RIGHTS

Sediment-laden storm water runoff from grading activities Unauthorized Water Diversions/Storage

9 REGIONAL WATER BOARDS

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Regulate California’s water quality by:

Setting water quality standards

Issuing waste discharge requirements

Determining compliance with those requirement

Investigating unauthorized discharges to water of the state;

Pursuing enforcement actions, as necessary.

DISCLAIMER

The Water Board Orders do not authorize, endorse, sanction, permit or

approve the cultivation, possession, use, sale or other activities associated with

cannabis. Individuals engaging in cannabis cultivation and other activities

risk prosecution under federal law.

STATE WATER BOARD- DIVISION OF WATER RIGHTS

Regulates California’s surface water rights by:

Issuing permits, licenses,

and registrations regulating water diversions;

Maintaining records including Statements of Water Diversion & Use;

Investigating unauthorized water diversion;

Investigating waste & unreasonable use of water;

Pursuing enforcement actions, as necessary.

PRINCIPLES AND GUIDELINES

Developed by State Water Board in consultation with California Department of Fish and Wildlife

For diversion and use of water for cannabis cultivation in areas where cultivation may have potential to substantially affect instream flows

FISH & GAME CODE §1802 :

CDFW has jurisdiction over the conservation, protection, and management of fish, wildlife, native plants, and habitat necessary for biologically sustainable populations of those species.

CALIFORNIA DEPARTMENT OF FISH & WILDLIFE (CDFW) AUTHORITY

Pacific Fisher

Coho Salmon Foothill Yellow-legged Frog Vernal Pool

CDFW & CANNABIS CULTIVATION

FISH & GAME CODE:

§ 1602 – Requires an entity to notify CDFW for any project

that may substantially divert, obstruct, or alter any any river, stream, or lake; or deposit/dispose of debris or waste into any river, stream or lake.

§ 5650 – Prohibits the deposition of any substance or

material that is deleterious to fish, plant, mammal, or bird life into, or where it may pass into, waters of the state.

§ 5652 – Prohibits the deposition of refuse within, or

where it may pass into waters of the state or within150 feet of the high water mark of waters of the state.

§ 12025 gives CDFW administrative authority to assess

penalties (fines) for violations of the above codes in connection with cultivation of a controlled substance.

FISH & GAME CODE (FGC) SECTION 1602 • FGC §1600 was first enacted in 1960

Persons conducting such operations in existence on the effective date were required to notify the Department before

December 1, 1961 There are no “grandfathered projects”

• In 2004 FGC §1600 became known as §1602 and

wardens no longer issued 1600/Lake or Streambed

Alteration Agreements (LSAAs)

LAKE AND STREAMBED ALTERATION (LSA) PROGRAM

Fish and Game Code section 1602 requires an

entity to notify CDFW prior to commencing any activity that may do one or more of the following:

* Jurisdiction extends to all rivers, streams, or lakes including those that are episodic (dry for a period of time) as well as those that are perennial (water year round).

• Substantially divert or obstruct the natural flow of any river, stream, or lake;

• Substantially change or use any material from the bed, channel, or bank of any river, stream, or lake; or

• Deposit or dispose of debris, waste, or other material containing crumbled, flaked, or ground pavement where it may pass into any river, stream, or lake.

LSA PROGRAM (Continued)

Projects that may require notification and coverage under an LSA include:

• Water Diversions & Impoundments (Dams) • Stream Crossing Construction • Bank Stabilization/Armoring • Gravel Extraction • Riparian Vegetation Management • In-Channel Maintenance Activities

CULTIVATION LICENSING REQUIREMENTS

When applicable, an application for a cultivation license through CDFA will require the applicant to submit copy of either: • A valid LSA Agreement issued by

CDFW

• Written verification from CDFW that an agreement is not needed

Per Business and Professions Code Section 19332.2(f)

every license for cultivation has to comply with FGC §1602.

Adopted in North Coast (Waiver) and Central Valley

Regions (General Order) in 2015.

Enrollment structured into 3 tiers based on water quality threat (size, slope, proximity to watercourses).

Utilize discharge prohibitions, discharge specifications, and best management practices approach.

Monitoring and reporting requirements for sites meeting certain threat thresholds.

Exemptions for small sites (de-minimis threat).

Over 1000 enrollments state-wide and growing.

WASTE DISCHARGE REGULATORY PROGRAMS

The General Order regulates the discharge of wastes from

outdoor or mixed indoor/outdoor cannabis cultivation operations that occupy and/or disturb more than 1,000 square feet.

The General Order does not authorize, endorse, sanction, permit, or approve the cultivation, use, or sale of cannabis.

Provides primacy to local jurisdictions

Central Valley Water Board’s General Order

General Order (Cont.)

Uses Discharge Prohibitions, Discharge Specifications, and Best Management Practices to Reduce and Eliminate Waste Discharges from Medicinal Cannabis Cultivation Activities Discharge Prohibition: Hazardous Waste Discharge Specification: 100’ from surface water Best Management Practices (BMPs) Manual: Erosion and

Sediment Control Measures

Tiers

De minimus: < 1,000 square feet

Tier I (Low Threat): <30% Slopes, <1/4 Acre, AND >200 feet from aquatic life bearing water body

Tier II (Moderate Threat): <30% Slopes, < 1 Acre, AND >200 feet from aquatic life bearing water body

Tier III (Elevated Threat): >30% Slopes, > 1 Acre, OR <200 feet from aquatic life bearing water body

CEQA Compliance

Timberland Conversion Permit from CALFIRE Local Permits (Grading, Building, Cultivation) Biological Site Assessment prepared by a qualified wildlife

biologist Cultural Resources Inventory prepared by a qualified

cultural resources professional Site Management Plan Potential need for other Water Quality Permits from Army

Corps / CDFW / Water Board

Notice of Intent (NOI) & Notice of Applicability (NOA) Cultivator’s/Landowner’s Name, Phone Number,

Address, and the Assessor’s Parcel Number Tier New or Existing Grow (As of October 2nd, 2015) CEQA Compliance Compliance with local ordinances Annual Fee based on Tier/Threat to Water Quality Notice of Applicability

General Order Compliance

Annual Fees Monitoring and Reporting for Tier 2 & 3 Pre Winter Implementation Monitoring Completed by November 1st of each year

Post Winter Effectiveness Monitoring Completed between April 1st and June 15th each year

Submission of Annual Report by July 15th each year Biological Site Assessment and Cultural Resources

Inventory for Tier 2 & 3 Site Management Plan for Tier 3

Greenhouse Amendments Storage and Mixing Area Access Road

Planters Cannabis Cultivation Activities Area

Well Vegetated Buffer

Watering System

TIER 1 OPERATION

< 1/4 acre

Gentle Slopes

>1/4 acre, <1 acre

Gentle Slopes

TIER 2 OPERATION

Combined Area >1 acre

Steeper Slopes

Distance to Watercourse

TIER 3 OPERATION

WATER QUALITY REGULATION ENFORCEMENT AUTHORITY

Cleanup & Abatement Order

Water Code (WC) § 13304

Administrative Civil Liability Complaint

Discharges to waters of the State (WC §13350)

$5,000 per day or $10 per gallon;

Discharges to waters of the U.S. (WC §13385)

– $10,000 per day & $10 per gallon after first

1,000 gallons.

HOW BIG IS THE INDUSTRY?

Quantifying the scope of cultivation through use of the Cannabis Identification and Prioritization System (CIPS).

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CDFW & Water Boards have participated in numerous inspections in Northern CA Counties, including: Shasta, Tehama, Butte, Lassen, Humboldt, Trinity, & Mendocino;

Documented many water rights & water quality violations;

Issued formal enforcement orders requiring site clean up and seeking administrative liability;

Significant voluntary compliance in response to inspections & CAOs;

Substantial increase in Water Rights reporting and applications.

LESSONS LEARNED

Enrollment is improved in counties requiring Regional Board permit.

Great mechanism to promote general compliance. Deadlines have created high influx of applicants

creating a bottle neck in processing due to Water Board staff’s limited resources.

Deadlines for site establishment may create greater environmental problems due to rush for development.

Regional Board needs to work closely with counties and ag commissioners to prioritize and leverage resources.

Yvonne West Senior Staff Counsel, State Water Board, Office of Enforcement

916.322.3626 [email protected]

Daniel Schultz Senior Environmental Scientist State Water Board, Division of Water Rights


Griffin Perea Senior Engineering Geologist & Program Manager Cannabis Regulatory and Enforcement Unit Central Valley Water Board


Tobi Freeny Senior Environmental Scientist (Specialist) Watershed Enforcement Team

California Department of Fish and Wildlife Region 1


Regional Contact Information California Department of Fish and Wildlife –

Region 4, Fresno

559.243.4005 1234 E. Shaw Ave., Fresno, CA 93710

PROGRAM CONTACTS

Central Valley Regional Water Quality Control Board Cannabis Program

For general information regarding the cannabis program and information on the Central Valley Region’s General Order and Notice of Intent, visit: www.waterboards.ca.gov/centralvalley/water_issues/cannabis/index.shtml

State Water Resources Control Board For general information regarding the cannabis program, visit: http://www.waterboards.ca.gov/water_issues/programs/cannabis/

California Department of Fish and Wildlife - Cannabis Program

For general information regarding the cannabis program, visit: www.wildlife.ca.gov/Conservation/Cannabis

California Department of Fish and Wildlife – LSA Program

For general program information and notification forms, visit: www.wildlife.ca.gov/Conservation/LSA

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