Water Board Seeks Increased Enrollment in Permitting Program

When a longtime Southern Humboldt marijuana grower got a letter from the North Coast Regional Water Quality Control Board last month, it’s safe to he was a tad alarmed.
The letter, sent via certified mail, said that the grower needs to enroll in a permitting program launched last year that’s intended to protect water quality from the impacts of marijuana cultivation. Dated June 21, it gave him 35 days — in other words, until July 26, or next Tuesday — to enroll in the program or contact the water board and provide evidence that he’s taking steps toward enrollment. Continuing to do nothing, the letter warned, could result in a financial penalty of up to $1,000 a day.
“It was a fear tactic letter,” the grower asserted with some resentment. “It put the fear in me.”
The grower, who asked that his name not be used, was speaking during a break in a public meeting that took place Saturday at the Beginnings Octagon in Briceland. The gathering, aimed at providing growers with information about the water board program as well as other permitting programs, such as one based on the county’s medical marijuana land use ordinance passed earlier this year, drew a crowd of approximately 75 people.
The meeting came 11 days after the water board hosted an “enrollment clinic” at the Redwood Playhouse in Garberville. Some 50 people reportedly turned out for the workshop, held to assist growers with signing up for the permitting program.
Speaking a couple of days before Saturday’s meeting, Matt St. John, executive director of the regional board, pointed out that growers were given six months — from Aug. 15 of last year to Feb. 15 of this year — to enroll in the program, which applies to the entire North Coast region. The region encompasses the relatively narrow but long swath of land running from Sonoma County north of the Russian River to the Oregon border.
“The enrollment deadline is past, so technically we could take enforcement action” against those who haven’t signed up, St. John said. Instead, he added, “we’re issuing letters.”
The letters, from 200 to 250 in all, were sent out based on aerial imagery of two sub-watersheds known to contain large numbers of grow sites: The lower east branch of the South Fork of the Eel, located in the vicinity of Benbow; and Chemise Creek hear Harris, which is up Alderpoint Road north of Laytonville — in other words, near the fabled “Emerald Triangle,” the place where Humboldt, Mendocino and Trinity counties meet.
“We picked priority watersheds,” explained Adona White, a water resources control engineer with the water board who was on hand for Saturday’s meeting. Through “aerial imagery mapping, we identified parcels where it appears we may have opportunities that trigger enrollment.”
St. John, who said that more letters would be sent out to growers in other watersheds, added: “We’re picking watersheds based on the known intensity of grow operations and the threat to water quality and species.”
“We’re prodding people in a systematic way,” he went on. “We know there are a lot more grows out there than are currently enrolled in the program. So a lot more work needs to be done.”
As of July 8, a total of 481 growers had enrolled in the program, including 338 from Humboldt. While St. John called that “a good start,” he noted that 500 cannabis operations amounts to just 1 percent of the estimated number in the region.
“So it’s a pretty small level of compliance. But we need to start somewhere.”
“I’m confident that over time [people] will see the benefits of being in compliance with the program,” he added.
Speaking of the program, enrollment is required if a grower has 2,000 square feet or more of cannabis under cultivation.
“If people [have] less than 2,000 square feet and no threats to water quality, then they don’t need to enroll,” White explained in an interview last week. She said that a cannabis cultivation less than 2,000 square feet in size would only need to be enrolled if it posed a significant threat to water quality.
The program places growers in one of three “tiers” based on the size of the operation and the threat posed to water quality. Tier 1 applies to gardens up to 5,000 square feet in size that pose a low risk based on certain physical characteristics, such as steepness and proximity to surface water. The annual fee for those in this tier is $1,000.
Tier 2 operations are simply those that do not meet Tier 1 requirements, perhaps because they are too large or are located on steep ground or are unduly close to streams.
Because their operations present a higher threat to water quality and water resources, Tier 2 growers are required to prepare a water resource protection plan within 180 days of enrollment. The plan needs to detail water use, erosion control and practices to stop fertilizer runoff from reaching watercourses. The annual fee for those in this category is $2,500.
“It’s a management tier,” St. John explained. “In addition to meeting basic water quality requirements, [Tier 2 growers] need to tailor an approach that’s specific to their site.”
An operation is classified as Tier 2* if the cultivated area is less than 10,000 square feet and if “enrollees have fully implemented a water resource protection plan, meet the standard conditions and are determined by regional water board staff or an approved third party to pose a low threat to water quality,” as a handout that was available at Saturday’s meeting explained it. The annual fee for those in Tier 2* is $1,000.
As for Tier 3, St. John called it “a cleanup tier [meant for grow operations where] there’s environmental damage that needs to be cleaned up.”
The types of damage that would place a grow operation in Tier 3 include filled watercourses or wetlands and steep-cut slopes and roads that cannot be stabilized to prevent erosion directly into waterways.
St. John said Tier 3 is reserved for properties where things were done “without proper engineering design, so you’ve got roads blowing out or roads crossing streams and putting culverts at risk of plugging up.”
To bring an operation into compliance, growers in Tier 3 need to hire a qualified civil engineer or geologist to prepare a cleanup and restoration plan. The annual fee for those in Tier 3 is $10,000.
Besides the annual fees, growers in all the categories will be subject to financial penalties if they fail to enroll in the program or fail to adhere to the new requirements.
Based on enrollment figures so far, most growers fall in Tier 2. In Humboldt County, 310 grow operations are classified as Tier 2, compared to 28 in Tier 1 and just two in Tier 3.
As for the June 21 letter that was sent out to growers in those two watersheds, White said: “We’ve been getting responses and consultants are getting contacted. Generally, people want to know what the problems are and want to have a plan to fix them.”
Not surprisingly, cannabis farmers have expressed concern about how much getting legal is going to cost them. “If it’s a complicated site with problems, it can be expensive,” White warned.
She said that cleaning up a site with “typical” problems could range from $30,000 to $100,000 over a three-year period.
“We want to get things fixed in one to three years and no more than five years,” she added. An exception would be a site burdened with “a legacy feature, like big gullying from logging in the 1950s.” In that case, she said, a grower “might be given up to 10 years” to have a cleanup done.
During Saturday’s meeting, White stressed a number of things to the crowd of pot growers, or cannabis farmers as some prefer to be called. One was that the water board program “addresses runoff and potential waste discharges” into waterways.
In the North Coast region, portions of which were heavily logged in the last century, “the number one pollutant is sediment. Erosion transport and delivery is what matters,” particularly from roads, she explained.
At stream crossings, “make sure culverts are large enough for 100-year storm events,” she urged. She also said that cultivation areas need to be set back from streams and wetlands “generally [by] 200 feet or more.”
“We may request broader setbacks” depending on the terrain, although she said growers can request exceptions.
If a grower brings in new soil and spreads it on the ground, White advised “covering it with mulch or tarps so it doesn’t erode and deliver excess nutrients to streams.”
She suggested other “good housekeeping measures,” such as properly storing fertilizers and pesticides. If there’s petroleum on site, it needs to be kept in an above-ground tank with secondary containment, she added.
In response to a question from the audience, White said landowners need to deal with discharges to waterways even if the discharges are due to logging damage that the landowner had nothing to do with.
“The landowner is responsible to address that discharge, whether it’s a new impact or [one that was] created in the 1950s.”
“We have some discretion on the compliance schedule, not on whether the discharge is allowable or not,” she added.
While she said that some in Tier 2 might be able to do the required water resource protection plan on their own, “if there are complex features” they might need to hire a contractor to help them. A third party contractor can also help a grower determine which tier he or she belongs in, she added.
As for the grower who was put off by the water board’s “fear tactic letter,” Robert “Woods” Sutherland of the Humboldt Mendocino Marijuana Advocacy Project, or HUMMAP, said that while the letter “probably is a scare tactic, I’m not sure there’s an iron fist behind it.”
“If you show a good faith interest in working with [the water board], it will all soften up,” he predicted.
As for the grower himself, he said that he’s in the process of getting a third party contractor to assist him with coming into compliance. “I’d prefer not” to be regulated, “but I understand why it’s happening.”
“People have been damming creeks and sucking water out of the river,” he went on, adding that his water needs are met by a spring on his property along with a 50,000-gallon water tank. “There’s been so much destruction because of greed.”