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Draft Day 

Pot PAC unveils its marijuana cultivation ordinance

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In a trio of bombastic speeches on the Humboldt County Courthouse steps this week, members of California Cannabis Voice Humboldt revealed the final draft of an ordinance that seeks to regulate outdoor marijuana growing in the county.

The tone was grandiose. Flanked by 80 or so seeming supporters and a handful of local media, CCVH co-founder Luke Bruner talked about nations slipping into insolvency, quoted Harvey Milk ("Come out!") and called the announcement of the draft ordinance a "great victory for this community."

After saying that the proposed land use regulation would address domestic violence issues associated with the marijuana industry, Bruner compared the plight of cannabis farmers to that of slaves — "you have nothing to lose but your chains and your shame," he said, to rousing applause.

CCVH board member Patrick Murphy thanked Sheriff Mike Downey and District Attorney Maggie Fleming, mentioned salmon-safe cannabis, and said the group would now be reaching out to environmentalists, "who are our friends and partners in this."

So what is in this panacea for all of society's marijuana-associated ills?

The final draft of CCVH's land use ordinance — which seeks to regulate outdoor cultivation on county parcels larger than 5 acres — would principally permit existing grow sites with canopies of up to 6,000 square feet, meaning growers would be free to plant as long as they get a business license, applicable state permits if they are diverting water or cutting trees, and pass an inspection by the county agricultural commissioner's office. Existing grows with canopies of up to 10,000 square feet would be treated similarly. New grows and those with canopies larger than 10,000 square feet would require a conditional use permit, to be issued at the discretion of the county planning commission through a public process.

The ordinance also includes a provision that would allow existing grow operations two years to correct any code violations and come into full compliance, and others that would prohibit cultivation sites within 600 feet of a school, bus stop, public park, church or Native American cultural site.

It would also designate the Humboldt County Agricultural Commissioner's Office as the regulating body for marijuana grows. The office would be responsible for yearly site visits, where it would be expected to determine whether growers are complying with state environmental laws, are using legal pesticides, are within the canopy size restrictions, have a security plan and a valid business license, among other things.

CCVH is pushing the proposal forward as an ordinance initiative, which means if it gets enough valid signatures from registered voters — 7,430 — in support of the ordinance, it can force the board of supervisors to either pass it directly as written or call a special election to let voters decide its fate. The ordinance is scheduled to come before the board of supervisors July 7, after which CCVH will offer a 45-day "public comment period," where it will seek feedback through its website before finalizing the language and seeking the required signatures.

But, despite Murphy's olive branch to the environmentalists during his June 30 speech, concerns about the draft ordinance haven't changed much from a series of early stakeholder meetings, in which environmental groups complained that the size restrictions were too lax and that allowing cultivation on timber production zones would lead to destruction of timberlands. Those groups say their voices still aren't being heard.

CCVH rose to prominence in the last year, seizing on a time of renewed interest in local and state marijuana laws and a sense of urgency spurred by looming legalization. The organization touted its speedy fundraising in the cannabis industry, gathering tens of thousands of dollars at rural meetings, and promised that it was the face of growers who wanted to come out of the shadows.

Early in 2015, the group announced it would write an ordinance governing outdoor cultivation and invited dozens of stakeholders from areas of industry, law and conservation. But after the first couple of meetings and the ensuing revisions to the draft ordinance, stakeholders in the environmental community got frustrated, saying their concerns weren't being addressed.

"We stopped engaging when it became clear that this was a process set up to protect and legitimize the very operations that are doing harm," said Dan Ehresman, the executive director of the Northcoast Environmental Center.

Natalynne DeLapp, executive director of the Environmental Protection Information Center, was also bothered that, after a couple of initial public stakeholder meetings, the environmental community was never invited back into the ordinance's draft process.

In EPIC's eye, the draft's allowance of marijuana cultivation on Timber Production Zone (TPZ) parcels is most problematic. That could fragment habitats, she said, breaking up large, intact pieces of forest lands as properties are subdivided and bought up by cannabis farmers.

"Is this what we want?" she asked. "More big grows out in our forest, or growing trees?"

When the Journal reached Friends of the Eel River Executive Director Scott Greacen, he hadn't seen a copy of the proposed ordinance. But he pointed to the fact that at least one CCVH donor and board member was targeted in last week's sweep of the Island Mountain raids, and said previous iterations of the ordinance didn't give him faith that CCVH was doing much to rein in the "mega-growers."

"It's real clear why they're taking that position now," Greacen said. "They are the mega-growers — I suspect the newest draft will reflect that."

California Department of Fish and Wildlife environmental scientist Scott Bauer, referring to the Island Mountain raids, said he's found it "disconcerting" that CCVH said the targeted growers were in compliance or working toward compliance when, to his knowledge, virtually no one in that area has applied for a water diversion permit from Fish and Wildlife.

Ehresman, of the NEC, had read the draft and said permissions for canopy sizes were too lax. "The biggest concern there is these are large-scale operations," Ehresman said, and with that comes environmental degradation. "Ten thousand square feet is nearly a quarter acre, and literally a ton of weed can come out of that."

Bauer, who's studied the impacts of marijuana grow site water diversions on local salmon populations, said permitting grows of up to 6,000 square feet concerns him. "From the big-picture side of things, we would be concerned about the cumulative effects of an ordinance like this that principally permits thousands of grow sites," he said, adding that in the field he's seeing a disturbing trend this year of more — and larger — grow operations.

Bauer only had time to give the final proposed ordinance an initial read but said he's concerned it doesn't seem to have any mechanisms to generate revenue for enforcement or habitat restoration.

In addition to the state fire, wildlife and water guidelines that the draft ordinance says farmers must follow, it calls for three main components for grow operations to be in compliance. The first is a business license, obtainable through the county tax collector. The second is registration with the county agricultural commissioner's office. The third, which would only be for new operations and those over 10,000 square feet, would be conditional use permits from the planning commission.

But the draft makes no mention of how the county would fund a potentially huge increase in conditional use permits and agricultural commission registration applications, or the accompanying site visits.

While the draft calls for a $25 business application fee, it offers no suggested fees for agricultural registration or penalties for falling out of compliance. State agencies could levy hefty fines for going outside of the most stringent environmental guidelines, but there doesn't appear to be a mechanism for the county to collect from the new program.

With an estimated 4,000 to 10,000 outdoor grows in the county's borders, it stands to reason that the agricultural commission, which has six employees and oversaw 300 farms in 2012, would need to expand to offer any sort of timely registration and meaningful inspections.

County Agricultural Commissioner Jeff Dolf declined to comment on the draft ordinance, saying he was planning to discuss it with other county employees. It's unclear how much leeway there may be in the ordinance to allow the agricultural commission to set up a fee and penalty schedule, as the ordinance includes language giving Dolf's office freedom to create rules and regulations necessary to "implement and administer" the ordinance. The ordinance also allows for the board of supervisors to amend it with a simple majority vote.

But the draft raises other questions.

For example, while it would principally permit grows of up to 6,000 square feet — and require only a ministerial permit for grows of up to 10,000 square feet — for cultivators who were already operating at the time the ordinance went into effect, new growers would have to seek out a conditional permit at the discretion of the county Planning Commission. This seems to be included to allay fears that principally permitting grows would cause a new "green rush" of people enticed by the county's relatively lax land use regulation.

But it also creates a situation in which the thousands of currently operating growers — whether they're utilizing best practices, working toward compliance, or not — are given the right to grow, while newcomers would essentially have to plead their cases to the county.

It's clear a disconnect remains between CCVH and the environmental community. Murphy, speaking at the CCVH courthouse rally, said the draft ordinance was specifically vague on revenue sources and specific environmental requirements because "those are the two hardest things to figure out." He seemed to suggest that the 45-day public comment period could yield answers to the ordinance's unanswered questions.

But Ehresman expressed frustration at a lack of inclusivity so far. "Over seven drafts and eight months they've had that time to incorporate the concerns from the overarching community, but instead it's pretty clear that this ordinance is made to benefit the mega-growers at the expense of everyone else."

Speaking at the rally, Murphy reiterated that growers are seeking regulation and want to pay taxes. Bruner said CCVH has more than 1,000 cannabis farmers in its ranks.

Bauer said his department's California Environmental Quality Act staff will likely comb through the proposed ordinance in the coming weeks. Despite his concerns, Bauer said he's glad the regulation conversation has gained so much traction. "We'll have to really look at it hard to see how to respond to what's being proposed, but we appreciate the effort they're putting into this," Bauer said. "We want to make sure this is as environmentally benign as possible so fish and the industry can coexist."

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About The Author

Grant Scott-Goforth

Grant Scott-Goforth has been an assistant editor and staff writer for The Journal since 2013.

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