Humboldt County’s Response to the Green Rush: Understanding the New Draft Medical Marijuana Outdoor Cultivation Ordinance

Kym Kemp / Monday, March 4, 2013 @ 6:27 a.m. / Humboldt , Local Government , marijuana

Who knows what goes on in the hazy world of Humboldt’s marijuana industry? Dealing with the complicated social, environmental and financial issues that spring from this source is incredibly difficult. Because of the controversial legal status of medical marijuana in California and the resulting difficulty in collecting information, no one truly comprehends the effect of the “Green Rush” on Humboldt County. The Board of Supervisors and county employees, though, have been gathering what information is available and struggling to come up with a regulatory structure that both protects them from federal intervention and meets California’s medical marijuana standards while still satisfying most of the needs of medical marijuana growers and the wider community. This is roughly equivalent to wrestling an enormous octopus into a five-gallon bucket.

Still, this Tuesday, shortly after 9 a.m., a draft ordinance with multiple alternatives has been squeezed into some semblance of order and will be discussed at the regular Board Meeting. Expect raised voices and red faces. This ordinance could fundamentally change many issues near and dear to people’s hearts and livelihoods.  As Hezikiah Allen, President of the Mattole Restoration Council, points out, “[C]annabis is undeniably the largest single industry in the county. This industry supports tens of thousands of our neighbors and community members and supplies high quality medicine to patients throughout the state. At the same time it has become patently obvious over recent years that this industry is having a serious impact on our forests, ranches, and rivers.” 

[If possible, study the Draft Ordinance here before reading the rest of the article.] 

Points to keep in mind when thinking about this proposed ordinance. 

  • This is a draft and subject to change.
  • This ordinance is for outdoor marijuana.
  • This ordinance is for medical marijuana. 
  • If a grower does not intend to have an outdoor, medical marijuana garden with a posted medical exemption, this ordinance does not apply to them. Black market growers are illegal under any circumstances and need not worry about this ordinance except they should keep in mind that if their illegal grow looks much different than compliant legal gardens, they may be more likely to be targeted by law enforcement.

Here is a quick and dirty summary: The County is looking at several alternative options to regulate medical marijuana growers and their effect on the community and the environment. All the alternatives require some form of registration with the Public Health Branch of the Department of Health and Human  Services. If there is no registration for a piece of property, then the growing is defined as a nuisance and can be eradicated.

Among the various options, the draft includes one alternative that might appease some concerns of growers about their information being used against them later — it is the option of not retaining the collected information after it has been approved by Public Health, but only requiring the information to be posted at the grow site. (Hezikiah Allen points out the necessity of treading carefully in this area, “This ordinance must be implemented in a way that is sensitive to the marginalization that has shaped the contemporary cannabis communities. If the county chooses to keep registration materials on file it will seriously impact participation.”)

Registration would include medical marijuana growers providing the following information:

  • Names of owners and renters, etc. 
  • Address and parcel number, etc.
  • Map showing cultivation area and property boundaries, etc.
  • Number of plants.
  • Water source and amount used as well as right to use it.
  • Affidavit that all structures larger than 10 x 12 are permitted and that “less than 50 cubic yards of soil has been moved,” etc.
  • Affidavit that “no herbicide, pesticide, fungicide, rodenticide or other chemical will be used on or near MMJ plants” unless approved for use on plants in the US.

In the Draft Ordinance, the county offers two alternative solutions both based on limiting the number of marijuana plants contingent on the size of the grower’s property. In addition, a further exception is offered as a possibility — no matter what other size or restrictions apply, a patient would be allowed to grow a minimum of “two or fewer” plants.

Emerald Growers Association Chair Kristin Nevedal, who speaks for a section of the region’s medical marijuana growers says flatly, “The EGA is opposing the county’s direction.” She has several concerns including how the draft ordinance bases regulations on limiting plant numbers rather than limiting land under production, as is done for most plants. She points out that the Department of Agriculture doesn’t ask a tomato farmer how many tomatoes are being grown, but rather asks the size of the garden under production.

“Why are we not looking at square footage?” she wonders. She worries that this way of measuring land use will be “an environmental disaster… .” She believes that it will exacerbate nutrient loading as cannabis growers will use more nutrients to grow their allotted plants in order to get the biggest yield possible. She says that under the plant count system, many farmers will use supplemental light systems to provide a longer growing season thus burning more fossil fuels.  

Regulating by using square footage under production, she says, “…allows for the most accurate estimation of the crops yield, water needs, light wattage needs (if indoor or supplemental lighting is used), nutrient usage, medium usage, etc. ” See the bottom of the article for her other concerns.

Hezikiah Allen has several issues he would like the ordinance to address. One that affects a good number of lower income workers in the marijuana industry is wages paid to workers.  He would like to see required “an affidavit stating that living wages (as determined by the county) are being paid to all farm workers.”

He also would like to see grandfathering in of longer-term grows. He suggests, “For farms existing before this ordinance is adopted, the density bonus granted shall be sufficient to enable registration of all existing farms except those determined to be significant sources of environmental damage.” See more of his thoughts on the ordinance at the bottom of this article.

Scott Greacen, executive director of Friends of the Eel River, is more positive about the ordinance than Nevedal or Allen. He sees this draft as a step in the right direction, though he points to a couple of areas where he thinks environmental protections should be made more explicit. 

Both Nevedal and Greacen agree on one major positive to the ordinance. They like the fact that Public Health is the agency in charge of following through on the registration requirements. Nevedal and Greacen agree that this allows the farmers to deal with someone in government that won’t automatically be perceived as a threat.  Both think this agency will be less likely to frighten off growers and more likely to get them to cooperate with government to reduce impacts on the environment.

Greacen, as an environmentalist, says he is concerned “not with what’s being grown, but how it is being grown, and how in the absence of any general framework for what constitutes reasonable practices, we’ve seen a dramatic increase in both the number and the average size of outdoor grows, some of which appear to be generating pretty serious impacts.”

On the other hand, Greacen does see a “couple of big holes” in the proposal. For instance, he worries about  the draft not requiring winter water storage or a municipal system for growers. The ordinance, he says, “needs to elaborate on water storage.”

Hezikiah Allen suggests that this issue could be addressed by requiring an “affidavit stating that the farm will minimize impacts to stream-flows during the dry season…by relying solely on stored water (tanks or ponds.)”

All three commentators would like to strengthen the wording of the sections dealing with chemicals, etc. The section states, “…no herbicide, pesticide, fungicide, rodenticide or other chemical will be used on or near the MMJ plants unless they are approved for use on plants in the United States of America and they are not used in amounts exceeding the manufacturer’s recommendations.” Greacen reads this as meaning that any legal agricultural chemical could be used on pot.

Personally, he says that he doesn’t see how using cannabis treated with a chemical is “compatible with medical use.”  But, besides that and speaking as an environmentalist, he is concerned about the impact of these substances on wildlife and land. He believes that this section of the proposal needs rewriting and suggests changes such as banning the use of rodenticides around medical plants and prohibiting pesticides and fertilizers that can be especially harmful to fish. 

One of the keys he sees to protecting the environment is gaining cooperation with the growers. “When we talk about the impacts some marijuana cultivation is creating,” he says, “it’s easy for people to get defensive, which can make it hard to hear much more. It’s much easier to persuade people to help create solutions if we start with the easy things everyone can do. If we can get people moving toward reasonable practices, we can pretty quickly address the more severe problems. After all, this is a plant that can be grown with a very modest footprint, if it’s done carefully.”

Nevedal agrees that getting growers to comply is necessary for a successful program. But, she wants the county to stop dealing with cannabis so differently than other farmed plants. “Until the county understands that what they are dealing with is agriculture on rural lands and implements a program as such, they will not be able to get growers to mitigate the environmental effects which is what they want.”

The draft is subject to revision and input from community members will likely happen. 

The draft ordinance itself suggests that meetings should be held to get input from the public. Concerned community members should read the document carefully and then, when informed, show up at meetings and send letters expressing their point of view to their supervisors.

Below are extended thoughtful responses to the Draft Ordinance from both Kristin Nevedal of EGA and Hezikiah Allen of the Mattole Restoration Council.

Kristin Nevedal, Chair of the Emerald Growers Association’s points of concern on the Draft Ordinance:

  • That all structures be permitted—Most rural property, Nevedahl contends, is unpermitted. Permitting their structures will be financially difficult for many smaller owners to manage. It will also be time consuming. If County wants to bring 80% of medical marijuana growers into compliance, this provision will be challenging and likely very controversial. She also points outs that “Shaded” parcels will have extra difficulty in becoming permitted. Her solution is to grandfather in properties purchased earlier and to provide incentives.
  • That less than 50 cubic yards of soil have been used—Nevedahl asserts that most rural properties had unpermitted work done which including driveway, housing flat, etc.  This almost surely moved more soil than allowed.  Again she suggests grandfathering as a solution.
  • That no herbicide, rodenticide, etc. be used on or near MMJ plants unless approved for use on plants in the US—This, Nevedal says allows almost any “gnarly pesticide” etc. to be used.  She thinks that instead only products deemed so safe that they don’t need FDA tolerance thresholds should be allowed.
  • Allowing only 1-2 plant exemptions to some parcels [You really need to read the Draft Ordinance to understand this point]—There are only three towns that have access to dispensaries in the county, Nevedal says. This cap on some properties would mean that patients might need to travel hours in order to get their medication.
  • The requirement that marijuana plants not be seen from any other parcel or else growers must put up opaque fencing—This, she says, would unnecessarily restrict many growers as their gardens are often viewable from another parcel—though not necessarily viewable from an easily accessed area on another parcel. For instance, owners of gardens on mountain sides facing each other have areas on their respective properties that would allow them to see each other’s gardens.
  • Contiguous parcels under a single owner shall count as a single parcel—This, Nevedahl says, will cause hardship for many properties with Tenants in Common.

 

Hezikiah Allen, President of the Mattole Restornation Counsel, response to the Draft Ordinance:

Creating this registry is a monumental step in the recent history of Humboldt County. Done effectively and it will be a huge step towards a stable economy, a healthy environment, and nurturing a collaborative relationship between rural residents and local government and the natural environment. Of course the inverse is true if this process is managed poorly and policy is crafted without sufficient community input.

It is important to realize that this ordinance does not come in a vacuum; much to the contrary, cannabis is undeniably the largest single industry in the county. This industry supports tens of thousands of our neighbors and community members and supplies high quality medicine to patients throughout the state. At the same time it has become patently obvious over recent years that this industry is having a serious impact on our forests, ranches, and rivers.

We have an opportunity to ensure safe access to high quality medicine for patients while helping the environment and economy simultaneously. To be effective, solutions must be based on recognition and understanding of the cannabis industry as it is and it might be. Economically, we must base this ordinance on stabilizing the industry rather than growing it. Environmentally, we must focus attention within the industry on best practices and light touch using incentives and partnering with community organizations to certify sustainable medicinal herb farms.

In developing this ordinance I urge the board to consider two basic principles:

• Participation

• Practices

Participation

In order to be effective this registry must attract broad participation from the grower community. To that end I recommend the following be considered:

Registration Requirements:

This ordinance must be implemented in a way that is sensitive to the marginalization that has shaped the contemporary cannabis communities. If the county chooses to keep registration materials on file it will seriously impact participation.

Tenants in Common:

In the instance of tenants in common it is imperative that one owner be allowed to register their farm even if their land partner (s) will not.

Water rights:

Consider a grace period for existing farms to be registered while investigating whether or not they need a water right and acquiring their water right; this will enable ongoing education and outreach to continue raising awareness of water rights and increase acceptance and participation.

Permitted structures:

Including this requirement will further inflame distrust and distaste of the county on the part of many rural residents. Recommendations:

- Option one: Delete registration requirement #5

- Option two: Existing grows may be registered without this affidavit and a grace period will begin when the county adopts a housing amnesty program in which time the landowner must produce such an affidavit.

Limitations:

In order to make these limitations relevant to growers I recommend using square foot rather than plant to limit the size of a farm. Limitations should also include setbacks, exclusionary zones around schools and other sensitive uses.

Include three exceptions to limitations

1. Grace Period: A legal parcel that has multiple grow sites at the time of adoption of this ordinance shall be allowed a time specific exception. If at the end of this period the “stewardship criteria” have not been met the exception shall expire. While this exception is valid all of the grows currently on the parcel shall continue to operate. This exception should sunset in a set amount of time.

2. De minimis exception, to ensure that all people are able to cultivate medicine for personal and non-commercial use. These growers should be excepted from setback and have a restrictive square footage limit.

3. Stewardship program

In order to be effective this registry must encourage and incentivize best practices over standard practices.

This can be achieved by developing a “stewardship program” that will incentivize best practices by increasing registration per parcel. A stewardship program will also help accommodate existing farms that may need to register at a higher rate than is described in this ordinance.

Certification:

Stewardship certification should be conducted by third party certifiers. This will help develop Humboldty County’s civil society and stimulate job creation in restoration and conservation, a critical sector to rural Humboldt.

Incentives:

The county should offer density bonuses as an incentive for participation in the stewardship program  

Certification Requirements:

Registrants shall supply:

  • an affidavit stating that living wages (as determined by the county) are being paid to all farm workers
  • An affidavit stating that the farm will minimize impacts to stream-flows during the dry season (July 1- November 1 or as determined by a local organization) by relying solely on stored water (tanks or ponds)
  • An affidavit that no herbicide, pesticide, fungicide, rodenticide or other chemical that has not been approved for use in the production of cannabis will be used on or near the MMJ plants.
  • An affidavit stating that a resource restoration and conservation plan has been developed in partnership with a third party certifier that includes

Responsibilities of the certifier:

Certifier shall supply:

  • An affidavit stating that they have inspected the grow site and that BMP’s are being followed and that a restoration and conservation plan has been developed and is being implemented

 

Two site visits per year to inspect:

  • Roads and infrastructure
  • Fuel reduction and fire safety
  • Resource conservation
  • Annual certification meeting to review progress and update the restoration and conservation plan.

Certification fee:

The fee shall be sufficient to cover all costs associated with certification and shall include equity to develop a fund to make grants and loans to help catalyze and stimulate a widespread shift to best practices on cannabis farms in Humboldt County. This fee will be set by the board with input from the community. The fee should be reviewed periodically.

Including Legacy Farms:

For farms existing before this ordinance is adopted, the density bonus granted shall be sufficient to enable registration of all existing farms except those determined to be significant sources of environmental damage.

Moving this forward:

This should be a top priority for the county in coming months. I hope that staff and the planning commission could develop a robust calendar of community engagement in the next 60 days and that the ordinance be brought before the board for a decision in 90 days. I look forward to working on this issue as I believe it is critical to making a better Humboldt County.

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