North Coast water regulators adopt pot cultivation rules

North Coast water quality officials adopted a pioneering new regulatory scheme Thursday that brings what was once an underground marijuana industry closer to daylight than ever before, requiring growers to register their operations and certify compliance with environmentally responsible farming methods.

The North Coast Regional Water Quality Control Board voted 5-1 to approve the order - the only one of its kind in the nation - calling it a “first step” toward protecting water resources from the kind of contamination and degradation reported around the area in recent years.

But the move also suggests a new era of legitimacy for Northern California pot farmers, who, despite the legalization of medical marijuana, have continued to operate somewhat on the margins because of the plant’s illegal status under federal law.

It’s still unclear whether growers will embrace the regulations, though the program allows those most concerned about privacy to enroll through approved, nongovernmental third parties that would prevent them from having to provide sensitive, self-identifying information to the regional water quality board itself.

“Look around and ask yourself, ‘Ain’t America great?’” board member William Massey of Forestville said during Thursday’s discussion. “You are living through a big, big societal change. How many of us can think back to when people got arrested in high school for having even so much as a little bit of pot?”

The regulation is a pilot program expected to serve as a model for other regions, beginning with the neighboring Central Valley, whose board takes the matter up next month.

The new rules - which never mention medical marijuana and thus do not differentiate between those who grow for medical uses versus those who farm recreational plots - come as Californians prepare to decide whether to legalize recreational marijuana use. A vote is expected next summer. Nonmedicinal use already is legal in Washington and Colorado.

Members of the water quality board have stressed repeatedly, however, that their interest in the matter is strictly environmental - an effort to hold the region’s marijuana growers accountable for protecting water resources and remediating any damage that does occur.

“We are not endorsing marijuana cultivation,” board Chairman John Corbett of McKinleyville said at the start of a three-hour hearing on the new regulations.

Rather, he said, the board has decided to “take a status quo problem and take a first step” at devising a water quality program.

Worries over risks

But board member Greg Giusti of Ukiah said the program offered too little protection for growers to earn his vote.

Even with the provision to help guard privacy, he said those who complied and registered their operations would risk exposing themselves to federal enforcement.

“I am not comfortable with people thinking they are doing the right thing, and then they get slapped, they get cited,” Giusti said.

Giusti also lamented the regulations’ failure to acknowledge county caps on the number of medical marijuana plants that are permitted to be grown in each jurisdiction.

Some in the audience agreed with his concerns about legal exposure, but there was significant support for the program, as well.

Asa Schaefer, executive director of the Sonoma County Collective, urged board members to review the regulation one more time, but said he thought they were “on the right track.”

On the other hand, Sarah Schrader, Sonoma County chapter chairwoman for Americans for Safe Access, agreed with Giusti. Schrader served on the San Francisco Medical Cannabis Task Force and said her exposure to the vast amount of documentation acquired by federal authorities gave her pause.

Adjustable structure

Corbett conceded there were no guarantees. However, he said, the focus on environmental issues and privacy measures like the third-party program, developed during months of outreach and collaboration with stakeholders around Northern California, had resulted in a usable structure that could be adjusted at any time but still would address needed watershed protections in an industry that is so far unregulated.

The new program is intended to establish compliance on a host of issues critical to sensitive watersheds, including erosion control, stream and wetland buffers, irrigation runoff, waste discharge and chemical contamination.

Everyone growing cannabis on at least 2,000 square feet within the North Coast region, which runs from Marin County to the Oregon border, is required to enroll in the program by Feb. 15, registering with the water quality agency or with an approved third party in one of three regulatory tiers. Participants must register annually and pay still-undetermined annual fees.

Those who don’t register but are discovered to qualify will be notified with 30 days to enroll before enforcement actions, including financial penalties, are pursued, board personnel said.

Tier 1 is reserved for those whose cumulative operations cover less than 5,000 square feet and pose no risk of waste discharge. The regulation requires growers to certify compliance with best management practices and be prepared to submit to inspection.

Participants in Tier 2 must additionally adopt and implement a water resource protection plan enabling them to meet standard conditions, while those in the third tier are operating on sites already deemed in need of remediation. Tier 3 participants also must have a water protection plan, as well as a clean-up and restoration plan that brings their site into compliance.

Emerald Growers Association Executive Director Hezekiah Allen said the new regulations are an important move away from “war on drugs”-type raids and a step toward cooperative regulation and inspection.

“This is a first step toward a civil approach to regulating these impacts, which is exactly what we need,” he said Thursday.

Fees to be set

There remained many concerns about cost and liability, however. The program, by design, must be self-funded, officials said, so fees will have to reflect that reality.

In the meantime, the State Water Resources Board fee branch, which will set the fees, has recommended annual fees of $500 for those growing on less than a quarter-acre, $2,500 for those whose operations range from a quarter-acre to 5 acres, and $10,000 for those farming on more than 5 acres.

More discussion on the fees is to be held next month, water quality officials said.

Some growers said the fees could be prohibitive to participation. They worried, as well, about being held to pay for past environmental damage incurred independent of their growing activities.

Board members conceded the roll-out of the plan likely would be messy at times, but said they opted to use a particular regulatory tool for the program because it could so easily be adjusted to account for changing circumstances.

“It is perfect? No, it’s not,” said Geoffrey Hales, a board member from Eureka. But “you’ve got to start somewhere.”

You can reach Staff Writer Mary Callahan at 521-5249 or mary.callahan@pressdemocrat.com. On Twitter @MaryCallahanB.