FRIENDS OF MARK WEST WATERSHED:
Sonoma County Board of Supervisors 575 Administration Drive Room 102A Santa Rosa, CA 95403 BOS@sonoma-county.org Kay.Lowtrip@sonoma-county.org
Re: Amendments to the Medical Cannabis Land Use Ordinance
Dear Members of the Board of Supervisors:
Finally, based on the Project’s significant environmental impacts and its inconsistency with the County’s General Plan, the County must exclude the Mark West watershed from the Cannabis Ordinance. As detailed below, the state of California has determined that the Mark West watershed is impaired and the cannabis operations authorized by the Project would exacerbate the already fragile nature of this important ecosystem. Therefore, the County must exclude the Mark West watershed from areas where cannabis operations would be permitted in the County. Without such an exclusion, the County would violate not only the requirements of CEQA and state planning and zoning law, it would also create unnecessary conflicts with state regulations prohibiting the issuance of permits to grow cannabis in impaired watersheds.
CEQA is designed to ensure that “the long-term protection of the environment shall be the guiding criterion in public decisions.” Friends of College of San Mateo Gardens v. San Mateo County Community College District (2017) 11 Cal.App.5th 596, 604 [hereinafter “San Mateo Gardens II”] (quoting No Oil, Inc. v. Los Angeles (1974) 13 Cal.3d 68, 74). Thus, the statute requires an agency evaluating a project to develop an Environmental Impact Report (EIR) whenever “substantial evidence supports a fair argument that a proposed project ‘may have a significant effect on the environment.’” Committee for Re-Evaluation of T-Line Loop v. San Francisco Municipal Transportation Agency (2016) 6 Cal.App.5th 1237, 1245-46 (quoting Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123).
In addition, as explained further below, and in more detail in the attached Kamman Letter, ample evidence exists to support a “fair argument” that the proposed amendments may result in significant cumulative environmental impacts. These impacts would include, but not be limited to: impacts to water quality resulting from increased erosion and siltation; impacts to listed aquatic species resulting from worsening water quality; impacts to sensitive habitat and sensitive species due to conversion of open space to cannabis production; and impacts to groundwater resources resulting from a substantial increase in groundwater use. Because the proposed amendments expand uses into Agricultural and Resources designated areas, and because these amendments have the potential to result in significant cumulative impacts, the County is required to prepare an EIR before it may approve the amendments.
The proposed ordinance amendments would allow cultivation of cannabis in agricultural, industrial, commercial and resource zones countywide. This means that undeveloped areas containing sensitive habitats and species, as well as areas critical to maintaining water quality and watershed health, would be vulnerable to new cannabis cultivation uses under the ordinance provisions.
A. ‘General Rule’ or ‘Common Sense’ Exemption
The PC Staff Report states that the Project is exempt from CEQA review under Section 15061(b)(3) of the CEQA Guidelines. PC Staff Report at 1. The PC Staff Report further states that the Project is exempt under CEQA Guidelines sections 15307 and 15308 (hence forth referred to as Class 7 and Class 8 exemptions) as an action taken to assure protection of natural resources and the environment. PC Staff Report at 16. None of these exemptions applies to the proposed amendments.
First, the exemption provided under CEQA Guidelines section 15061(b)(3)—the socalled “commonsense exemption”—only applies “[w]here it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment[.]” CEQA Guidelines Section 15061(b)(3). Even “if legitimate questions can be raised about whether the project might have a significant impact and there is any dispute about the possibility of such an impact, the agency cannot find with certainty that a project is exempt.” Davidon Homes v. City of San Jose (1997) 54 Cal. App. 4th 106,.117. As detailed above, however, the amendments will have numerous significant impacts. Therefore, far from qualifying for the commonsense exemption, the County must prepare an EIR before it may approve the amendments.
The County’s reliance on the Class 7 and 8 exemptions is even more far-fetched. The categorical exemptions listed in CEQA Guidelines Section 15307 and 15308 do not apply to the amendments to the County’s ordinance because the amendments allow or expand an activity that may have a significant effect on the environment. These categorical exemptions only apply to actions that “assure the maintenance, restoration, or enhancement” of natural resources or the environment, respectively. Save Our Big Trees v. City of Santa Cruz (2015) 241 Cal.App.4th 694, 706-12. They apply, for example, where a project unambiguously phases out an activity that causes environmental harms. Magan v. County of Kings (2002) 105 Cal.App.4th 468, 476.
In contrast, the exemptions do not apply where a project permits or expands activities that may have a significant environmental impact. Save Our Big Trees, 241 Cal.App.4th at 706-12; see also Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 20506 (holding that a regulation setting a hunting season did not fall under the Section 15307 exemption because hunting could have negative environmental impacts and the regulation permitted hunting.) Sections 15307 and 15308 do not apply to the County’s amendments here, because the amendments would allow an expansion of a use that has many significant impacts, including impacts to water quality, water supply, and construction related impacts.
Finally, the exemption for local cannabis ordinances that allow discretionary review, Business and Professions Code Section 26055(h), does not apply to this ordinance. This exemption applies to ordinances that require discretionary review for commercial cannabis activity, provided that that subsequent discretionary review itself includes CEQA review. Bus. & Prof. Code § 26055(h). The exemption thus ensures that the environmental impacts of commercial cannabis activity will ultimately be reviewed.
The state Planning and Zoning Law (Gov’t Code § 65000 et seq.) requires that development approvals be consistent with the jurisdiction’s general plan. As reiterated by the courts, “[u]nder state law, the propriety of virtually any local decision affecting land use and development depends upon consistency with the applicable general plan and its elements.” Resource Defense Fund v. County of Santa Cruz (1982) 133 Cal.App.3d 800, 806. Accordingly, “[t]he consistency doctrine [is] the linchpin of California’s land use and development laws; it is the principle which infuses the concept of planned growth with the force of law.” Families Unafraid to Uphold Rural El Dorado County v. Board of Supervisors (1998) 62 Cal.App.4th 1332, 1336.
Franz Valley Specific Plan Hydrology – Within groundwater recharge areas, construction activities, creation of impervious surfaces, and changes in drainage should be avoided through discretionary actions.Healdsburg and Environs (Plan Area 3) Objective LU-14.2: Make Windsor and Healdsburg the commercial and industrial centers for the planning area. Avoid additional commercial and industrial uses and tourist related businesses in the
rural areas of this region. Maintain compact urban boundaries for Windsor and Healdsburg. (Emphasis added.)Santa Rosa and Environs (Plan Area 5) Policy LU-16f: Avoid amendments to include additional commercial or industrial use outside urban service areas.
The Project is inconsistent with these policies because it would allow cannabis cultivation (both indoors and outdoors) in rural areas outside urban service areas. The ordinance revisions would also allow cannabis cultivation in some circumstances without discretionary review, which would be inconsistent with the Franz Valley Specific Plan.
Goal LU-7: Prevent unnecessary exposure of people and property to environmental risks and hazards. Limit development on lands that are especially vulnerable or sensitive to environmental damage. (Emphasis added.)Objective LU-7.1: Restrict development in areas that are constrained by the natural limitations of the land, including but not limited to, flood, fire, geologic hazards, groundwater availability and septic suitability. (Emphasis added.)
GOAL LU-10: The uses and intensities of any land development shall be consistent with preservation of important biotic resource areas and scenic features.
Objective LU-10.1: Accomplish development on lands with important biotic resources and scenic features in a manner which preserves or enhances these features.
The Project is inconsistent with these policies because it would allow cannabis uses in Agricultural and Resources and Rural Development designations without adequate limitations to ensure that environmentally sensitive resources, and groundwater resources are protected.
The Land Use Element also includes multiple policies directed at the protection of water resources. Specifically:
Goal LU-8: Protect Sonoma County’s water resources on a sustainable yield basis that avoids long term declines in available surface and groundwater resources or water quality.
Objective LU-8.1: Protect, restore, and enhance the quality of surface and groundwater resources to meet the needs of all beneficial uses.
Objective LU-8.5: Improve understanding and sound management of water resources on a watershed basis.
Policy LU-8h: Support use of a watershed management approach for water quality programs and water supply assessments and for other plans and studies where appropriate.
Policy LU-11g: Encourage development and land uses that reduce the use of water. Where appropriate, use recycled water on site, and employ innovative wastewater treatment that minimizes or eliminates the use of harmful chemicals and/or toxics.
The Project is inconsistent with these policies because, as explained in the Kamman Letter, cannabis cultivation within the MWW would exacerbate groundwater overdraft and reduced groundwater recharge, which would adversely impact biotic resources. Cannabis cultivation is a water-intensive use that requires approximately twice as much water as wine grapes. See, K. Ashworth and W. Vizuete, High Time to Assess the Environmental Impacts of Cannabis Cultivation, Environmental Science & Technology (2017) at 2531-2533, attached as Appendix D and at https://pubs.acs.org/doi/10.1021/acs.est.6b06343. According to the article, a study of illegal outdoor grow operations in northern California found that “rates of water extraction from streams threatened aquatic ecosystems and that water effluent contained high levels of growth nutrients, as well as pesticides, herbicides and fungicides, further damaging aquatic wildlife.” Id. Another article indicates that “water demand for marijuana cultivation has the potential to divert substantial portions of streamflow in the study watersheds, with an estimated flow reduction of up to 23% of the annual seven-day low flow in the least impacted of the study watersheds. Estimates from the other study watersheds indicate that water demand for marijuana cultivation exceeds streamflow
during the low-flow period. In the most impacted study watersheds, diminished streamflow is likely to have lethal or sub-lethal effects on state-and federally-listed salmon and steelhead trout and to cause further decline of sensitive amphibian species.” See, Bauer et al., Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLos ONE (2015), attached as Appendix E and at http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016. This increased intensity in water use has the potential to result in significant impacts to biotic resources and to other users.
GOAL LU-9: Protect lands currently in agricultural production and lands with soils and other characteristics that make them potentially suitable for agricultural use. Retain large parcel sizes and avoid incompatible non-agricultural uses.Objective LU-9.1: Avoid conversion of lands currently used for agricultural production to non-agricultural use.
Objective LU-9.2: Retain large parcels in agricultural production areas and avoid new parcels less than 20 acres in the “Land Intensive Agriculture” category.
Objective LU-9.3: Agricultural lands not currently used for farming but which have soils or other characteristics that make them suitable for farming shall not be developed in a way that would preclude future agricultural use.
In contrast to these General Plan goals and objectives, the proposed amendments would allow conversion of lands designated for agricultural uses for cannabis production, which includes construction of buildings to house indoor cultivation and would allow such production on parcels smaller than 10 acres.
As noted above, the Project will have substantial environmental impacts that have not been addressed by the County. These unanalyzed impacts will also result in inconsistencies with the General Plan. Therefore, the County must fully evaluate and mitigate the impacts of the Project before it can find the Project consistent with the County General Plan.
The proposed amendment to the Cannabis Ordinance include, Article 73 Section 26-73-005 describing a Cannabis Exclusion Combining District, which provides for the exclusion of cannabis related uses in areas so designated. June 7, 2018 Planning Commission Staff Report, Exhibit C. This section specifies criteria for areas to be included in the Exclusion Combining District, which include the following:
(d) Areas where, because of topography, access, water availability or vegetation, there is a significant fire hazard; and(e) Areas with sensitive biotic resources or significant environmentally sensitivity exists.
Here, the MWW satisfies both criteria. First the area is characterized by steep sloped areas and encompasses areas identified as moderate, high, and very high wildland fire hazard zones. Sonoma County General Plan 2020, Public Safety Element, Figure PS1G. Second, as discussed above and in the attached Kamman letter, the MWW is an “area with sensitive biotic resources or significant environmental sensitivity”, which satisfies the criteria under Section 26-73-005 (e) for exclusion.
Though the State Water Resources Control Board and the Department of Fish and Wildlife have not yet determined that cannabis activities have significantly impacted the Mark West watershed, it seems foolish to wait for this eventuality—and the associated degradation of a sensitive habitat—to occur. As this letter has emphasized, the Mark West watershed has already been identified as impaired in various respects. For example, the North Coast Regional Water Quality Control Board has identified Mark West Creek as impaired with respect to aluminum, dissolved oxygen, phosphorus, manganese, sedimentation/siltation, and temperature.1 Further, the Mark West Creek is one of five streams the California Water Action Plan selected for an effort to restore important habitat for anadromous salmonids. See, Study Plan – CDFW, June 2018, at i.v., 9-11, attached as Appendix C. The study plan for this effort notes that “Water diversions, modifications to riparian vegetation, and sediment delivery to streams [like Mark West Creek] . . . have contributed to the degradation and loss of habitat” for endangered salmonid species. Id. Considering (1) the existing sensitivity of the watershed, and (2) the numerous impacts on water and aquatic resources resulting from cannabis cultivation that are contemplated by the State Water Resources Control Board’s Cannabis Cultivation Policy,2 it makes no sense to allow cannabis cultivation in the Mark West watershed. Instead, excluding cannabis cultivation from the Mark West watershed avoids incompatibility with state regulations, prevents the County from issuing permits to cultivators who may then be unable to receive state licenses, and avoids degradation of a valuable environmental resource.Therefore, the FMWW request that the Mark West watershed be designated as part of the exclusion zone. Only by excluding cannabis operations from the MWW can the County ensure that sensitive biotic resources present in the watershed are protected.
Finally, it is important to note that property owners do not have an absolute right to grow cannabis. State and federal law simply provide that the County must allow an economically reasonable use of property. Agins v. Tiburon (1980) 447 U.S. 255, 260. Property owners are not entitled to any particular use of property nor are they entitled to compensation for even a “very substantial” diminution in the value of their property. Long Beach Equities v. County of Ventura (1991) 231 Cal. App. 3d 1016, 1036. By contrast, the County has an obligation to protect public trust resources and to comply with state law. National Audubon Society v. Superior Court (1983) 33 Cal. 3d 419.
Even if ensuring compliance with these state and local laws substantially diminishes the value of the applicant’s property, there is no automatic taking or County liability. For example, in MacLeod v. Santa Clara County, a property owner sued for a 1 See Laguna de Santa Rosa TMDLs, North Coast Regional Water Quality Control Board, https://www.waterboards.ca.gov/northcoast/water_issues/programs/tmdls/laguna_de_sant a_rosa/. 2 Cannabis Cultivation Policy: Principals and Guidelines for Cannabis Cultivation, California State Water Resources Control Board, Oct. 17, 2017, https://www.waterboards.ca.gov/board_decisions/adopted_orders/resolutions/2017/final_ cannabis_policy_with_att_a.pdf.
taking after he was denied a timber harvesting permit for his 7,000 acre ranch. (9th Cir. 1984) 749 F.2d 541, 542-44. On appeal, a 9th Circuit court held that the denial of the permit was not a taking because the owner could continue to use or lease the land for cattle grazing as well as hold the property as an investment. Id. at 547. “The fact that the denial of the permit prevented [the owner] from pursuing the highest and best use of his property does not mean that it constituted a taking.” Id. at 548. Similarly, in Long Beach Equities, the court found that even where “zoning restrictions preclude recovery of the initial investment made.” they do not result in a taking as long as some use of the property remains. 231 Cal. App. 3d at 1038.Designation of the Mark West watershed as an exclusion zone will simply prohibit the cultivation of cannabis in an area that is ecologically sensitive; it will not preclude other uses of property in the area. Because other less impactful uses of property remain, the County will have more than met its obligation to ensure some economic use of property in the watershed.
In view of the foregoing, FMWW respectfully requests that the County designate the Mark West watershed as part of an Cannabis Exclusion Combining District and that if it does proceed with approval of Project, that it first prepare an EIR to fully disclose, evaluate, and mitigate the Project’s significant environmental impacts.