Friends of Mark West Watershed statement on hemp cultivation Hearing today at 1:20pm Permit Sonoma

 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:

This firm represents the Friends of the Mark West Watershed (“FMWW”) in connection with the amendments to the County’s Cannabis Ordinance (“Project”).  As set forth in this letter, the  California Environmental Quality Act (“CEQA”) requires the preparation of an environmental impact report (“EIR”) before the County may approve the Project. The Project is not exempt from environmental review as asserted in the Planning Commission Staff Report (“PC Staff Report”) at 1. 

Our review of the documents describing the ordinance amendments, including the draft ordinance amendments and the June 7, 2018 PC Staff Report, served to deepen our concern that the County erred in relying upon CEQA exemptions to approve this Project. This assessment has been further confirmed by the investigation of our expert consultant, Kamman Hydrology and Engineering, whose letter dated August 3, 2018 is attached as Appendix A. 

In addition, the Project conflicts with the Sonoma County’s General Plan in violation of state Planning and Zoning Law, Govt. Code § 65000 et seq. As described in more detail below, the Project would conflict with multiple policies designed to protect the County’s natural and agricultural resources. 

 

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.

I. The County May Not Approve the Project Without Preparing An Environmental Impact Report Under CEQA.
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).

When an agency approves changes to a previously approved project, the agency must undertake a two-part decision-making process to determine what additional environmental review is required. See Friends of College of San Mateo Gardens,  v. San Mateo Community College District (2016) 1 Cal.5th 937 (2016) [hereinafter “San Mateo Gardens I”]; see also Pub. Res. Code § 21166; CEQA Guidelines § 15126. First, the agency must determine, based on substantial evidence on the record as a whole, whether the previous environmental document “retains some informational value” in light of the proposed changes. San Mateo Gardens I, 1 Cal.5th at 951. If the proposed modifications “render[] the prior environmental review wholly irrelevant,” the agency must conduct a new environmental review process. Id. at 952, n.3.

If, on the other hand, the agency determines that the prior environmental documents retain some relevance, then the agency must conduct additional environmental review under the  provisions of Public Resources Code Section 21166. When an agency has previously prepared a negative declaration, additional subsequent environmental review is required when “whenever there is substantial evidence to support a fair argument that proposed changes ‘might have a significant environmental impact not previously considered . . . .’” San Mateo Gardens II, 11 Cal.App.5th at 606 (quoting San Mateo Gardens I, 1 Cal.5th at 959). The standard of review for an agency’s decision to prepare a subsequent EIR or MND to account for changes to a project previously approved with a negative declaration thus mirrors the “fair argument” standard applicable to the decision to prepare an EIR or negative declaration in the first instance. See San Mateo Gardens I, 1 Cal.5th at 953. A subsequent EIR must be prepared if substantial evidence supports a fair argument that the proposed changes to the project may result in a significant environmental impact. San Mateo Gardens II, 11 Cal.App.5th at 606-07. Proposed changes might have a significant impact “when there is some competent evidence to suggest such an impact, even if other evidence suggests otherwise.” Id. at 607.

The  proposed amendments to the Cannabis Ordinance constitute substantial revisions that require additional environmental review. The amendments would allow the expansion of commercial cannabis operations in areas where they were not previously permitted.  Moreover, in many cases, the expanded uses would be allowed with issuance of ministerial permits, which would preclude CEQA review at a future date.  See PC Staff Report, Exhibit B, Draft ORD 18-0003 Summary of Allowed Land Uses and Permit Requirements for Cannabis Uses.
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.

II. The Project Has the Potential to Result in Significant Environmental Impacts.
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.

FMWW is particularly concerned that implementation of the Project would result in significant adverse impacts to Mark West Creek and its watershed. The Mark West Creek watershed (“MWW”) supports a number of state and federally protected plant and animal species. Mark West Creek is designated as a core or Phase I area in the Final Recovery Plan for Central California Coast Coho Salmon Evolutionarily Significant Unit in the 2012 NMFS Coho Recovery Plan. See, http://cohopartnership.org/watersheds.html. Therefore, the Mark West Creek is a designated, precisely mapped resource of critical concern for purposes of Guidelines § 15300.2(a)), due to its designation as critical habitat for two species listed under the federal Endangered Species Act—the Central California Coast Steelhead and Central California Coast Coho Salmon. Report on the Hydrologic Characteristics of Mark West Creek, Center for Ecosystem Management and Restoration (“CEMAR”), November 14, 2014 at 2, attached as Appendix B.  Furthermore, Mark West Creek flows into the Russian River, which is also listed as critical habitat for both species.

The State Water Board has also listed portions of Mark West Creek and its tributaries as 303(d) impaired water bodies for sedimentation and temperature (upstream of the confluence with the Laguna de Santa Rosa). Other portions of Mark West Creek (downstream of the confluence with the Laguna) Mark West Creek is also impaired for aluminum, dissolved oxygen, phosphorous, and manganese. See, Study Plan – Habitat and Instream Flow Evaluation for Anadromous Steelhead and Coho Salmon in Upper Mark West Creek, Sonoma County, California Department of Fish and Wildlife, June 2018, attached as Appendix C at 26. Because hydrological resources in the MWW and downstream are already impaired, expansion of cannabis operations has the potential to significantly impact those resources.

The investigation by Kamman Hydrology and Engineering, Inc. also indicates that the MWW is vulnerable to both groundwater overdraft and to reduced groundwater recharge.  See, Kamman Letter at 3-6. As explained in the Kamman letter, given the conditions in the watershed, allowing expanded cannabis operations in the MWW would exacerbate groundwater overdraft.  Id. at 5.

In addition, erosion resulting from activities allowed by the proposed Project— both from the change in use and from associated construction of cannabis production facilities—is likely to lead to increased sedimentation of Mark West Creek and its tributaries, impairing this critical habitat area. The delivery of fine sediment from erosion and runoff has been documented to have negative effects on water and habitat quality, specifically degrading spawning gravel habitat, juvenile rearing pool habitats, and juvenile salmonid survival and growth. Therefore, an increase in high-intensity uses, such as those associated with cannabis cultivation, are likely result in sediment deposits to Mark West Creek and increase negative impacts on aquatic habitat. The precise extent and potential significance of such increases would only become evident with a more detailed investigation of the specific construction features and methods associated with the activities that would be allowed under the ordinance amendments. Given this potential for erosion in a critical habitat area, it is crucial that the County perform a thorough analysis of this issue prior to approving the Project.

The proposed amendments would result in allowing cannabis production countywide in much of the undeveloped areas of the County. Without further environmental review, the County would be making this broad approval with far-reaching effects without having answers to critical questions. As Supervisor Gorin has noted, there are many unanswered questions about the impacts of cannabis cultivation: How much energy does cannabis cultivation require? What is the typical water demand for cannabis cultivation? How does that water demand compare to other agricultural and industrial uses in the County? What sorts of impacts related to contaminated run-off can be anticipated from these operations? Are there areas of the County that may be more appropriate for cultivation than others? Without answers to these and other questions, the County cannot know the extent of potential impacts to biotic, water, agricultural and other sensitive resources.  These are exactly the type of impacts that must be analyzed in an EIR.

III. The Project Does Not Qualify for Exemption From CEQA Review
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.

B.  Class 7 and Class 8 Exemptions
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.

These exemptions are also unavailable because the Project may result in significant cumulative impacts over time and there is a reasonable possibility of a significant environmental effect due to unusual circumstances. CEQA Guidelines § 15300.2(b) and (c).  Unfortunately, the County appears to have overlooked evidence that plainly triggers these “exceptions to the exemptions.”

C. Business and Professions Code Section 26055(h)
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 Section 26055(h) exemption does not apply to the proposed amendments to the County’s ordinance because they expand the use of ministerial zoning permits for certain commercial cannabis activities. By its terms, Section 26055(h) does not exempt ordinances allowing ministerial authorizations of cannabis activity. The reason for this is clear: unlike an ordinance that defers CEQA review to a subsequent discretionary approval, an ordinance that permits ministerial authorizations allows the County to entirely avoid ever reviewing the environmental impacts of certain cannabis activities. These ministerially-approved activities may each individually have an environmentally significant impact, and, as noted above, their cumulative impacts may be considerable—especially when considered in combination with the activity authorized by discretionary permits. Section 26055(h) is not intended to allow such activity to avoid CEQA review.

Given that a project determined to be within a categorical exemption is excused from any further compliance with CEQA, courts “construe the exemptions narrowly in order to afford the fullest possible environmental protection.”  See, e.g., Azusa Land Reclamation Co., Inc. v. Main San Gabriel Basin Watermaster (1997) 52 Cal. App. 4th 1165, 1193-94;   “[E]xemption categories are not to be expanded or broadened beyond the reasonable scope of their statutory language.”  Save Our Carmel River v. Monterey Peninsula Water Mgmt. (2006) 141 Cal. App. 4th 677, 697.  Thus, only “the clearest cases of categorical exemptions” will avoid environmental review.  Id.  This is not such a case.IV. Approval of the Proposed Ordinance Amendments as Proposed––Which Are Inconsistent with the County’s General Plan––Would Violate Planning and Zoning Law. 
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.

It is an abuse of discretion to approve a project that “frustrate[s] the General Plan’s goals and policies.” Napa Citizens for Honest Gov’t v. Napa County (2001) 91 Cal.App.4th 342, 379. The project need not present an “outright conflict” with a general plan provision to be considered inconsistent; the determining question is instead whether the project “is compatible with and will not frustrate the General Plan’s goals and policies.” Napa Citizens, 91 Cal.App.4th at 379. Here, the proposed Project does more than just frustrate the General Plan’s goals. As discussed in more detail below, the Project is directly inconsistent with numerous provisions in the General Plan.

The MWW is located within portions of Plan Area 3 (Healdsburg and Environs) and portions of Plan Area 5 ( Santa Rosa and Environs) and is also within the Franz Valley Specific Plan Area.  The proposed ordinance revisions would conflict with policies applicable to these plan areas. For example, the Sonoma County General Plan Land Use Element includes objectives and policies directed at locating commercial and industrial development in areas that protect rural and agricultural lands. These policies include:
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.

The Sonoma County General Plan Land Use Element includes multiple objectives and policies directed at locating development in areas that protect environmentally sensitive areas. These policies include:
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.

Cannabis cultivation also has the potential to lead to increased use of fertilizers and pesticides that could impact groundwater and source waters  and pose unique challenges related to treatment and disposal of chemicals in run-off and wastewater. These impacts would be even more pronounced in sensitive watersheds, such the Mark West Creek watershed and other Russian River tributaries.

Similarly, the Project would be inconsistent with the following Land Use Element objectives and policies calling for the protection of agricultural lands:
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.

V. The County Must Exclude the Mark West Watershed from the Proposed Ordinance.
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.

As enumerated in the Kamman letter and above, the MWW hosts critical aquatic and riparian habitat and endangered and sensitive aquatic species. Because of its unique physical and biological characteristics, the watershed has been identified in numerous natural resource planning efforts for protection and enhancement. See Kamman letter at 1 and 2.

There is also a documented trend in decreased groundwater availability in the MWW.  This trend, and an acknowledged strong linkage between groundwater and creek summer base flow, indicate that the MWW is susceptible to groundwater overdraft conditions. Kamman at 5.In addition, the Groundwater Management Plan (GMP) for the Santa Rosa Plain Watershed indicates that groundwater levels have decreased in response to groundwater pumping in the Santa Rosa Plain groundwater basin. Kamman at 6. Mark West Creek flows into the Santa Rosa Plain. The GMP indicates that seepage from streams flowing onto the Santa Rosa Plain, including Mark West Creek, are a major source of recharge to the groundwater basin. Sustainable Groundwater Management Act requires governments and water agencies of high and medium priority basins (such as the Santa Rosa Plain Watershed) to halt overdraft and bring groundwater basins into balanced levels of pumping and recharge. Id.

As explained in the Kamman Letter, any incremental increase in groundwater pumping within the upper Mark West Creek watershed would not only exacerbate overdraft of local aquifers, but would reduce streamflow in Mark West Creek and associated downstream recharge, additionally exacerbating overdraft in the Santa Rosa Plain groundwater basin.  Any future increases in groundwater pumping due to cannabis cultivation in the upper Mark West Creek watershed would also exacerbate groundwater overdraft in the Santa Rosa Plain basin. Id.

State regulations governing cannabis activities in environmentally sensitive watersheds further support exclusion of the Mark West watershed. Specifically, the Department of Food and Agriculture is prohibited from issuing new licenses for commercial cannabis activities in watersheds that the State Water Resources Control Board or the Department of Fish and Wildlife determine are significantly impacted by cannabis cultivation. Cal. Code Regs. § 8216; see also Bus. & Prof. Code § 26069; Water Code § 13149. If the County were to issue licenses for cannabis cultivation in these areas, it would conflict with the intent of the state regulations to protect sensitive environments from cannabis-related impairments. Further, by issuing permits for cultivation in impaired areas, the County could create a situation in which it is actively permitting activities that may be prohibited by the State, putting cannabis cultivators and the County itself in an untenable legal position.
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.

VI. Conclusion
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.