BILL ANALYSIS Ó
SB 165
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Date of Hearing: June 30, 2015
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
SB
165 (Monning) - As Amended April 14, 2015
SENATE VOTE: 36-0
SUBJECT: Production or cultivation of a controlled substance:
civil penalties.
SUMMARY: Increases the civil penalties for various violations
of the Penal Code, Fish and Game Code, and Public Resources
Code, in connection with the production or cultivation of
marijuana or other controlled substances on natural resource
lands. Specifically, this bill:
1)Makes a person who commits any of the following violations in
connection with the production or cultivation of a controlled
substance on lands managed by the Department of Parks &
Recreation (DPR), the Department of Fish and Wildlife (DFW),
the Department of Forestry and Fire Protection (CalFire), the
State Lands Commission (SLC), a regional park district, the
United States Forest Service (USFS), or the United States
Bureau of Land Management (BLM), or within a timberland
production zone, liable for a civil penalty, in addition to
any other penalties, not to exceed the following amounts for
each violation:
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a) Up to $40,000 for unlawful dumping of waste matter
on a road or highway, right-of-way, private property to
which the public is admitted, private property without
the owner's consent, park or other public property, or in
commercial quantities;
b) Up to $40,000 for depositing of a hazardous
substance onto a road or highway, upon land of another
without the owner's permission, or into waters of the
state;
c) Up to $10,000 for removal of a tree or other
specified vegetation from state or county highway rights
of way, or other public or private lands not his or her
own;
d) Up to $10,000 for timber harvesting without a
license or timber harvest plan;
e) Up to $10,000 for unlawful taking or possession of
wildlife.
2)Makes a person who commits any of the following violations in
connection with production or cultivation of a controlled
substance on land that the person owns, leases, or otherwise
uses or occupies with the consent of the landowner, liable for
a civil penalty, in addition to any other penalties, not to
exceed the following amounts, for each violation:
a) Up to $20,000 for unlawful dumping of waste matter
on a road or highway, right-of-way, private property,
park or other public property;
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b) Up to $20,000 for depositing of a hazardous
substance onto a road or highway, upon land of another
without the owner's permission, or into waters of the
state;
c) Up to $10,000 for removal of a tree or other
specified vegetation from state or county highway rights
of way, or other public or private lands not his or her
own;
d) Up to $8,000 for timber harvesting without a license
or timber harvest plan;
e) Up to $8,000 for unlawful taking or possession of
wildlife.
3)Requires that any civil penalty imposed for unlawful dumping
or depositing of hazardous substances shall be offset by the
amount of any restitution ordered by a criminal court.
EXISTING LAW:
1)Makes a person who commits any of the following violations in
connection with production or cultivation of a controlled
substance on lands managed by DPR, DFW, CalFire, SLC, a
regional park district, the USFS, or the BLM, or within a
timberland production zone, liable for a civil penalty, in
addition to any other penalties, not to exceed the following
amounts for each violation:
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a) Up to $10,000 for substantially diverting or
obstructing the natural flow, or altering the streambed,
of a river, stream or lake;
b) Up to $40,000 for unlawful deposit of pollutants
into waters of the state;
c) Up to $40,000 for unlawful disposal of refuse into
waters of the state.
2)Defines a controlled substance for purposes of these penalty
provisions to include a drug, substance, or immediate
precursor which is listed in specified schedules in the Health
and Safety Code. The substances listed in the schedules
include opiates, opium derivatives, hallucinogens, marijuana,
depressants, cocaine, stimulants, and narcotics.
FISCAL EFFECT: According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS: This bill increases the civil penalties for
environmental damages to natural resources caused in connection
with the cultivation of marijuana and other controlled
substances on natural resource lands.
1)Author's Statement: The author indicates that since 1996 when
California voters passed Proposition 215 "the cultivation of
illegal marijuana on California's public and private lands has
exploded. In 2014 alone, the DFW participated in close to 250
marijuana related missions in which 609,480 marijuana plants
were eradicated and 15,839 pounds of processed marijuana was
seized. Many of these marijuana grow-sites operate on a
commercial scale, leaving behind devastating impacts on the
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terrestrial and aquatic habitats they occupy." The author
notes that illegal cultivation of marijuana can require
thousands of gallons of water a day, leading growers to divert
streams for water. According to the author, in 2014, DFW
found over 135 dams or diversions in rivers and streams,
equating to close to 5 million gallons of stolen water. The
author adds that "These practices exacerbate California's
already historic drought conditions and severely affect Coho
Salmon runs and other fishery populations."
Other problems highlighted by the author include release of
rodenticides, highly toxic insecticides, chemical fertilizers,
fuels, and waste dumped into surrounding habitats and
watersheds. For example, on one of the grow sites last year
DFW found over 340,000 pounds of dumped trash, including close
to 70 gallons of chemicals and fertilizers like D-Con,
Malathion, CarboFuran, and Miracle Grow. Other illegal
growers have eliminated native vegetation and destroyed
forested habitat, often bulldozing acres of land without
regard for ecological impacts. The National Park Service
estimates clean-up and reclamation for these sites may cost up
to $15,000 per acre, with the average site consisting of 10-20
acres.
The author further notes that while the current fine structure
provides some new options for environmental enforcement, it is
limited in its reach. For example, civil fines may be
assessed only in instances where a grower has substantially
diverted a stream or has polluted it with petroleum or other
deleterious substances. The author in this bill proposes to
expand the number and type of environmental crimes for which a
civil fine may be levied. Actions subject to civil penalties
under this bill include habitat destruction through land
conversion or timber operation without a permit or Timber
Harvest Plan; unlawful take or possession of wildlife;
illegal dumping of trash and hazardous materials; waste
disposal on a commercial scale; and removal of vegetation
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without consent.
2)Background: A recent article published in the scientific
journal BioScience, Oxford, Volume XX, No, X, published online
June 24, 2015, http://bioscience.oxfordjournals.org , analyzes
the extent of environmental harm associated with
commercial-scale cultivation of marijuana. The article
focuses specifically on California, which is estimated to
produce 60% of the marijuana consumed in the United States.
The article notes that in the last 5 years, watersheds in
northern California have seen increases in the amount of
acreage under production ranging from 55% to 100%. Illegal
marijuana production in California is centered in sensitive
watersheds with high biodiversity that include habitat for
several rare and federally listed endangered species,
including the Pacific fisher. The article also cites to 2012
and 2014 studies that found 80% of deceased Pacific fishers
recovered in northern California and the southern Sierra
Nevada were exposed to anticoagulant rodenticides, pesticides
commonly used to control wood rats in black market marijuana
cultivation. Other impacts documented include erosion from
land terracing, road construction and forest clearing, which
increases stream sedimentation damaging spawning and rearing
habitat for salmon and other listed aquatic species.
The authors note that marijuana is also a water and nutrient
intensive crop, the illegal cultivation of which is associated
with deforestation, diversion of surface water, chemical
pollution, and poaching of wildlife. Illegal marijuana
cultivation in California is mainly concentrated in remote
forested watersheds, with environmental impacts often
extending far beyond the specific cultivation site. The
authors estimate that in California's north coast region an
estimated 22 liters of water or more per plant are applied per
day during the growing season, which they estimate to be
almost two times the amount used for wine grapes irrigated in
the region. Surface water diversions for marijuana
cultivation have been documented to significantly reduce or
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eliminate already low stream flows during California's dry
summer season, particularly during drought years, which may
threaten survival of endangered species such as Coho salmon.
In three of four watersheds examined, existing water demand
for marijuana cultivation exceeded minimum instream flows in
the summer by more than a factor of two. The authors note that
the combination of limited water resources, a water-intensive
crop, and illegal cultivation in sensitive ecosystems means
that marijuana cultivation can have environmental impacts that
are disproportionately large given the area under production.
The authors further conclude that the lack of a robust
legislative mandate to prevent and address the environmental
impacts associated with marijuana cultivation adds to
enforcement challenges. Finally, they opine that reducing the
environmental harm associated with marijuana cultivation and
enforcement of environmental laws are important policy goals,
regardless of the legal status of the cultivation.
3)Double-Referral: This bill was double-referred to the
Assembly Public Safety Committee where it passed on consent on
June 16, 2015.
4)Prior and Related Legislation: AB 2284 (Chesbro), Chapter 390,
Statues of 2012, made violations of streambed alteration laws,
or pollution of waterways with refuse or deleterious
substances in connection with production or cultivation of a
controlled substance subject to civil penalties of $10,000 to
$40,000 per violation.
SB 861 (Committee on Budget and Fiscal Review), Chapter 35,
Statutes of 2014, one of last year's budget trailer bills,
authorized DFW to impose the civil penalties administratively
for these violations of the Fish and Game Code, subject to
specified requirements relating to complaint and hearing
procedures.
5)Supporting Arguments: According to the California Fish and
Game Wardens' Association, "In California there has been a
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dramatic increase in marijuana cultivation on public and
private lands over the last decade which has created an
unprecedented environmental crisis in California. Game
Wardens' mission is to protect the wildlife and habitats
within California, many of which continue to suffer at the
expense of environmental damages associated with marijuana
cultivation. Many of these unregulated grow-sites have been
found to discard hundreds of pounds of highly toxic chemicals,
fertilizers, and fuels into the surrounding habitats and
watershed systems?the California Department of Fish and
Wildlife (CDFW) created the Marijuana Enforcement Team (MET)
and a Watershed Enforcement Team (WET) to more specifically
combat these crimes, these criminals, and their significant
impacts on CA's natural resources. Game Wardens staffing
these teams have made substantial positive impacts in the
landscape of environmental enforcement. Game Wardens'
front-line role in these operations greatly increases their
health and safety risks, due to the increased confrontation
with armed suspects and exposure to toxic chemicals among
other factors.
"SB 165 will expand the existing authority of local law
enforcement agencies and the CDFW to assess civil fines in
cases where marijuana growers dump waste of hazardous
substances, unlawfully take game, remove plants and native
vegetation, or destroy forested habitats. The money from
these fines will support habitat reclamation of the grow
sites?We recognize the need to increase the penalties that are
assessed to those who destroy California's natural habitat
when they cultivate a controlled substance, such as marijuana,
and CFGWA strongly supports SB 165."
REGISTERED SUPPORT / OPPOSITION:
SB 165
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Support
California College and University Police Chiefs
California District Attorneys Association
California Fish and Game Wardens' Association
California Peace Officers' Association
California Police Chiefs Association, Inc.
Central Coast Forest Association
Conscious Cannabis Ventures
County of Santa Cruz
Heritage Associates
Rural County Representatives of California
Sierra Club California
Opposition
None on file
Analysis Prepared by:Diane Colborn / W., P., & W. / (916)
319-2096