BILL ANALYSIS Ó SB 165 Page 1 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: SB 165 Page 2 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; SB 165 Page 3 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: SB 165 Page 4 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 SB 165 Page 5 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 SB 165 Page 6 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 SB 165 Page 7 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 SB 165 Page 8 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 Page 9 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