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:












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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