Water, compliance issues bring cannabis advocates, Nevada County officials to the table
September 29, 2017
Basil McMahon said he wanted his grow to emerge from the shadows.
He filed for a permit with the Central Valley Regional Water Quality Control Board, wanting to take the first steps toward compliance. Days later, two Nevada County deputies appeared at his South County home. He said they held a copy of his permit application in hand and wanted to inspect his grow.
"I was just a little bit confused, surprised to see them," said McMahon, whose given first name is Lyle.
Someone filed a complaint against McMahon in February, and he figures that could have led the deputies to him. McMahon quickly noted his grow in August was out of compliance of the existing, temporary ordinance that many county cannabis advocates say is impossible to follow. He removed the excess, bringing his grow down to six plants.
For growers like McMahon there's a bigger problem than abating a garden. He said he wants to obey the law, but fears that emerging from the shadows earned him a compliance check.
People like Jonathan Collier, a member of the Nevada County Cannabis Alliance's executive committee, don't want growers to remain hidden out of fear that taking steps to become compliant will bring law enforcement to their door.
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"Why are they pursuing abatement measures in regards to this notice?" Collier asked. "Why are you targeting someone who's trying to become compliant?"
Undersheriff Joe Salivar said his office regularly receives complaints about grows. His deputies don't check them based off a water board permit application only.
However, he called McMahon's application for the permit the "investigative genesis" for the compliance check.
"It clearly was the spark," Salivar said.
McMahon applied around early August for the permit, also known as getting coverage under a General Order for discharges of waste associated with medicinal cannabis cultivation activities. According to Yvonne West, senior staff counsel with the water board, growers within the Central Valley Regional Water Quality Control Board's jurisdiction who occupy or disturb over 1,000 square feet of property must get that coverage.
McMahon made that application, leading the water board to send him a letter dated Aug. 28. It sent a copy of the letter to the county's Community Development Agency. That letter states McMahon is eligible for the coverage.
The water board completes a "paper review" of the applications they receive, West said.
"Not every site is physically inspected," she said.
That's one reason counties are receiving notification of the water board's decision, said Sean Powers, director of the county's Community Development Agency.
"The state wants us to do some type of review on it," Powers said, saying the water board doesn't have the manpower to check the grows it permits and doesn't know each county's codes about marijuana.
That's why it sends the notice of applicability — the Aug. 28 letter, in McMahon's case — to both the grower and the county where he or she resides, Powers said.
Powers' office only recently began receiving such notices. There was no county policy in place when authorities checked McMahon's grow, though local officials on Friday released details about their new policy after meeting with members of the cannabis alliance.
In McMahon's case the information went from Powers' office to both the Building Department and the sheriff's office.
"Sean sent us a few of them," Salivar said of the water board notices. "Five of them total and simply asked if any of them were on our radar."
Salivar said he examined each notice and saw McMahon had a complaint from February, though when deputies checked there was no violation. The undersheriff also saw satellite photos that he said showed a history of large grows on the property. Other notices raised no concerns and no deputy checked them.
Craig Griesbach, building director, sent a letter dated Aug. 30 — the same day deputies visited McMahon — to the water board stating that McMahon's property had two greenhouses with no building permits. Griesbach's letter claims that McMahon couldn't obtain coverage.
McMahon said those greenhouses, seen on a Google map, no longer exist. He removed them last year.
Arriving at McMahon's property, deputies checked the grow and found it noncompliant. McMahon then self-abated and made an appointment for a deputy to return, which he did. They spoke for 20 minutes and the deputy left, McMahon said.
"It's a murky process right now," Collier said. "There are knee-jerk reactions happening."
Collier called the existing situation with cannabis a complex one. Growers want a pathway to legitimacy. Then they see the reaction that McMahon received and worry.
Collier said his organization strongly encourages growers to become compliant. He understands they must work with a government bureaucracy. However, sending law enforcement to someone who tries to obey the law discourages those who want to become compliant.
"That is a very big issue for us," Collier said. "Give us a pathway and we'll pay taxes."
According to Collier, his group approached Supervisor Heidi Hall about the issue. Hall said she asked the county counsel to examine it. She opposes compliance checks based on nothing more than a notice from the water board.
Sheriff Keith Royal said he told Hall his office would make no checks based only on a water board application.
"We want to encourage the growers to come into compliance," Hall said. "They're going to need time to come into compliance. We don't want these permit applications to trigger these compliance visits."
Mali Dyck, interim deputy county executive officer, said in a Friday email that a new process will appear next week on the county's website.
According to Dyck, Powers' office will notify someone who's applied for a water permit and offer to visit the site and check its compliance before responding to the Central Valley Regional Water Quality Control Board. Additionally, property owners can then review the county's findings, local law and water board requirements before county officials contact the water board.
Powers' office will examine land-use issues. The Sheriff's Office will look at compliance with the county's marijuana ordinance.
That's a change from what McMahon experienced last month. Under the new system deputies won't appear unannounced at a grow.
"It'll be two departments — one checking the land use, one checking the garden," Collier said. "There will be no surprise visits."
County officials will then send a letter to the grower and the water board, advising it of the property owner's compliance status, Dyck said.
This new system will come into effect as the county's cannabis community advisory group develops recommendations for a new grow ordinance. Supervisors have said they want the ordinance in place by March, which Powers has called an ambitious goal.
Collier praised the move, saying growers can work with the new system.
"The smoother the transition will be, the better for the whole community," Collier said.
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