Friday, January 28, 2022
CapitalPress.com 11
Water: There’s a need for ‘bright line jurisdiction’
Continued from Page 1
“It creates a lot of uncertainty
on the ground,” she said.
Technically, “prior converted
cropland” that was cultivated before
the Clean Water Act’s 1972 enact-
ment cannot be regulated as a
wetland.
In practice, though, the federal
government has still required Clean
Water Act permits for changes in
agricultural crops and practices,
Schiff said.
For example, the Pacific Legal
Foundation has represented farms
that tried switching from pastures to
row crops or nut orchards, only to
find out they’re subject to permitting
regulations, he said.
The federal government is con-
cerned about tillage of “vernal pools”
that are dry most of the time but are
still considered wetlands with a sig-
nificant connection to a navigable
waterway, Schiff said.
There’s a need for “bright line
jurisdiction” over which wetlands are
regulated, since the exemptions for
farmers are so complex, Briggs said.
“Unfortunately these exclusions
are very convoluted,” she said. “A
farmer doesn’t have the certainty
about whether it applies to them or
not.”
In the lawsuit the Supreme Court
decided to review on Jan. 24, Idaho
landowners Michael and Chantell
Sackett are challenging a finding that
they need a Clean Water Act permit
to build a house on their property. The
federal government considers the par-
cel a regulated wetland, even though
a road separates it from a nearby
waterway.
The facts of the case make it an
“excellent vehicle” to resolve uncer-
tainties that have persisted since
the highest court’s last Clean Water
Act decision in 2006, known as
Rapanos, according to the Pacific
Legal Foundation.
“It’s been a dispute not just for the
Sacketts but a broader legal dispute
for a long time,” Schiff said.
In the 15 years since Rapanos,
appellate courts haven’t been able to
agree on how to apply the legal prece-
dent, the PLF said in its petition to the
Supreme Court. Meanwhile, federal
agencies have repeatedly changed
their interpretation of the case law.
In that time, Congress hasn’t
attempted revising the Clean Water
Act itself to dispel the uncertainty, he
said. “The only government actor that
can fix the problem is the court.”
The different composition of the
Supreme Court gives hope that the
Sackett case will create a legal prec-
edent with a clear test for which wet-
lands are regulated, Schiff said.
Three justices confirmed during
the Trump administration — Neil
Gorsuch, Brett Kavanaugh and Amy
Coney Barrett — are solid “textual-
ists” who are likely to interpret the
Clean Water Act as having a limited
scope, he said.
As a practical matter, the Supreme
Court’s willingness to review the
case signals that the justices expect
to achieve a majority opinion on the
issue, Schiff said.
That’s important because the
Rapanos case produced a “split
decision” lacking a majority opin-
ion, which has complicated the legal
interpretation of wetlands jurisdiction
in thorny circumstances, he said.
“It really couldn’t come up with a
single test to cover those cases,” he
said.
The U.S. Environmental Pro-
tection Agency urged the highest
court against taking the Sackett case,
arguing that the review would be
premature.
Federal agencies are currently
considering a new interpretation
of the “waters of the U.S.” defi-
nition that draws on “the best
available scientific evidence”
and several decades of regulatory
experience, the EPA said.
Marijuana: ‘The water trucking business has gone bonkers’
Continued from Page 1
How we got here
Eight years ago, Oregon
voters passed a ballot measure
legalizing recreational mari-
juana use and its cultivation
and sale.
Hemp and marijuana —
related cannabis plants — may
be grown legally in Oregon by
farmers as long as they regis-
ter with the state Department
of Agriculture and other agen-
cies. Growers must pay fees
and follow specific rules.
But, as the state quickly
discovered, not everyone plays
by the rules — especially
when it comes to a crop like
marijuana, which is far more
profitable to grow without a
license and sell out-of-state.
Since 2015, the state has
been swamped by thousands
of unlicensed operations,
many of which are run by peo-
ple claiming to be legal hemp
farmers.
Illegal marijuana, accord-
ing to law enforcement offi-
cials, generates billions of dol-
lars in profits and is grown
largely by international drug
cartels and foreign criminals.
Southern Oregon now rivals
Northern California’s notori-
ous “Emerald Triangle” for
growing illegal marijuana.
During raids in 2021
alone, according to pub-
lic records, Southern Oregon
officials across four counties
— Jackson, Douglas, Klam-
ath and Josephine — seized
pot exceeding $2.7 billion in
value.
Illegal water use
According to public records
the Oregon Water Resources
Department released to the
Capital Press Jan. 25 under
the Oregon Public Records
Law, there’s been at least a
267% uptick in water theft-re-
lated complaints and investi-
gations associated with canna-
bis during the past three years.
In 2019, there were 150
complaints or investigations
of reported illegal water use
associated with marijuana and
hemp.
The number of complaints
jumped to 344 in 2020 and
550 in 2021. OWRD has
already received 6 complaints
of cannabis-related water theft
in January 2022.
Not all of the water theft is
tied to illegal marijuana grows.
According to Scott Prose,
regional assistant watermas-
ter and hemp specialist for
the water department, many
cases of illegal water use can
be traced to licensed hemp
growers who have little farm-
ing background or knowledge
of water law and don’t always
realize they’re taking more
water than allowed.
Illegal marijuana growers,
however, are more likely to
knowingly steal water. Thieves
regularly tap into hydrants,
pump water from rivers and
streams, dam creeks, break
into tanks and truck water to
grow sites from fee-for-ser-
vice bulk water stations, which
store drinking water.
Sheriff
Dave Daniel
David Yost
Living quarters of workers at an illegal marijuana grow site.
Sheriff
Nathan
Sickler
Kimberly
McCullough
“The water trucking busi-
ness has gone bonkers,” said
Jackson County, Ore., Sheriff
Nathan Sickler.
Racquel Rancier, senior
water policy coordinator with
OWRD, said illegal water use
“impacts those that are law-
fully using water, fish habitat
and downstream users.”
Pollution
The second ugly head on
the monster is pollution.
Det. Kile Henrich, who
supervises the Josephine
County, Ore., Marijuana
Enforcement Team, said he
has visited dozens of grow
sites littered with open con-
tainers of fertilizer and pesti-
cides, human filth and tangles
of electrical wires posing fire
hazards.
Other officers describe
abandoned PVC pipe, tarps,
buckets, stream banks laden
with aluminum cans and food
wrappers and slumping hoop
houses.
“Growers have left a big
scar on the land,” said Sickler,
the Jackson County sheriff.
It’s not exclusive to South-
ern Oregon.
Barb Iverson, owner of
Wooden Shoe Tulip Farm in
Woodburn, said at least four
operations were near her prop-
erty. She said growers fled one
of the locations after harvest,
leaving an abandoned house,
junk cars and shredded sheets
of plastic.
“I think it’s more prev-
alent here than we realize,”
said Iverson. “We focus on
Southern Oregon, but it’s here.
It’s here in the (Willamette)
Valley.”
Land use violations
Often, landowners are
fined — sometimes hundreds
of thousands of dollars — for
land use violations commit-
ted by illegal marijuana grow-
ers posing as legal hemp grow-
ers to whom they have leased
acreage.
According to Sickler, the
Jackson County sheriff, the
county is “finding many land
leasers have been less than
honest with the property own-
ers about what they are culti-
vating, as well as what permit-
ting and licensing have been
obtained.”
Roger Pearce, Jackson
County hearings officer, said
landowners, whether or not
they realized they were leasing
to an illegal operation, may be
held liable for pollution, ille-
gal water use, construction
of unpermitted structures and
failure to register farm labor
camps.
Inflated prices
Real estate experts say
although some irredeem-
ably damaged properties lose
value, overall, illegal mari-
juana is driving up rents and
land prices.
Part of the equation is more
demand for limited land.
The other part is crop value.
Illegal marijuana growers,
with their high-value crop, can
typically afford to pay more
than the average farmer.
“The cannabis industry has
made it more difficult for the
traditional ag community to
rent or lease or acquire land,”
said Jim Johnson, land use
expert at the Oregon Depart-
ment of Agriculture.
In a study of the impact of
illegal marijuana production
on rural land prices in Hum-
boldt County, Calif., agri-
cultural economist Benja-
min Schwab and land use
researcher Van Butsic found
that when the median mari-
juana density in a watershed
is doubled, farmland values
increase 3% to 4%.
Oregon Rep. Pam Marsh,
a Democrat who represents
southern Jackson County, said
her constituents are concerned.
“It’s really about these oper-
ations taking up land, making
it more difficult for farmers to
compete,” said Marsh.
‘Sucking labor’
Some farmers say illegal
marijuana growers also out-
compete legal farmers for
laborers.
Several nonprofit lead-
ers told the Capital Press that
workers they have interviewed
said they chose to work for
illegal marijuana operations
because they were prom-
ised higher wages. The illegal
farms often pose as legal hemp
or marijuana farms when
advertising for workers.
“(The illegal industry) is
unbelievable, out of control.
It’s just sucking labor,” said
Michael Moore, general man-
ager of Quail Run Vineyards
in the Rogue Valley.
Andrea Cantu-Schomus,
spokeswoman for the Ore-
gon Department of Agricul-
ture, said farmers in every
state report the labor shortage
“is the greatest limiting factor
on their farms.”
“While (ODA) cannot
answer specifically if unli-
censed cannabis is making the
labor issue worse, any pressure
on the availability of labor will
have consequences to the agri-
culture industries who rely on
labor to meet their business
needs,” Cantu-Schomus wrote
in an email.
Slavery and safety
Worse still are the tragic
human impacts.
Henrich, the Josephine
County detective, said he has
visited illegal grow sites that
have no restrooms and are lit-
tered with toilet paper and
feces. Cardboard boxes are
used for workers’ homes.
At one site, he found an
aging pig carcass that workers
had been carving for food.
The Josephine County
Sheriff’s Office extimates tens
of thousands of people work
on illegal marijuana operations
statewide, and experts say
many are victims of human
trafficking, or slavery.
“There’s a lot of deceit that
goes into this recruitment,”
said Robert Hammer, special
agent in charge of investiga-
tions for the Department of
Homeland Security.
Hammer estimates 50% of
the workers are from Mexico,
Central America and South
America. Others are from
China, Russia and Bulgaria.
Some speak Hebrew. Only
occasionally, workers are U.S.
citizens.
Hammer, along with Kim-
berly McCullough, legislative
director in the state Attorney
General’s Office, said Ore-
gon needs a more “victim-cen-
tered approach” to enforce-
ment. They say workers often
scatter in fear during raids, but
it’s important for them to be
helped.
“We don’t yet have a uni-
form coordinated response,”
McCullough said. “We want
to create some model pol-
icies and training for law
Robert
Hammer
enforcement.”
Community members, too,
are endangered. Southern Ore-
gon residents have reported
being followed by vehicles,
hearing shots and having
knives pulled on them.
“It’s the Wild West,” said
Moore, the vineyard owner.
Solutions
Most people agree that Ore-
gon’s illegal marijuana indus-
try is a big problem. But farm-
ers, legislators and officials
disagree on how to solve it.
“I’d like to see the federal
government get involved,”
said Josephine County Sheriff
Dave Daniel.
U.S. Rep. Cliff Bentz, who
represents Southern and East-
ern Oregon, has called on
U.S. Attorney General Mer-
rick Garland for help. Kevin
Sonoff, public affairs officer
for the U.S. Attorney General’s
district office in Oregon, said
the agency is “investigating.”
Law enforcement officers
say they want stiffer penalties,
especially for repeat offenders.
Some advocates of legal
marijuana say the problem
isn’t that marijuana legal-
ization failed, but rather that
more states haven’t legalized
it. Until more states — and the
federal government — make
marijuana legal, they say, the
black market will continue.
Critics, in contrast, say
making marijuana legal
nationwide would create an
even bigger mess and increase
demand for lower-priced ille-
gally grown pot. Oregon cre-
ated this chaos, they say, by
legalizing marijuana without
an adequate plan to track and
enforce it.
“The state woefully under-
funded the regulatory agen-
cies before allowing this,”
said Sickler, sheriff of Jack-
son County. “It was like: ‘Let’s
open the floodgates and see
what happens.’ You can’t put
everything back in the jar.”
Legislative efforts
Legislators, nonetheless,
are trying to squeeze the mon-
ster back into the jar.
Oregon tweaked its hemp
rules this year to make test-
ing for THC — the substance
that gets people high — more
enforceable, and in 2021, state
legislators passed House Bill
3000, which strengthened
tracking and created a map
law enforcement officers can
use to determine if a site is
licensed.
In December, Gov. Kate
Brown called a special ses-
sion during which lawmakers
approved $25 million for law
enforcement efforts and $5
million for oversight of water
use and theft.
Further legislative propos-
Barb
Iverson
U.S. Rep.
Cliff Bentz
als are expected in Oregon’s
2022 session.
According to Marsh and
Sen. Jeff Golden, D-Ashland,
a few bills are in the works.
The first, Senate Bill 1564,
would temporarily allow
ODA to stop issuing industrial
hemp grower licenses until the
department deems the situa-
tion under control.
The bill faces opposition
from farm groups, which say
legal hemp growers should not
be punished.
This wouldn’t be the first
time hemp was targeted.
House Bill 3000 was similarly
criticized for placing addi-
tional fees and requirements
on hemp operations.
“It’s frustrating when they
raise our fees,” said Iverson,
the Woodburn-area farmer,
who grows legal hemp, among
other crops. “We’re the easy
targets.”
Golden said that while he
understands there will be resis-
tance to SB 1564, he thinks
it’s necessary to get the cur-
rent mess in order before cre-
ating an even bigger cannabis
industry.
“I’m saying: ‘Folks, let us
take a breather. We’re drown-
ing,’” he said.
Meanwhile, an as-yet
unnumbered bill is in the
works in the Oregon House
Water Committee. Legislators
say the bill will stiffen penal-
ties for water theft and increase
the state Water Resources
Department’s
enforcement
capacity.
This bill, farm advocates
say, will only be accepted by
the farm community if it is
highly targeted.
“This bill will have to be
very carefully sculpted so it
applies in limited circum-
stances,” said Marsh.
Other potential propos-
als include providing grants
to nonprofits that help human
trafficking victims and creat-
ing rules around due process
before a site can be raided.
While policymakers con-
tinue their tug-of-war, Ore-
gon farmers continue to be
surrounded by nests of illegal
activity.
For cattle ranchers Jimmy
Gallagher and Todd Fleisher
of Sprague River, that means
another year of uncertainty
about water supplies and
safety for them and their
neighbors.
Gallagher’s two toddlers
often tag along with him for
farm chores, but he said the
area isn’t safe anymore.
“I’d feel uncomfortable
if my wife and kids came up
here alone now,” said Gal-
lagher, standing beside a
fence he and Fleisher built
on the grazing allotment. “It’s
changed our way of life.”
Buffer: Agriculture department was not involved in writing the act
Continued from Page 1
The Department of Fish and
Wildlife, in consultation with
tribes, would map “riparian man-
agement zones.” Land with build-
ings, roads, trails and private beach
access would be exempt, as would
tribal land, unless the tribe gave
permission.
The agriculture department was
not involved in writing the act. The
department’s Natural Resources
Assessment Section, however,
this month analyzed the proposal’s
possible effect in the four counties.
In Skagit County, the converted
11,253 acres would include 1,728
acres of potatoes and 1,415 acres
of field corn. The buffers would
also take 2,147 acres of hay and
1,334 acres of pasture.
In Lewis County, land con-
verted to buffers would total 4,989
acres, including 2,221 acres of pas-
ture, 59 acres of Christmas trees
and 44 acres of barley.
In Yakima County, converted
land would include 551 acres of
pasture. Other losses include 31
acres of hops, 21 acres of apples
and 10 acres of mint.
In Chelan County, buffers
would take up 33 acres now used
for growing pears, the agriculture
department estimated.
Farmers last week told the
House Agriculture and Natural
Resources Committee that the bill
ignores habitat provided by farms
and that mandatory buffers may
destroy their livelihoods, espe-
cially in Western Washington.
“I fear this bill is sending a mes-
sage to farmers — get out while
you can,” Skagit Valley farmer
Kraig Knutzen said.
The buffer legislation has not
passed either the Senate or House
agriculture committees.