Current Environmental Issues in Regulation of Cannabis Cultivation

With the enactment of the Medical Marijuana Regulation and Safety Act (recently renamed the Medical Cannabis Regulation and Safety Act, or MCRSA), California regulators with responsibility for a wide range of public health and safety issues suddenly were called on in late 2015 to develop and implement new standards and regulations specific to the cannabis industry, including agencies associated with environmental regulation and natural resource protection.

It should come as no surprise to anyone familiar with California’s recent experience with major drought that the main focus of the MCRSA’s environmental requirements is on protecting the quality of the state’s water supply. The State Water Resources Control Board (SWRCB), along with the Regional Water Quality Control Boards (RWQCB), are the primary agencies in California charged with allocating the state’s water resources and ensuring that water quality is maintained to benefit human health, the environment, and all other beneficial uses.

Even before the MCRSA passed, the SWRCB was already part of a multiagency task force charged with developing pilot programs to address the environmental impact of cannabis cultivation, and to pursue enforcement efforts “to ensure the reduction of adverse impacts of marijuana cultivation on water quality and on fish and wildlife throughout the state.” Water Code §13276(a). Under the MCRSA, these efforts will continue on a permanent basis, and the SWRCB is in the process of developing state-wide regulations to “address discharges of waste resulting from medical marijuana cultivation and associated activities.” Water Code §13276(b). It is anticipated that some time before the end of 2016 the SWRCB will issue draft regulations for public comment.

Meanwhile, also as part of the multiagency task force pilot programs, the North Coast RWQCB and the Central Valley RWQCB have adopted orders for their respective regions. Although the orders share certain similarities, the two regional boards have taken different approaches to regulation, as described below.

The North Coast RWQCB adopted California’s first regional water quality regulatory order, Order No. R1-2015-0023, on August 13, 2015. The Central Valley RWQCB’s Order No. R5-2015-0113 followed on October 2, 2015. Both orders adopt a “tiered” system, imposing progressively detailed requirements based on the size of a cultivation operation or its potential impact to water quality due to factors such as being situated on a steep slope, having stream crossings, or needing some construction or remediation work. Both orders require cultivators to enroll with the RWQCB by completing a Notice of Intent and paying an annual enrollment fee that ranges from $1,000 to $10,000 depending on the tier.

Both orders also include Best Management Practices, which may be enforceable conditions under the orders if applicable to a particular cultivator’s situation. These Best Management Practices include a wide spectrum of specific items, including timing limitations on construction to avoid critical seasons for migrating fish, the need to replace disturbed riparian vegetation with native plant species, and required stream crossing maintenance.

Finally, both orders require periodic monitoring and reporting, and provide that RWQCB officers may inspect the cultivation operations.

Putting aside these similarities, there are several significant differences between the two regions’ regulatory approaches. Most importantly, the North Coast RWQCB provides for a waiver of waste discharge requirements for existing cultivation operations while the Central Valley RWQCB imposes requirements on both existing and future cultivation sites. The difference results from each region’s approach to the California Environmental Protection Act (CEQA (CEB will link here to CEQA law))—by restricting enrollment to existing cultivation sites only, the North Coast RWQCB can ensure that its order will have only a minimal impact on current environmental conditions.   New cultivation operations in the Central Valley RWQCB must complete biological and cultural inventory assessments in order to obtain permits, and may be subjected to further CEQA-related requirements.

Even as the pilot programs come into use and the SWRCB develops statewide rules, this past June Governor Brown signed SB 837, which makes clear that cannabis cultivators who employ water diversion (irrigation) must comply with SWRCB notice and permitting requirements. As time goes on—and in particular as the SWRCB crafts its statewide regulations—additional requirements likely will be added to the regulatory burden of cannabis cultivators, including more specific regulations for the handling, use, storage, and disposal of fertilizers and pesticides. It will be vital for practitioners in the industry, and landowners or cultivators interested in jumping in, to stay informed as developments continue to unfold.

 

 

Marc Shapp is an associate in the San Francisco Bay Area office of Hunsucker Goodstein PC, a national environmental law firm. Marc practices in the environmental law, litigation, and insurance coverage practice areas. He represents a wide range of clients on matters concerning soil, air, and groundwater contamination in litigation and regulatory matters. Marc is a member of the National Cannabis Bar Association, and sits on its Amicus Committee. The views expressed in this blog are those of Mr. Shapp, and are not necessarily those of Hunsucker Goodstein PC.

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