Cannabis Cultivation Policy Staff Report
The purpose of this Cannabis Cultivation Policy Staff Report (Staff Report) is to provide background, rationale and justification for the principles and guidelines contained in the Cannabis Cultivation Policy: Principles and Guidelines for Cannabis Cultivation (Policy). The Policy establishes principles and guidelines (herein “Requirements”) for cannabis cultivation activities to protect water quality and instream flows. The purpose of the Policy is to ensure that the diversion of water and discharge of waste associated with cannabis cultivation does not have a negative impact on water quality, aquatic habitat, riparian habitat, wetlands, and springs. The Policy applies to the following cannabis cultivation activities throughout California:
Personal Use Medical
The Policy does not apply to recreational cannabis cultivation for personal use, which is limited to six plants under the Adult Use of Marijuana Act (Proposition 64, approved by voters in November 2016)
Legislative / Regulatory Background
Proposition 215, the Compassionate Use Act (CUA) of 1996 (Health and Safety Code Section 11362.5 et seq.) established the medical cannabis industry. While Proposition 215 laid the groundwork for medical cannabis use, it did not provide a regulatory system for oversight of the cultivation, distribution, or sale of cannabis, nor did it establish any type of control of the environmental impacts from cannabis cultivation within the state. In 2003, Senate Bill (SB) 420 was enacted by the Legislature to clarify the scope of the CUA and provided California cities and counties authority to adopt and enforce cannabis related rules and regulations consistent with SB 420 and the CUA. Without appreciable regulatory oversight however, large-scale cannabis cultivation proliferated in remote areas throughout California.
In an effort to provide a regulatory framework for the cannabis industry, Governor Brown signed the Medical Marijuana Regulation and Safety Act (MMRSA)2, which became effective on January 1, 2016. MMRSA created a state licensing system for cultivation, manufacture, sale, distribution, and testing of medical cannabis.
On June 27, 2016, the Governor signed SB 837, which included a number of changes to the MMRSA including replacing the term marijuana with cannabis, changing the name of the MMRSA to the Medical Cannabis Regulation and Safety Act (MCRSA), and adding environmental protection statutes that place certain mandates on the State Water Resources Control Board (State Water Board).
In November 2016, voters approved Proposition 64, the Adult Use of Marijuana Act (AUMA), which legalized recreational cannabis cultivation, and the possession and use of limited amounts of cannabis by adults over 21 years of age. AUMA requires the same environmental protections as MCRSA. Among other provisions, the MCRSA and the AUMA require the California Department of Food and Agriculture (CDFA) to issue licenses to commercial cannabis cultivators and establish a track and trace program that tracks commercial cannabis from seed or clone through cultivation, harvest, transport, manufacture, distribution, and sale to the end user.
On June 27, 2017, the Governor signed SB 94 which combines the requirements of MCRSA and AUMA into a unified code.
Cannabis cultivation related legislation established:
Water Code section 13149, which authorizes the State Water Board, in consultation with the California Department of Fish and Wildlife (CDFW), to adopt interim and long-term principles and guidelines (requirements) for the diversion and use of water for cannabis cultivation. The requirements:
o shall include measures to protect springs, wetlands, and aquatic habitats from negative impacts of cannabis cultivation; and
o may include requirements that apply to groundwater diversions where the State Water Board determines those requirements are reasonably necessary.
Water Code section 13276, which directs the Regional Water Quality Control Boards (Regional Water Boards) or the State Water Board to address discharges of waste resulting from medical and commercial cannabis cultivation, including adopting a general permit establishing waste discharge requirements, or taking action pursuant to Water Code section 13269.
Business and Professions Code section 26060.1(b) requires that any cannabis cultivation licenses issued by CDFA include conditions requested by the Department of Fish and Wildlife and the State Water Resources Control Board to ensure that individual and cumulative effects of water diversion and discharge associated with cannabis cultivation do not affect the instream flows needed for fish spawning, migration, and rearing, and the flows needed to maintain natural flow variability. The conditions shall include, but not be limited to, the principles, guidelines, and requirements established pursuant to Section 13149 of the Water Code.
OVERVIEW OF POLICY REGIONS
California is a large and geographically diverse state, covering 163,696 square miles, and spanning over 800 miles of coastline. California’s multiple mountain ranges and valleys result in highly variable climate, precipitation and drainage patterns.
Fourteen regions are identified in the Policy to account for the state’s size and geographic diversity: Klamath, Upper Sacramento, North Eastern Desert, North Coast, Middle Sacramento, Southern Sacramento, North Central Coast, Tahoe, South Central Coast, San Joaquin, Mono, Kern, South Coast, and South Eastern Desert (Figure 1). As mentioned above, the Policy establishes Requirements to protect water quality and instream flows statewide. These Requirements include minimum instream flows that must be met or exceeded at a specific compliance flow gage when water is being diverted for cannabis cultivation. The Policy identifies 14 regions, and identifies nine regions as priority regions that support anadromous salmonids. The priority regions are: Klamath, Upper Sacramento, North Coast, Middle Sacramento, Southern Sacramento, North Central Coast, South Central Coast, San Joaquin, and South Coast.