BILL ANALYSIS Ó
AB 243
Page 1
Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Alejo, Chair
AB
243 (Wood) - As Amended April 22, 2015
SUBJECT: Medical marijuana cultivation
SUMMARY: Establishes new requirements for marijuana
cultivation, requires medical marijuana cultivation to meet the
requirements of state law, and requires coordination between the
state and local governments to enforce medicinal marijuana
cultivation. Specifically, this bill:
1) States the intent of the Legislature that the
multiagency task force, the Department of Fish and Wildlife
(CDFW), and the State Water Resources Control Board (Water
Board) pilot project address the environmental impacts of
cannabis cultivation and continue enforcement efforts on a
statewide and permanent basis to ensure the reduction of
the adverse impacts of marijuana cultivation on water
quality and fish and wildlife throughout the state.
2) Requires indoor and outdoor medical marijuana
cultivation to be conducted in accordance with state and
local laws and best practices.
3) Requires the State Board of Forestry and Fire
Protection, CDFW, the Water Board, the California regional
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water quality control boards (regional water boards), and
traditional state law enforcement agencies to address
environmental impacts of medical marijuana cultivation and
to coordinate with local governments on enforcement
efforts.
4) Requires a county, city, or city and county, by July 1,
2016, to adopt an ordinance to implement the requirements
of the bill, or to adopt a resolution to opt out of being
the responsible entity for implementation of the
requirements of the bill.
5) Requires the Governor to designate an appropriate state
agency to implement the requirements of the bill in each
county, city, or city and county that adopts a resolution
opting out of responsibility for implementation.
6) Requires all qualified medicinal marijuana patients and
primary care givers cultivating marijuana pursuant to the
Compassionate Use Act of 1996, and all qualified persons
associated with legal medicinal marijuana cultivation, to
obtain a permit to cultivate marijuana from the sheriff,
chief of police, or other entity designated by the county,
city, or city and county, or designated state agency, that
specifies location and number of plants grown at that
location. Authorizes the county, city, or city and county
or designated state agency to charge an administrative fee
to cover the costs of permit issuance.
7) Requires the county, city, or city and county to
establish the limit on the number of plants that may be
cultivated on an outdoor parcel or indoor facility in areas
zoned for marijuana cultivation. Sets, where a designated
state agency is the responsible entity for implementation,
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the limit on marijuana plants at 99.
8) Prohibits outdoor marijuana cultivation from being
within 100 feet of any occupied legal residential home or
of a school offering kindergarten and grades 1-12, and
authorizes a county, city, or city and county to increase
the distance to up to one mile.
9) Requires all outdoor marijuana cultivations to be
securely fenced with a fence not less than six feet tall,
to be out of sight from the public, and to use lights that
do not exceed 1,200 watts per 100 square feet of
cultivation.
10) Prohibits marijuana cultivated at a residential
home from exceeding the limit of plants established by the
county, city, or city and county. Sets, where a designated
state agency is the responsible entity for implementation,
the limit on marijuana plants at 6, unless the county,
city, or city and county adopts an ordinance setting a
higher limit for indoor cultivation.
11) Prohibits indoor marijuana cultivation from being
within 100 feet of a school offering kindergarten and
grades 1-12, and authorizes a county, city, or city and
county to increase the distance to up to one mile.
12) Requires all buildings where marijuana is
cultivated or stored to be properly secured.
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13) Requires the county, city, or city and county or
designated state agency to distribute zip ties for
marijuana plant identification, and authorizes the county,
city, or city and county or designated state agency to
charge an administrative fee to cover the costs of issuing
the zip ties, monitoring, tracking and inspecting the
plants.
14) Requires a copy of a current and valid
state-issued medical marijuana ID card or physician
recommendation to be displayed at all cultivation sites.
15) Authorizes the county, city, or city and county
or designated state agency to revoke or suspend a permit,
deny the issuance of a permit, or impose fines for a
violation.
16) States that the requirements of this bill do not
apply to a qualified patient cultivating marijuana under
the Compassionate Use Act of 1996 if he or she cultivates
marijuana for his or her personal medical use and does not
sell, distribute, donate, or provide marijuana to any other
person or entity.
17) States that the requirements of this bill do not
apply to a primary caregiver cultivating marijuana under
the Compassionate Use Act of 1996 if he or she cultivates
marijuana exclusively for the personal medical use of no
more than five specified qualified patients.
18) States that the bill does not preclude a county,
city, or city and county from regulating or banning the
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cultivation, possession, storage, manufacture, transport,
provision, distribution, donation, or sale of marijuana, or
any other activity or impair the enforcement of the same.
19) States thatrequirements of the bill do not apply
to a county, city, or city and county that has an existing
ordinance pertaining to the cultivation of marijuana,
unless the county, city or city and county adopts an
ordinance to implement the requirements of the bill.
20) Requires regional water boards and the Water Board to
address waste discharges resulting from medical marijuana
cultivation and associated activities, including adopting a
general permit, establishing new waste discharge
requirements, or taking action under existing waste
discharge requirements.
21) Requires regional water boards to include conditions to
address items such as:
a) Site development and erosion control;
b) Stream crossing installation;
c) Soil damage;
d) Water storage and use;
e) Irrigation runoff;
f) Fertilizers and soil;
g) Pesticides and herbicides;
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h) Petroleum products and other chemicals;
i) Cultivation-related waste;
j) Refuse and human waste; and,
aa) Cleanup, restoration and mitigation.
EXISTING LAW:
1) Establishes the Compassionate Use Act of 1996
(Proposition 215), which authorizes the prescription,
possession and use of medicinal marijuana. (Health and
Safety Code (H&S) §11362.5)
2) Specifies that local governments may adopt local
ordinances that regulate the location, operation, or
establishment of a medical marijuana cooperative or
collective. (H&S § 11362.83)
3) Pursuant to the Porter-Cologne Water Quality Control
Act, governs water quality regulation in California by
establishing a comprehensive program to protect water
quality and the beneficial uses of water. (Water Code (WC)
§ 13000, et seq.)
4) Requires specified persons to file a report with the
appropriate regional water board on waste discharge that
could affect the quality of the waters of the state, other
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than into a community sewer system. (WC § 13260)
5) Permits the Water Board or regional water boards to
waive discharge reporting requirements if the waiver is
consistent with any applicable state or regional water
quality control plan and is in the public interest. (WC §
13269)
FISCAL EFFECT: Unknown.
COMMENTS:
Need for the bill: According to the author, "For the past 18
years, medical marijuana growers and medical marijuana patients
have lived in a gray area where state and federal law are in
direct conflict, which has prevented the establishment of
reasonable environmental protections to already impacted
watersheds.
"Currently, there are very few environmental regulations for
medical marijuana growers, which have caused unimaginable
environmental damages to the North Coast region of the State...
"The bill would also put in place basic regulations around the
cultivation of medical marijuana. AB 243 establishes a program
that allows for the tracking of medical marijuana plants. This
will assist local law enforcement identify legal plants from the
illegal ones quickly. The program allows an entity, designated
by the local jurisdiction, to issue unique identifiers, such as
a zip-tie, to farmers that seek to cultivate medical marijuana.
A unique identifier would be issued for each plant that the
farmer seeks to cultivate.
"The Marijuana Watershed Protection Act, or AB 243, seeks to
create a regulatory structure around a product that has never
been regulated in our State."
What's the problem: Many illegal, clandestine marijuana
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cultivation operations are tucked away in California's sprawling
forest lands, mostly in Mendocino and Humboldt Counties. The
United States Forest Service describes the extensive and
alarming damage caused by "trespass grows" as having devastating
impacts on the environment. The damages are due to illicit and
uncontrolled use of pesticide and rodenticide applications;
uncontrolled logging; wildlife habit destruction; illegal stream
and river diversions for irrigation; and, chemical and solid
waste discharges.
The Water Board and the CDFW acknowledge that marijuana site
cultivation on private and public lands cause enormous adverse
effects to wildlife and their habitat. Marijuana cultivation
activities can cause erosion and stream diversion. Unlawful
water diversions can severely limit the amount of water
available to people and wildlife, which is exacerbated during
California's severe drought.
(Lack of) marijuana regulation: Under current state law, there
are no agricultural or environmental requirements explicitly for
marijuana cultivation. Regulations for marijuana cultivation are
still in their nascence, likely given how relatively recently
medicinal marijuana became legalized in California.
According to the research article "Impacts of Surface Water
Diversions for Marijuana Cultivation on Aquatic Habitat in Four
Northwestern California Watersheds," which includes
contributions from CDFW, recent increases in the number and size
of marijuana cultivation sites appear to be, in part, a response
to ballot Proposition 215, the Compassionate Use Act (1996). In
spite of state-wide prevalence, there is not yet a clear
regulatory framework for the cultivation of marijuana, and from
an economic viewpoint there is little distinction between plants
grown for the black market and those grown for legitimate
medical use.
According to ArcView Group, a San Francisco-based marijuana
research and investment firm, marijuana legalization "advocacy
groups have already planned for legalization ballot initiatives
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in at least six states in 2016, including an Adult Use
initiative in California. Should an Adult Use legalization
initiative pass in California in 2016 the entire industry could
rapidly double in size." ArcView Group's report, "3rd Edition of
the State of the Legal Marijuana Markets," stated that the
"largest medical market in the country, California, is no longer
a model for medical cannabis legalization because of its lack of
statewide regulation."
The exponential growth in the demand for legal marijuana has
pushed the demand for cultivation, thereby pushing the demand
for regulation. In theory, regulations for legal cultivation
will bring the illicit marijuana grows out of the shadows, which
would help prevent the environmental problems marijuana
cultivation currently present.
Current efforts addressing environmental impacts of marijuana
cultivation: The Water Board and CDFW proposed through the
Governor's Office a pilot project to develop a focused
enforcement effort regarding medicinal marijuana growers on
private lands. The pilot project arose, in part, out of the
rapid escalation of cannabis cultivation and proliferation of
cultivation sites, primarily in Northern California.
The Budget Act of 2014 (SB 852, Chapter 25, Statutes of 2014),
appropriated resources for both CDFW and the Water Board to
reduce environmental damage caused by marijuana cultivation on
private and high value state-owned public lands in California.
CDFW and the Water Board created a multi-disciplinary Marijuana
Task Force, and began implementing a priority-driven approach to
address the natural resources damages from marijuana cultivation
on private lands in northern California and on high conservation
value public lands.
According to the Water Board and CDFW's joint report to the
Legislature in January 2015, "The pilot project's initial effort
is focused in the geographic area where CDFW and the Water Board
have the greatest need, which are those counties covered by CDFW
Regions 1 (Del Norte, Siskiyou, Modoc, Humboldt, Trinity,
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Shasta, Lassen, Mendocino, and Tehama), and Region 4 (Tuolumne,
Stanislaus, Mariposa, Merced, Madera, San Benito, Fresno,
Monterey, Kings, Tulare, San Luis Obispo, and Kern). These
counties are covered by the Central Valley and North Coast
Regional Water Quality Control Boards, and the State Water
Resources Control Board's Division of Water Rights. The pilot
project has four components:
(1) the development of a regulatory program;
(2) targeted enforcement in high value watersheds;
(3) education and outreach to cultivators about best
management practices; and
(4) multi-agency coordination at the state and local level."
Currently, the Water Board is in the process of promulgating a
conditional waiver of waste discharge requirements ('permit') in
both the North Coast and Central Valley Regions. A conditional
waiver of waste discharge requirements will require all persons
engaged in the activity of cultivating cannabis to enroll in the
program, comply with terms and conditions and pay a fee. While
the permits must undergo a public process before they can be
adopted by the respective regional water boards, they are
expected to contain such terms and conditions as, among others,
a site operations plan, proper fuel storage and maintenance,
appropriately sized and graded stream crossings, appropriately
graded grow and structure pads, guidelines for fertilizer use
and pest control and water conservation measures.
Regional Water Boards: The Water Board has jurisdiction
throughout California to protect water quality by setting
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statewide policy, and coordinating and supporting the regional
water board efforts. There are nine regional water quality
control boards that exercise rulemaking and regulatory
activities by water basins.
Though regional water boards have jurisdiction to oversee the
protection of water quality, regulate discharge, and permit, as
appropriate, waste discharges from various sources, not all are
doing so as it relates specifically to marijuana cultivation. AB
243 creates a new mandate on regional water boards to
specifically address specified conditions of marijuana
cultivation similarly to what the Central Valley and North Coast
Regional Water Quality Control Boards have accomplished under
the aforementioned pilot program.
Related legislation:
AB 26 (Jones-Sawyer). Requires the Department of Alcoholic
Beverage Control to promulgate regulations that, among other
things, include requirements to protect the state's clean water
and environment, including, but not limited to, protections
related to land conversion, grading, water diversion and pond
development, and agricultural discharges. This bill is pending
before the Assembly Business & Professions and Health
Committees.
AB 34 (Bonta). Enacts the Medical Cannabis Regulation and
Control Act, and would establish the Division of Medical
Cannabis Regulation to, among other things, consult with the
Department of Water Resources to adopt regulations to ensure
that commercial licensed cannabis activity does not threaten the
state's clean water and environment and is in compliance with
the California Environmental Quality Act. This bill is set to be
heard in the Assembly Business & Professions Committee on April
28, 2015.
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AB 266 (Cooley). Establishes a Bureau of Medical Marijuana
Regulation to regulate marijuana cultivation, and, among other
things, would also establish the Special Account for
Environmental Enforcement to fund the enforcement of
environmental regulations relating to licensed cultivation
sites. This bill is set to be heard in the Assembly Business &
Professions and Assembly Labor & Employment Committees.
Double referral: This bill was double referred to the Assembly
Agricultural Committee, where it passed out on April 15, 2015,
on a 6 - 2 vote.
REGISTERED SUPPORT / OPPOSITION:
Support
Associated Students of Humboldt State Universality
California Association of Water Agencies
California Narcotic Officer's Association
California Cattlemen's Association
California Forestry Association
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California Trout
Central Coast Forest Association
Conscious Cannabis Ventures
County of Mendocino, Office of the Sheriff-Coroner
Defenders of Wildlife
Emerald Growers Association
Heritage Associates
Humboldt Redwood Company
Sierra Club California
Sonoma County Water Agency
The Nature Conservancy
Trout Unlimited
Trust for Public Land
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Opposition
None on file.
Analysis Prepared
by: Paige Brokaw / E.S. & T.M. / (916) 319-3965