BILL ANALYSIS Ó SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator Wieckowski, Chair 2015 - 2016 Regular Bill No: AB 243 ----------------------------------------------------------------- |Author: |Wood | ----------------------------------------------------------------- |-----------+-----------------------+-------------+----------------| |Version: |7/2/2015 |Hearing | 7/15/2015 | | | |Date: | | |-----------+-----------------------+-------------+----------------| |Urgency: |Yes |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant:|Rachel Machi Wagoner | | | | ----------------------------------------------------------------- SUBJECT: Medical marijuana cultivation. ANALYSIS: Existing law: 1)Under the Compassionate Use Act of 1996, an initiative measure enacted by the approval of Proposition 215 at the November 5, 1996, statewide general election, a) Authorizes the use and cultivation of marijuana for medical purposes. b) Makes it a crime to plant, cultivate, harvest, dry, or process marijuana, except as otherwise authorized by law. c) Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate in order collectively and cooperatively to cultivate marijuana for medical purposes, are not subject to criminal sanctions solely on the basis of that fact. 2)Under the Porter-Cologne Water Quality Control Act, the State Water Resources Control Board (SWRCB) and the California regional water quality control boards (regional boards) are the principal state agencies with responsibility for the coordination and control of water quality in the state.This bill: AB 243 (Wood) Page 2 of ? 1) Establishes the Division of Medical Cannabis Cultivation (division) in the Department of Food and Agriculture. 2) Authorizes a county, city, or city and county to issue or deny a conditional permit to cultivate medical marijuana and would require an applicant to obtain both a conditional permit from the county, city, or city and county and a state medical marijuana cultivation license from the division prior to cultivation occurring. By increasing the duties of local officials relative to issuing a conditional permit to cultivate medical marijuana, the bill would impose a state-mandated local program. 3) Requires the division to implement an identification program for medical marijuana in consultation with the State Water Resources Control Board (SWRCB) and the Department of Fish and Wildlife. 4) Authorizes the division to charge a fee to cover the reasonable costs of issuing the unique identifier and monitoring, tracking, and inspecting each medical marijuana plant. 5) Allows a county, city, or city and county to administer the unique identifier program, in which case the bill would authorize the county, city, or city and county, to charge a fee to cover the reasonable costs of issuing the unique identifier and monitoring, tracking, and inspecting each medical marijuana plant. 6) Specifies that the unique identifier program established pursuant the bill's provisions does not apply to a county, city, or city and county that has an existing ordinance pertaining to the cultivation of marijuana that provides for the identification of individual plants during the cultivation period. 7) Imposes, on and after June 1, 2016, a tax on a licensed medical marijuana cultivator, at the rate of $50 per medical marijuana plant with a unique identifier. 8) Requires the tax to be administered by the State Board of Equalization, as prescribed, and would require a licensed medical marijuana distributor to collect the tax from the AB 243 (Wood) Page 3 of ? licensed medical marijuana cultivator and remit the amounts collected pursuant to the procedures set forth in the Fee Collection Procedures Law. By expanding the application of the Fee Collection Procedures Law, a violation of which is a crime, this bill would impose a state-mandated local program. This bill would require all moneys less refunds, to be deposited into the Marijuana Production and Environment Mitigation Fund, which this bill would create in the State Treasury, and continuously appropriate those moneys to the board for allocation, as specified. The bill would require a licensed medical marijuana cultivator to sell his or her medical marijuana products only to a licensed medical marijuana distributor, and would prohibit any other sales of medical marijuana by a licensed medical marijuana cultivator. The bill would also prohibit the sale of medical marijuana plants that do not contain a unique identifier by a licensed cultivator to a licensed distributor. 9) Requires, on or before January 1, 2021, specified state agencies, including, among others, SWRCB, the division, and the Department of Justice, to submit reports to the Legislature regarding implementation of the bill. 10)Specifies that its provisions regarding the unique identifier program and cultivation do not apply to certain qualified patients cultivating marijuana if the patient cultivates marijuana for his or her personal medical use and does not sell, distribute, donate, or provide marijuana to any other person or entity, or to certain primary caregivers cultivating marijuana if the primary caregiver cultivates marijuana exclusively for the personal medical use of no more than five specified qualified patients for whom he or she is the primary caregiver and who does not receive remuneration, except as specified. 11)Requires indoor and outdoor medical marijuana cultivation to be conducted in accordance with state and local laws and best practices related to land conversion, grading, electricity usage, water usage, water quality, woodland and riparian habitat protection, agricultural discharges, and similar matters. This bill would require state agencies to address environmental impacts of medical marijuana cultivation and coordinate, when appropriate, with cities and counties and their law enforcement agencies in enforcement efforts. AB 243 (Wood) Page 4 of ? 12)States the intent of the Legislature that the multiagency task force, the Department of Fish and Wildlife and SWRCB pilot project to address the Environmental Impacts of Cannabis Cultivation, continue its enforcement efforts on a statewide level and permanent basis. 13)Requires each regional board, and allows SWRCB, to address discharges of waste resulting from medical marijuana cultivation and associated activities. 14)Declares that it is to take effect immediately as an urgency statute. Background 1) The Compassionate Use Act (CUA) and SB 420. In 1996, voters approved Proposition 215, known as the Compassionate Use Act of 1996 (CUA). The CUA allowed patients and primary caregivers to obtain and use medical marijuana, as recommended by a physician, and prohibited physicians from being punished or denied any right or privilege for making a medical marijuana recommendation to a patient. In 2003, SB 420 (Vasconcellos, Chapter 875, Statutes of 2003) allowed patients and primary caregivers to collectively and cooperatively cultivate medical marijuana, and established a medical marijuana card program for patients to use on a voluntary basis. However, since the passage of Proposition 215 and SB 420, the state has not adopted a framework to provide for appropriate licensure and regulation of medical marijuana. In addition, despite the CUA and SB 420, marijuana is still illegal under state and federal law. 2) Local Authority Over Medical Marijuana. By exempting qualified patients and caregivers from prosecution for using or from collectively or cooperatively cultivating medical marijuana, the CUA and SB 420 essentially authorized the cultivation and use of medical marijuana. These laws have triggered the growth of medical marijuana dispensaries in many localities, and in response, local governments have sought to exercise their police powers to regulate or ban activities relating to medical marijuana. After numerous court cases and years of uncertainty relating to the ability of local governments to control medical AB 243 (Wood) Page 5 of ? marijuana activities, particularly relating to the ability to control the zoning, operation, and existence of medical marijuana dispensaries, the California Supreme Court (Court), in City of Riverside v. Inland Empire Patients (2013) 56 Cal. 4th 729, held that California's medical marijuana statutes do not preempt a local ban on facilities that distribute medical marijuana. The Court held that nothing in the CUA or SB 420 expressly or impliedly limited the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land, including the authority to provide that facilities for the distribution of medical marijuana will not be permitted to operate within its borders. Accordingly, many California jurisdictions, roughly estimated by the League of California Cities at 50% pending completion of a statewide survey, ban the cultivation and sale of medical marijuana altogether. 3) Environmental Concerns. According to some estimates, there are 30,000 cultivation sites in the tri-county area of Humboldt-Mendocino-Trinity, and an additional 10,000 or more cultivation sites elsewhere in California. As a result, California land, watersheds, and some species have been significantly damaged by some cultivation operations. "Trespass grows", which cultivate marijuana without permission on public, tribal or privately owned land, have been associated with wildlife poisoning, use and dumping of fertilizers and pesticides, illegal water diversions and water pollution, logging and land disturbance, and severe problems with garbage and human waste. These industrial-size marijuana grows, taking place in the National Forests and on private timberland in some of the state's most remote and ecologically sensitive areas, are the subject of a recent study by the California Department of Fish and Wildlife (CDFW), "Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watershed," which showed that during drought conditions, water demand for marijuana cultivation exceeded stream flow in three of four study watersheds. "Marijuana cultivation has proliferated in northwestern California since at least the mid-1990s. The environmental impacts associated with marijuana cultivation appear AB 243 (Wood) Page 6 of ? substantial, yet have been difficult to quantify, in part because cultivation is clandestine and often occurs on private property?.." "We estimated water demand of marijuana irrigation and the potential effects water diversions could have on stream flow in the study water sheds. Our results indicate that water demand for marijuana cultivation has the potential to divert substantial portions of streamflow in the study watersheds, with an estimated flow reduction of up to 23% of the annual seven-day low flow in the least impacted of the study watersheds. Estimates from the other study watersheds indicate that water demand for marijuana cultivation exceeds streamflow during the low-flow period. In the most impacted study watersheds, diminished streamflow is likely to have lethal or sub-lethal effects on salmon and steelhead trout, which are listed under the state and federal Endangered Species Acts, and cause further decline of sensitive amphibian species." In response, the Budget Act of 2014 appropriated resources for both CDFW and the SWRCB to reduce environmental damage caused by marijuana cultivation on private and high value state-owned public lands in California. A total of $3.3 million was allocated to the two agencies to create a multi-disciplinary Marijuana Task Force, and to implement 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. This program was authorized as a pilot program for five years. Some organizations want to remedy the environmental effects of past marijuana cultivation and regulate medical marijuana cultivation more consistently throughout the state. Comments 1) Purpose of Bill. The author states that the cultivation of marijuana has caused significant damage to California's natural environment. The potential for future damage is made all the greater by the lack of regulation of the medical marijuana industry, and in particular, the cultivation of medical AB 243 (Wood) Page 7 of ? marijuana. According to the author, for the past 20 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. The author states that AB 243 creates a regulatory framework around cultivation. The unique identification program allows for the tracking of medicinal marijuana plants to ensure that marijuana is not being diverted to the black market and also allows law enforcement to determine which plants are legally being cultivated for medical purposes and which are being illegally cultivated. This enables swifter eradication actions against illegal grows while avoiding the accidental eradications of legal medicinal plantings. Furthermore, the author asserts that AB 243 establishes a tax that meets an urgent need for funding to address the impacts of illegal marijuana cultivation. The author believes that this need is made all the more dire by the current drought, which exacerbates the harm caused by the illegal diversion of water to cultivate marijuana. 2) DOUBLE REFERRAL: This measured was heard in the Senate Governance and Finance Committee on July 8, 2015 and passed out of that committee on a vote of 5-0. The provisions of the bill pertaining to relating to local agencies' permitting and land use authority and taxation were considered by Senate Governance and Finance Committee. The role of SWRCB and potential impacts to the environment are within the jurisdiction of the Senate Environmental Quality Committee. SOURCE: Author SUPPORT: California Trout California Cattlemen's Association California Narcotic Officers' Association Defenders of Wildlife Emerald Growers Association Green California Humboldt Redwood Company AB 243 (Wood) Page 8 of ? Mendocino County Sheriff-Coroner, Thomas D. Allman Nature Conservancy Sierra Club California Sonoma County Water Agency Trout Unlimited Trust for Public Land OPPOSITION: Urban Counties Caucus -- END --