BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: AB 243
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|Author: |Wood |
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|Version: |7/2/2015 |Hearing | 7/15/2015 |
| | |Date: | |
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|Urgency: |Yes |Fiscal: |Yes |
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|Consultant:|Rachel Machi Wagoner |
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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
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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
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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
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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
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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
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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
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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
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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
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