REPORT TO SHASTA COUNTY BOARD OF SUPERVISORS

BOARD MEETING DATE:  March  13, 2018
CATEGORY:  Scheduled Hearings - Resource Management-4.

SUBJECT:

Uncodified urgency interim ordinance establishing a temporary moratorium on the cultivation of industrial hemp within the unincorporated areas of the County of Shasta

Supervisorial District No. :  ALL

DEPARTMENT CONTACT:  RICHARD W. SIMON, DIRECTOR OF RESOURCE MANAGEMENT (530) 225-5789

STAFF REPORT APPROVED BY:  Richard W. Simon, Director of Resource Management; Paul Kjos, Ag. Comm.; Tom Bosenko, Sheriff

RECOMMENDATION

Take the following actions: (1) Open the public hearing; (2) close the public hearing; (3) introduce, waive the reading, and adopt An Uncodified Urgency Interim Ordinance of the County of Shasta Declaring a Temporary Moratorium on the Cultivation of Industrial Hemp Within the Unincorporated Areas of the County of Shasta (the “Urgency Interim Ordinance”); (4) find that the Urgency Interim Ordinance is exempt from environmental review under the California Environmental Quality Act (CEQA) for the reasons stated in the Urgency Interim Ordinance;  (5) direct the Agricultural Commissioner, the Director of Resource Management, and the Sheriff to assess the effects of unregulated cultivation of industrial hemp by "Established Agricultural Research Institutions" and others on the environment and on the health and safety of the citizens of Shasta County, and determine whether there are reasonable regulations to mitigate any identified adverse effects; and (6) direct the Agricultural Commissioner, the Director of Resource Management, and the Sheriff to develop such reasonable regulations, if any, for consideration by the Planning Commission and the Board of Supervisors.

SUMMARY

The passage of Proposition 64 and associated legislative trailer bills will allow for the cultivation of industrial hemp once the Industrial Hemp Advisory Board has established a regulatory framework for implementation of registration, seed procurement, fees, and manufacturing.  The California Food & Agricultural Code was amended to include Division 24 (Division), which addresses the cultivation of industrial hemp.  The Division also exempts “Established Agricultural Research Institutions” (EARI) from many of the regulatory requirements, allowing them to cultivate industrial hemp with little to no oversight, including no registration with the County, no restriction on seed sources, and no limitation of the plants not exceeding 0.3% THC.   

This Ordinance will establish a moratorium on the cultivation of industrial hemp by EARIs and others until the County can determine the effects of unregulated cultivation of industrial hemp on the environment and the health and safety of the citizens of Shasta County and develop reasonable regulations, if any, to mitigate such impacts.  This urgency ordinance will be in effect for 45 days.  It may be extended by the Board of Supervisors for an additional 22 months and 15 days after a subsequent notice and public hearing.

DISCUSSION

With the passage of Proposition 64 and the associated legislative trailer bills, the California Food & Agricultural Code (FAC) was amended to include Division 24, which addresses the cultivation of industrial hemp.  Industrial hemp is defined under Food and Agricultural Code Section 81000 and Health and Safety Code section 11018.5 as “a fiber or oilseed crop, or both, that is limited to types of the plant Cannabis sativa L. having no more than three-tenths of 1 percent (.3%) tetrahydrocannabinol (THC) contained in the dried flowering tops, whether growing or not; the seeds of the plant; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin produced therefrom.”

FAC Division 24, which became operative on January 1, 2017, cites the requirements for the cultivation of industrial hemp, including the establishment of the Industrial Hemp Advisory Board (IHAB), listing specific hemp seed sources, the registration of growers, the requirement for testing to assure all industrial hemp contains less than 0.3% of THC, and the fees and processes to be developed for the registration of growers.    Since this regulatory framework has not yet been established by the IHAB, the commercial cultivation of industrial hemp is currently prohibited by most persons and entities.

Despite the current prohibition, FAC Division 24 exempts EARIs from many of the provisions listed above.  An “Established Agricultural Research Institution” is defined under FAC Division 24 as:

1. A public or private institution or organization that maintains land or facilities for agricultural research, including colleges, universities, agricultural research centers, and conservation research centers; or

    

2. An institution of higher education (as defined in Section 1001 of the Higher Education Act of 1965 (20 U.S.C. 1001) that grows, cultivates or manufactures industrial hemp for purposes of research conducted under an agricultural pilot program or other agricultural or academic research.”

    

As a result of the exemption in Division 24 for EARIs, the growth, cultivation, or manufacturing of industrial hemp by an EARI is not contingent upon the development of a regulatory framework addressing hemp seed, cultivation or any other provision set forth by the IHAB. 

This exemption allows cultivators to claim an association to be an EARI while the County has no guidelines on whether the grower or the institution is legitimate.  The ability and likelihood that cultivators could exploit this exemption to grow industrial hemp is great.  

Industrial hemp and cannabis are differentiated by definition in state law, with a major difference being industrial hemp may not contain more that 0.3% tetrahydrocannabinol (THC).  However, industrial hemp and cannabis are derivatives of the same plant, cannabis sativa L., and the appearance of industrial hemp and cannabis are virtually indistinguishable to the untrained eye.  Absent a laboratory performed chemical analysis for THC content, the two plants cannot be distinguished under their legal definitions. 

FAC Division 24 allows EARIs to cultivate and possess industrial hemp with a greater than 0.3% THC level, thereby resulting in such “research” plants meeting the definition of cannabis.  Farming industrial hemp requires growing the entire marijuana plant which at some point contains psychoactive levels of THC.  The unregulated cultivation of industrial hemp by EARIs may pose the same threats to the public’s health, safety and welfare as the cultivation of cannabis and may be in violation of Shasta County’s current cannabis regulations.

The cultivation of industrial hemp prior to the adoption of reasonable regulations, if any, may result in violations of the County's cannabis regulations, interfere with the County's ability to effectively regulate  land use, and may be harmful to the welfare of the county and its residents, create a public nuisance, and threaten the existing agricultural industry.   This urgency ordinance, if adopted, will be in effect for 45 days.  It may be extended by the Board of Supervisors for an additional 22 months and 15 days after a subsequent notice and public hearing.

ALTERNATIVES

The Board may choose to not approve the Ordinance.  This is not recommended for the reasons cited in this report.

OTHER AGENCY INVOLVEMENT

County Counsel contributed to the development of the ordinance and has approved the ordinance as to form. Resource Management, Sheriff, and the Agricultural Commissioner were all involved in the drafting and review of the Ordinance. The County Administrative Office has reviewed this recommendation.

FINANCING

The recommended action would result in an as yet undetermined impact on the General Fund related to staff time and resources from the various departments involved in assessing the effects of unregulated cultivation of industrial hemp and the development of reasonable regulations, if any, to mitigate any identified adverse effects. At this time, there is no additional General Fund impact.