REPORT TO SHASTA COUNTY BOARD OF SUPERVISORS

BOARD MEETING DATE:  April  24, 2018
CATEGORY:  Scheduled Hearings - Other Departments-5.

SUBJECT:

AN ORDINANCE EXTENDING THE UNCODIFIED URGENCY INTERIM ORDINANCE IMPOSING  A TEMPORARY MORATORIUM ON THE CULTIVATION OF INDUSTRIAL HEMP WITHIN THE UNINCORPORATED AREAS OF THE COUNTY OF SHASTA

Supervisorial District No. :  ALL

DEPARTMENT CONTACT:  Paul Kjos, Agricultural Commissioner, (530)224-4949

STAFF REPORT APPROVED BY:  Paul Kjos, Agricultural Commissioner

RECOMMENDATION

Take the following actions: (1) Conduct the public hearing;  (2) close the public hearing;  (3) introduce, waive the reading, and adopt an Urgency Interim Ordinance that extends  for 22 months and 15 days a temporary moratorium, previously established by Ordinance Number 739, on the cultivation of industrial hemp by "Established Agricultural Research Institutions" and others within the unincorporated areas of the County of Shasta, while County staff determines the impacts of such unregulated cultivation and reasonable regulations to mitigate such impacts;  (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 conduct an assessment of the impacts that the unregulated cultivation of industrial hemp by "Established Agricultural Research Institutions" and others would have 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 before April 24, 2019 or as soon as possible thereafter.      

SUMMARY

On March 13, 2018, the Shasta County Board of Supervisors approved an Urgency Interim Ordinance (Ordinance Number 739) establishing a 45-day moratorium on the cultivation of industrial hemp by Established Agricultural Research Institutions (EARIs) and others until County staff can determine the impact the unregulated cultivation of industrial hemp may have on the County of Shasta; as well as whether reasonable regulations on the cultivation of industrial hemp are appropriate to mitigate such impacts.  This action will extend that moratorium in Urgency Interim Ordinance No. 739 for 22 months and 15 days.

The 45-day moratorium passed on March 13, 2018 did not provide sufficient time to address the issues involved with the cultivation of industrial hemp in the unincorporated areas of the County. 

The passage of Proposition 64 and associated legislative trailer bills 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 legislation also exempts EARIs 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. 

The extension of Ordinance No. 739 will allow sufficient time to complete the assessment of the impacts of unregulated industrial hemp cultivation and develop, if appropriate, regulations for consideration to address those impacts. 

DISCUSSION

With the Passage of Proposition 64 and associated legislative trailer bills, the California Food & Agricultural Code was amended to update Division 24, which addresses the cultivation of industrial hemp.

This Division, 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 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 prohibited.

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 exemptions in Division 24, 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. 

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

Industrial hemp and cannabis are distinctly defined in state law:  industrial hemp in FAC Division 24 and cannabis in the Business and Professions Code, Section 26001, with a major difference being industrial hemp may not contain more that 0.3% tetrahydrocannabinol (THC).  Due to the fact that industrial hemp and cannabis are derivatives of the same plant, cannabis sativa L., 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 the 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. Therefore 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 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.

Ordinance No. 739 declared a temporary moratorium on the cultivation of industrial hemp to allow County staff to determine the impacts of these activities and develop recommended regulations to mitigate the cultivation of industrial hemp. The extension of this temporary moratorium by 22 months and 15 days will provide sufficient time to assess the impacts and develop regulations, if appropriate, to mitigate those impacts.

ALTERNATIVES

The Board may choose to not approve the extension of the temporaray moratorium.  This is not recommended since the extension of the moratorium  by 22 months and 15 days will prevent the unregulated cultivation of industrial hemp in the County while staff assess the impacts of industrial hemp in the County. 

OTHER AGENCY INVOLVEMENT

County Counsel, Director of Resource Management, Sheriff staff and the Agricultural Commissioner were all involved in the drafting and review of the extension of the temporary moratorium and County Counsel approved the Urgency Interim Ordinance as to form.  The Departments of Agriculture, Resource Management and Sheriff will coordinate the assessment of the impacts of industrial cannabis within the County, if the Urgency Interim Ordinance is extended.

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.