Breaking new ground: Regulating cannabis as agriculture

In 2015 the California state legislature passed landmark legislation to regulate medical cannabis. The Medical Marijuana Regulatory and Safety Act (MMRSA) is a bi-partisan effort comprised of three bills, AB 243 (Wood), AB 266 (Bonta), and SB 643 (McGuire). The legislation was signed by Governor Brown in October and went into effect January 1, 2016.

The MMRSA establishes a multi agency framework to regulate commercial cannabis. The basic foundation of MMRSA is that: “no person shall engage in commercial cannabis activity without possessing both a state license and a local permit, license, or other authorization.” This legislation provide for the licensure of commercial cannabis activity in California, strengthens environmental protections, and creates opportunities for small and specialty cultivators to be licensed.

The California Department of Food and Agriculture (CDFA) is the lead agency for the promulgation of rules and the issuing of licenses for cultivation. Starting in 2018 the Department of Food and Agriculture will issue at least 9 types of cultivation license plus 1 license for nurseries. “Cultivation” means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis.

The legislation creates outdoor, indoor, and mixed light licenses for farms ranging in size from 5,000 square feet to 1 acre. Over the next two years the Department of Food and Agriculture will work with other agencies to develop specific requirements for cultivation licenses.

CDFA will work with several agencies to develop specific rules to protect natural resources and watersheds. Regulations will be developed to ensure that individual and cumulative effects of water diversion and discharge associated with cultivation do not affect the in stream flows needed for fish spawning, migration, and rearing, and the flows needed to maintain natural flow variability. Pesticides will be regulated and organic standards will be developed.

The legislation requires the agencies to develop a system for tracking products. Growers will be required to participate in this tracking program. The specific details of this program have not been established.

Cultivators who want to be licensed in 2018 need to get to work immediately. Compliance with all existing regulatory programs and use of best management practices is the first step. In addition to complying with existing regulatory programs, cultivators must also receive a permit from their county or city.

There are several additional requirements for state licensure, including: fingerprints, evidence of the legal right to occupy and use the proposed location, including acknowledged and consented from the landlords to engage in commercial cannabis, a sellers permit, and a statement declaring the applicant is an “agricultural employer.”

Applicants may be denied for “a felony conviction for the illegal possession for sale, sale, manufacture, transportation, or cultivation of a controlled substance.” If a cultivator intends to be licensed and they have been convicted in the past they can seek a certificate of rehabilitation and should be prepared to submit details about the conviction.

The MMRSA left many questions unanswered. Throughout 2016 and 2017 CDFA and other regulatory agencies will determine the details. Getting organized and ensuring these detailed policies are built on good information regarding the needs of existing cultivators is very important.

This two year “transition period” is meant to provide local governments and cannabis growers to work together to develop local permitting ordinances. A local permit is required for any cultivator who wants to be licensed. In counties and cities where permits do not exist, outreach to local government is a first step for any cultivator who seeks to be compliant.

This transition period also provides time for cultivators to come into compliance with other existing regulations. In addition to environmental protections, growers will also need to comply with labor laws as well as accounting requirements.

We are watching the dawn of a new era. Though regulation will provide protections for watersheds it must be acknowledged that the transition is going to be very challenging for our community. Things are going to change. One of the most painful elements of transition is realizing that not everyone in our community will be able to be regulated.

Two decades of regulatory uncertainty have led to egregious practices being competitive. Many farms—seeking to be isolated and low profile—are in remote, sensitive watershed areas. We must take shared responsibilities for the environmental impacts, for the public safety challenges, and we must work together by building public private partnerships to address these impacts.

The MMRSA provides a robust framework to protect natural resources and watersheds. Successful implementation of the MMRSA will ensure that state enforcement is focused on environmental impacts. Successful implementation of MMRSA will depend on a sustained commitment for the legislature.

However, community development is also a fundamental component of successful implementation of the MMRSA. All stakeholders must coordinate with each other and with other stakeholders in order to successfully implement MMRSA. For local government this means developing ordinances to regulate cannabis instead of resorting to bans. For cultivators this means getting into compliance and implementing best management practices. For everyone involved it means getting to work right away.

“When the changes are in place, people may finally be able to smoke pot without being paranoid about what it's been sprayed with or whether it's wiping out furry critters and making rivers run dry.”

Josh Harkinson, Mother Jones News