Sonoma County Moves Closer to Allowing Hemp Cultivation
By Lauren Mendelsohn, Esq.
January 14, 2020 (updated Feb. 4, 2020)
On Monday, January 6, 2020, the Sonoma County Board of Supervisors took a major step towards lifting the county’s moratorium on hemp cultivation by unanimously approving the first reading of an ordinance that would replace the current moratorium with regulations for growing the now federally-legal crop. The proposed ordinance still has to come back for a second reading before it can be officially adopted; however, according to Fifth District Supervisor Lynda Hopkins, it will come back on the consent calendar for approval before the county’s current moratorium expires on April 30 without any changes or discussion (though some changes will be made to the recommended Best Management Practices). In other words, it’s basically guaranteed to be adopted.
Industrial hemp was legalized federally by the Agricultural Improvement Act of 2018, often referred to as the “2018 Farm Bill.” We’ve written about the 2018 Farm Bill previously here and here. The 2018 Farm Bill changed the definition of hemp, and removed hemp (under the new definition) from the Controlled Substances Act. Hemp is now defined as follows:
“The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”
Hemp is now considered a crop, just like tomatoes and alfalfa. California, like many other states, has a “Right to Farm” law that protects agricultural activities from nuisance lawsuits, provided that established best practices are followed; and Sonoma County also has their own “Right to Farm” ordinance. In making their decision, the Supervisors stressed the desire not to place restrictions on hemp that they would not place on other crops. This point was important, since Sonoma County’s economy is largely dependent on agricultural activities, and many county residents are farmers. (The County’s motto is “Agriculture, Industry, Recreation.”) Even Supervisor Rabbitt, who has been an outspoken critic of the county’s cannabis ordinance, said “we shouldn’t start laying different criteria on the growing of hemp that we wouldn’t put on broccoli.”
The proposed ordinance lays out where and how industrial hemp can be grown within the county. For example, a county registration would be established, and the cost to register would be $900. (We’ve previously discussed the state registration process here.) Only female propagative plant material could be used outside; any males used for breeding or seed production must be grown indoors or in greenhouses with an appropriate filtration system to prevent pollen from escaping into the air outside. Setbacks from property lines would be required in certain zones, and other zones (including Residential and Planned Community zoning districts) would be ineligible for industrial hemp cultivation. Penalties would be imposed for growing cannabis instead of hemp, as well as for failing to register a hemp cultivation site.
With regards to odor, the proposed ordinance says that “[o]dor from a registered industrial hemp site cannot be considered a nuisance if the site is operated in accordance with this chapter, required and recommended best management practices, and state industrial hemp laws.” This is in contrast to cannabis odor, which is not offered this protection from nuisance actions since cannabis is not a federally-legal crop and is not covered by “right-to-farm” laws.
Additionally the ordinance addresses manufacturing using industrial hemp. The definition of “crop production” would be expanded to include “industrial hemp,” and the definition of “Agricultural Processing” would be amended to include “agricultural crops to processed oils.” Agricultural processing could be done with a uses permit in certain zones. Registrants would also be expected to comply with Best Management Practices (BMPs).
More information about Sonoma County’s draft industrial hemp ordinance is available on the Department of Agriculture Weights & Measures webpage. It will be interesting to see how this all plays out, considering that Sonoma County already allows commercial cannabis cultivation with drastically different rules than what is being proposed for hemp. We will keep you updated on this story as it develops.
UPDATE (2/4/2020): The Sonoma County Board of Supervisors voted to adopt the industrial hemp ordinance today. It will go into effect in early March. The ordinance language and staff report can be found here.
This information is provided as a public educational service and is not intended as legal advice. For specific questions regarding hemp or cannabis licensing in Sonoma County or elsewhere in California, please contact our office at (707) 829-0215 or info@omarfigueroa.com to schedule a confidential legal consultation.