CANNABIS AND HEMP ORDINANCES 

Concern: Permitting and enforcement for 1-acre cannabis operations and unlimited hemp grows are being transitioned to the Ag Commissioner.  Permitting may be “streamlined” and opportunities for public input reduced even further.

Action: Even with a 1000-foot setback from property lines, which is not guaranteed, Cannabis or Hemp Cultivation creates nuisances – such as smell, noise, personal safety, etc. Interested or impacted parties must identify nuisances in their letter of opposition, which helps build the administrative record. Note: Neighbors must participate in all public hearings to achieve legal standing.

To learn more go to the following Links: Cannabis/Hemp water usage and wastewater discharge and issues associated with operations in watershed areas.  

Issue: Limited public input on Ordinance development: Both the Cannabis and Hemp ordinances were written by County staff with advice by “advisory committees.” The committees were primarily comprised of Ag and industry-related stakeholders; thus, impacted residents were not able to fully participate or provide input when both Ordinances were drafted.

And, to add insult to injury, at public hearings, Applicants get significant time while neighbors and citizen advocates are only allocated 2-minutes each to present their case.

Sonoma County’s Hemp Ordinance advisory group did not reflect the three interfaces of land use – homes, agriculture and wildlands.

• There were zero“neighborhood members” (homes) and one “environmental community members” (wildlands). 
  
  
• All other members represented agriculture or THC cannabis industry.(Note: Staff Report 11/21/2019. p.3 is inaccurate).

State law versus Sonoma County practice of delegating to industry-weighted advisory councils: Like most Ad Hoc committees convened by Sonoma County officials, impacted property owners and environmental advocates were not represented on the Ag Commissioner’s informal hemp advisory group.

State law allows counties to tailor their hemp program to meet county values and societal priorities. For example: The Monterey County BOS decided that hemp is just like cannabis and should be managed and permitted the same. 

• Monterey County wants to keep hemp where it should be grown and avoid conflicts.
  
  
• Hemp is allowed in either industrial or Ag zones but not in any residential combined or resource zones. Permits are required, 1,000-foot buffers between cultivation and residences is mandatory and the pilot program has a limit to the number of permits.

Issue: Currently there is confusion between hemp and cannabis regulations and lack of clarity as to standards. In theory, unpermitted cannabis operations are subject to enforcement: The County acknowledges that, “Cultivation of industrial hemp provides an opportunity for unpermitted cannabis cultivation”. (Staff Report 11/21/19 p.5)

Hemp and cannabis are the same plant. The levels of THC and CBD vary and only when the female plant flowers and buds are tested can the identity of the plant be classified. If the THC levels are below 0.3%, it is hemp (per Federal and State regulations). 

• The State and Feds use the 0.3% figure. Currently there’s confusion as Sonoma’s Ag Commissioner introduced a new figure: 5%(notice the lack of a decimal point).
  
  
• “Under certain circumstances, industrial hemp may be enforced as unpermitted commercial cannabis cultivation, which is subject to immediate abatement and enhanced civil penalties. Those circumstances include: … if a registered industrial hemp sample tests over5% total THC.”  (Source: Hemp Ordinance Summary Report)

What happens to a crop with a THC level over 0.3% and below 5% or 0.5%? Under state and federal laws, it is supposed to be destroyed – the County’s ordinance is silent.

State and Federal hemp laws do not give local governments any authority to work outside the current State legal structure. However, Sonoma County’s draft Ordinance, does not acknowledge the State’s testing/destruction requirements nor does the draft ordinance articulate its testing methods.

• Federal Law:A producer does not commit a negligent violation if they produce plants that exceed the acceptable hemp THC level as long as they use reasonable efforts to grow the plant and it does not test at more than 0.5% THC on a dry weight basis. 
  
  
• Although a farmer testing above 0.3% but below 0.5% may not be negligent, the crop is still considered a controlled substance and must be disposed of accordingly. (Source: USDA)

Issue: Proposed designation of hemp and cannabis as “agricultural crops” raises the concern of whether the nuisance laws protect adjacent property owners.

Right to Farm Laws for Sonoma County (5203, se 30-25 and the CA Civil Code, 3482.5).
The Right to Farm Ordinance allows a neighbor to declare certain Ag operations a nuisance if the practice or operation was a nuisance from the start. State law allows this declaration for up to 3 years in Ag zones (confirmed by conversation with County Counsel Nov 21, 2019). 

• Prohibition of hemp cultivation in AR and RRD reflects the goals of the Right to Farm laws. In non-Ag zones the 3-year limit to declare a nuisance may not apply. And, RRD zoned land is not a “right to farm” zone.
  
  
• The “Right to Farm” Ordinance protection for Ag operations is not inviolate. It only applies to Ag crops grown on Ag zoned land (DA, LIA and LEA), and an operation can be declared a nuisance (per State law) for up to three years after the start of the operation if it was a nuisance at the start.

Issue: Water demands in water scarce areas: Resources and Rural Development (RRD) land use/ zoning designation is used to protect the County’s natural resource lands by allowing only very low-density residential development. Resources to be protected include commercial timber land… and natural resource lands, including watershed, fish and wildlife habitat and other biotic areas. (General Plan)

• Development in RRD results in two primary environmental consequences: habitat loss/fragmentation and the degradation of water resources and water quality.
  
  
• Most RRD zoned land is water scarce – in water zones 3 and 4.

Mill Creek Critical Watershed: The State Water Resources Control Board (SWRCB) in collaboration with Fish and Wildlife (CDRW) designated five critical watersheds to protect fish in the critical spawning and rearing reaches of Mark West Creek, Green Valley Creek, Dutch Bill Creek, Dry Creek and Mill Creek, including sub-watersheds of these creeks. 

• During the last drought, the SWRCB put residential well water usage restrictions on rural residents: no watering of landscaping or vegetable gardens, no car washing, etc. to attain a 25% reduction in domestic use. 
  
  
• Agriculture was exempt from such curtailments. Thus, curtailment of only rural residents, not agriculture, was not adequate to prevent fish summer die offin creeks, including fish planted as part of the Warm Springs dam Coho restoration program. 

Beware of inaccurate Hydrologic Reports: In critical watersheds, the hydrologic standard should be zero net use. Cultivation in water zones 3 and 4, requires a hydrological report in the dry summer months (August-September); however, County resources are not allocated for thorough analyses by County staff. 

• Watersheds that are critical rearing habitat for Coho and Steelhead are mostly Class 3 and 4 groundwater areas.
• Hemp and cannabis are water intensive crops – hemp and cannabis use 4 times the water per acre as do vineyards – vineyards at 0.5 acre-feet vs. 2 acre-feet for cannabis and hemp.
• Hemp is not restricted to 1 acre of cultivation as is cannabis – thus its depletion of scarce groundwater resources is magnified.

Don’t rely on Best Management Practices (BMPs) as these are voluntary – merely “recommended” by the Ag Commissioner, and Ag Commissioner can change the BMPs.

Although, BMP’S clarify general good farming practices, they are not mandatory; thus, they cannot be enforced.

• BMP’s include recommendations on some of the following types of farming operations: pesticide and fertilizer storage and use, riparian protection, water use and storage, erosion control, soil disturbance, tree trimming, grading and drainage, etc. 
• The Ag Commissioner MAY adopt, amend or rescind required best management practices. And, even if the BMP’s are mandatory the Ag Commissioner can revise or rescind them at will. (Source: Sections 37-6A and 6N of the Draft Hemp ordinance/ Required BMP’s)

Mandatory BMPs would be particularly important for impaired watersheds and water scarce areas.

Issue:  Permitting commercial cannabis and hemp growing operations on sub-standard roads.  Cultivation requires vehicle trips by workers and well as cannabis-tourism Recommend a moratorium on new permits in steep, fire prone areas until the State Board of Forestry certifies its Fire Safe Road Regulations. 

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WINERY EVENT ORDINANCE:  May 2020 Board of Supervisors Winery Event Ordinance Update:  The Supervisors were supposed to review the technical studies supporting the Ordinance; the WCA is concerned that these studies were not released or discussed. 

By May 15th, the Noise and Groundwater standards will be released on the Winery Event documents website They may be listed under documents, or have their a tab, such as the draft traffic studies, released November 6, 2019.  The WCA Board will communicate afterward. 

          The traffic study specifically stated that traffic counts are needed on Westside to determine Winery Event traffic impacts. WCA requested the County address traffic study deficiencies in April, before the BOS Briefing to set direction for writing the Ordinance and guidelines. Our request was denied. DRAFT TRAFFIC STUDIES Westside Area study is incomplete. In November 2019, Permit Sonoma released draft Threshold Capacity and Collision data related to the increased traffic volumes generated by Winery Events for Dry Creek/Westside and Sonoma Valley.  

The Capacity Threshold Study recommends additional traffic counts for Westside Road. The WCA Board responded to the deficiencies immediately, and requested a meeting with GHD consultants - Permit Sonoma denied our request. See the WCA Board's November 2019 letter, with report titled "Public Safety on Westside Road – Part 1: November 2019 Update - Accident and Speeding Concerns" and "Part 2: Chronological Accident Data 

          On February 27 and again March 17, 2020, the WCA Board sent letters with attachments to the Traffic Department and Permit Sonoma directors. In 1st Q alone, the Westside Area had several major accidents. Issues related to traffic safety are summarized in our Traffic Safety Concerns memo sent to the Supervisors on May 15th. 

For information on Winery Use Permits and potential cumulative impacts of events go to the Project Info > Land Use tab.  In April 2019, the Westside Area had a number of Use Permit Applications pending (Spring 2019 Applications Pending). By December 2019 Use Permits, Westside has only 1 Modification pending, however, there are six (6) tasting rooms under construction at Bacchus Landing.

HISTORY

In October 2014, when the Supervisors requested protective guidelines for areas of over-concentration, Westside had 4 projects of concern. In October 2017, there were 7 project applications or appeals pending, and by December 2019, a number of projects that do not meet State and County requirements have been withdrawn. (Update January 2020 Table of Active and Withdrawn Applications.) 

Westside Road has reached the tipping point of cumulative impacts, especially as it relates to the General Plan Goal of preserving rural character.

Regardless, (see Project Posts) the WCA Advisory Committee wrote a letter of support for the revised Landmark (Hop Kiln) Application, because the owner agreed to mitigation that addressed community concerns. A few years ago, the WCA and DCVA supported the DeVero project, even though the new building was partially within the scenic corridor.  Neither the DeVero project nor Landmark projects had to bear the expense of a public hearing.   

The Scenario Analysis document illustrates our concern with over-concentration and cumulative impact; it accounts for vested rights of existing wineries with permits that specify events, then compares the impacts of awarding 4 events, 12 events or 20 events to each Use Permit, winery or tasting room in the Westside Area. The objective is to calculate a range of potential event totals to illustrate cumulative impacts.  

The Scenario Analysis poses the question: Can our rural by-way accommodate the same number of events as Highways 12 or 121 in Sonoma Valley? 

The findings of the Scenario Analysis are: 

• The total number of events, through Use Permit Modifications to existing permits, range from 271 to 600 events per year.  
  
  
  • One third of existing facilities are SILENT on Events.
    Should these facilities request and be granted Ag Promotional Events, the impacts to Westside Road could rival the most impacted roads in Sonoma Valley. Note: Per State law, silence means that events are not permitted.  
    
    
  • At 20 Ag Promotional Events per facility, Westside Road could be approved for the same number of events as the most impacted road in the County – State Highway 121 in Sonoma Valley.
    
    
  • At 4 Ag Promotional Events per facility, Westside Road event total would rival State Highway 12 through Kenwood.

When sending in eMails or letters of concern, please address and send to the Project Planner listed on Project Page, and cc the Board of Supervisors and County Officials.  For the list of Supervisor and Official's eMail addresses and physical addresses, go to TAKE ACTION > Contact List

Each Project has its own sub-page, with information, files and comment opportunities specific to that project.  Go to PROJECT INFO LAND USE > PROJECT POSTS > (click on down arrow)> Choose Project Name

Key features of the project are described, as are concerns raised by the WCA Advisory Group, WASA or Wohler Bridge Association.  File attachments may include information from the Applicant and information from our editor or community group committees:

1) Project Application to County;

2) Mitigated Negative Declaration and supporting studies; (Applicant perspective)

3) Summary of key issues from Westside Area InfoZone perspective; and 

4) POSITIONS: Letters or summary documents, approved by an advisory committee or Board, or formally submitted by a community group (Westside Association to Save Agriculture, Westside Community Association, or Wohler Bridge Neighborhood Association).