Requested Action
On January 15, 2019, the Board adopted a 45-day moratorium on the cultivation of industrial hemp in the unincorporated areas of Yolo County. Government Code section 65858 allows the 45-day moratorium to be extended for a period of 10 months and 15 days, which the Board did on February 26, 2019, which means that the moratorium will expire on January 15, 2020. Government Code section 65858 allows one additional extension for up to one (1) additional year, changing the expiration of the moratorium to January 14, 2021.
Without an extension of the moratorium or further Board action, the moratorium will expire and the County will have no regulations in place regarding cultivation of industrial hemp. At this time staff is seeking feedback from the Board to determine a desired course of action to a) have guidelines in place prior to January 15, 2020, or b) a plan to extend the moratorium.
Background
Hemp and marijuana are both strains of the plant Cannabis Sativa. Industrial Hemp is defined as a crop that is limited to types of the plant Cannabis Sativa L. having no more than three-tenths of 1 percent 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. (California Health and Safety Code (CHSC), Section 11018.5). For purposes of this staff report, the term, “hemp” refers to industrial hemp, as defined in the CHSC Section 11018.5 and the term “cannabis” refers to the licensed program regulated under Title 5, Chapter 20 of the Yolo County Code of Ordinances.
Policy Considerations
Since the Board's last update on hemp cultivation, the California State Industrial Hemp Advisory Board under the California Department of Food and Agriculture (CDFA) has adopted Sections 4940-4950 in Title 3 of the California Code of Regulations pertaining to industrial hemp sampling and testing for THC content through emergency rulemaking. The regulations were effective June 10, 2019 and will be in effect for a minimum of 180 days. CDFA will proceed with the regular rulemaking process within the time period the emergency regulation is in effect to permanently adopt those regulations. The establishment of these standards for testing attempts to provide regulators with guidelines to ensure that industrial hemp and cannabis are differentiated and regulated property.
Per the state guidelines, a third party or a hemp grower may conduct this testing, which would in turn be overseen by the County Agriculture Commissioner. According to these guidelines, any plant tested and found to be over 0.3% THC at any point in processing will be considered cannabis. However, since hemp and cannabis are essentially the same plant species, and are indistinguishable by appearance, staff from the Cannabis Task Force have concerns that limited testing by a third party or grower may provide opportunity for illegal cultivation of cannabis in all or part of a hemp cultivation site.
Staff has researched tools for testing levels of THC in plants in the field, however this technology is not currently available. Simply stated, the technology to differentiate between "hemp" and "cannabis" in the field does not exist.
Four additional considerations regarding hemp that have surfaced through staff’s research and analysis as important policy and regulatory considerations. The first is related to cross-pollination between hemp and cannabis, the second is related to odor, the third involves smokeable hemp, and the fourth is crime related to hemp and cannabis production.
Consideration 1 - Cross Pollination
Cross-pollination presents uncertainty when seeking to regulate hemp because there are several standards and reports with varying conclusions. For example, while the California Crop Improvement Association recommends a buffer zone of 3 miles to mitigate cross-pollination (Att. A.), a study from the Journal of Industrial Hemp recommends more extensive measures that do not place a lower limit on how far hemp pollen can travel (Att. B.). To understand this topic more fully, staff has engaged with researchers at UC Davis who have been running trials in Davis and in Fresno County. UC Davis is generally in favor of moving forward with an ordinance allowing hemp and has provided staff with their recommendations (Att. C.), which include the following:
- Insist upon all-feminized crop production of this deciduous crop, at least at this point in time. This would preclude the growing of hemp for grain or fiber.
- Require Cannabidiol (CBD) hemp fields to utilize seed that has been “feminized” by only legitimate companies compliant with state regulations.
- Require the vigorous monitoring of fields for volunteer males.
- Facilitate communication between cannabis and hemp growers to understand the risk factors and to control risk between neighbors.
Consideration 2 - Odor Impacts
The second consideration is related to odors present when growing and harvesting hemp, which can sometimes be indistinguishable from the odor produced by cannabis. Understandably, there is a concern that production of hemp could increase odor complaints. Cannabis is required to mitigate odor (per the draft Cannabis Land Use Ordinance) and the County currently has no odor mitigation/control standards adopted for hemp. Therefore enforcement staff may not be able to effectively respond to complaints about odor and the public may become confused about the regulations pertaining to cannabis, confusing hemp odors for cannabis odors. It should be noted that the same policies used for cannabis may mitigate this issue with hemp.
Consideration 3 - Hemp for Human Consumption vs Hemp for Industrial Purposes
As noted above, technology for testing hemp crops for THC levels in the field is currently unavailable. There is no practical way for regulatory staff to differentiate between a hemp crop that is grown for industrial purposes and a hemp crop that may be grown for human consumption until the point in the crop's processing where testing can be reliably introduced. Should different regulatory standards be introduced for hemp than those adopted for cannabis staff may be left with no way to distinguish between the two crops for regulatory purposes.
Consideration 4
Given the difficultly in distinguishing hemp from cannabis, staff has expressed concern that hemp cultivated for industrial purposes may be targeted for the same types of crimes as cannabis (thefts, robbery, etc.). Both Kern and Fresno counties have reported criminal activity occurring on hemp farms that were thought to be cannabis by the
Staff Efforts
In response to the issues listed above, staff has: researched hemp policy and regulations in other local jurisdictions; coordinated with both UC Davis and the UC Agriculture and Natural Resources program regarding research and industry perspectives; toured a hemp operation in a different jurisdiction; and met with local cannabis cultivator representatives.
Regulatory Landscape for Industrial Hemp
The counties of Colusa, Solano, and Sutter have allowed the cultivation of industrial hemp. Meanwhile, the counties of Sacramento and Sonoma have enacted moratoriums similar to Yolo County's. Other counties, including Santa Cruz and Santa Barbara, have elected to ban hemp until federal regulations are adopted, except in specific cases involving research institutions.
Options for Board Consideration
Staff proposes four (4) options for the Board's discussion and consideration:
Option 1 - Extend Moratorium for one (1) year
The Board could adopt an ordinance extending the existing moratorium for one year, until January 14, 2021. This option does not require two readings of the ordinance, so it could be adopted in December 2019, but would require a 4/5 vote of the Board. Given the uncertainty in regulation of hemp as it relates to cross-pollination research, odor, and crime, this option would provide the Board with additional time to reach a well-informed decision, and for staff to conduct additional research and outreach.
Staff met with representatives of the cannabis industry to seek their input. They recommend Option 1 for the following reasons:
- The similarity between hemp and cannabis is so significant, testing is the only way to ensure that the plant falls under the THC threshold of 0.3% and is therefore hemp. There is currently no reliable testing available to differentiate between the two plants in the field.
- It is not possible to have a 100% feminized planting and it is challenging to monitor large hemp fields for the presence of volunteer male plant growth. Therefore, cross pollination is a concern even when requiring female only fields.
- As noted, hemp odor is similar to cannabis and the draft cannabis land use ordinance considers the issue of odor with no similar structure in place for hemp.
Option 2 - Permanent Ban
The Board could adopt an ordinance permanently banning industrial hemp cultivation in the unincorporated areas of Yolo County. This option would require a first reading of a new ordinance in November 2019 with adoption in December 2019.
Option 3 (staff recommendation) - Allow, but Regulate
The Board could adopt an ordinance allowing, but regulating, industrial hemp cultivation in the unincorporated areas of Yolo County. This option would require a first reading of a new ordinance in November 2019 with adoption at the second reading in December 2019. In the interim, staff proposes to work with the University as well as stakeholders such as the cannabis and hemp industries to develop ordinance regulations and requirements that will be presented to the Board for any additional guidance or approval. Staff recommends that the ordinance is developed as a policy that coexists with the draft Cannabis Land Use Ordinance. A sunset clause in the ordinance would allow for the opportunity to revisit the regulations at a future date with specific examples of coexistence.
Option 4 - Take No Action
The Board could allow the moratorium to expire without taking further action. The result of this approach would be to allow industrial cultivation of hemp in Yolo County without regulation and with potentially harmful effects on existing legal cannabis cultivation and potential odor impacts. |