You have probably heard the rumors or have received the Alliance emails. Maybe you even heard it at the last Board of Supervisors meeting or read the County’s Friday memos regularly: CEQA, CEQA, CEQA…
CEQA, or the California Environmental Quality Act, is a statute that requires state and local agencies to identify the significant environmental impacts of their actions and to avoid or mitigate those impacts, when possible.
CEQA has become a favorite litigation vehicle of groups opposed to local jurisdictions moving forward with any type of cannabis regulations, as is the case with the county of San Mateo, which recently was sued. This is likely one of the reasons Nevada County staff will soon recommend to the Board of Supervisors doing a full Environmental Impact Report, or EIR, before adopting a new ordinance.
“The direction provided by the Board at these last two meetings has supplied enough information for staff to start assessing the environmental review requirements of a new ordinance. Staff’s assessment, based on the Board’s direction to allow commercial cultivation up to 10,000 square feet outdoors on various zoned parcel sizes, is that a comprehensive EIR will be required for the County’s new ordinance,” said County CEO Rick Haffey in his March 16 Friday Memo. Read the entire memo HERE.
This process will inevitably delay the issuance of a cannabis cultivation ordinance until later this year or early 2019. However, there are other options. Other counties have averted long litigation. And some avoided it altogether.
Unless a proposed project is exempt from CEQA, the public agency responsible for approving the project, in this case Nevada County, must prepare a “negative declaration” (ND) or EIR. At this time, it seems as if county staff is leaning towards the lengthier EIR, rather than a negative declaration. A “Negative Declaration” is appropriate when there is no substantial evidence that the project may have a significant impact on the environment, or if any potentially significant impacts may be made less than significant through mitigation and regulation.
In passing cannabis regulations the state of California took into consideration the potential environmental impacts of any cannabis activity and in November 2017, state agencies regulating cannabis, including CalCannabis, took a step toward making environmental review of cannabis cultivation manageable by completing a “programmatic EIR”.
The report takes a statewide look at the effects of cannabis activities associated with the CalCannabis’ cultivation licensing program. The report “may be used for subsequent CEQA evaluation, to evaluate project-level cannabis cultivation activities, as well as local and regional programs, newly developed management approaches, or other emerging aspects of cannabis cultivation,” according to CalCannabis. This means that local jurisdictions such as Nevada County could rely on the PEIR in taking subsequent actions to regulate commercial cannabis cultivation and/or issue licenses within its jurisdiction.
The original intent of SB94 and the MAURCSA was to regulate the thousands of farms already operating in the state, which may be in part why CalCannabis concluded that regulating and licensing cannabis cultivation would be environmentally more beneficial relative to the baseline condition of illegal cannabis cultivation. CalCannabis reasoned that, absent regulation and licensing, “a greater number of unpermitted cultivators would continue to operate … result[ing] in impacts due to noncompliance with requirements related to water use, illegal use of pesticides, waste disposal and illegally obtained energy.”
However, under a licensing program, many currently illegal cultivation operations would seek licenses and thus be required to come into compliance with environmentally protective measures that would be imposed by CalCannabis and other agencies. The result would be a reduction in cannabis cultivation’s adverse environmental impacts.
There are other ways to meet the CEQA compliance requirement for a cannabis program without stalling the current efforts to have an ordinance in May 2018. The SB94 temporary statutory CEQA exemption was specifically created for jurisdictions implementing cannabis permitting programs. California regulators intended for local jurisdictions to use this exemption to accelerate the application of the new cannabis laws that decrease the negative environmental impacts of unregulated cannabis, while more extensive EIR reports are created or bypassed altogether.
The Alliance Board and its staff is currently analyzing the most effective way to create political will to consider other options that would allow cultivators to be licensed in time for the 2018 planting season. Please stay engaged during this most important part of the process.
- Welti, Tyler. “Expert Analysis: Cannabis’ CEQA Challenge”, March 7, 2018. Law360, LexisNexis.