New Environmental Regulations on Cannabis Cultivation

Are you growing cannabis? By February 15, 2016, cultivators with 2000 square feet or more of cultivated area are required to enroll in a new water quality regulatory program with the North Coast Water Quality Control Board (NCWQCB).
 
NCWQCB’s Order No. R1-2015-0023 (Order) includes enforceable requirements which cultivators need to become familiar with to ensure their operations do not impact water resources. The primary elements of the Order are listed below.
 
A Tiered Enrollment Structure
 
The order establishes enrollment requirements for persons seeking to cultivate commercial cannabis on the North Coast. Under the order, cultivators are placed in tiers based on characteristics of the cultivation area and the potential threats to the environment.
 
Tier 1 is a low-threat tier based on compliance with standard conditions and site characteristics. For instance, Tier 1 cultivators include those with less than 5,000 sq. ft. of total cultivated area, no cultivation on slopes greater than 35%, no cultivation areas or associated facilities located within 200 feet of a surface water (i.e. wetland, or stream) and no surface water diversion from May 15-October 31. The annual fee for this Tier is $1,000.
 
Tier 2 is a tier for operations with less than 10,000 sq. ft. of total cultivated area, where enrollees have fully implemented a water resource protection plan, meet the standard conditions, and are determined by Water Board staff or an approved third party to pose a low threat to water quality. The annual fee for this tier is $1,000.
 
Tier 3 is a cleanup tier, which requires the development and implementation of a cleanup and restoration plan. A Tier 3 enrollee has 45 days to develop and submit a cleanup and restoration plan for Regional Water Board approval. Tier 3 Dischargers who are cultivating cannabis concurrent with or following site cleanup activities must also enroll in and conform with Tier 2 requirements. The annual fee is $10,000.
 
Tier Evaluations
 
Standard conditions to protect water quality in conjunction with Best Management Practices (BMP) (available here)  provide a framework for cultivators to assess their sites for appropriate tiers and determine what management measures are necessary to protect water quality. All BMPs are considered enforceable conditions under the order as applicable to a given site. The Order includes standard conditions regarding the following: 
  1. Site maintenance
  2. Stream crossing maintenance and improvement
  3. Stream and wetland buffers
  4. Spoils management
  5. Water storage and use
  6. Irrigation runoff
  7. Fertilizers and soil amendments
  8. Pesticides
  9. Petroleum products and other chemicals
  10. Cultivation related wastes
  11. Refuse and human waste, and
  12. Remediation, cleanup, and restoration activities
Required Forms, Prohibits, and Framework
 
The Order also indicates the required procedural forms including a notice of intent of enrollment, a monitoring and reporting form, and a checklist for remediation and restoration work. Further, the Order includes general prohibitions such as discharge and threatened discharges to surface waters. A framework for non-governmental third parties may assist cultivators with enrollment, compliance, and monitoring and reporting is outlined in the Order. Finally, the Order provides direction on developing and implementing water resource protection and cleanup and restoration plans.
 
If you need assistance regarding regulatory compliance with new commercial medical cannabis laws in California, the attorneys at Janssen Malloy LLP an help. 

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