El Dorado County Municipal Code Ch. 130.43 Cultivation of Industrial Hemp

For purposes of this Chapter:

Any purpose includes cultivation for commercial purposes, cultivation for purposes of a hemp breeder, and cultivation by an Established Agricultural Research Institution.

Applicant means a person who submits an application.

Cannabis has the same meaning as defined in Subsection 130.41.100.2 (Definitions).

CCR means the California Code of Regulations.

Cultivation has the same meaning as defined in 3 CCR 4890(a)(6), as that section now reads or may thereafter be amended.

Cultivation site has the same meaning as defined in 3 CCR 4890(a)(6), as that section now reads or may thereafter be amended.

Disqualifying conviction has the same meaning as defined in 3 CCR 4890(a)(10), as that section now reads or may thereafter be amended.

Established agricultural research institution has the same meaning as defined in Food and Agricultural Code Section 81000 as it now reads or may thereafter be amended.

Female industrial hemp plant means an industrial hemp plant that possesses only female pistillate flowers and is capable of bearing seed and is not a male industrial hemp plant.

Female propagative plant material means propagative plant material that is bred, grown, or otherwise developed to become a female industrial hemp plant.

Hemp breeder has the same meaning as defined in Food and Agricultural Code Section 81000 as it now reads or may thereafter be amended.

Industrial hemp has the same meaning as defined in Food and Agricultural Code Section 81000 and Health and Safety Code Section 11018.5, and the same meaning as "hemp" as defined in 7 Code of Federal Regulations Section 990.1, as those sections now read or may thereafter be amended.

Key participant has the same meaning as defined in 3 CCR 4890(a)(17), as it now reads or may thereafter be amended.

Licensee means a person who has been issued an industrial hemp license and registration pursuant to this Chapter.

Male industrial hemp plant means an industrial hemp plant that has male staminate flowers or is otherwise capable of producing pollen.

Pollen means the fine powdery substance discharged from a male plant containing male gametes that is capable of causing a female plant, or female part of a plant, to produce seeds.

Premises has the same meaning as defined in Business and Professions Code Section 26001(ap).

Processing means all activities associated with drying, curing, grading, trimming, storing, packaging, and labeling of raw industrial hemp, or any part thereof, for transport.

Propagative plant material includes live plants, seeds, seedlings, clones, cuttings, transplants, or other propagules used to establish plants for planting.

Sensitive use means the following:

1. A child day care facility licensed under the California Child Day Care Facilities Act (Health and Safety Code Section 1569.70 et seq.).

2. A licensed child care home.

3. An employer-sponsored child care center, as defined in Health and Safety Code Section 1596.771.

4. A school, as defined in Section 130.41.100.

5. A youth center, defined to mean any public or private facility that is used to host recreational or social activities for minors while minors are present.

6. A youth-oriented facility, as defined in Section 130.41.100.

7. Public parks, defined to mean areas dedicated and used for active recreation operated by a public agency and open to the public.

THC means delta-9 tetrahydrocannabinol.

(Ord. No. 5168, § 4, 11-1-2022)

A. License Required. A person shall not cultivate industrial hemp for any purpose in the unincorporated area of the County unless that person first obtains a license issued by the Agricultural Commissioner and satisfies all requirements of this Chapter.

1. A license issued under this Chapter does not grant any entitlement or interest in real property, does not create any interest of value, and it does not run with the land.

2. A licensee shall not transfer ownership or control of the license to another person as the license is non-transferabie and automatically terminates upon transfer of ownership. Any attempt to transfer ownership shall cause the license to be automatically revoked.

3. No license will be issued to carry out the activities of a hemp breeder or an established agricultural research institution.

B. Application Requirements. In order to obtain a license to cultivate industrial hemp for commercial purpose, the applicant shall meet all of the following requirements:

1. The person submits an application for a license to cultivate industrial hemp to the Agricultural Commissioner on a form provided by the Agricultural Commissioner. An applicant may submit a single application for multiple parcels if the parcels are contiguous and either owned by the applicant or the applicant provides proof of consent from the record title holder of the land consistent with Subsection B.3, below. The application form shall include a statement that the applicant consents to inspections consistent with Section 130.43.106 (Inspections) and to abatement consistent with abatement and destruction consistent with Section 130.43.107 (Enforcement) and Section 130.43.108 (Destruction).

2. The applicant submits, along with the application, a completed Industrial Hemp Registration Application for Growers on the form developed by the California Department of Food and Agriculture to the Agricultural Commissioner and satisfies all relevant state and federal requirements to obtain a registration to cultivate industrial hemp, including completion of a criminal history report.

3. The applicant is the record title holder of the land upon which hemp is to be cultivated. If the applicant is not the record title owner of the parcel, the applicant must provide proof of written consent of the owner of the parcel with original signature and notary acknowledgement. The written consent must be notarized within 30 calendar days of the date that the application is submitted to the Agricultural Commissioner. The written consent shall also include consent to inspections consistent with Section 130.43.106 (Inspections) and to abatement consistent with abatement and destruction consistent with Section 130.43.107 (Enforcement) and Section 130.43.[108] (Destruction).

4. Each parcel for which a license application is submitted must be located in one of the following: Planned Agricultural (PA), Limited Agricultural (LA), Agricultural Grazing (AG), Residential Estate (RE), and Rural Lands (RL). If the parcel is located on Residential Estate (RE) or Rural Lands (RL), then the parcel must a minimum of 20 acres in size.

5. The applicant shall provide proof adequate to the Agricultural Commissioner that the cultivation of the industrial hemp will comply with the setback requirements in Subsection 130.43.[105.H] (Setbacks).

6. The applicant shall confirm that the proposed cultivation of industrial hemp will not occur on a premise that is being used for the commercial cultivation or processing of cannabis, consistent with Food and Agricultural Code Section 81006(c), as that section now reads or may thereafter be amended, and that the proposed cultivation of industrial hemp will not occur on a parcel or parcels that are being used for commercial cannabis activity pursuant to Chapter 130.41 (Commercial Cannabis).

7. The applicant shall include a site plan that shows the entire parcel or parcels used for cultivation and the location and area for cultivation and set backs, as applicable. The site plan shall include the following:

a. A legal description, Global Positioning System coordinates, size, and map of the cultivation site, consistent with 3 CCR 4901(a)(2)(D), as that now reads or may thereafter be amended.

b. Any easements on the property, streams, ponds, or other surface water features.

c. All areas of ground disturbances or surface water disturbance associated with cultivation activities, if any.

d. Identify any areas where hemp will be stored, handled, or displayed.

e. A detailed diagram of the parcel or parcels used for cultivation, including any buildings, structures, fences, gates, parking, lighting, and signage.

8. If pesticides are to be used, the applicant must obtain an Operator Identification Number or Restricted Materials Permit from the Agricultural Commissioner.

9. The applicant shall identify all legal water sources used for cultivation activities.

10. Each license shall expire one year from the date of its issuance.

C. Review of Application. The Agricultural Commissioner shall review any application submitted and shall approve the license if the applicant meets all of the requirements of this Chapter. The Agricultural Commissioner shall deny a license if the Agricultural Commissioner concludes that:

1. The application is based on inaccurate or incomplete information.

2. The application has failed to pay any required application fees in full, including any past due fees or penalties imposed on the applicant that are related to the cultivation of hemp or the cultivation of commercial cannabis.

3. The Agricultural Commissioner denied the applicant a registration to cultivate industrial hemp because that applicant does not meet applicable state requirements. This includes if the applicant, registrant, or key participant is found to have a disqualifying conviction.

4. The applicant, or a key participant of the application, is ineligible under Subsection 130.43.107.E (Suspension for Repeat Violations).

5. There are currently five active licenses issued to cultivate industrial hemp and the application is not for a renewal of an existing license.

D. Denial of Application. If the Agricultural Commissioner denies the application, the Agricultural Commissioner shall provide the applicant a written statement indicating the reason for the denial. The Agricultural Commissioner's decision on denial is final and unappealable administratively. The applicant may submit a revised application that addresses the deficiencies identified by the Agricultural Commissioner.

E. Issuance of License. The Agricultural Commissioner shall issue a license concurrent with issuance of a registration whenever possible so that the terms may run concurrent with each. The Agricultural Commissioner shall have the review authority of original jurisdiction for licenses issued under this Chapter, and the procedure shall be staff-level without public notice.

F. Renewal of License. A licensee shall submit an application for renewal of their license no later than 60 days before the license expires and shall include in that application all information required by Subsection B (Application Requirements) above. The Agricultural Commissioner shall review that application consistent with Subsection C (Review of Application) above. If the licensee fails to request a renewal within the 60-day period described by this Subsection, then the Agricultural Commissioner shall treat that application as a new license that is subject to the cap and waiting lists imposed by Section 130.43.102 (Cap on Licenses Issued).

G. Application Fees. Each applicant for an initial application, or for the renewal of an application, shall pay an initial deposit in the amount of $1,500.00 for the actual cost of the Agricultural Commissioner for processing of the application, inspections, abatement, and related costs to administer this Chapter. That deposit will be kept in a County account and is available to the Agricultural Commissioner to recover the actual costs to administer this Chapter, as described in the previous sentence. The Agricultural Commissioner shall provide the applicant or licensee, as applicable, with a billing statement identifying the remaining deposit account or the amount due if deposited funds are exhausted. If deposited funds are exhausted, the billing statement shall require the applicant or licensee the amount owed and that amount shall be paid within 30 days as specified in Board of Supervisors Policy B-4. If, at the end of the licensure period, there are amounts remaining in the account, the remaining balance shall be returned to the applicant or licensee.

(Ord. No. 5168, § 4, 11-1-2022)

A. Cap. The Agricultural Commissioner shall not issue more than five licenses to cultivate industrial hemp at any given time. The Agricultural Commissioner shall review applications on a first-come, first-serve basis, except that the Agricultural Commissioner shall review an application for a renewal that was submitted within the time period required by Subsection 130.43.101.E (Renewal of License) as it is submitted.

B. Waiting List. The Agricultural Commissioner shall maintain a waiting list if the Commissioner receives an application after the cap in Subsection [A] above is met. The Agricultural Commissioner shall notify a prospective applicant on the waiting list if the number of active licenses have declined below. The prospective applicant shall have no more than 45 days to complete an application, after which the position on the waiting list shall no longer be held and the Agricultural Commissioner will notify the next prospective applicant on the waiting list. A person shall not appear on the waiting list if they are ineligible under Subsection 130.43.107.E (Suspension for Repeat Violations).

(Ord. No. 5168, § 4, 11-1-2022)

The cultivation of industrial hemp consistent with this Chapter cultivated on agricultural land is an agricultural operation within the meaning of Section 130.40.290 (Right to Farm), and as such any nuisance claim based on the cultivation of industrial hemp consistent with this Chapter on agricultural land will be subject to the protections and procedures set out in Section 130.40.290 (Right to Farm), including a claim related to alleged odors.

(Ord. No. 5168, § 4, 11-1-2022)

The Agricultural Commissioner shall, no later than 30 days of the effective date of the ordinance from which this chapter is derived, and at any other time the Agricultural Commissioner determines, develop best management practices regarding the cultivation of industrial hemp consistent to implement or make specific the standards in this Chapter, including practices to reduce odor and pollen spread. The Agricultural Commissioner shall propose these best management practices to the Board of Supervisors by resolution. The Board of Supervisors may adopt the resolution.

(Ord. No. 5168, § 4, 11-1-2022)

A licensee shall, at all times, comply with all of the following requirements relating to the cultivation of industrial hemp:

A. The licensee shall ensure that they are, at all times, operating in a manner compliant with all applicable Federal, State, and local laws. This includes the Agriculture Improvement Act of 2018 (132 Stat. 4490; PL 115-334), including its implementing regulations, and Division 24 (commencing with Section 81000) of the Food and Agricultural Code, including its implementing regulations.

B. Odors. The licensee shall locate the cultivation area on their parcel or parcels used for cultivation in a manner that minimizes odors to surrounding areas. The Agricultural Commissioner shall include in the best management practices adopted under Section 130.43.104 (Best Management Practices) recommendations to reduce odor spread to surrounding parcels. Any odor associated with cultivation or processing activities shall not be equal to or greater than a seven-dilution threshold ("DT") when measured by the County with a field olfactometer at the property line on which the hemp is cultivated or processed for a minimum of two olfactometer observations not less than 15 minutes apart within a one-hour period ("seven DT one hour"). If the Agricultural Commissioner receives a complaint related to odor, and that complaint is verified based on the seven DT one-hour threshold described in the previous sentence, the Agricultural Commissioner shall provide the licensee with a written warning and suggestions to reduce odor. If, upon retesting, the odor has not been reduced to below the seven DT one-hour threshold, then the Agricultural Commissioner shall refer the licensee to Code Enforcement. Any violation of this Subsection is subject to enforcement, abatement, and revocation of a license under Section 103.43.[107] (Enforcement). Abatement may include, but is not limited to, increasing the required setback, growing fewer plants, or growing only low odor industrial hemp strains. Installation of certain odor control options may require a permit. Any such notice requiring the use of one or more odor control options will provide a deadline for completion and the dilution threshold will be retested upon expiration of that deadline.

C. The licensee engaging in the outdoor cultivation of industrial hemp may only plant female propagative plant material. A licensee shall promptly destroy any male propagative plant material that the licensee discovers.

D. Structures. Any structure(s) containing facilities used for the processing of industrial hemp must have all permits required under State law, Building Codes, and the El Dorado County Code.

E. BMP Resolution. A licensee shall comply with the most recently adopted resolution governing best management practices adopted by the Board of Supervisors consistent with Section 130.43.[104] (Best Management Practices).

F. Permitted Uses. Cultivation of industrial hemp is permitted only in Planned Agricultural (PA), Limited Agricultural (LA), Agricultural Grazing (AG), Residential Estate (RE), and Rural Lands (RL).

G. Signage. All parcels used for the cultivation of industrial hemp shall display County approved signage indicating that hemp is being cultivated on site. It is the responsibility of the licensee to pay for the costs of printing and posting all signage. All signage shall utilize a County approved template. The signs shall comply with all the following:

1. Be of a size so that the wording on the sign is clearly visible and readable to a person with normal vision from a distance of 25 feet.

2. Clearly identify that the crop is industrial hemp and not cannabis.

3. That entering upon that land without consent of the owner or legal occupant is prohibited, consistent with Penal Code Section 602(h).

4. Use letters and symbols that are of a color that sharply contrasts with their immediate background.

5. Based at the corners of each parcel used for the cultivation of industrial hemp and at all usual entry points to the parcel, including each road, footpath, walkway, or aisle that enters the cultivation area. When a parcel is adjacent to a public right-of-way, such a road, trail, or path, signs shall be posted at intervals not exceeding 200 feet along the parcel's border with the right-of-way.

H. Setbacks. A licensee engaging in the outdoor cultivation of industrial hemp shall comply with the following setback requirements:

1. Boundary Line Setback. If the parcel is located on Planned Agricultural (PA), Limited Agricultural (LA), and Agricultural Grazing (AG), there shall be no setback imposed by this Subsection. If the parcel is located on Residential Estate (RE) or Rural Lands (RL), the setback requirement is no less than 200 feet from the boundary line of the parcel. This setback shall be measured in a straight line from the nearest point of the outdoor industrial hemp cultivation to the boundary line of the parcel. This setback will not apply if the property line is adjacent to the property line of a parcel that is either owned, managed, or otherwise under the control of the licensee.

2. Residential Use Setback. No less than 200 feet from any parcel zoned as Multi-unit Residential (RM), Single-unit Residential (R), One-acre Residential (RIA), Two-acre Residential (R2A), Three-acre Residential (R3A), or Residential Estate (RE) at the time the licensee obtains their license. This setback shall be measured from the nearest point of the outdoor industrial hemp cultivation to the boundary line of the parcel.

3. Residential Structure Setback. If the parcel is located on Planned Agricultural (PA), Limited Agricultural (LA), and Agricultural Grazing (AG), there shall be no setback imposed by this Subsection. If the parcel is located on Residential Estate (RE) or Rural Lands (RL), the setback requirement is no less than 600 feet from a permitted residential structure that is located on a parcel zoned as Multi-unit Residential (RM), Single-unit Residential (R), One-acre Residential (RIA), Two-acre Residential (R2A), Three-acre Residential (R3A), or Residential Estate (RE) at the time the licensee applies for their license or renewal of a license. This setback shall be measured from the nearest point of the outdoor industrial hemp cultivation to the nearest outer wall of the structure.

4. Sensitive Use Setback. No less than 200 feet from a parcel containing a sensitive use that was in existence at the time the licensee obtains their license. This setback shall be measured in a straight line from the nearest point of the outdoor industrial hemp cultivation to the boundary line of the parcel containing the use. A new adjacent use does not affect the continuation of an existing use that was permitted and legally established under the standards of this Chapter.

5. Agricultural Crop Setback. No less than 200 feet from a commercial agricultural crop located on parcel not owned by the licensee that was in existence at the time the licensee obtains their license. This setback shall be measured in a straight line from the nearest point of the outdoor industrial hemp cultivation to the boundary line of the parcel containing the use.

6. Setback Waiver. The setbacks imposed by this Subsection 130.43.105.H will not apply with respect to a particular parcel if the licensee obtains written consent from all owners of record of any adjacent parcels that are impacted by the setback to waive the setback requirement. The Agricultural Commissioner shall prescribe the form to be used for this written agreement, and any written agreement must be approved by the Agricultural Commissioner. A written agreement will expire at the same date that the licensee's license expires, and if the licensee renews their license the licensee must obtain a new written agreement. The written agreement is only binding on those parties involved and does not bind any subsequent owner of the parcel.

(Ord. No. 5168, § 4, 11-1-2022)

A. The Agricultural Commissioner shall conduct regular inspections of each licensee to ensure that that the licensee is in compliance with all the requirements of this Chapter and all State and Federal law, including 3 CCR 4930. The Agricultural Commissioner shall conduct inspections at random intervals and shall ensure that each licensee is inspected at least once annually. The Agricultural Commissioner shall provide reasonable advance notice of the inspection, and that notice shall be no later than same day notice.

B. The licensee shall provide County staff with complete and unrestricted access during business hours, consistent with 3 CCR 4930.

C. If the Agricultural Commissioner during that inspection discovers or reasonably suspects that a violation of this Chapter or any other provision of County Code has occurred during that inspection, that violation may be referred to Code Enforcement. If the Agricultural Commissioner discovers or reasonably suspects that there is any criminal violation of any provision of this Code or State or Federal law, such as that a crop was tested as having a total THC concentration of more than one percent on a dry weight basis, the Agricultural Commissioner shall promptly notify the Sheriff's Office.

(Ord. No. 5168, § 4, 11-1-2022)

A. Enforcement of State Law. The Commissioner may enforce negligent violations Division 24 (commencing with Section 81000) of the Food and Agricultural Code, including its implementing regulations, consistent with 3 CCR 4951 and 4952.

B. Code Enforcement. In addition to criminal enforcement and potential revocation of a license issued under this Chapter, a violation of any provision of this Chapter shall be deemed a public nuisance and subject to enforcement as provided in this Section and the provisions of Chapter 9.02 (Code Enforcement), except for the following changes:

1. A notice to correct or notice to abate issued under Chapter 9.02 shall provide 72 hours for the responsible person to correct or abate the violation and shall identify the administrative fines of this Section if the violation is not corrected or abated within 72 hours.

2. Notwithstanding Section 9.02.370, a request for an administrative hearing under Chapter 9.02 must be made within three days of service of the notice to correct, administrative citation, or notice to abate.

3. Notwithstanding Section 9.02.390, the hearing shall be held within five days of the request for a hearing.

4. The decision of the Hearing Officer under Section 9.02.440 shall be issued within five days of completion of the hearing.

5. If an abatement order requires the destruction of any crops, those crops shall be destroyed consistent with Subsection 130.43.108.B (Destruction Under this Chapter).

6. Unless a notice is personally served, any notice provided under this Section shall be mailed under Section 9.02.120 and posted conspicuously on or in front of the business or cultivation site, or other place reasonably anticipated to provide notice to the responsible person.

C. Cannabis Enforcement. A licensee who is found to have engaged in commercial cannabis activities in violation of Chapter 130.41 (Commercial Cannabis) is subject to enforcement under Subsection 130.41.100.10 (Criminal Enforcement) or Subsection 130.41.100.11 (Administrative Enforcement and Abatement).

D. Hemp Cultivated Outside of Site Plan. Each industrial hemp plant cultivated outside of the square footage provided in the approved site plan shall be deemed a separate violation. The determination of the plants outside of the permitted square footage shall be made with reference to the site plan submitted with an application.

E. Suspension for Repeat Violations. If a person has received three or more sustained violations of this Chapter within a 12-month period, that person shall be ineligible to submit an application or to be a key participant in any application under Subsection 130.43.101.B (Application Requirements) or to appear on a waiting list under Subsection 130.43.102.B (Waiting List) for a 12-month period after the date of the last violation. If a licensee has received two or more sustained violations of this Chapter during the term of their license, their license shall be revoked. Any subsequent sustained violation of this Subsection will extend that 12-month period for an additional six months. The County may enforce any violation of this paragraph as a public nuisance and may take all reasonable actions consistent with law to abate that public nuisance, including injunctive relief.

F. The remedies provided herein are cumulative to all other administrative, civil, and criminal remedies now or hereafter available to abate or otherwise regulate or prevent public nuisances or criminal activity.

G. All County officers with authority to enforce this Code shall also have the authority to enforce this Section.

(Ord. No. 5168, § 4, 11-1-2022)

A. Destruction Under State Law. Any industrial hemp crop that does not meet the requirements of Division 24 of the Food and Agricultural Code shall be destroyed consistent with 3 CCR 4950 et seq., including the submittal of a destruction plan and destruction report to the Commissioner. If the Commissioner, after review, determines that the industrial hemp plants were not destroyed, the Commissioner shall cause the crops to be destroyed consistent with State law and charge the licensee the full costs of the abatement.

B. Destruction Under this Chapter. Any industrial hemp crop that does not meet the requirements of this Chapter shall, after an abatement order is issued, be destroyed consistent with the procedures set out in 3 CCR 4950 et seq., including the submittal of a destruction plan and destruction report to the Commissioner. If the Commissioner, after review, determines that the industrial hemp plants were not destroyed, the Commissioner shall cause the crops to be destroyed consistent with State law and charge the licensee the full costs of the abatement.

(Ord. No. 5168, § 4, 11-1-2022)

Nothing in this Chapter shall be construed as imposing on the Agricultural Commissioner, the Sheriff, the District Attorney, or any officer or employee of the County to enforce any provision of this Chapter or to take any action regarding alleged violations of this Chapter. Furthermore, the Agricultural Commissioner, Sheriff, District Attorney, County, and any of their officers or employees shall not be held liable for failure to abate any violation of this Chapter, to prosecute a violation of this Chapter, or to take any other action regarding any violation of this Chapter.

(Ord. No. 5168, § 4, 11-1-2022)

A. Notwithstanding any other provision of this Chapter, the Agricultural Commissioner shall not issue any license for the cultivation of industrial hemp on or after January 1, 2025, unless that date is extended by the Board of Supervisors.

B. Effective January 1, 2025, a person or entity shall not cultivate, process, or manufacture, industrial hemp for any purpose within the unincorporated areas of the County of El Dorado, except that a licensee who was issued a license and registration before January 1, 2025, may finish cultivation activities consistent with the terms of that license and registration. Effective January 1, 2025, the Agricultural Commissioner, and any other County official or employee, shall not issue any County permit, registration, or approval of any type to authorize the cultivation or processing of industrial hemp for any purpose within the unincorporated areas of the County. The prohibition shall supersede the provisions of the Section 130.30.290 (Right to Farm) and another provision of the County Code to the contrary. A violation of this Subsection is a misdemeanor and is subject to enforcement under Section 130.43.107 (Enforcement).

(Ord. No. 5168, § 4, 11-1-2022)