Riverside County Municipal Code Ch. 9.57 Cultivation of Industrial Hemp by "established Agricultural Research…

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Editor's note— Ord. No. 449.249, §§ 1—5, adopted March 27, 2018, amended chapter 9.57 in its entirety to read as herein set out. Former chapter 9.57, §§ 9.57.010—9.57.060, pertained to similar subject matter. See Code Comparative Table for complete derivation.

Pursuant to Government Code Section 65858 and Section 20.4 of Ordinance No. 348 and, notwithstanding any provision of Ordinance No. 348 to the contrary, Ordinance No. 449.248 is hereby extended for ten (10) months and fifteen (15) days from the date of its expiration, during which time no person or entity shall grow industrial hemp for any purposes within the unincorporated areas of Riverside County. As set forth below in Section 9.57.020 of this chapter, the cultivation of industrial hemp for commercial purposes is currently prohibited by the State of California. Additionally, during the term of this chapter, including any extension hereto, "Established Agricultural Research Institutions" as defined in Food and Agricultural Code Section 81000, are similarly prohibited from cultivating industrial hemp for agricultural or academic research purposes within the unincorporated areas of Riverside County. Cultivation of industrial hemp in violation of the prohibition in this interim ordinance constitutes a public nuisance. As used in this chapter, the following terms shall have the following meanings:

a. Cannabis. As defined under the Medicinal and Adult-Use Cannabis Regulation and Safety Act ("MAUCRSA") codified at Business and Professions Code Section 26001 as "all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin… "cannabis" does not mean "industrial hemp" as defined by Section 11018.5 of the Health and Safety Code.

b. Established Agricultural Research Institution. As defined under Food and Agricultural Code Section 81000 as: "(1) A public or private institution or organization that maintains land or facilities for agricultural research, including colleges, universities, agricultural research centers, and conservation research centers; or (2) An institution of higher education (as defined in Section 1001 of the Higher Education Act of 1965 (20 U.S.C. 1001)) that grows, cultivates or manufactures industrial hemp for purposes of research conducted under an agricultural pilot program or other agricultural or academic research.

c. Industrial hemp. As defined under Food and Agricultural Code Section 81000 and Health and Safety Code Section 11018.5 as "a fiber or oilseed crop, or both, that is limited to types of the plant Cannabis sativa L. having no more than three-tenths of 1 percent (.3%) 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.

(Ord. No. 449.249, § 1, 3-27-2018)

Pursuant to Government Code Section 65858 and Section 20.4 of Ordinance No. 348, this chapter is hereby declared to be an urgency measure and shall take effect upon its adoption. It shall be of no further force and effect ten (10) months and fifteen (15) days from the date of expiration of Ordinance No. 449.248, unless extended pursuant to law. In adopting this chapter, the board of supervisors finds that cultivation of industrial hemp by "Established Agricultural Research Institutions," as defined by Food and Agricultural Code (hereinafter "FAC") Section 81000, prior to the adoption of reasonable regulations, creates an urgent and immediate threat to the public health, safety or welfare of the citizens and existing agriculture in Riverside County for the following reasons:

a. Section 5940 of Title 7 of the United States Code states, "Notwithstanding the Controlled Substance Act (21 U.S.C. 801 et seq.), the Safe and Drug-Free Schools and Communities Act (20 U.S.C. 7101 et seq.), Chapter 81 of Title 41, United States Code, or any other Federal law, an institution of higher education (as defined in Section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001)) or a state department of agriculture may grow or cultivate industrial hemp if: (1) the industrial hemp is grown or cultivated for purposes of research conducted under an agricultural pilot program or other agricultural or academic research; and (2) the growing or cultivating of industrial hemp is allowed under the laws of the State in which such institution of higher education or state department of agriculture is located and such research occurs.

b. Division 24. Industrial Hemp [81000-81010] of the FAC addresses the growing and cultivation of industrial hemp in California.

c. On January 1, 2017, Division 24, Industrial Hemp [8100-81010] of the FAC became operative.

d. FAC Division 24 does not provide for the California Department of Food and Agriculture to establish a pilot program or to participate in, or promote, research projects recognized under Section 5940 of Title 7 of the United States Code.

e. FAC Section 81001 calls for the Industrial Hemp Advisory Board to advise the California Secretary of Food and Agriculture and make recommendations to the secretary pertaining to the cultivation of industrial hemp, including but not limited to, developing the requisite industrial hemp seed law and regulations, enforcement mechanisms, and the setting of an assessment rate.

f. The industrial hemp advisory board is expected to the implement requisite regulations allowing the cultivation of industrial hemp for commercial purposes in late 2018.

g. Under FAC Division 24, all commercial growers of industrial hemp must register with the county agricultural commissioner prior to cultivation. Registration is not yet available. The fees and process for registration will be developed in conjunction with the industrial hemp advisory board. Therefore, the cultivation of industrial hemp for commercial purposes as defined under FAC Division 24 is prohibited within the State of California and the County of Riverside until the Industrial Hemp Advisory Board has developed and implemented the requisite industrial hemp seed law, regulations, and enforcement mechanisms, including the registration process and fees.

h. Despite the current prohibition on the cultivation of industrial hemp for commercial purposes, FAC Division 24 exempts cultivation by an "Established Agricultural Research Institution" from some of the regulatory requirements enumerated therein.

i. Due to the fact that industrial hemp and cannabis are derivatives of the same plant, Cannabis sativa L., the appearance of industrial hemp and cannabis are indistinguishable. Absent a laboratory performed chemical analysis for tetrahydrocannabinol (THC) content, the two plants cannot be distinguished.

j. Division 24 of the FAC, allows an "Established Agricultural Research Institution" to cultivate or possess industrial hemp with a greater than .3% THC level, causing such plant to no longer conform to the legal definition of industrial hemp, thereby resulting in such "research" plants constituting cannabis.

k. The definition of "Established Agricultural Research Institution" as provided in FAC Section 81000 is vague and neither the Legislature nor the Industrial Hemp Advisory Board have provided guidelines on how the County can establish whether a cultivator claiming to be an "Established Agricultural Research Institution" is legitimate or that the cultivation constitutes "agricultural or academic research." Without clear guidelines, the ability and likelihood that cultivators exploit the "Establish Agricultural Research Institution" exemption to grow industrial hemp with more than .3% THC is great.

l. Except for personal cultivation, by an adult 21 years of age or older, of six or fewer cannabis plants within a private residence or inside a detached accessory structure on the grounds of a private residence that is fully enclosed and secured and personal use of cannabis otherwise allowed under the Medicinal and Adult-Use Cannabis Regulation and Safety Act (Senate Bill 94 (2017) ("MAUCRSA"), Section 3.4 of Ordinance No. 348 prohibits Cannabis Activities and Cannabis Businesses, which include cultivation, possession, manufacturing, processing, storing, testing, labeling, distribution, selling, giving away, or providing medical or adult-use cannabis and cannabis products, whether or not for profit.

m. Due to the fact that industrial hemp and cannabis are indistinguishable, the cultivation of industrial hemp by an "Established Agricultural Research Institution" prior to the adoption of reasonable regulations poses similar threats to the public health, safety or welfare as the cultivation of cannabis.

n. The cultivation of industrial hemp by an "Established Agricultural Research Institution" prior to the adoption of reasonable regulations will create an increased likelihood of criminal activity.

o. The cultivation of industrial hemp by an "Established Agricultural Research Institution" prior to the adoption of reasonable regulations will attract crime and associated violence, including without limitation, theft, robberies, illegal firearms, shootings and homicides.

p. The Sheriff will have to investigate each industrial hemp grow conducted by an "Established Agricultural Research Institution" prior to the adoption of reasonable regulations to ensure that the grow is not cannabis. Investigations of industrial hemp grows are time consuming, labor intensive, and potentially dangerous.

q. Currently the State of California has not yet identified, nor approved seed sources for industrial hemp. Unregulated seed sources can be infested with exotic weed seed or carry plant diseases. Once exotic weeds or plant diseases are established they are difficult and costly to eradicate. Soil borne diseases, once established can result in quarantines that restrict plant movement as well as crop rotations.

r. Industrial hemp can serve as a host to mites and other insects. At this time, there are no pesticides registered for hemp that specifically address such mites or other insects. The pesticides that have been approved for hemp are not always effective, which allows for such insects to move into other nearby crops.

s. There are no requirements for pesticide use reporting or testing for industrial hemp when cultivated by an "Established Agricultural Research Institution" if pesticides on the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) 25(b) list are used. In addition, "Established Agricultural Research Institutions" may be using chemicals or pesticides that are extremely toxic to people and wildlife and which may pollute soil, ground water, and/or nearby water sources.

t. If cloned hemp plants are used for experimentation they are exempt from nursery standards at this time and may not be inspected for plant cleanliness standards leaving them susceptible to insect and disease infection.

u. Industrial hemp and cannabis are not compatible crops. Thus, if this Board of Supervisors elects to pursue a particular option with respect to the outdoor cultivation of cannabis, the existence of industrial hemp grows maintained by "Established Agricultural Research Institutions" may preclude the board of supervisors from considering certain projects or development plans.

v. The cultivation of industrial hemp by an "Established Agricultural Research Institutions" prior to the adoption of reasonable regulations is harmful to the welfare of residents, creates a nuisance, and threatens the safety and land of nearby property owners.

w. There is an urgent need for the Agricultural Commissioner, the Sheriff, and County Counsel to assess the impacts of industrial hemp grown by "Established Agricultural Research Institutions" and to explore reasonable regulatory options relating thereto.

x. The allowance of cultivation of industrial hemp by "Established Agricultural Research Institutions," as defined by FAC Section 81000, prior to the adoption of reasonable regulations, creates an urgent and immediate threat to the public health, safety or welfare of the citizens and existing agriculture in Riverside County.

y. Riverside County has a compelling interest in protecting the public health, safety, and welfare of its residents and businesses, in preventing the establishment of nuisances, while also allowing the cultivation of industrial hemp under FAC Division 24 by legitimate "Established Agricultural Research Institutions" for legitimate research purposes.

z. This chapter complies with state law and imposes reasonable regulations that the board of supervisors concludes are necessary to protect the public safety, health and welfare of residents and business within the county.

(Ord. No. 449.249, § 2, 3-27-2018)

In adopting this chapter, the board of supervisors reports that the following measures have been taken to alleviate the condition which lead to its adoption and the adoption of Ordinance No. 449.248: the planning department is currently engaged in researching and developing zoning regulations and development standards for cannabis cultivation, in consultation with other county departments, including the office of county counsel and the agricultural commissioner, for the board of supervisors' consideration. Cultivation of industrial hemp is being considered and evaluated as part of that effort.

(Ord. No. 449.249, § 3, 3-27-2018)

The clerk of the board shall schedule a public hearing before the board of supervisors to consider any extension of this ordinance which shall normally be at is second regular meeting before expiration of the ten (10) month and fifteen (15) day period. The clerk of the board shall publish notice ten (10) days before the hearing. At or before the public hearing on any proposed extension of this chapter, and at least (10) days prior to the expiration of this chapter, the board, in consultation with the planning department, shall issue a written report describing therein all measures taken to alleviate the condition which lead to the adoption of this chapter and Ordinance No. 449.248. A public hearing need not, however, be scheduled if any of the following occurs: a regular ordinance addressing industrial hemp cultivation is adopted and effective before such expiration, this chapter is repealed, or the board of supervisors otherwise orders.

(Ord. No. 449.249, § 4, 3-27-2018)

If any provision, clause, sentence or paragraph of this ordinance or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other provisions of this chapter which can be given effect without the invalid provision or application, and to this end, the provisions of this chapter are hereby declared to be severable.

(Ord. No. 449.249, § 5, 3-27-2018)