April 2018

Nevada County’s Commercial Cultivation Ordinance and CEQA: What every Nevada County Farmer Needs to Know

As most of you know, Nevada County staff prepared a draft commercial cultivation ordinance that was released yesterday. While I’ll leave the specifics of the ordinance for another day, the County must now figure out how to get farmers permitted as soon as possible. The California Environmental Quality Act (“CEQA”), however, requires that any ordinance that would have a “direct impact” on the environment to be vetted through an Environmental Impact Report, or “EIR.”  These EIRs can take months or years to complete, and waiting to issue cultivation permits in Nevada County until a full EIR is completed would likely delay commercial permits until 2019.

My brilliant associate attorney Sarah Smale and myself emailed other options to the Board of Supervisors today and, while none of the other options will be easy for our local farmers, the Board does have other options. You can see our Letter to my Supervisor, Heidi Hall, BY CLICKING HERE. (You should read it. It’s pretty cool.) 🙂  Here’s a very brief explanation:

OPTION 1: Temp Permits
The Board could immediately issue “temporary permits” to local cultivators who DO NOT EXPAND operations beyond the plant count and/or square footage of the current ordinance. This pathway would mean farmers may be able to get state licenses this year, but they could not exceed the current allotment of 25 plants and/or 1,000 square feet of the existing interim ordinance, limiting them to Type 1(c) “cottage” state license for the 2018 growing season.  The garden could expand, depending on the new commercial ordinance, once the EIR is completed.

While this option is not ideal for larger farms because the commercial permits would be limited in size this season, it is by far the easiest option, particularly for smaller farms that can survive off 1,000 square feet or 25 plants.  Another HUGE downside is that the County staff suggested capping the number of these permits at 100, and would decide who gets them by a lottery.

OPTION 2: Discretionary Review
The Board could enact the new commercial cultivation ordinance in the coming months if-and-only-if each and every farm went through “discretionary review.” In other words, this would require the County to make an individualized determination of environmental compliance for each farm.

This option is ideal for larger farms who are able to quickly coordinate site-specific environmental analyses and are ready to engage in the discretionary review process. However, “discretionary review” means by-its-own-terms that you’ll have to prepare reports and plans to submit to the County and then the County gets to review it and decide whether to permit it or to deny it. That process could take months, and the reports could be expensive. I would hope that discretionary review of smaller farms might be able to be streamlined in some manner, but that is not clear.

What Can You Do About It?

There is NO EASY ANSWER here. Each one of these pathways involves a weighing of the benefits and burdens, and then choosing the path that works best for the greatest number of our local farmers. To be sure, not everyone will be happy with either option.

However, PLEASE KNOW the County staff is advising the Board not to issue any licenses at all this year and to wait until the full EIR is completed, effectively pushing commercial permits off until 2019. That’s not legally required under CEQA and it just is not right. So please make your voice heard on Tuesday, May 1st, at 9:00 a.m. in the Board’s chambers at 950 Maidu in Nevada City.

I will be there making my voice heard.  Will you?

Much love and respect, hb
#protectourfarmers #nevadacounty