Moratorium in place to give time for local regulations
A hemp moratorium is in place through April 30, 2020 as Sonoma County creates regulations for the federally legal crop. This covers all land in unincorporated Sonoma County.
The moratorium is in place for all hemp, regardless of what it is to be used for.
“The state had not yet finished developing the regulations for hemp,” Sonoma County Agricultural Commissioner Tony Linegar said. “The county wanted to take a time out to develop local regulations around hemp in regard to zoning, where would we like hemp to be grown, the management of pollen.”
Though the state created a way to register hemp grows, the controls on testing for THC content, eradication if its over and sampling had yet to be written.
In addition, there is concern that hemp cultivation could interbreed with cannabis outdoor operations.
Linegar said Sonoma County is one of over 25 counties that have put a moratorium in place. One of the next steps for the county is a Board of Supervisors workshop slated for Dec. 10 to discuss regulatory options.
In order to understand the moratorium, understanding what hemp is versus cannabis is vital.
Hemp and cannabis are the same plant. The difference is the level of THC in hemp must be at or less than 0.3% of the total dry flower content.
As hemp and cannabis are the same plant, they can interbreed. This possibility poses a threat to both industries, as both can grow outdoors and cross-pollinate.
If the two interbreed, then it is likely that future generations of hemp will no longer qualify as hemp, as the percent of THC would go up. Male pollen could also cause female cannabis plants to go to seed, something that isn’t desirable in cannabis flowers and can significantly alter the desired THC and CBD quantities.
Hemp in Sonoma County is largely forecast to be used to extract CBD for medical purposes and therefore growers would likely only grow the female plant, which could also suffer from going to seed if male plants are near.
There is also a market for hemp seeds, however, which will likely be mandated to grow indoors to prevent cross pollination, according to Linegar.
Hemp, when grown for CBD, uses only the female plant to get greater quantities of CBD from the flower, which the male plant does not produce. Therefore, an all-female hemp outdoor grow is likely to still be allowed in approved zones.
Hemp is also legal at the federal level, after the passage of the Agriculture Improvement Act of 2018, or Farm Bill. This difference between it and cannabis provides greater protections for hemp farms. There is also a Sonoma County Right to Farm law which protects crops on agriculture-zoned land.
Linegar has heard from anti-cannabis members of the community that are also against hemp.
“One of the reasons they’re citing is the odor,” he said.
In the cannabis permit process, the smell of the plant, particularly when it is ready to harvest, is brought up as a concern to mitigate.
Hemp, like other crops such as grapes, would be protected from being shuttered due to odor concerns.
“There’s lots of crops that produce odors,” Linegar said.
Linegar said he was talking to the Santa Barbara County ag commissioner, who said broccoli has a particularly pungent smell after the harvest when waste matter if left in the sun.
“She said it produces a very putrid and strong odor that you can smell for great distances. So until the farmer comes along and discs all that in, it really really smells,” he said.
There is also the odor that permeates the county air certain times of the year, which some have coined the “Sonoma aroma.”
“You don’t want to be setting a precedent for discriminating against odors from a legal crop,” he said. “As the ag commissioner, I want to be cognizant of that, that this is a legal crop, that yes it produces odor but it should be protected as much as any other odor that comes from a legal crop.”
Linegar did say that there hasn’t been any cultural resistance to hemp in the ag industry.
“What I hear from farmers, no matter if they’re grape farmers or ranchers, is this is a legal crop federally, so they recognize that distinction for cannabis,” he said. “So they’re all for hemp as a crop. They recognize that if it’s a legal crop, then it’s another opportunity for them to diversify their farming operations.”
Linegar said that another thing that would likely be different for hemp farms versus cannabis will be how visible the crop is. He said he doesn’t expect there to be any screening or setback for the crop, though it would ultimately be up to the Board of Supervisors.
“There is probably concern for something being mistaken for cannabis, but one of the state laws requires the field be posted as industrial hemp. But I don’t foresee any rules for fencing or obfuscating the view from the public,” he said. “My sense is it will be treated like virtually any other crop.”
Get in the zone
Zoning is one of the other factors. Where hemp will be grown could be restricted to agricultural land but there are calls to get hemp allowed on rural residential (RR) and agricultural residential (AR) zones.
Agricultural residential provides lands for raising crops and farm animals in areas designated primarily for rural residential use, according to county zoning definitions, and rural residential “preserves the rural character and amenities of those lands best utilized for low density residential development.”
Shivawn Brady has been working with the county to figure zoning rules in the Hemp Advisory Council, which Linegar leads. She is the vice president of regulatory affairs for Justice Grown, a company that works with patients on the medical, or CBD-driven, side of cannabis and hemp. She is also, in addition to other cannabis credentials, a cultivation and compliance specialist at 421 Group, which provides consulting for the cannabis and hemp industry.
Brady said that much of the land that can be used for hemp farms is in the ag residential and rural residential zones. She provided data that shows 4,065 acres may be used for hemp in these zones, in addition to several hundred split parcels not included in those numbers.
“My biggest fear is that we’re going to mimic zoning for cannabis and we’ll exclude a lot of farmers that are in AR, RR and RRD areas,” Brady said. “A lot of the west part of the county and the dairy belt are in these unconventional properties.”
Brady said that it may depend on the end use as to whether these alternative zones will require a conditional use permit, which can take longer to get than a ministerial permit. It would also be cheaper than cannabis to permit, Brady said.
Registering and transferring crops will still likely be in place to similar crops in agricultural zones as they are for crops like wine grapes.
“We’ve had a number of farmers express interest in Sonoma County,” Linegar said. “I think one of the big unknowns is, you know, is it really viable with regard to the cost of the land here. There aren’t any processors nearby to extract CBD at this point.”
Linegar added that other states, like Kentucky and Colorado, already have large hemp farms saturating the market.
And because it’s a new crop, Linegar said he hasn’t heard a solid economic plan from a farmer in the county to not only grow hemp, but create a successful business for it.
“I think there are a lot looking into it, but none with an established business plan to roll out,” he said.
“I think it’s a pretty strong desire for a lot of farmers in the county to have access to that opportunity to grow hemp,” Brady said, noting that there is a wealth of experience in cultivating the crop given the area’s history.
When farms do begin, especially on agriculture-zoned land, Linegar expects there won’t be a size cap like the one-acre limit in place for cannabis. A large reason for this is the greater need for bulk in order to be profitable with hemp.
“It doesn’t lend itself as much to small-scale farming,” Linegar said. “Everybody I’ve talked to is interested in growing for CBD. I don’t think it pencils out for them to produce for fiber.”
Brady said that finished flower, which is pruned of leaves and dried, sells for $300 to $800 per pound for CBD use, which shows promise for turning a profit.
“You’re not that far off from what cannabis farmers were getting in the traditional (pre-legalization) market a few years ago,” she said.
Other countries like China, Linegar said, can sell hemp for pennies on the dollar when compared to Sonoma County.
“I think the only thing that makes sense is growing for CBD on a fairly large scale and/or growing seed for planting,” he said. “There is a shortage of seed.”
Linegar pointed to one bill that could change the demand for CBD hemp in the state, Assembly Bill 228, which would set rules for allowing CBD to be infused in food and drink.
“That’s a big thing, because if that passes, then that’s going to really open up some opportunity and demand for CBD,” he said.
He also said the FDA will eventually come down on how CBD may be allowed in food and beverage and those rules would supersede any state law.
In order to ensure that hemp is indeed hemp and not a cover for unlicensed cannabis grows, crops will be subject to testing 30 days before harvest. If it tests above the 0.3% limit it must be destroyed.
Linegar said there may be additional measures put in place to prevent fraud, but this will be an issue the whole state will grapple with.
“We’re working internally on how we might approach this,” Linegar said.
Learning from others
While Sonoma County has a moratorium, there are other counties without one that are just seeing there crops coming to flower.
Lake County and the San Diego area are leaders in the state right now, Linegar said, and the county will be in communication with them as it decides its rules.
“What were their challenges? What issues did they come up against? Whenever you have a new regulations and a new crop like this, it’s always an evolving process where you learn where you can tighten things up or make the regulations better,” Linegar said.
Brady said that she is confident Linegar will use this direction and steer the county to a sensible path for hemp.
“I fell really confident in Tony Linegar’s leadership. He has a very balanced view from both sides. I have confidence the Hemp Advisory Council is going to make recommendations that are workable,” she said. “It’s time for people who want to work with this crop to make known to the supervisors what they want for this.”