Tougher Penalties for California’s Cannabis Cultivators

On August 7, 2015, California Governor Jerry Brown signed Senate Bill (“SB”) 165 into law, significantly widening the scope of the type of environmental violations subject to penalties, and sharply constraining the discretion of the Department of Fish and Wildlife (“DFW”) to impose those penalties.  Cultivators of controlled substances (e.g., cannabis) in California have always been subject to civil fines for certain environmental violations, such as illegal stream diversions or releases of petroleum.  In particular, Section 12025 of the Fish and Game Code imposes fines on cultivators over and above whatever penalties those environmental violations already carry.  But the dramatic increase in the number and size of grow-sites—coupled with the severe, ongoing drought—has prompted a response from government authorities.  In the words of the new law’s author, commercial-scale cannabis grow-sites “leav[e] behind devastating impacts on the terrestrial and aquatic habitats they occupy. . .  In 2014, DFW found over 135 dams or diversions in rivers and streams, equating to close to 5,000,000 gallons of stolen water.”  In other words, SB 165 was passed to increase the reach and potential sting of the added fines under Section 12025.

Prior to passage of SB 165, Section 12025 of the Fish and Game Code authorized DFW to impose civil penalties for certain violations of the Fish and Game Code in connection with the production or cultivation of controlled substances, including cannabis.  The new law makes two important changes:  (1) in addition to the Fish and Game Code violations, Section 12025 also now imposes penalties of up to $40,000 per violation for sections of the Penal Code and the Public Resources Code; and (2) penalties in connection with violations occurring on private lands legally owned or leased by the cultivator are now mandatory.  The first change expands the list of covered activities to include instances of the dumping of waste or hazardous substances, the illegal removal of plants or vegetation, the unlawful taking of game, or the destruction of forested habitats without timber harvest permits.  The second change removes DFW’s discretion to impose these penalties, even when the land in question is owned, leased, or otherwise legally occupied by the cultivator (previously, only cultivators who were trespassing on public or private lands were subject to mandatory penalties).  Notably, Section 12025 does not distinguish between indoor and outdoor grow-sites.

This development is just one of a number of recent moves by the various branches of California government to tighten environmental protections related to cannabis cultivation.  For example, on August 13, 2015 the North Coast Regional Water Quality Control Board (“Regional Board”) adopted the state’s first regional water quality regulatory order “to protect the environment from discharges of waste associated with cannabis cultivation.”  The Central Valley Regional Board is currently working on a similar order.  Meanwhile, in June 2015 the California Assembly passed AB 243, which contains amendments to the Health and Safety Code and the Water Code to address the environmental impacts of medical cannabis cultivation statewide.  AB 243 is now wending its way through Senate committees, and in its current form could bring comprehensive environmental regulation to the cannabis cultivation industry as soon as next summer. These measures ultimately will subject cannabis cultivation to industry-specific environmental standards.  In the meantime, with SB 165 on the books DFW now has a bigger hammer than ever to bring down on cultivators who violate the current rules.

Marc Shapp is an associate in the San Francisco Bay Area office of Hunsucker Goodstein PC, a national environmental law firm.  Marc practices in the environmental law, litigation, and insurance coverage practice areas.  He represents a wide range of clients on matters concerning soil, air, and groundwater contamination in litigation and regulatory matters.