CDFW’s Role in California Cannabis Cultivation

by Kali Perkins, Attorney for Emerald Law Group

The California Department of Fish and Wildlife (CDFW) plays a significant role in regulating cannabis cultivation to protect the state’s natural resources and wildlife habitats. As cannabis cultivation can have various environmental impacts, including water diversion, habitat destruction, and pollution, CDFW works to ensure that cultivation activities comply with state laws and regulations which are aimed at conserving California’s ecosystems.

Unfortunately, in practice it’s often unclear what environmental impacts CDFW is seeking to mitigate, given they often enforce the most minute violations, without any evidence of actual harm. While we always advise compliant cultivation to our clients, we have found in practice, that CDFW can take a rather overzealous approach to enforcement when it comes to cannabis. But then again, every agency in California wants their piece of this regulated market.

First, a brief overview of the role that CDFW plays with respect to cannabis:

1. Permitting and Regulation

CDFW is responsible for issuing permits and overseeing compliance with regulations related to cannabis cultivation activities that may impact waterways, fish and wildlife habitat, and wetlands. This includes administering permits for activities regulated under Fish and Game Codes such as 1602, 5650, and 5652, which address impacts on water resources, fish and wildlife habitat, and wetlands, respectively.

2. Environmental Review

CDFW conducts environmental reviews to assess the potential impacts of proposed cannabis cultivation projects on sensitive species and habitats. This includes evaluating project plans, conducting site inspections, and identifying measures to minimize and mitigate environmental impacts.

3. Monitoring and Enforcement

CDFW monitors cannabis cultivation sites to ensure compliance with permit conditions and regulatory requirements. This may involve conducting inspections, investigating complaints, and taking enforcement actions against violators to address environmental violations and protect natural resources.

4. Education and Outreach

CDFW provides education and outreach to cannabis cultivators, landowners, and other stakeholders to promote awareness of environmental regulations and best management practices for sustainable cultivation. This includes offering workshops, resources, and guidance on topics such as habitat conservation, water management, and wildlife protection.

5. Collaboration with Other Agencies

CDFW collaborates with other state and local agencies, including the California Department of Cannabis Control (DCC), the State Water Resources Control Board (SWRCB), and county regulatory agencies, to coordinate regulatory oversight and ensure comprehensive management of cannabis cultivation impacts on the environment. This means that you could receive not only a CDFW Notice of Violation, but also a Violation from the DCC and/or the State Water Resources Control Board, or county regulatory agencies for violations.

Specific Fish and Game Code Regulations

Next we’ll look at the specific regulations that are applicable to cannabis cultivation: Fish and Game Codes §§1602, 5650, and 5652. These sections outline requirements for cannabis cultivators to mitigate environmental impacts while cultivating and to ensure compliance with state conservation laws.

If a cultivator that is licensed violates any of these sections, a Notice of Violation will be issued by CDFW. The cultivator is then responsible for remediation of the site, including obtaining an LSA if there is a §1602 violation, and could be subject to fines and fees, or even a lawsuit, if the remediation is left unaddressed.

Fish and Game Code 1602:

Fish and Game Code 1602, also known as the Lake and Streambed Alteration Agreement (LSAA), regulates activities that may impact waterways, including cannabis cultivation. Under this code, cannabis cultivators must obtain an LSAA from the California Department of Fish and Wildlife (CDFW) if their cultivation activities involve:

• Diverting or obstructing the natural flow of any river, stream, or lake.
• Damaging or substantially modifying the bed, channel, or bank of any river, stream, or lake.

To comply with Fish and Game Code 1602, cannabis cultivators must submit an LSA application to CDFW and implement measures to minimize and mitigate potential impacts on water resources and aquatic habitats. It is advised that you retain an expert to prepare your LSA application.

Fish and Game Code 5650:

Provides that it is unlawful to deposit in, permit to pass into, or place where it can pass into the waters of this state any refuse, including but not limited to, refuse, petroleum, sawdust, lime, etc. and the catchall provision:  Any substance or material deleterious to fish, plant life, mammals, or bird life.

This has been used to include such things as pieces of trash left where the wind could blow them into a nearby stream. It should be noted, no proof of harm is required.

Fish and Game Code 5652:

This section provides that “it is unlawful to deposit, permit to pass into, or place where it can pass into the waters of the state, or to abandon, dispose of, or throw away, within 150 feet of the high water mark of the waters of the state, any cans, bottles, garbage, motor vehicle or parts thereof, rubbish, litter, refuse, waste, debris, or the viscera or carcass of any dead mammal, or the carcass of any dead bird” (Cal F&G Code 5652(a))

It should be noted that in recent years, CDFW has taken on a very broad and expansive definition of the term “waters of the state,” to include far more than the law allows them. Thus, there is an argument to be made for lack of jurisdiction where it can be shown that the water on an alleged violator’s property lacks a “bed bank or channel” and where the water does not support “fish or other aquatic life.”

Pursuant to 1.72 of title 14 of the California Code of Regulations:

A stream is a body of water that flows at least periodically or intermittently

through a bed or channel having banks and supports fish or other aquatic life.

This includes watercourses having a surface or subsurface flow that supports or

has supported riparian vegetation.

Thus far, this issue has not been tested before the Administrative Court, but we believe there is evidence to support such a position.

It should also be noted, for non permitted cultivations, a violation of any of the above Fish and Game Code sections will result in a Felony offense, as opposed to a misdemeanor for simple cultivation, pursuant to Cal. Health and Safety Code §11358.

If you have are facing a Felony, criminal cultivation case, or if you have received a Notice of Violation from CDFW, or if you are being sued by CDFW, it is imperative that you retain counsel who has experience with this unique area of law.

Fish and Game Codes 1602, 5650, and 5652 play a crucial role in regulating cannabis cultivation activities to protect water resources, fish and wildlife habitat, and wetlands in California, but prosecution for violating these sections can be extremely difficult and costly to litigate. Cannabis cultivators must understand and comply with these regulations to mitigate environmental impacts and avoid costly encounters with CDFW.

By obtaining the necessary permits and implementing best management practices, cultivators can operate their businesses responsibly while safeguarding California’s natural resources for future generations, all while avoiding costly mistakes.