What You Need to Know

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.

By Kali Perkins

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The word “divorce” itself can cause a visceral reaction; it can bring on feelings of stress, fear, and apprehension. But the more you know about the law, the easier it can be to deal with this stressful time. (And if you need more help, we’re here of course to answer your questions and guide you through the process.)

“No Fault” Explained

California is a “no fault” divorce state – that means it doesn’t matter who is at fault for the breakup of the relationship; the parties are treated equally in the eyes of the court. It also means that only one party has to “want” the divorce for it to occur.

The Divorce Settlement Process

The vast majority of divorces don’t proceed to trial; rather, the parties are able to work out the issues through arbitration and mediation, or litigation that is limited in scope to address particular issues of the case on which the parties can’t agree. These are obviously more cost-effective ways to resolve issues of contention, rather than proceeding to trial.

Once an agreement is reached through one of these means, then a settlement agreement will be entered into, and once all outstanding issues are resolved, the court will finalize the divorce, meaning you will be returned to the legal status of a single individual. Where parties cannot reach an agreement, or if there are issues precluding contact between the parties, it’s often best to leave those issues up to a judge to decide.

Division of Property

Often, the most contentious issue in a divorce is the division of property. Property acquired during the marriage is considered community property, and thus, divided equally between the parties. Any property owned by one of the parties prior the marriage will be treated as your sole and separate property, and you will be entitled to it upon the dissolution of the marriage.

Spousal Support

Spousal support is another issue that is often hotly contested. Depending on the term of the marriage, and the income of the parties, you may be entitled to receive ongoing support from your ex.

Where there is a change down the road in financial situations, you can also apply to have spousal support modified to reflect the modified status. Don’t continue paying what you can’t afford if your financial situation has changed since a ruling on spousal support was made. Alternatively, don’t continue to accept less than you can survive on if you are receiving spousal support and your circumstances have changed.

Legal Support

While it can seem strange to hire a lawyer “against” your spouse, it’s better to think of it being for you. In a no-fault divorce state, you can’t really stop the divorce if your spouse wants it. And if it’s going to happen, you need to make sure you will land on your feet in the best way possible–and if you have children, that an amicable solution which is in their best interests will be reached. The results of the divorce settlement could affect your life for years to come. Often the impact is felt for the rest of your life. You don’t want to be in over your head, or negotiating from an emotional place, when so much is on the line

Let us help you navigate this stressful time in your life by helping assist and advise you through your divorce proceedings. Whether you are a newly-married couple or ending a long-term marriage, we are here to help you through this difficult time. Our office can assist you every step of the way through your divorce proceedings. We can be your voice to ensure you are treated fairly and entitled to what is rightfully yours. Give us a call today for a consultation to discuss your rights and your options.

By Kali Perkins

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During any separation involving children, the parents – whether married or not – must work out the issues of custody and visitation. If you and your ex aren’t getting along or communicating well, this could be problematic and likely emotions will run high when it comes to deciding who gets time with the child(ren) and when.

Defining the Terms

Custody is a broader term and can refer to either legal or physical custody, while visitation refers to time actually spent with the child. 

Legal custody gives a parent the right to make long-term decisions about the raising of a child, and key aspects of the child’s welfare — including the child’s education, medical care, dental care, and religious instruction. Legal custody can be awarded solely to one parent, or jointly to both parents to share in decision making. 

Physical custody can be either joint–which means that the children live with both parents–or it can be sole or primary, which means the children live with one parent most of the time and have visitation with the other parent.  Visitation rights allow the parent with whom the child does not live to take physical custody of the child for specific, regularly-scheduled periods of time

The custodial parent is the individual that has primary physical custody of the child.   The child does not reside with the non-custodial parent except during the time that parent has visitation.

The courts generally encourage frequent and regular visitation when the parents live in the same locality and when it does not interfere with a child’s school schedule.  If the parents live a long distance from one another, liberal visitation is usually provided for school breaks and summer vacations.

California Custody and Visitation Arrangements

In California, either parent can have custody of the children, or the parents can share custody. The judge makes the final decision about custody and visitation but usually will approve whatever plan both parents can agree on. The most common arrangement is one in which one parent has sole physical custody, both parents have legal custody, and the noncustodial parent is granted visitation time.

The court always encourages parents to come up with an agreement on their own, where possible. And prior to any hearing on custody, you will be required to participate in mediation with the other parent and a neutral third party, to try and reach an agreement with the other parent. If the parties cannot agree, then the matter will proceed to a hearing before the judge, where the parties can submit evidence and argue for the custody arrangement they desire.

Supervised Visitation

Supervised visitation may be ordered when the children’s safety and well-being require that visits with the other parent be supervised by another adult, or a professional agency. In situations in which contact with a parent would be physically or emotionally harmful to the children, the court may order that the parent be allowed no visitation with the children.

If needed, the court can appoint an attorney to represent the child. This type of attorney is known as a Guardian Ad Litem.

Despite the risk of COVID, courts across California are enforcing visitation orders, therefore, it is in the best interest of your child(ren) if you and your ex can put protective measures in place, and abide by all safety protocols set forth by the state, to ensure the health of your family.