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Washington’s cannabis market has had its share of issues since the state passed Initiative 502, legalizing adult-use cannabis in 2013. Folding the state’s medical market into the I-502 program left many medical operators unable to secure recreational licenses; the sustained glut of product has crippled many operators’ ability to break even (forget turning a profit); and odor issues have caused some communities to shun outdoor cannabis farmers.

However, the state’s latest issue regarding greenhouse definitions could potentially throw the state’s entire cannabis market into disarray.

Building codes across the country are based on the International Code Council’s (ICC) guidelines, and building inspectors use those codes and definitions to guide their daily work. However, the ICC does not specifically define what constitutes a greenhouse, but Washington’s energy code does. (The Washington State Building Code Council (SBCC), the entity that develops and adopts building code policy, developed the state’s energy code.) The code splits greenhouses into two categories: traditional greenhouses and “controlled plant growth environments.”

According to the state energy code, a greenhouse is “a structure or a thermally isolated area of a building that maintains a specialized sunlit environment that is used exclusively for, and essential to, the cultivation, protection or maintenance of plants.”

Meanwhile, controlled plant growth environments are “buildings or spaces that are specifically controlled to facilitate and enhance plant growth and production by manipulating various indoor environmental conditions. … Controlled indoor environment variables include, but are not limited to, temperature, air quality, humidity and carbon dioxide.”

The Issue at Hand

These definitions are proving to be problematic, mainly because they allow for personal interpretation. According to a spokesperson for Washington’s Department of Enterprise Services (DES), “the State Building Code is enforced by cities and counties” using local government-hired building code inspectors. When there is overlap between the definitions, “generally the more restrictive requirements apply,” the DES says.

Crystal Oliver, co-founder and owner of Washington’s Finest Cannabis, an outdoor cannabis farm in Deer Park, Wash., says the state’s energy code is being used “as a tool to manipulate the market” by deterring both indoor and outdoor cultivators from moving to a greenhouse structure.

According to Oliver—who is also on the Cannabis Farmers Council executive board and was a member of the SBCC’s Cannabis Issues Technical Advisory Group—local building code officials in certain conservative communities are interpreting the state energy codes to say year-round greenhouses utilizing any kind of supplemental lighting, heating or other mechanical environmental control are controlled plant growth environments, and controlled plant environments are not exempt from building envelope requirements.

“What that means is you need to have insulation in your walls and ceiling so you’re not losing that heat or energy,” she explains, but adds that complying with building envelope requirements also means “you don’t have a greenhouse anymore,” because greenhouses don’t have insulation.

Oliver has spoken with one local building code inspector who has taken a hard stance against greenhouses in this debate. She explained to the inspector that “if we go with your interpretation, greenhouses will cease to exist in Washington for anyone, cannabis or any other product.”

The DES spokesperson agrees with Oliver’s interpretation that nearly all greenhouse structures in the state would be affected, but added that existing structures would be grandfathered in. “With a few exceptions, application of the building codes is not retroactive,” the spokesperson says. “If a structure has been permitted for a specific use and that use has been continuous and not changed, the facility is code compliant.”

However, individuals seeking new permits would have to meet the requirements if their local building code inspector deems the greenhouse to be a controlled plant growth environment. The DES spokesperson also added that any structural or equipment changes to existing greenhouses could also trigger a building envelope requirement.

How We Got Here, and What is Next

The building envelope requirement is meant to ensure heated structures conserve energy through proper insulation. (The SBCC is also mandated under the Energy Code Act to reduce energy consumption by 70 percent by 2031.)

The concern with heated greenhouses in Washington, as Oliver understands it, is that they are often in areas that endure cold snaps and snowstorms, taxing the state’s power grid during winter months. She agrees that heated greenhouses use more energy, “but then my argument to them is if you look at it on an annual basis, that greenhouse … is going to use less energy than that warehouse structure that has to use lighting all year-round,” she says.

While this code interpretation affects the entire greenhouse community, the impacts on the cannabis industry would be substantial, Oliver says. By making greenhouses more expensive, she continues, the SBCC is removing greenhouses as a viable option for indoor cultivators looking to cut production costs and outdoor farmers seeking year-round production and odor reduction.

Oliver plans to appeal the SBCC for an official interpretation and an advisory determination. (The SBCC’s official interpretations are non-binding.) However, interpretation requests must come from a building code inspector, meaning Oliver must find a local official sympathetic to greenhouses and cannabis to raise the issue with the SBCC.

“The market wants to go toward greenhouse cultivation for various reasons, but if the energy codes wipe that out, it’s something different.”

Brian Maciver is the associate editor for Cannabis Business Times.