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Water for Pot No Longer Unregulated

The water consumed by California marijuana growers will now be regulated by state officials under a new program that could be up and running within a year. The goal is to protect wildlife and habitats.

Written by Matt Weiser Published on Read time Approx. 7 minutes
In this Feb. 1, 2011, file photo, medical marijuana clone plants are shown at a medical marijuana dispensary in Oakland, Calif.Jeff Chiu, AP

Within less than a year, as many as 50,000 marijuana growers in California could be required to obtain state permits for the irrigation water they consume. It is an unprecedented step aimed at preventing harm to the environment and other water users resulting from the rapid growth of marijuana cultivation in the state.

“Most of them are operating below the radar,” said Cris Carrigan, chief of enforcement at the State Water Resources Control Board. “As a result, we’ve gotten ourselves into an acute problem with streamflow and pollution associated with these activities.”

This new ability to regulate water for marijuana growing is a result of SB 837, a state law signed by Gov. Jerry Brown on June 27. It’s a budget trailer bill, which specifies numerous operating details of the Medical Marijuana Regulation and Safety Act, signed into law on Ocober 9, 2015. This law establishes a comprehensive system to regulate cannabis growing in California, for the first time.

It’s a huge new water management effort that has never been attempted in the United States, not even among states that are already regulating marijuana cultivation.

Perhaps most remarkable of all, marijuana grower groups support the regulations.

“This community is ready to be part of the mainstream,” said Hezekiah Allen, executive director of the California Growers Association, a group that represents cannabis cultivators and helped draft the new legislation last year. “What we are trying to do is move people into the regulated class. Lots absolutely want that legitimacy.”

The ongoing California drought brought new attention to the environmental damages caused by unregulated marijuana growing. And while the amount of water it consumes is still the subject of some uncertainty and debate, there is little question that it has compromised aquatic habitat in many locations and reduced water access for some property owners with legitimate water rights.

But Carrigan says the rules do not necessarily target marijuana growers. Instead, they’re meant for small agricultural irrigators growing any sort of crop. The intent, however, is to get control of unregulated marijuana irrigation, which has dried up some streams, starved endangered fish of water and contributed to water quality problems caused by erosion, pesticides and herbicides.

“It’s a really significant breakthrough,” said Jay Ziegler, director of external affairs and policy for The Nature Conservancy in California, which worked with CalTrout and Trout Unlimited to help shape the rule package. “I don’t think it’s lost on anybody that this is our largest value agricultural crop. So we’re long overdue to acknowledge what are becoming increasingly overwhelming impacts of marijuana on the landscape.”

The regulations are a statewide followup to pilot programs that began last year in the water board’s North Coast and Central Valley regulatory regions.

Ed Willey, at left, and Sol Posada harvest at a marijuana farm in Davenport, Calif., on Tuesday, Oct. 12, 2010. Many such farms will have to obtain state permits for their water diversions under a new regulatory program. (Marcio Jose Sanchez, AP)

Ed Willey, at left, and Sol Posada harvest at a marijuana farm in Davenport, Calif., on Tuesday, Oct. 12, 2010. Many such farms will have to obtain state permits for their water diversions under a new regulatory program. (Marcio Jose Sanchez, AP)

The new program starts by directing the State Water Resources Control Board and Department of Fish and Wildlife to set up a task force to assess environmental damages from marijuana growing. This task force is also empowered to collect fees and penalties from growers to pay for programs to correct the damage.

Fish and Wildlife will also assess streamflow needs to sustain the environment in watersheds where marijuana is cultivated. This level of baseline flow must then be sustained at all times, and will be used to guide the issuance of water diversion permits to growers.

Some growers will be able to successfully prove that they have “riparian” water rights, meaning a right to divert water from a creek that flows on or adjacent to their land. But they will not be allowed to cut into the baseline flow that sustains wildlife.

One problem with marijuana growing is that the crop often needs water when it is least abundant: in the summer. Thus, historically, many have taken water from streams when it is most needed to sustain sensitive fish and other species that are struggling to survive long, hot summer months.

So under the new regulations, even if a grower has a verified riparian water right, they will not be allowed to divert water whenever they want. Instead, they will be directed to build water storage, such as ponds or tanks, and collect what they need for a full year when streams are flush in the winter.

For example, a relatively large grower might need 30 acre-feet (37,000 cubic meters) of water annually for his crop – enough to sustain 60 average California households for a year. Under the new rules, the water board – guided by the streamflow baseline – will likely require them to build storage for 15 acre-feet, and only draw water from that storage during the summer months.

“It’s a very unique condition specifically aimed at this industry, as a new entrant, in exercising what may be historic water rights,” Ziegler said. “What’s really unique about this is, the (water) board and DFW have the leverage of a permit that the growers need and want to separate themselves and demonstrate they are good-faith producers and stewards of the environment out there. In effect, this process applies that leverage.”

The new rules require a grower to obtain a growing permit from a new Bureau of Medical Marijuana Regulation. And they can’t get that permit unless they first certify where their water is coming from.

The state Department of Finance is authorized to provide a $10 million loan to get the regulatory program started. This money, among other things, will allow the water board and Fish and Wildlife to hire about two dozen new employees to launch the program, conduct inspections and oversee the new permits.

The seed money will be paid back from licensing fees paid by marijuana growers. These fees will also become the source of funds to sustain the program into the future.

The water permitting process could be adopted by the water board within a year as an emergency regulation. The legislation gives the board the power to do so without the usual lengthy analysis required under the California Environmental Quality Act. But the board hasn’t yet decided, Carrigan said, whether to take that route.

It’s possible there won’t be enough water for all growers in a particular region. Some may have to try their luck with drilling a well, buying water in tanker trucks or some other means.

“Once we set the flow requirements for fish safety in the streams,” Carrigan said, “we may very well be issuing curtailment notices to riparians in those streams in the drier months. And if you don’t have a permit for storage, your straw is going to be cut off.”

This isn’t all there is to the regulatory program. A range of other state agencies will be involved in overseeing water quality, pesticide use, licensing, fee collection – even certifying regional marijuana “appellations.

The rules don’t apply to individual patients growing medical marijuana for their own use on 100 square feet (10 sq meters) or less; or to caregivers growing for five patients or less on no more than 500 square feet.

All parties agree there may be as many as 50,000 growers who could be subject to licensing under the program. A subset of these – perhaps half – will be required to prove their water rights and possibly install water storage systems.

It’s a massive regulatory effort. For example, in the entire state of California the water board currently regulates about 40,000 water rights that have come into the system over a century. So the new program could add to that by more than half in just a year or two.

Carrigan said there’s nothing else like it in the U.S., even in Washington and Colorado, where marijuana has been a government-sanctioned crop for several years.

“What we’re hoping for is more clean water for fish at the right time,” he said. “To me, it’s amazing we have this whole underground economy and industry that’s been unregulated. And now, all of a sudden, there’s this paradigm shift.”

Allen said most marijuana growers require only a very small amount of water compared to traditional farming operations. But he acknowledged a lot of cannabis growing does take place in sensitive watersheds, and that there have been “acute” impacts on endangered species, like coastal coho salmon.

“That is something we need to take very seriously as an industry,” he said. “But it’s not true to say we’re a major factor in the statewide water shortage. I’m pretty sure the rest of the world is going to be surprised just how careful this community is with water, and how many conservation-minded agricultural practices are being used.”

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