With drought conditions expected to continue in California, efforts to protect water sources have ramped up with significant attention on the cannabis industry. Often portrayed as an eco-friendly or “green” industry, cannabis cultivation can actually have a significant environmental impact particularly because of its water use–cultivating a single plant can use between 450 and 900 gallons of water, although cannabis does not appear to be “thirstier” than other agricultural crops.
In California, legal cannabis cultivators are required to identify the intended water source for licensing purposes (Cal. Bus. & Prof. Code, § 26060.1), and are also obligated to obtain water rights. Obtaining a license to grow cannabis requires documentation of the water source, with many growers providing a Cannabis Small Irrigation Use Registration (SIUR) certificate or proof of an existing appropriative water right.
Moreover, growers are required to adhere to certain water regulations in California. According to the Cannabis Cultivation Policy promulgated by the State Water Resources Control Board, cannabis operations cannot divert surface water during the dry season–from April 1 through Oct. 31. This requires cultivators to irrigate using only stored water or groundwater during this period. As many groundwater basins are now governed by the Sustainable Groundwater Management Act (SGMA), even groundwater pumping could be limited for cannabis cultivators in the dry season depending on basin levels.
In addition to already strict and complicated water source obligations, the Department of Cannabis Control, which now oversees licensing, is transitioning to an annual licensure program that will require applicants for a cannabis license to comply with the California Environmental Quality Act (CEQA). The complex provisions of CEQA require analyzing a project’s impact on the physical environment by considering numerous environmental categories, including water supply. A time-consuming and expensive endeavor, CEQA will require applicants to assess the impact of a cannabis operation on water quality and water sources.
Of course, these regulatory requirements, including compliance with CEQA, are designed for developing legal operations. Illegal cannabis operations introduce a new set of challenges to protecting water sources.
Often occurring in remote areas, illegal cannabis cultivation strains already limited rural water supplies. An illegal subterranean operation discovered in March in the Mojave Desert was using thousands of gallons of water daily. With over 6,000 marijuana plants, each of which requires about a gallon of water per day, an estimated 6,000 gallons of water was used each day in the underground facility.
Last year, in the midst of a drought, California experienced significant water theft, much of it blamed on illegal cannabis cultivation as the California Department of Fish and Wildlife removed over 400 illegal water diversions. As unlawful water diversions for cannabis irrigation can have a detrimental effect on fish and wildlife (Fish & G. Code, § 12029(a)(1)), the Department works with the State Water Resources Control Board and the Department of Cannabis Control to reduce the adverse impacts of cannabis cultivation on wildlife (Fish & G. Code, § 12029(c)). Unlawful water diversions are just one method for supplying water to illegal operations; cultivators have also allegedly tapped into hydrants and broken into water tanks.
Some counties are enacting new ordinances intended to protect water sources and prevent illegal operations from accessing water. In 2021, Siskiyou County enacted an ordinance requiring permits for groundwater extraction that is used offsite; another ordinance requires permits for transporting groundwater by truck. Yet enforceability of these ordinances–and their potential impact and intent–is uncertain following a recent order from the U.S. District Court for the Eastern District of California (Lo, et al. v. County of Siskiyou, et al., Case No. 2:21-cv-00999-KJM-AC).
While ensuring illegal cannabis operations do not deplete local water sources remains challenging, the Department of Cannabis Control is encouraging legal operations to conserve water and take advantage of disaster relief during another summer of historic drought.
© The Regents of the University of California, 2022. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.