Water Rights Are Still a Major Concern for California Cannabis Operators

Last week, the California Water Boards requested on Twitter to commercial cannabis cultivators in Mendocino, Trinity, and Humboldt Counties (the “Emerald Triangle”) that, “if you are among the 270 folks who receive a certified letter stating you lack appropriate permits, please respond to our Cannabis Compliance Response Portal.” Water rights have been an ongoing issue for California cannabis operators, particularly in the Emerald Triangle here in Northern California where environmental concerns stemming from water usage abound, particularly by black and grey market operators.

The letters were sent to landowners whose properties “appear … to be used for cannabis cultivation or associated activities,” but for which “there is no record of any person associated with [the] property having enrolled in the State Water Board’s Cannabis Cultivation Program.” The letters further warn recipients that they must obtain proper permission for the water rights utilized for cannabis cultivation and if they fail to do so, threaten fines or loss of state cannabis cultivation permits.

The California Water Boards Cannabis Cultivation Program was approved and put into the state’s regulatory code by the Office of Administrative Law on December 18, 2017 and is intended to “address potential water quality and quantity issues related to cannabis cultivation.” Specifically, for the uninitiated, the Water Boards established a Cannabis Policy that states as follows:

“The Cannabis Policy establishes principles and guidelines (requirements) for cannabis cultivation activities to protect water quality and instream flows. The purpose of the Cannabis Policy is to ensure that the diversion of water and discharge of waste associated with cannabis cultivation does not have a negative impact on water quality, aquatic habitat, riparian habitat, wetlands, and springs. The Cannabis Policy requirements are primarily implemented through the Water Boards Cannabis Cultivation General Order and Cannabis SIUR permits in addition to the California Department of Food and Agriculture’s CalCannabis Cultivation Licensing Program.”

The Water Boards seeks to ensure that discharges to California waters do not adversely affect the quality and uses of our waters via the Cannabis Cultivation General Order’s Waste Discharge Requirement (WDR). The WDR regulates discharges of waste associated with marijuana cultivation in the state, and addresses threats of waste discharge stemming from “irrigation, runoff, over fertilization, pond failure, road construction, grading activities, domestic and cultivation related waste, etc.” All commercial cannabis cultivators must obtain coverage under the Cannabis Cultivation General Order. More information for cultivators can be found on the Boards’ Cannabis Water Quality page.

In addition, the Small Irrigation Use Registration (SIUR) for Cannabis Cultivation requires cannabis cultivators to forbear (or cease) from diverting surface water during the dry season. “The State Water Board has developed the Cannabis SIUR Program as an expedited process for cannabis cultivators to develop and install storage.  The Cannabis SIUR allows for the diversion and storage of up to 20 acre-feet per year and incorporates the requirements of the Cannabis Policy, amongst other requirements, as general conditions.”

Cultivators need to be aware of, and comply with, all regulations pertaining to water rights and usage in California. Relevant information on the Water Boards’ Cannabis Enforcement Unit can be found here.