States throughout the West have rushed to legalize marijuana over the last four years. The biggest by far is California, where recreational use of the drug became legal on January 1. The states are clamoring for the tax revenue in these new markets, but they seem less concerned with how they may affect water resources.
Even now, no state regulators can answer a basic question about marijuana cultivation: How much water will this new industry consume?
Yet state and local governments are permitting tens of thousands of indoor and outdoor marijuana farms without such answers.
In addition, little is known about how industrial-scale marijuana cultivation – complete with its fertilizers, pesticides and security fences – may affect water quality, wildlife, soil health and sewage treatment plant operations.
“Legalization is not something that has been well thought out by a lot of legislators, by a lot of policymakers,” said Ryan Stoa, an associate professor of law at Concordia University in Boise, Idaho.
“They’re all too happy to think about how to tax it,” Stoa said. “But when you think about the fact that so many states aren’t even seeing this as an agricultural activity, it becomes clear there is a complete absence of agricultural regulations – which includes water regulations. That’s where we are in many of the states.”
Stoa is one of the few independent experts who has looked comprehensively at how marijuana legalization may affect water resources in the United States. He has published four lengthy papers related to the issue in the last three years. In the most recent paper he concludes there are “too many legal ambiguities” for existing water laws to function coherently.
“A lot of times they are receiving a mandate from voters, and they have to scramble to put regulations together in short order,” Stoa said. “You basically have to create a new regulatory framework out of thin air. It’s enormously difficult. Not only that, but a lot of regulators aren’t really familiar with the marijuana industry and how to do it in the best way possible.”
Differences Across the West
In the West, marijuana has been legalized in six states: Washington, Oregon, California, Nevada, Colorado and Alaska.
Colorado’s rules mostly limit commercial marijuana cultivation to indoor settings. Alaska and Nevada are likely to see most growing take place indoors by default, a result of their challenging climates. Other states allow both indoor and outdoor growing, to varying degrees.
Of all these states, California’s rules go much farther than the others, regulating in great detail both the water gathered for irrigation and any wastewater marijuana growers produce. The other states range across a spectrum from little regulation to some.
Colorado’s rules, for instance, prohibit several dozen chemicals during marijuana cultivation, but require only a potable water supply “sufficient for the operations intended.” Oregon simply requires a water right or a statement that water will be supplied by a “public or private provider.”
Indoor growing may pose a smaller burden on water supplies and water treatment, depending on location and how it’s regulated. These challenges will fall largely on urban water utilities, many of which have never served any form of agriculture before.
The main downside to indoor cultivation is energy demand. This can be huge because of the need for artificial lighting and air conditioning systems – and because it allows year-round cultivation.
Outdoor growing, on the other hand, may represent a new demand on river diversions to irrigate cannabis. This depends on whether the marijuana farm displaces an existing crop in that location or whether it occupies land that had not been farmed before.
Runoff from outdoor grows could also represent a new source of water pollution. Again, that depends on what pesticides and fertilizers are used, and whether those are regulated in any way.
“The indoor versus outdoor debate is huge … and a big difference in terms of environmental impact,” said Stoa.
The Northwest Power and Conservation Council manages energy demand in four states: Washington, Oregon, Idaho and Montana. In 2015 it estimated indoor cannabis cultivation in those states could require energy equal to a city of 200,000 people. That is merely an educated guess, because Idaho and Montana have not yet legalized marijuana, and demand in Oregon and Washington is still unfolding.
Energy demand is an important issue for water management, because hydroelectric dams are the region’s top producer of electricity by far.
Almost nothing is known about how much water the marijuana industry will require. Because of the historically illegal nature of the crop, very little data has been gathered so far on water consumption by cannabis plants. And, of course, it depends on the cannabis variety as well as how and where the plant is cultivated.
One estimate by officials at the California Department of Fish and Wildlife found that a single cannabis plant grown outdoors in the state’s so-called Emerald Triangle region in Northern California may consume as much as 6 gallons of water per day. That estimate has been hotly critiqued by the cannabis industry, which came up with its own estimate of 2.3 gallons per day.
Plants grown indoors may use substantially less, because growing conditions can be tightly regulated. And some facilities actually recycle their irrigation water as well as the humidity produced by plants as they grow.
Patrick Murphy, director of research at the Public Policy Institute of California, noted that Washington state is trying to manage these unknowns by placing hard limits on the number of grower licenses it allows (1,154) and on the number of retailer licenses (334 at first, then increased to 556 in 2015).
“At least from a regulatory standpoint, they know where to start,” said Murphy, who studies the industry. “In California, it’s somewhere between 0 and infinity. California hasn’t placed any similar limits. We’ve had a medical market that is quasi-legal for 20 years, and we haven’t collected a stitch of data on that.”
Jeremy Moberg, president of the Washington Sungrowers Industry Association, a group that represents outdoor cannabis producers, said the fixation on water consumption is “misdirected.” That’s because, in many cases, outdoor cannabis growers are taking over farmland that once grew much thirstier crops – like alfalfa.
Moberg also owns CannaSol Farms in Okanogan County, Washington, which he asserted was the nation’s first producer of legal marijuana that is sustainable, organic and pesticide-free. Where gushing sprinklers once irrigated alfalfa, Moberg’s small marijuana farm now uses drip irrigation, with a single emitter watering each plant.
In addition, Moberg said, cannabis delivers more economic value per gallon of water or acre of land than virtually any other crop. Okanogan County cannabis farms occupy no more than 50 acres, and he said they’re capable of generating as much revenue as all the alfalfa in the county, which occupies 200,000 acres.
“To focus on marijuana as a source of waste or overuse or inappropriate water usage is completely misguided,” Moberg said.
Creating a Regulatory Framework
One of the problems in Washington, Moberg said, is that cannabis growers are not required to have a water right to irrigate their crops.
Washington state law allows a so-called “domestic exemption,” which permits growers to consume as much as 5,000 gallons of water per day for commercial use on a parcel up to a half-acre in size. This allows a lot of latitude to grow marijuana for retail sale just about anywhere water can be obtained, whether from a municipal source, a groundwater well or leased from a neighbor.
It’s also one more bit of red tape that prevents cannabis from being regulated like any other form of agriculture. Everywhere marijuana has been legalized, growers want to be treated simply as agriculture – like growing almonds or snap peas. It’s a key step toward legitimacy for cannabis, they say. Plus, there’s already an established and consistent set of rules governing agriculture in every state.
Stoa agreed it is important to regulate the cannabis industry as agriculture as it explodes.
“If you want it to be viable, you need to treat this as an agricultural industry and bring them into that community,” he said. “That’s kind of your first step toward developing a regulatory framework that is responsive to the industry. A remarkable number of states aren’t even there yet.”
Oregon’s rules make a nod in this direction: The state regulates wastewater from cannabis grows as it does all other agricultural producers.
Stoa said California’s more heavy-handed approach risks overburdening the industry with regulations. The state has decided to divide its oversight among numerous agencies, each of which requires a separate permit and fee. Together, the fees amount to many thousands of dollars, which could be burdensome for small growers.
Oregon and Washington, in comparison, are handling all cannabis regulation through a single agency.
“Oregon is attempting to set up certain regulations surrounding environmental impacts, including water allocation,” Stoa said. “I think they would say they have a framework. But it’s preliminary. The nice thing for them is they don’t have 50,000 marijuana farmers, like California has. So I believe they’re sort of trying to work with marijuana farmers and be a little flexible.”
A recent Washington state supreme court case, known as the Hirst decision, shadows the water picture with additional uncertainty. The court concluded that Whatcom County could not approve new development that relies on well water under the domestic exemption without first verifying that other water-rights interests won’t be harmed. State lawmakers are trying to draft a work-around. But for now it creates lots of uncertainty for some cannabis growers, Moberg said.
“In Washington, a lot of growers didn’t really have the mindset of farmers, where you would locate on ag land and have a water right,” Moberg said. “And I think they’re in a tenuous situation. I would never have invested into a marijuana grow with all the associated costs – fencing, surveillance, processing – without the security of having a water right. However, a lot of farms did.”
California’s situation is further complicated by its water rights framework. It’s one of the few Western states that recognizes so-called “riparian” water rights. This law simply says that if your property touches a stream, you have a right to use some of that water.
Most Western states allow only “appropriative” water rights, which are granted by the state on a first-come, first-served basis – and only if water is available.
California’s situation means that any marijuana grower who happens to farm next to a stream will have a water supply. As a result, the state with the nation’s biggest cannabis industry has decided to regulate water used for outdoor marijuana farms much more strictly than it has ever regulated any other form of agriculture.
For instance, marijuana growers are required to build water storage systems equal to the entire demand of their crop. The point of this so-called “forbearance” requirement is to capture all necessary irrigation water during the wet season, so that irrigating marijuana doesn’t harm streams during the dry season.
California also has a suite of regulations governing pesticide use and drainage water quality on cannabis farms. The regulations are far more extensive than those other forms of California agriculture face, said Kristin Nevedal, a board member of the California Cannabis Industry Association.
Nevedal, who is also chief compliance officer at Humboldt’s Finest, a growers’ alliance, noted that cannabis growers have no access to government grants that might help pay for water quality and sustainability projects, unlike the billions of dollars available to traditional agriculture.
“The land-use expenses associated with some of those permitting regimes are excessive, especially for the small growers,” said Nevedal. “We’re under these super-stringent regulations, but there’s really no data that shows this is going to do the environment the good it’s reported to do. Spending time gathering some data that actually allows for a responsible regulatory model to be developed would be super helpful.”
The risk to California’s approach, Stoa said, is that the high cost of admission to the new legal market could create an incentive for a black market to flourish. That would perpetuate the problems that have become familiar with illegal marijuana grows: dried-up streams, polluted water, damaged habitat, poisoned wildlife.
“The fundamental challenge is that small farmers, for the most part, were doing pretty OK for themselves in a black-market environment,” he said. “California has a mountain to climb in terms of creating a regulatory framework. It looks like a mess right now. But you’ve got to give them credit: They’re trying.”