On March 29, the State Water Resources Control Board announced that cannabis cultivators with water rights are not allowed to divert surface water for cannabis cultivation activities at any time from April 1 through October 31 of this year unless the water diverted is from storage.
The Board’s action is what is known as a “forbearance order” that is a central provision in state marijuana legalization policy. It’s really just common sense because it prohibits using water from surface sources, such as streams, creeks, and rivers during California’s dry season.
As explained in the State Water Board’s Cannabis Policy: “Absent restrictions on water diversion, the individual and cumulative effects of water diversions for cannabis cultivation during the dry season are likely to significantly decrease instream flow and in some instances, reduce hydrologic connectivity or completely dewater the stream. Minimum flows that provide habitat connectivity are needed to maintain juvenile salmonid passage conditions in late spring and early summer. Instream flows are also needed to maintain habitat conditions necessary for juvenile salmonid viability throughout the dry season, including adequate dissolved oxygen concentrations, low stream temperatures, and high rates of invertebrate drift from riffles to pools. Further, many species depend on spring recession flows as migratory or breeding cues. The State Water Board is requiring a surface water diversion forbearance period to ensure adequate flows are maintained throughout the dry season and protect aquatic species, aquatic habitat, and water quality.”
In an earlier interview with Water Deeply, Erin Ragazzi, an assistant deputy director for the State Water Board’s Division of Water Rights and Water Quality Certification, explained, “There’s a variety of different types of damage that can occur, depending on where the cannabis cultivation activities are taking place, and the measures that are put in place to protect the environment. Our focus here is mainly on surface water and groundwater protection, and the beneficial uses associated with them.”
In late 2017, the State Water Board adopted new environmental policies to regulate pot growing operations that historically have adversely impacted California’s water resources. These new regulations were mandated by the 2015 medical marijuana legalization statute and the 2016 voter-approved Proposition 64 that legalized recreational marijuana.
Summarizing the evolving public policy, Ragazzi said, “I think one of the things that’s important to point out is that the policy creates a comprehensive mechanism to regulate cannabis cultivation, and it includes both those water supply, water rights side and water quality components. Specifically, I think it’s important to note we have a lot of important requirements to address individual and cumulative impacts that can occur in watersheds, and that’s been a big concern for a lot of folks, in terms of not just the site-specific impacts but the broader cumulative impacts in a watershed. To that end, that policy includes requirements establishing maximum diversion rate, a forbearance period when no diversions can occur and instream flow requirements so that even when you’re in the season of diversion, you can always divert when flows are above that instream flow requirement. So there’s a pretty comprehensive look at ensuring that we’re not seeing the impacts associated with diversion and use of water, while at the same time allowing folks a pathway to get a storage water right, which often would take a very long period of time.”
Educating cultivators is also a significant component of the new regulatory environment that elevates the protection of threatened water sources.
Ragazzi stated, “I think that we are cognizant of the need to develop requirements that we think are protective of water quality, but also create an environment in which people want to come in to the regulated community, because they have been in the black market for so long. What will be your carrots and sticks? One key component of that is doing the education outreach to make the folks aware of what we’re requiring, why we’re requiring it, but then also having the enforcement arm necessary to facilitate folks knowing that they can’t hide in the black market, but that we are going to be taking enforcement actions against folks that are not registered and enrolled in our program. I think there are incentives already as part of the legislation that incentivize people to come into the process earlier rather than later. There are those carrots in terms of the early adopters, and the board has an enforcement policy that is very focused on education as one of its first pillars, before you move directly to further enforcement. We don’t directly inform the other agencies for purposes of eradication. Typically, to my knowledge, what occurs is the State Water Board staff will go out with California Department of Fish and Wildlife staff and their warden, and as part of those joint inspections there may be an eradication process that takes place, depending upon the unique circumstances of that specific site.”
As I’ve said many times previously, you don’t get legalization without regulation. In this instance, this is definitely one regulation that pays off for everybody.
(Jim Shields is the Mendocino County Observer’s editor and publisher, and is also the long-time district manager of the Laytonville County Water District. Listen to his radio program “This and That” every Saturday at 12 noon on KPFN 105.1 FM, also streamed live: http://www.kpfn.org)
SO (LEGAL) POT GROWERS are prohibited from “divert[ing] surface water for cannabis cultivation activities at any time from April 1 through October 31 of this year unless the water diverted is from storage,” as reported this week by Jim Shields. Grape growers with riparian rights and a registered riparian right are allowed to divert surface water at any time as long as they don’t exceed their permitted use and the instream flow is more than a certain amount. But the water board has never enforced this regulation on grape growers; the one time they tried to (based on a costly slam-dunk formal complaint prepared and funded by Hillary Adams, an archeologist from Elk in the 1990s) the grape grower (Duckhorn/Goldeneye in Philo) simply claimed that the water in the storage ponds that they had filled from Rancheria Creek was “runoff,” not “surface water” (i.e.,from the creek). It’s kinda hard to prove that water in a pond came from a particular source, so no enforcement action was taken. However, pot growers have discovered the hard way that when the Water Board threatens water rule enforcement on pot grows the pot grower not only risks losing their permit and their business, but the plants themselves. Imagine, if you will, what would happen if the Water Board even threatened to pull up grapevines if a grape grower violated a diversion restriction.