Water law is critical to agricultural growing operations. If you are a marijuana growing operation, the challenge of locating usable water can be difficult because of federal laws surrounding marijuana. Washington State legalized marijuana in 2012 with Initiative 502 which allows the growing, possession, delivery and sale of marijuana to people over 21. Washington is not alone in legalizing marijuana at the state level, but marijuana remains illegal federally.
The Controlled Substance Act, a federal law, lists marijuana as a Schedule I drug — meaning that marijuana has no acceptable medical use and a high potential for abuse. Essentially, this means that marijuana cannot be used recreationally or medicinally in the eyes of the federal government and is illegal.
Access to water for Washington’s marijuana growers may seem like a state issue, however the federal government still has a say in how water is used if the water is within the purview of a federal project. The Bureau of Reclamation (Reclamation), a federal agency under the Department of the Interior, controls certain waters within Washington State. Specifically, Reclamation has several large projects in Eastern Washington, including the Columbia Basin Project, the Okanogan Project, the Spokane Valley Project and the Yakima Basin Project. These projects were designed to provide a more reliable source of water for irrigation. Because the dams, reservoirs and irrigation canals that help facilitate irrigation are managed in whole or in part by a federal agency, the waters and infrastructure within the project are subject to federal law. These large federal projects ensure that federal laws apply in a big way over large portions of Washington’s water, with the Columbia Basin Project water alone serving approximately 671,000 acres of land. Washington State law will not govern whether Reclamation, or the irrigation districts it contracts with, will provide water for marijuana cultivation.
Reclamation sent out a temporary release regarding its policy on the Use of Reclamation Water or Facilities for Activities Prohibited by the Controlled Substances Act in 2014. The release provides, “Reclamation will not approve use of Reclamation facilities or water in the cultivation of marijuana that is prohibited under the [Controlled Substance Act] and not within an exception or exemption established by federal law.” To enforce this policy, Reclamation has stated that it will notify the Department of Justice if an irrigator is using reclamation water for marijuana cultivation. Irrigation districts that contract with Reclamation must comply with Reclamation’s policies to not violate their contract. Where the federal government has oversight of an irrigation district, marijuana cultivators may not use the water for their crops.
Currently, water for marijuana growth may be obtained from a water district, an irrigation district, a permit exempt well, or a state water right with the caveat that that the water is outside the purview of a federal project. If a marijuana cultivator is looking to set up growing operations around Reclamation projects, it will need to ensure that state, not federal, water is available for its desired use.
Many cities have enacted local ordinances related to marijuana operations, so check local laws to see if water is available for marijuana use in your area. Marijuana cultivators can access water from a water utility or irrigation district as long as it does not contract with the federal government. If you are a marijuana operation that is outside the limits of a water utility or irrigation district, then you might use a permit exempt well under an industrial or agricultural use exemption as long as your water use is less than 5,000 gallons per day. However, that invokes the Hirst Supreme Court decision which is a topic for another day. Marijuana operations that do not have access to an irrigation district and require more than 5,000 gallons of water per day will need to apply for a new water right or purchase an existing right.
Kait Schilling is an Associate with Ogden Murphy Wallace, PLLC. She can be reached at 662-1954 or firstname.lastname@example.org.