The marijuana cultivation landscape continues to evolve in the arid western United States. Six states have legalized adult-use marijuana (Colorado, Washington, Oregon, California, Colorado, and Alaska), and as a result, they have adopted a variety of rules and regulations that differ from state to state.

While states have a patchwork of regulatory and licensing systems, varying from medical-only to medical and retail marijuana markets, cultivation regulations also vary from state to state. For cultivators, the availability of water is a complicating factor at the state level with additional complexity coming from Washington, D.C.

Water and the Federal Government

The federal government is the West’s largest water provider, and the US Bureau of Reclamation issued Temporary Policy 63 in 2014 to prohibit water from federal facilities to be used for cannabis cultivation. That means in some jurisdictions where cannabis cultivation has been permitted, water may not be available to cultivators. Some jurisdictions have interpreted this ban to include federal water used to replace diverted water used by cultivations, if required by federal compact.

Federal water policy emerged in recent years as a significant risk in these jurisdictions. Some local water utilities and irrigation districts throughout the west, from Oregon to Colorado, have had their ability to provide water limited.

State Resources to Help Cultivators

Urban growers may find challenges arising from water utility companies, while suburban and rural growers may face challenges finding suitable groundwater, surface water rights, or hauling water. In light of legalization, some states have created resources to aid growers:

Colorado’s Division of Water Resources published “Well and Water Use in Regards to Amendment 64 and Cultivation of Marijuana” in 2014. Some of Colorado’s irrigation wells and water rights were not suitable for off-season irrigation or for use in indoor or greenhouse facilities. The document also aided applicants who wished to apply for a well permit for a cultivation site.

In addition, Denver Environmental Health released a 50+ page report in September 2017, “Cannabis Environmental Best Management Practices Guide,” which provides guidance on water filtration and purification, irrigation methods and automation, water recycling, and improving wastewater quality.

Note: While Colorado’s state marijuana license applications do not require information on water supply or sources, local licenses and zoning approvals may require this information from new applicants.

Oregon’s Water Resources Department published “Understanding Water Use Regulations: Medical and Recreational Marijuana” as a resource for new and prospective growers. While many policies have similarities to Colorado, it is important to note the 5,000-gallon per day exemption for marijuana processing activity. This does not apply to cultivation.

Note: The Oregon Liquor Control Commission requires water source documentation as part of some new license applications.

Additionally, California entered a new era of medical marijuana regulation with the passage of the 3-part Medical Marijuana Regulation Safety Act (including Assembly Bill 243Assembly Bill 266 and Senate Bill 643). When combined, these laws represented the largest overhaul in California’s 20-year medical marijuana history. AB 243 focused on combating environmental degradation commonly found at many of the state’s estimated 50,000 grow sites.

California launched its recreational marijuana program in January of this year. In advance of opening the adult-use cannabis market, the State Water Resources Control Board released Cannabis Cultivation Policy: Principles and Guidelines for Cannabis Cultivation in October 2017. The 116 page document covers all aspects of water rights and usage in the state.

Considerations for Prospective Cultivators

With marijuana still a Schedule I substance, it is unlikely that policy changes for cannabis or cannabis irrigation will change significantly in the near future. The status quo will continue to hamper the rapid growth of a new sector in many western communities, frustrating both cannabis cultivators and water suppliers.

  • Check the status of surface and/or groundwater rights on the property you are looking to purchase and cultivate on. This can typically be done through the state engineer or water resources department.
  • If applicable, check with the water utility that serves the area you are looking to do business in. Depending on their water source, they may not be able to supply water to cultivation.
  • Purchasing hauled water from a dispensing station may be an option in some states, but documentation of a purchasing agreement may be required prior to approval of a cultivation license.

Bottom-line, do your due diligence and understand your rights and the steps you must take to be in compliance with current state regulations with the knowledge that compliance could be challenging and expensive.

Originally published 9/29/16. Updated 8/27/18.