by Kathleen Stone
The external pressures for cannabis cultivation and the immediate need for water use regulation may provide opportunities for broader, long-sought environmental objectives in California. Specifically, legislation and state programs regulating water use for cannabis cultivation could produce collateral benefits for environmental instream flow and water quality management in general.
The Medical Cannabis Regulation and Safety Act included several state laws from 2015 and 2016. Of these, Assembly Bill 243 (AB 243) and Senate Bill (SB 837), passed in October 2015 and June 2016, respectively, include several provisions for regulating water use for cannabis cultivation (CDFA 2016).
AB 243 established responsibilities for state agencies to regulate the impact of medical marijuana cultivation on the environment (CA State Legislature 2015). The bill called for several agencies, including the California Department of Fish and Wildlife (CDFW) and the California State Water Resources Control Board (SWRCB), to reduce the effects of cultivation on the environment and required the SWRCB to regulate marijuana cultivation water use and waste discharge (CA State Legislature 2015). The bill also has the California Department of Food and Agriculture (CDFA) administer a cultivation licensing system (CA State Legislature 2015). These state agencies would coordinate with local agencies to enforce environmental cultivation regulations (CA State Legislature 2015). SB 837 required the CDFW and SWRCB to further develop water diversion and use standards for cannabis cultivation (CA State Legislature 2016). The bill also requires that cultivators specify water diversion sources and report diversion amounts to the SWRCB at least annually.
This previous legislation was adopted into the Medicinal and Adult-Use Cannabis Regulation and Safety Act, enacted as Senate Bill 94 (SB 94) in June 2017 (CA State Legislature 2017). This bill increased regulatory authority for state agencies in permitting and required cultivators to report additional cultivation specifications.
With these laws, several state agencies were tasked with developing programs and policies to regulate and enforce cultivation water use. Table 1 summarizes the main state agencies involved in developing regulation and the primary purpose of each policy and program.
The SWRCB, working with the CDFA and CDFW, developed the Cannabis Cultivation Policy: Principles and Guidelines for Cannabis Cultivation, released in October 2017 (SWRCB 2017). This policy outlines regulatory jurisdictions for state agencies regarding water quality, waste discharge, groundwater use, instream flow, monitoring, licensing, and enforcement requirements for cannabis cultivation (Carah et al. 2018; SWRCB 2017). An exemption from the California Environmental Quality Act (CEQA) allowed timely development of statewide instream flow requirements (Carah et al. 2018; SWRCB 2017). The policy establishes fourteen regional boundaries for cultivation water use regulation and identifies nine priority regions with sensitive salmon migration habitats, shown in Figure 1 (SWRCB 2017).
The immediate need for cultivation regulation and the development of these state agency programs, which call for environmentally focused regulations of water quality and flows, has provided an opportunity to expedite long-sought environmental objectives and flow regulations for streams affected by cannabis production, and perhaps environmental flow management in general. Progress on environmental flow management often seems slow or stalemated in California. External pressures for cannabis cultivation and its regulation could bring broader progress and precedence on instream flow and water quality management.
Water policy often moves in mysterious ways. External forces sometimes are needed to innovate over the status quo. Just as a drought was needed to finally bring groundwater management to California, perhaps marijuana is needed to bring more effective environmental management to California’s streams.
Kathleen Stone is a M.S. graduate student in Civil and Environmental Engineering at the University of California, Davis. Her research focuses on quantifying the economic tradeoffs of groundwater policy alternatives.
Bauer, Scott, et al. 2015. Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds.
Butsic, Van, and Patrick Murphy. 2016. Regulating Marijuana as a Crop
California Department of Fish and Wildlife. 2018a. Watershed Enforcement Program (WEP)
California Department of Fish and Wildlife. 2018b. Cannabis Restoration Grant Program
California Department of Food and Agriculture. 2018. CalCannabis Cultivation Licensing Fact Sheet
California Department of Food and Agriculture. 2017. CalCannabis Cultivation Licensing: Final Program Environmental Impact Report.
California Department of Food and Agriculture. 2016. Comprehensive Medical Cannabis Regulation and Safety Act 2016
California State, Legislature. 2015. Assembly Bill 243
California State, Legislature. 2016. Senate Bill 837
California State, Legislature. 2017. Senate Bill 94
California State Water Resources Control Board. 2017. Cannabis Cultivation Policy – Principles and Guidelines for Cannabis Cultivation
Carah, J., Clifford, M., Grantham, T., & Schultz, D. 2018. Environmental Flows Seminar: Cannabis Regulation and Impacts
Chappelle, Caitrin, and Lori Pottinger. 2015. California Streams Going to Pot from Marijuana Boom
This raises a tantalizing possibility of a breakthrough.
Marijuana is such a big help in terms of medical purposes. That is why we wanted it to become legal.
The practical outcome of the legislation mentioned in the artilce is the state water board’s ORDER WQ 2017-0023-DWQ (“CANGO”) with oversight for lake and streambed alteration and various other aspects of “diversion” ceded to the CDFW. From an impact regulation perspective, the CANGO requirements are comprehensive to be sure, so in an academic sense they can easily be viewed as some sort of “breakthrough”. As a lifelong environmentalist, I applaud the state’s desire to protect aquatic habitats, however, it’s arguable that these regulations are excessive and onerous when compared to the regulation of other types of agricultural production (which represent a much greater environmental impact on state water bodies), in particular when you consider the size of the cannabis growing operations being regulated, essentially anything >=2000 sq ft. Remember that people running commercial agricultural businesses (most of the outdoor farms being regulations by this order are relatively small) are attempting to survive in a competitive marketplace not an academic study. If you’re interested in getting a deeper understanding of this issue and just how potentially complicated compliance currently is, I recommend you read the order referenced above. That being said, water board staff strike me as being helpful and eager to collaborate with applicants.
It’s an important case, where legislation is needed, yet, it needs to be crafted sanely.
I agree with you that the marijuana “revolution” can push legislative wheels much faster. It’s a high-value, insanely fast-growing market that has the power of change and lobbying.
I’d love to read more about current water and environmental management legislation.
Very informative and professional article Kathleen, thank you for that!