How Illegal Water Use for Growing Marijuana is Doing Untold Damage to California’s Environment and Why New Regulations May Exacerbate Rather than Eliminate the Problem

How Illegal Water Use for Growing Marijuana is Doing Untold Damage to California’s Environment and Why New Regulations May Exacerbate Rather than Eliminate the Problem

By Asha Wiegand-Shahani

One of the most egregious yet underreported environmental crimes associated with marijuana is the illicit and illegal use of water to grow the plants that form the basis of the industry.  The recent trend toward legalization of marijuana has done little to curb the unauthorized water use that is a hallmark of the field.[1]  In November 2016, Prop 64 fully legalized marijuana in the state of California, and with it came a new set of environmental regulations that went into effect in October 2017 in preparation for recreational sales of marijuana in January 2018.[2]  It is still unclear, however, how much increasing regulation is doing to stem the tide of unlawful water use.

Marijuana does not thrive in the wild in California due to the fact that its water needs are diametrically opposed to the wet-dry cycles of California’s Mediterranean climate.[3]  California gets more than ninety percent of its rainfall between October and April every year, meaning that the summers are the dry season in California.[4]  Marijuana, especially when it is cultivated outdoors, requires the most water between the months of May and October, when California’s climate is at its driest.[5]  This is highly problematic when a crop as water reliant as marijuana becomes widely cultivated.  Since marijuana necessitates access to a high volume of water, and until recently marijuana farmers have needed to remain as mobile in their operations as possible to avoid detection by authorities, marijuana farmers typically obtain the water they need to support their crop by directly diverting surface water from the source.[6]  Marijuana is cultivated in large quantities in Northern California, and as a result, the aggregate effects of these direct diversions are staggering.

The majority of these diversions take place in the summer when rainfall and water flow are at their lowest, which means these diversions by marijuana farmers cause more damage than they would if they were taking place during the winter months, when rainfall is much more plentiful.[7]  Multiple studies have noted that illegal water diversions used to cultivate marijuana in several watersheds in Humboldt and Mendocino Counties use between 33% and 100% of the natural water flow in those areas.[8]  This means that marijuana cultivation alone in those watersheds is sometimes enough to use all of the surface water available in that area and completely dewater the lakes, rivers, and streams on which entire ecosystems depend.[9]

The result of these illegal diversions is untold environmental damage.  Plants and trees—including old growth redwood forests such as Redwood National Park—are threatened by a lack of water and may die out if these diversions are not controlled.[10]  The Coho Salmon, listed as a threatened species under the Endangered Species Act has lost seventy percent of its population since the 1960’s.[11]  These salmon, and all other fish species native to Northern California watersheds, are effected by these diversions not only by the lowering of surface water runoff, but also by an increase in the sediment content and temperature of the runoff that does remain in the watershed.[12]  The lack of cool, clear water due to illegal water diversions has especially harmed the Coho salmon and other salmonoid fish which require a regular flow of such water to thrive.[13]  The warmer, murkier water left in streams and rivers has reduced fish habitat, decreased the food supply, and increased competition and disease among salmonoid fishes.[14]  If current water use trends continue, seventy eight percent of California’s native salmonoid fish species are expected to die off or move to more favorable watersheds by 2115.[15]  Illegal water diversions also harm amphibians such as the coastal tailed frog, but it is unclear exactly how these extreme reductions in essential water flow are affecting the amphibians native to Northern California.[16]

The expense of paying the consumer rate for water, the difficulty and cost of obtaining water rights in the state of California, the criminal penalties for stealing from utility companies, and the legal conflicts between state and federal laws are all powerful incentives for marijuana farmers to illegally divert sources of surface water.  This is especially true in Northern California—where the landscape is heavily forested, the population is less dense, and where most of California’s fresh surface water is located—making it easier for marijuana farmers to directly access surface water and diminishing the chances they will get caught.[17]  Illegal surface water diversions by marijuana farmers have done staggering amounts of environmental damage in the years since Congress passed the Comprehensive Drug Abuse Prevention and Control Act in 1970.[18]  The act classified marijuana as a Schedule 1 drug, defined as a substance with “with no currently accepted medical use and a high potential for abuse” and instituted a federal prohibition on growing, possessing, selling, or using, marijuana for any purpose at a federal level.[19]  In spite of the 1970 Comprehensive Drug Abuse Prevention and Control Act’s total prohibition of marijuana, since 1996 there has been an increasing trend toward states legalizing first the medical use, and then recreational use of marijuana within their jurisdictions.[20]

In November 2016, California legalized recreational use of marijuana for adults over the age of twenty one with the passage of the Adult Use of Marijuana Act, commonly known as Prop 64.[21]  While Prop 64 included new environmental regulations aimed at stopping the environmental damage done by marijuana farmers and taxes meant to help restore the damage already done, it is unclear whether these laws will be enough to prevent marijuana farmers from using enough illegal water to hang the state out to dry along with their crop.  Marijuana farmers may continue to illegally divert water to support their endeavors due to a desire to maximize their profit margins and the very real challenges they face when trying to comply with water use and other environmental regulations, unless they are sufficiently encouraged to comply with those regulations.  It is up to the state of California to create the incentives marijuana farmers require before it is too late.

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[1] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016 and Jennifer K. Carah et. al, High Time for Conservation: Adding the Environment to the Debate on Marijuana Liberalization, Volume 65, Issue 8, Bioscience,  822-829, (2015) https://academic.oup.com/bioscience/article/65/8/822/240374 and Alastair Bland, How Changing Marijuana Laws May Affect California’s Water and Wildlife, Water Deeply, March 2017, https://www.newsdeeply.com/water/articles/2017/03/22/how-changing-marijuana-laws-may-affect-californias-water-and-wildlife.

[2] Adult Use of Marijuana Act 2016, SB 94 (2017) and California Water Resources Control Board, Cannabis Cultivation Policy: Principles and Guidelines for Cannabis Cultivation, (2017) https://www.waterboards.ca.gov/board_decisions/adopted_orders/resolutions/2017/final_cannabis_policy_with_att_a.pdf.

[3] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016

[4] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016

[5] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016 and Jennifer K. Carah et. al, High Time for Conservation: Adding the Environment to the Debate on Marijuana Liberalization, Volume 65, Issue 8, Bioscience,  822-829, (2015) https://academic.oup.com/bioscience/article/65/8/822/240374.

[6] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016 and Jennifer K. Carah et. al, High Time for Conservation: Adding the Environment to the Debate on Marijuana Liberalization, Volume 65, Issue 8, Bioscience,  822-829, (2015) https://academic.oup.com/bioscience/article/65/8/822/240374 and US Department of Justice National Drug Intelligence Center, Domestic Cannabis Cultivation Assessment 2007, 7, (Feb. 2007)  https://www.justice.gov/archive/ndic/pubs22/22486/22486p.pdf.

[7] California Water Resources Control Board, Cannabis Cultivation Policy: Principles and Guidelines for Cannabis Cultivation, 10, (2017) https://www.waterboards.ca.gov/board_decisions/adopted_orders/resolutions/2017/final_cannabis_policy_with_att_a.pdf and Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016 and Jennifer K. Carah et. al, High Time for Conservation: Adding the Environment to the Debate on Marijuana Liberalization, Volume 65, Issue 8, Bioscience,  822-829, (2015) https://academic.oup.com/bioscience/article/65/8/822/240374.

[8]Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016 and Jennifer K. Carah et. al, High Time for Conservation: Adding the Environment to the Debate on Marijuana Liberalization, Volume 65, Issue 8, Bioscience,  822-829, (2015) https://academic.oup.com/bioscience/article/65/8/822/240374.

[9] Jennifer K. Carah et. al, High Time for Conservation: Adding the Environment to the Debate on Marijuana Liberalization, Volume 65, Issue 8, Bioscience,  822-829, (2015) https://academic.oup.com/bioscience/article/65/8/822/240374 and Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016.

[10] Jennifer K. Carah et. al, High Time for Conservation: Adding the Environment to the Debate on Marijuana Liberalization, Volume 65, Issue 8, Bioscience,  822-829, (2015) https://academic.oup.com/bioscience/article/65/8/822/240374 and Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016.

[11] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016.

[12] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016.

[13] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016.

[14] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016.

[15] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016.

[16] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016.

[17] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016.

[18] Scott Bauer et. al, Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watersheds, PLOS One, Mar. 2015, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0120016 and Jennifer K. Carah et. al, High Time for Conservation: Adding the Environment to the Debate on Marijuana Liberalization, Volume 65, Issue 8, Bioscience,  822-829, (2015) https://academic.oup.com/bioscience/article/65/8/822/240374 and Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 513, 91^st Cong. (1970).

[19] Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 513, 91^st Cong. (1970) and Drug Enforcement Agency, Section on Drug Information, Drug Scheduling, https://www.dea.gov/druginfo/ds.shtml (last visited October 27, 2017).

[20] Peter Hecht, California takes new approach on water regulation for pot farms, The Sacramento Bee, Aug. 29, 2015,

http://www.sacbee.com/news/state/california/water-and-drought/article32762289.html.

[21]A.B. 64, 2016-2017 Session, (CA 2016).