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September 29, 2020

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California Water Board Could Leave Non-Compliant Emerald Triangle Cannabis Farmers High & Dry

On September 20, 2019, the California Water Board Division of Water Rights’ Cannabis Enforcement Section mailed 270 certified letters to various farmers in Trinity, Humboldt, and Mendocino Counties notifying them that they lack the appropriate permits for water use in commercial cannabis cultivation. Although the Water Board made clear that they are not, at this time, issuing notices of violation, the letters serve as a shot across the bow to an industry that is beginning to appreciate the importance of compliance with environmental regulations and portends more significant enforcement efforts in the near future.

In the last year alone, 2,300 cannabis cultivation licenses were issued in the three counties under the State Water Board’s Cannabis Cultivation Program. However, the letters make clear that not everyone is in compliance. For those entities, the Water Board has advised that their properties appear to be used for cannabis cultivation, but that no record exists of the property having enrolled in the State Water Board’s Cannabis Cultivation Program. The letters warn farmers in these counties that if they fail to come into compliance with Water Board regulations, they may face fines or the loss of cannabis cultivation licenses.

With the recent legalization of marijuana and industrial hemp in the Western United States, water rights and regulations have become an increasing concern for farmers and state regulatory boards. California approved the State Water Board’s Cannabis Cultivation Program in December 2017. In 2018, the State Water Boards sent out 2,826 letters in five watersheds informing them of the Program and 337 letters about direct enrollment requirements. The Program is intended to help address issues of both water quality and water quantity related to cannabis cultivation in California. The purpose of the Program and its requirements are to ensure that the use of water for cannabis cultivation does not negatively impact existing water quality, habitats, wetlands, and springs. The Program also seeks to protect instream flows throughout the State.

The California Water Board has requested that all residents in receipt of one of the cannabis cultivation letters respond through its Cannabis Compliance Portal. The Water Board also clarified on October 1 that any residents who received a letter but have already applied for coverage may disregard it.

Water issues, however, go well beyond regulatory compliance, as a non-compliant grower (or grower with no water rights) could face a lawsuit brought by a senior rights holder under the appropriate prior doctrine for using even de minimus quantities of water. Indeed, merely being situated near a river or stream does not automatically confer water rights on a farmer or business owner.

© 2020 Beveridge & Diamond PC National Law Review, Volume IX, Number 275


About this Author

Christopher D. Strunk Environmental Litigation Attorney Beveridge & Diamond San Francisco, CA
Of Counsel

Christopher D. Strunk has more than 20 years of experience litigating complex environmental and toxic tort disputes.  

He focuses on the defense of large, multi-party environmental matters, including mass tort and products liability litigation involving alleged toxic injury arising from asbestos, lead, mold, solvents, and other contaminants. He has represented microchip and technology companies, chemical and petrochemical companies, heavy equipment manufacturers, and the pesticide and fertilizer industry. Over the past five years, he has also developed a significant industrial hemp...

Lucy K. Infeld Environmental Regulatory & Litigation Attorney Beveridge & Diamond Seattle, WA

Lucy solves problems in creative ways, relying on her expertise in water rights, natural resources, and land use issues in Washington state and the western U.S.

She is an experienced environmental regulatory and litigation attorney on nationwide issues, with a focus on water rights, the Clean Air Act (CAA), the Clean Water Act (CWA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERLCA), as well Washington state environmental statutes.

She assists on Superfund allocations in advocating for clients, working with experts and other attorneys to not only help her clients but also broaden their overall understanding of a site and work with other parties to achieve a successful remedy. Lucy also works on CWA and CAA compliance and defense matters, and advises clients on the implementation of new state and federal regulations. For example, she has helped to interpret and comment on the U.S. Department of Agriculture’s Interim Final Regulations on the U.S. Hemp Production Program.

Prior to joining Beveridge & Diamond, Lucy worked as an associate attorney and a law clerk for an environmental and natural resources law firm in Seattle. She represented clients in water rights adjudication, litigation, and applications to state and federal agencies. She also worked with the State Environmental Policy Act, Washington State Growth Management Act, and Washington state water laws.

Lucy was an honors law clerk at the U.S. Environmental Protection Agency, where she prepared documents and memoranda for hearings and litigation regarding enforcement actions under the Clean Air Act, and as a law clerk for the Regulatory Environmental Law and Policy Clinic where she petitioned the Washington Forest Practice Board for rulemaking to ensure public health and safety in the aerial application of chemicals.

During law school, Lucy served as the Chief Managing Editor of the Washington International Law Journal and received the CALI Excellence for the Future Award for Alternative Dispute Resolution. She worked as a judicial extern for the King County Superior Court and as a pro bono research coordinator for the University of Washington Environmental Law Society.

Kate A. Tipple Environmental Litigation Attorney Beveridge & Diamond San Francisco, CA

Kate Tipple combines legal experience with a science and environmental management background to creatively tailor effective litigation and compliance strategies.

While Kate’s experience with environmental law is broad, she has a strong background in water resources and environmental litigation. Her successful litigation experience involves civil and administrative enforcement proceedings, contaminated property matters, and appellate work.

In addition, Kate advises clients on a variety of regulatory compliance issues, including federal and state consumer product and chemical...