November 18, 2019

November 18, 2019

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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.

© 2019 Beveridge & Diamond PC

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About this Author

Chris Strunk, Beveridge Diamond, Environmental lawyer
Of Counsel

Chris counsels clients on toxic tort, commercial litigation, and business transactions, with a focus on complex litigation involving the defense of toxic injury product liability and premises liability claims involving asbestos, mold, and airborne and water-borne contaminants and chemicals.

He represents multinational manufacturers of heavy industrial equipment, such as valves, pumps, and automobile engine gaskets and brakes; flooring material manufacturers; pesticide and fertilizer manufacturers and suppliers; and chemical and petrochemical...

1.415.262.4016
Associate

Lucy maintains a diverse environmental litigation and regulatory practice, which includes experience with water rights, the Clean Air Act, the Clean Water Act, and the Toxic Substances Control Act, as well as various Washington state statutes.

Prior to joining Beveridge & Diamond, Lucy worked as an associate attorney and a law clerk for the Mentor Law Group in Seattle, WA. 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. She also worked as an honors law clerk at the 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. 

(206) 315-4817
Kate Tipple Science & Environment Attorney
Associate

Kate 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...

415.262.4015