Illegal Water Use, Marijuana, and California's Environment

• Date: 01 July 2018

7-2018 NEWS & ANALYSIS 48 ELR 10625

Illegal Water Use,

Marijuana, and

California’s

Environment

by Asha Wiegand-Shahani

Asha Wiegand-Shahani is a rising 3L at UC Hastings

College of the Law and a law clerk at the Miller Law Firm.

Summary

e illicit and illegal use of water to grow marijuana

is an environmental problem that has plagued the

recently legalized crop for decades. Because growing

marijuana has consistently been a more visible crime

than theft and diversion of the water used, the indus-

try’s environmental crimes have largely been ignored

until recently. e recent legalization of marijuana in

California included new environmental regulations

aimed at curbing the environmental damage done by

marijuana farmers; however, these reforms may have the

converse eect of encouraging marijuana farmers’ con-

tinued illicit water use. is Article explores the history

of marijuana legislation, why water use rights are such

a central issue, and the environmental damage that has

been done to California watersheds. It analyzes how the

trend toward legalization could potentially encourage

marijuana farmers to continue illegal water use prac-

tices, considers the means by which California regula-

tors are encouraging marijuana farmers to comply with

water regulations, and recommends additional methods

to encoura ge compliance, such a s shorter application

times, a tiered system that incentivizes complying with

current legislation, and educational progra ms aimed at

both educating farmers on the advantages of compli-

ance and changing their mindset around water use.

While environmental criminal law has developed

into its own specialized area of thought and

practice, the environmental crimes th at underlie

or are the consequence of more notorious crimes are rarely

discussed and often ignored by law enforcement agencies.

ey are no less harmfu l than other crimes: people who

are actively committing serious crimes often do not have a

stake in preservi ng the environment in which they operate.

Yet when environmental harms are part of larger crimi-

nal enterprises, enforcement agencies tend to place most

of their emphasis on stopping the traditionally crimina l

aspects while ignoring the underlying or accompanying

environmental harms.

e cultivation of marijuana is one such area of crime.

First regulated at the federal level in 1937 with the Mari-

huana Tax Act and federally illegal since 1970, by many

estimates marijuana is t he largest illegal crop grown in

the United States.1 By some approximations, marijuana

supports a black market economy of $35.8 billion annu-

ally, with $10.5 billion per year coming from Mendocino

County, Cal ifornia, a lone.2 While more conservative esti-

mates place the value of the illega l marijuana trade far

lower, it is clear that there is a huge market for this illicit

crop.3 As of 2010, 80% of this market is sourced from

California alone.4 Since Ca lifornia is at the center of mari-

juana cultivation, it is unsurprising that the state is at the

forefront of regulating marijuana use and its environmen-

tal impacts.5

One of the most egregious environmental crimes associ-

ated with marijuana is the ill icit and illegal use of water

to grow the plants that form the basis of the industr y. e

recent trend toward legalization of marijuana ha s done

little to curb the unauthorized water use t hat is a hallmark

of the eld.6 California was the rst state to legalize mari-

1. Marihuana Tax Act, 26 U.S.C. §§4751-4753; Gina S. Warren, Regulating

Pot to Save the Polar Bear: Energy and Climate Impacts of the Marijuana

Industry, 40 C. J. E. L. 385, 409 (2015).

2. Katherine Curl Reitz, An Environmental Argument for a Consistent Federal

Policy on Marijuana, 57 A. L. R. 1085, 1110 (2015); Ryan B. Stoa,

Weed and Water Law: Regulating Legal Marijuana, 67 H L.J. 565,

575 (2016).

3. Reitz, supra note 2, at 1110.

4. Stoa, supra note 2, at 608.

5. Reitz, supra note 2, at 1110.

6. Scott Bauer et al., Impacts of Surface Water Diversions for Marijuana Cultiva-

tion on Aquatic Habitat in Four Northwestern California Watersheds, PLOS

ONE, Mar. 18, 2015, http://journals.plos.org/plosone/article?id=10.1371/

journal.pone.0120016; Jennifer K. Carah et al., High Time for Conserva-

tion: Adding the Environment to the Debate on Marijuana Liberalization, 65

BS 822-29 (2015), https://academic.oup.com/bioscience/article/

65/8/822/240374; Alastair Bland, How Changing Marijuana Laws May

Aect California’s Water and Wildlife, W D, Mar. 22, 2017,

Author’s Note: e author would like to thank Profs. David Takacs,

Hadar Aviram, and Dave Owen, as well as her partner Evan

McCarty for their help in editing this Article.

Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.