Colorado drew global attention in 2013, when the state became one of the first to allow recreational drug usage through regulated dispensaries. The decision has not only been a popular one, but has also generated millions in profits for the area, with the Denver Post reporting that people spent $574 million on legal marijuana in the first 10 months of 2014 alone. But controversy still lingers: currently, a division engineer and a water referee in Glenwood Springs is trying to block a marijuana growing facility from submitting a water rights application over questions of federal and state jurisdiction.
Almost everyone knows that water is a vital part of the agricultural process. Soil must be moist enough to be formed into a ball before planting can begin, and farmers will typically water their crops several times over the course of the day, especially when the soil is dry or when plants are wilting. Marijuana is no exception to this rule, which is why High Valley Farms, a 25,000 square foot indoor growing facility located south of Basalt, filed an application with the local water court in August. The farm’s manager, Jordan Lewis, wanted to pump 941,710 gallons of water from the nearby Roaring Fork River every year, which would be used to irrigate 2,000 to 3,000 marijuana plants. Their application also sought approval for an augmentation plan, which would create a back-up supply of water.
However, instead of gaining approval, High Valley Farms received a “summary of consultation” from Alan Martellaro and Holly Strablizky, a division engineer and water referee from the Division 5 water court. Their summary asked Lewis to explain how his his claim for conditional water rights fit Colorado state law’s requirement that water rights be granted for “beneficial use.” The report continued by specifying “beneficial use” as “the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.”
Supporters and opponents of Colorado’s cannabis industry will likely be confused by this request; after all, the sale and use of marijuana is legal in the state. However, because the substance has not been legalized on the federal level, this new type of farm is barred from using federal facilities, such as water treatment plants.
As bureaucratic as this might sound, Martellaro and Strablizky’s report is based on more than a technicality. In May, the U.S. Bureau of Reclamation issued a policy announcing that it would not approve the usage of its facilities or water to cultivate marijuana as long as it was prohibited by the federal government. Other businesses have been able to avoid this problem by using existing water rights, instead of applying for new ones. A tentative understanding also exists in the state, allowing the farms to use non-federal water sources.
High Valley Farms has several options in this situation: its augmentation plan, for example, includes a contract to buy water from the Colorado River District out of the Wolford Reservoir. This reservoir is nonfederal and would allow them to skirt the problem, albeit without the backup source the business had wanted. However, the business has hired a water attorney, who stated that the problem would be discussed at the water district’s next status conference. At this point, High Valley Farms has the option to file a legal brief, at which point their water rights could be granted by Strablizky, the referee, or the matter could be transferred. From there, a series of appeals could bring the case before the Colorado Supreme Court. Will High Valley Farms’ right to irrigate its crops become a landmark case for Colorado’s fledgling cannabis industry, and the marijuana legalization movement as a whole? Only time will tell.