Tuesday, September 26, 2023

What Pot Producers Need to Know About Water Rights

Advocates Demand Answers


A bill that would have increased the number of plants that microproducers are allowed to grow failed to gain traction last week, but lawmakers’ decision to omit water protections from the bill has led to the emergence of a discussion over water rights once again. We sat down with New Mexico Acequia Association (NMAA) Executive Director Paula Garcia to discuss why validating water rights is so important.

The Paper.: Can you explain the water protections written into the Cannabis Regulation Act?

Paula Garcia: The cannabis regulation act included language relating to water rights that we advocated for and helped to craft. The law requires verifying valid water rights as part of the application process for a cannabis license. So in other words, getting a cannabis license for production is contingent on having valid water rights and the determination of whether your water right is valid has to be made by the state engineer. Or alternatively, if you have a source of water like community water systems or municipal systems, you just need to demonstrate that you’re in compliance with that water provider’s rules.

The rationale for that language was to prevent illegal uses of water and also to have some accountability for the use of water related to cannabis production. That was important because we were seeing a pattern with cannabis producers. Perhaps it was because they were new to using water for production. There were instances where people were using domestic wells for commercial production or tapping mutual domestic water intended for drinking and hooking up their cannabis operation.

In rural communities, those are really important things to consider, because the smaller entities don’t have the capacity to enforce against illegal use. It’s really much better if the proper use of water is established upfront in the licensing process.

Well it seems like the crisis is over now that SB 100 was left on the table. But can you explain the amendments introduced by Sen. Cliff Pirtle (R-Roswell)?

There were two. The first one was the one that gutted the water language that was in the original Cannabis Regulation Act (CRA). The paragraph that spelled out these protections that I just described was removed from the law by Pirtle’s amendment. Later on Pirtle added another amendment saying that a license could be revoked after the fact if it’s found that the water use was illegal.

We talked to a lot of our collaborators and partners, and we agreed that the Pirtle language was inadequate to make sure that a new producer has valid water rights upfront in the process. We were all opposed to what he did.

Many of the producers that we’ve spoken to are worried that the water-right requirements are too stringent and that they are creating a barrier for entry into the industry. How does the NMAA respond to a concern like that?

We listened to testimony during the promulgation of regulations this past summer to implement the cannabis regulation and we did hear some of those concerns. We learned a lot listening to those concerns and talking to some producers. I think that they’re finding their difficulty is with water rights. There’s an issue with the water rights and the validity check is just bringing that problem to the surface.

The rules were never intended to be a barrier to entering the industry. These protections don’t prevent producers of any size—big or small—from entering the industry. The Cannabis Regulation Act only has a validity check for the water rights—it didn’t change water law. I think some of the difficulty that they’re facing has to do with some of the basic tenets of water law and not the CRA. The existing law has been there for a very long time. These are fundamental tenets that go back to the 20th century. Those water laws have been on the books for a long time.

Drilling a well or transferring surface water to an existing well—people are finding out that it takes months to do that. That’s because there’s a desire to comply with existing laws and the CRA just brought out a problem they were going to encounter anyway.

I think the CRA has just revealed some common issues that people have with water rights—but those are water rights issues that probably needed to be addressed anyway. The State Engineer’s office needs more resources to do the validity checks. We have a lot of domestic wells in our rural areas. Those are all getting recharged by the system that’s intertwined with the river and the whole valley. They are all connected and any well that you drill for any purpose can deplete the groundwater. Without monitoring, you won’t know if you’re depleting groundwater. As a community, we don’t have a tool to know if land or water rights are starting to be depleted in the ground. I think that having the state engineer involved in the process as the referee—at least making sure people have legal water rights—that’s one small step toward putting some fundamental building blocks in place for good water governance. The protections are not meant to prevent people from growing cannabis. They’re meant to ensure that everyone’s playing by the same rules and that whatever waterways are being used, they’re done in accordance with the law.

As a community, we need to make decisions to ensure that there’s water security for years to come. We should really be stepping up our game at managing our water and having really good data. It’s interesting to be brought into this discussion about cannabis, but we would apply the same rigor to any other industry. But we’re learning a lot about about the industry, and now we plan on listening to producers and trying to understand what kind of barriers people are facing because of this requirement.


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