Weed and Water Law: Regulating Legal Marijuana

Abstract

Marijuana is nearing the end of its prohibition in the United States. Arguably the country’s largest cash crop, marijuana is already legal for recreational use in Colorado, Washington, Oregon, Alaska, and Washington DC. Between now and election day 2016, an additional 14 states may place marijuana legalization initiatives on their ballots. In addition, 23 states and Washington DC have legalized medical marijuana, with up to seven states pending legislation. The era of marijuana prohibition is rapidly coming to a close.

At the same time, traditional doctrines of water law are struggling to cope with the modern realities of water scarcity. Administrative agencies lack capacities to monitor and enforce water rights in real-time amid rapidly changing conditions. As marijuana cultivation leaves the black market and enters state regulatory frameworks, legal doctrines and administrative agencies will need to adapt in order to balance existing water rights with the demands of marijuana production. Failure to do so will encourage producers to remain clandestine while perpetuating existing conflicts between legal and illegal water users. At present there is a gap in understanding the relationship between water rights and marijuana legalization, despite their rapid convergence.

This Article is the first to systematically address that gap. The study begins by describing status quo marijuana production taking place outside the context of state water law doctrines, and the unsustainable conditions that often result. Sections III and IV envision a legal marijuana market governed by the predominant doctrines of US water law: prior appropriation and riparianism. In Section V the theoretical becomes reality, as California’s complex water laws are put to the test by the largest marijuana cultivation community in the United States. Section VI concludes with recommendations for states in the process of legalization. Broadly speaking, this Article finds that both common law and regulatory approaches to water allocation are capable of accommodating legal marijuana cultivation, but to minimize disruptions to existing water rights and the marijuana industry, state agencies will need to proactively adapt to the new realities of the legal marijuana economy.

Keywords: marijuana legalization, water rights, water regulation, marijuana, water