It’s what you grow

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The state of Colorado says – famously – that cannabis, or marijuana, is a crop that legally can be grown. The federal government’s rules take a dimmer view. Does that have an effect on water rights?

It certainly appears to.

And this arose in a case that doesn’t even involve marijuana. The instance concerned a western Colorado farmer growing hemp, which through biologically related to the cannabis plants, has no significant psychotropic qualities. One online description noted that “Hemp is one of the oldest domesticated crops known to man. It has been used for paper, textiles, and cordage for thousands of years. In fact, the Columbia History of the World states that the oldest relic of human industry is a scrap of hemp fabric dating back to approximately 8,000 BC.” It is often called industrial hemp. Versions of it were grown by George Washington, among others.

Hemp actually does not need pesticides and relatively little water. It should be an attractive option for farmers, but growing it is widely banned in the United States because it is related to the cannabis plants.

Nevertheless, there’s a federal ban on it. And in Colorado when a farmer wanted his standard water allotment from the Pueblo Reservoir to grow some hemp, the Bureau of Reclamation refused to release the water. The water is supposed to be held in storage for users, not parceled out at the bureau’s discretion … but then, this is a marijuana relative. That appears to override all else.

The point likely will be even more directly pertinent as marijuana crop production grows, and obviously not only in Colorado but especially in states like California, where farmers of most stripes are heavily dependent on irrigation water supplies.

There are conflicting notions here. One is that a farmer’s choice of what crops to grow isn’t much of a factor, or isn’t supposed to be, in the provision of first-in-time water rights. Then there’s also the point that in prior appropriation states (where this is coming up), water is supposed to be used for a “beneficial purpose” – and who gets to do the defining along that front?

Legislation is rolling along in Colorado (with a recent scheduling hiccup, but more efforts will be coming), and you can imagine a significant states rights vs. federal debate here, especially since in many areas the federal government has ceded basic control over water to the states.

This battle is only getting started.

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