This post is authored by Environment, Land Use and Natural Resources lawyer Kirk Maag of Stoel Rives.
The U.S. Bureau of Reclamation issued a temporary policy regarding the use of water from Reclamation reservoirs for activities prohibited by the Controlled Substances Act of 1970 (CSA)—for example, growing marijuana. The temporary policy is effective for one year.
The policy was prompted by the recent legalization of marijuana in states like Washington and Colorado. Similar initiatives are being considered in other states, like Oregon. However, despite these changes (and proposed changes) to state law, the cultivation, possession, use, and sale of marijuana remains illegal under federal law.
The recent changes to state law caused Reclamation to consider whether water from its reservoirs can be delivered to marijuana growers by the irrigation districts that deliver Reclamation water. The first line of the policy emphasizes the key issue: The CSA and its implementing regulations prohibit the cultivation of marijuana. The policy explains that Reclamation, as a Federal agency, must uphold federal law. As such, Reclamation and its employees cannot (and will not) approve the use of Reclamation water or facilities to facilitate the cultivation of marijuana. However, the policy acknowledges that “Reclamation does not have a responsibility or designated role in actively seeking enforcement of the CSA.”
Nevertheless, the policy provides that, if a Reclamation employee becomes aware of Reclamation water being used to irrigate marijuana, the employee must report such use to their regional director. The regional director will report this information to the U.S. Department of Justice (DOJ). Reclamation employees will document all activities and communications regarding known or potential uses of Reclamation water for the irrigation of marijuana. This information will presumably be turned over to DOJ. It remains to be seen whether the DOJ will take enforcement action based on these reports.
Some elected officials have blasted the policy. The Huffington Post reports that Rep. Jared Polis (D-Colo.) issued the following statement:
Today’s backward-looking decision by the Bureau of Reclamation will hinder the growth and success of Colorado and Washington’s legal marijuana industry. . . . This policy places the Bureau of Reclamation at odds with the administration’s current guidance to not interfere with the marijuana and hemp industries made lawful by voters in those states. The Bureau of Reclamation is challenging the commonly-held understanding in the arid west that water rights are state-based, an extremely delicate proposition for citizens dependent on water for their livelihood.
Rep. Earl Blumenauer (D-Ore.) criticized the decision by stating: “Today’s decision again brings federal, state, and local law into conflict in a way that creates uncertainty among residents of states that have approved the use of marijuana. . . . The administration needs to give clear marching orders to the various agencies and for them to get in step to avoid problems like this in the future.”
The Seattle Times editorial board wrote: “The federal government’s response to the marijuana revolt brewing on the state level should carry a warning label. Beware: signs of impaired decision-making, with erratic policy-swerving and conflicting statements.”