Water Theft in the World of Weed
Legal Oregon marijuana growers may be violating a long-standing water lawBy Benjy Schirm, J.D. | Last updated on January 12, 2023
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What Water Supply Laws Are in Place in Oregon?Oregon’s water ownership laws operate under a system called “prior appropriation,” which is based on a first in time, first in right principal. In other words, the person who got to the water first has a claim to that water, and anyone else using it is a junior interest holder. For example: If a family farm was set up in Oregon on a river in the 1970s, and no one else was using that waterway, the family farm has the ownership right to all of the water that goes down the river. Then, say a legal cannabis farm moves in just upstream of the family farm. Legally, the marijuana cultivator can’t use the water without consent of the senior holder. Technically, the marijuana farmer must register with the Oregon Liquor Control Commission, and in that registration must prove they have a right to the water they will use. However, many new growers are not licensed by the proper agencies or, at the very least, aren’t following the representations they have given to the OLCC. Further complications come with the type of land where the marijuana grows. “You are entitled to use your water but only to up to the point that is inherent in your land,” says Anne van Leynseele, who handles cannabis law at 7 Point Law in Portland, Seattle and Los Angeles, “which can be a real problem if you are leasing the property as opposed to owning it. A grower got pinched for leasing a part of a parcel that was also being used for hay production and the hay agriculture on the land was using all of the water allowance for that parcel. And they had to move; there was nothing they could do.”
What Can Be Done To Avoid Stealing Water?To gauge your own risks of illegal marijuana water use in such an enterprise, van Leynseele suggests looking at municipal records regarding your tax parcel. “Companies must get all of the data from the county to understand what their water rights are. This is a common risk in the industry that is not being talked about or even understood by most people starting a new business,” she says. Racquel Rancier, the senior policy coordinator for the Oregon Water Resources Department, told the Capital Press, “The question of whether medical growers are diverting their crop for profit, and thus illegally irrigating with domestic wells, is tough for the agency to answer. It’s not always an easy process to demonstrate they’re using it illegally.” The regulatory mechanism is not set up to do audits, but to take growers at their word for their use of water. Issues may come to light when a grower begins using too much water, thus infringing on the rights of those around them. “Water laws are an issue that is going to plague the industry,” van Leynseele says. “It is so factually specific to each property—they must ascertain what are their water allocation rights, how are they drawing it, are there commercial wells, are they drawing on the county line? Indoor grow operations have a different need than outdoor grows, and then you must check to see if this property touches on any federal water sources.” If a neighbor is using enough water to affect your use, your best bet is to hire a reputable and experienced property attorney, as well as a reputable and experienced water law attorney that can prevent water scarcity. . For more information on this area of law, see our overviews of cannabis law and real estate.
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