Ben Grumbles is president of the U.S. Water Alliance, a not-for-profit educational organization based in Washington, D.C., committed to uniting…
Oct 28, 2014

Joint Authorities

Defining the lining and limits of “cooperative federalism” is never easy, particularly when you get into the weeds of growing “weed” with federally supplied water.

My former colleague, Professor Jonathan Turley at George Washington University Law School, tackles one of the more interesting questions of the day in his op-ed “Fighting Pot With Water” (USA Today, July 7, 2014): Should the federal government be able to cut off federally-supplied water to marijuana growers in states that have legalized the production and use of the plant? Turley critiques the Bureau of Reclamation’s May 2014 decision to deny federal water for growing marijuana in the 17 western states served by Reclamation projects and concludes emphatically … No! I tend to agree but without the confidence of an exclamation point.

The Root of the Matter

Whether the answer is yes or no, it’s a slippery slope. The use of federal authority and resources to effectively curtail state and locally allowed activity, whether the “poison” is pot, tobacco, energy drinks, or super Big Gulps, can lead to claims of “nanny state” overreach and abuse. On the other hand, as economists (or lawyers) might say, a federal law or policy should be implemented fairly and consistently. If growing pot violates federal drug law (i.e., the Controlled Substances Act of 1970), which it does, why should the Feds allow scarce water supplies under their control to be allocated for such illicit uses when higher-purpose uses, such as drinking water, fighting fire and producing other lawful crops and widgets, need it even more?

The Bureau of Reclamation issued a policy statement earlier in 2014 in response to requests from irrigation districts and other stakeholders to explain their approach to this increasingly relevant controversy (or growth opportunity from some people’s perspectives). Twenty-three states and the District of Columbia have legalized the medicinal use of marijuana since 1996. And, as just about everyone knows by now, Colorado and Washington recently have legalized the recreational use of marijuana and other states, West and East, are debating to do the same.

Because of the 2014 policy call, based on a reading of the 1970 Controlled Substances Act, the Bureau will not sell federal water for growing marijuana. Farmers are left (I won’t say high and dry) with the sometimes viable, sometimes not viable alternatives of private wells and municipal water supplies. Professor Turley’s point is that it’s an indirect, and dangerous, tool to cut off federal water and the federal government is being hypocritical based on other pronouncements of not interfering with state decisions. I myself am wondering whether reclaimed municipal wastewater will have found a new market, while also worrying that larger use of marijuana for nonmedical purposes is bad for the health and safety of individuals and communities.

Do Tell, Don't Sell

Based on Reclamation’s policy, when its employees learn about marijuana growing they are to provide information to the Department of Justice. It seems a bit like the “Don’t Ask, Don’t Tell” policy of the past involving gays in the military; Interior seems to have no intention of actively policing and investigating the use of federal water for marijuana production but if their employees find out, they are to share the information with the Department of Justice, essentially a “Do Tell, Don’t Sell” approach to water.

This is a debate over how much deference the federal government should give the states. In America, water resource allocation, use, and management decisions are made primarily at the state level, unless federal or tribal entities or interests are directly involved. In this case, the Bureau has a very strong interest and I appreciate their attempts to follow the law, clarify policy, and find common, safe ground. It’s hard to achieve and sustain. Any attempt to implement and enforce the policy may also run into conflict with another important provision of federal law: Section 8 of the Reclamation Act of 1902. That provision essentially says none of the Bureau’s authorities are to interfere with state laws relating to the control or use of water used in irrigation.

The Clean Water Act similarly respects principles of cooperative federalism, recognizing the primary role of states in managing supplies and legal rights and responsibilities. Of course, some would say from time to time the U.S. Environmental Protection Agency and Army Corps of Engineers implement certain authorities such as permitting under sections 404 and 402 and planning under 303(d) (i.e. tmdl pollution budgets) in ways that infringe on state flexibilities.

Weeding Out the Inconsistencies

Finding the right balance between federal and state rights, responsibilities, and authorities can be hard, particularly if the stakes are high and the slopes are steep. Federal water managers in the West must uphold federal law, while striving to respect state law and state policy decisions unrelated or not in direct conflict with federal law. It gets very tricky when federal water sales are prohibited based on the type of crop grown or social policy adopted in a particular state. A “just say no to drugs” approach (to quote Nancy Reagan) isn’t so straightforward or appropriate when federal water sales are involved, particularly when states are redefining the meaning of “drugs” and “lawful crops” in their own jurisdictions.

Perhaps it’s time for Congress to update the Controlled Substances Act to reflect evolving definitions of lawful and unlawful so that federal water managers have more flexibility to defer to state policy choices. I don’t know.

Perhaps we should all put that last idea in our collective pipe and smoke it and then revisit it again tomorrow.

Ben Grumbles is president of the U.S. Water Alliance, a not-for-profit educational organization based in Washington, D.C., committed to uniting people and policies for water sustainability throughout the country. Grumbles has a long career in water and environmental policy, serving the public and teaching law students and environmental professionals, over the past 25 years. He can be reached at [email protected].