January 2, 2015

Can Colorado approve a water right to grow pot?

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High Valley Farms 2
This indoor marijuana growing facility near Basalt is owned by Jordan Lewis, the owner of the Silverpeak marijuana store in Aspen and the principal in High Valley Farms LLC. High Valley Farms has applied for a new water right to irrigate 2,000 to 3,000 pot plants in the facility.

Brent Gardner-Smith / Aspen Journalism

This indoor marijuana growing facility near Basalt is owned by Jordan Lewis, the owner of the Silverpeak marijuana store in Aspen and the principal in High Valley Farms LLC. High Valley Farms has applied for a new water right to irrigate 2,000 to 3,000 pot plants in the facility.

GLENWOOD SPRINGS – Can the state of Colorado issue a water right to irrigate marijuana plants when federal law still says that growing pot is a crime?

That’s the question being asked by a division engineer and a water referee in Division 5 water court in Glenwood Springs, in response to a water rights application filed by High Valley Farms LLC.

“Even though the cultivation of marijuana and the sale of marijuana is legal in the state of Colorado, because it is still not legal under federal law, this question is still out there — whether beneficial use includes any use that is not legal under federal law,” said Alan Martellaro, the division engineer in Division 5.

Martellaro said a water right in Colorado can be issued only if the water is being put to a beneficial use, such as irrigation.

But the use of the water also has to be lawfully made. If it is not a lawful use, it is not a beneficial use, and so no water right can be issued.

On the other hand, Martellaro recognizes the logic of a counterargument, which is that if it is legal under state law to grow pot plants, then it is a lawful act to water them, regardless of federal law.

“We’re not coming down one way or the other, we just want an answer,” Martellaro said.

High Valley Farms, LLC is controlled by Jordan Lewis, who owns the Silverpeak marijuana store in Aspen and a new 25,000 square-foot indoor marijuana growing facility along the Roaring Fork River south of Basalt.

High Valley Farms filed an application with the water court in August seeking the right to annually pump 2.89 acre-feet of water (941,710 gallons) from the Roaring Fork River to irrigate 2,000 to 3,000 marijuana plants in the Basalt facility.

It also is seeking approval of an augmentation plan for a back-up supply of water.

“Applicant Must Explain”

On Nov. 19 Martellaro, after conferring with the Division 5 water court referee Holly Strablizky, issued a “summary of consultation” about the High Valley Farms application.

“The applicant must explain how the claim for these conditional water rights can be granted in light of the definition of beneficial use as defined in (Colorado state law),” the summary of consultation stated.

“Specifically,” the summary of consultation said, ”beneficial use means ‘the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.’”

The word “lawfully” is in italics in Martellaro’s summary report, but that’s the extent of how the question is posed.

Whether it is legally a “beneficial” use or not, watering marijuana plants in Colorado is a valuable practice.

In the first 10 months of 2014, people spent $574 million on marijuana legally grown in Colorado, according to “The Cannabist” at The Denver Post.

In May, the U.S. Bureau of Reclamation issued a policy in response to Washington state and Colorado legalizing the growing of marijuana.

The federal agency said it “will not approve use of Reclamation facilities or water in the cultivation of marijuana,” given that the Controlled Substances Act of 1970 still prohibits growing weed.

This has lead to a tentative working assumption by some water providers that it is OK in Colorado to provide water for irrigating marijuana plants, as long as it is done with “nonfederal” water.

The augmentation plan filed by High Valley Farms includes a contract for a back-up supply of water from an irrigation ditch owned by the Basalt Water Conservancy District.

The Basalt district often leases water it controls in Ruedi Reservoir, which is a Bureau of Reclamation facility.

But the contract between High Valley Farms and the Basalt district says the water provided on High Valley’s behalf will be only from “nonfederal sources.”

High Valley’s augmentation plan also includes a contract to buy water from the Colorado River District out of Wolford Reservoir, which is a nonfederal reservoir north of Kremmling.

Precedent-setting case?

Other marijuana-growing operations in Colorado have so far gotten their water by using existing water rights, Martellaro said, not by applying for new ones.

For example, a grower might have bought land that came with water rights, or may have leased water from a district or city with existing water rights.

Martellaro said this is apparently the first time an applicant has filed in Colorado for a new water right specifically to grow marijuana.

Beth Van Vurst, a water attorney for High Valley Farms, responded to the division engineer’s summary of consultation on Dec. 19.

“The procedure for addressing this concern will be discussed at the next status conference,” Van Vurst told the court, which has set the next conference for Jan. 13.

At that time, Martellaro expects that a deadline will be set for High Valley Farms to file a legal brief on the issues raised by the court.

Van Vurst said Wednesday she could not discuss the issues in the case as they are pending before the water referee.

If High Valley Farms does file a legal brief, Strablizky, the water referee, would have several options, Martellaro said.

She could accept the explanation from High Valley Farm and the matter could end there.

She could, without making a ruling, refer the case to Judge James Boyd, who presides over Division 5 water court.

She could reject the legal argument, and High Valley Farms could then appeal to Boyd.

And if the judge eventually rules against it, High Valley Farms could appeal directly to the Colorado Supreme Court.

Many water court cases include a number of parties that have filed “statements of opposition” in the case, which gives them standing to appeal decisions.

However, only one party has filed a statement of opposition in the High Valley Farms case, and that’s the Roaring Fork Club.

The club’s office is next door to Silverpeak’s new growing facility and it owns water rights on the Roaring Fork River.

“The Roaring Fork Club will probably get invited to weigh in on this, but we’re very likely to take no position on this issue,” said Scott Miller, a water attorney representing the club, referring to the issue raised by seeking a right to water marijuana plants.

“Our primary issue in this case is to protect our water rights in this stretch of river, which is already heavily diverted,” Miller said.

Editor’s Note:
Aspen Journalism, The Aspen Times and the Glenwood Springs Post Independent are collaborating on coverage of rivers and water. The Times and the Post Independent published the story on Friday, Jan. 2, 2015.

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