Two bills were recently introduced to prevent illegal cannabis cultivation efforts, which are using more water than ever in the wake of a historic California drought.

“Illegal cannabis farming is devastating the desert communities of San Bernardino County,” said San Bernardino County Board of Supervisors Chairman Curt Hagman in a press release. “The County is determined to stop this terrible damage to the environment and to protect the lives and property of our residents from lawless criminals.”

The county is sponsoring Assembly Bill 2728, introduced by Assemblymember Thurston Smith, and Senate Bill 1426, introduced by Senator Anna Caballero, to tackle these concerns.

AB-2728 would increase the fines for illegal cultivation to $1,000 for each day of violation, and $2,500 for each acre-foot of water diverted (and if that measurement isn’t specified, $500 per plant). These stipulations would only take place in a “critically dry year immediately preceded by two or more consecutive below normal, dry, or critical dry years” in the event that the California state governor has issued a state of emergency. “Our state is dealing with an unprecedented number of illegal cannabis grows, particularly in the rural desert communities that I represent in the legislature. Because of this, our laws need to require compliance and ensure that illegal activity is punished,” said Smith about the bill. Most recently, AB-2728 was referred to a committee on June 1.

SB-1426 would punish “unauthorized tapping into a water conveyance or storage infrastructure or digging or extracting groundwater from an unpermitted well.” “Illegal cannabis farming is killing wildlife and wreaking environmental damage across the state,” Caballero said in a San Bernardino press release in March. “This bill will help stop the pollution of our groundwater supply and the theft of water, which are all the more important during an ongoing multi-year drought.” Currently, as of May 19 the bill is “Held in committee and under submission” for the time being.

California Gov. Gavin Newsom has proclaimed a state of emergency for California’s drought three times so far in April, May, and July 2021 due to the impacts of climate change. In July 2021, he asked California residents to cut down on water usage with a goal of reducing water use by 15%. More recently in March 2022, Newsom shared that that goal was not met, and he asked local water agencies to “implement more aggressive water conservations.”

San Bernardino County is one of many regions in California experiencing dry conditions. Los Angeles County Sheriff Alex Villanueva explained the data in relation to the amount of water required to grow cannabis. “The average marijuana plant requires a minimum of 3 gallons of water per plant, per day,” said Villanueva, according to NBC Miami. “Just the 2021 numbers alone amount to 150 million gallons of water used to bring that crop to harvest. That’s just enormous.”

However, the amount of water that a cannabis plant needs to thrive is highly dependent on its location, growing medium, and current stage of growth. A 2019 survey called “A narrative review on environmental impacts of cannabis cultivation” estimates that outdoor cannabis requires 5.5 gallons per day per plant in August, and 5.1 gallons per day per plant in September, whereas indoor grown plants used 2.5 gallons in August and 5.1 gallons in September. Ultimately, the study stated that cannabis plants need much more water and nutrients to thrive, unlike other crops such as wheat, corn/maize, soybean, cotton or rice.

Another study published in October 2020, called “Water storage and irrigation practices for cannabis drive seasonal patterns of water extraction and use in Northern California,” stated that legal cannabis cultivation farms use groundwater wells more often than other water sources, such as streams, captured rainwater, springs, and municipal water systems. “Our findings indicate that water extraction from farms using groundwater wells generally occurs during the summer dry season and highlight the need to assess their potential impacts to connected surface water in streams,” the study authors wrote.

Assemblymember Tom Lackey, a longtime resident of the California high desert, issued a statement of his own in regards to water being used and polluted by illegal cultivators. “To any of those who are engaged in the illicit grows: I want you to know there’s a collective effort, and we’re coming after you,” Lackey said at a press conference on May 18. “You come after a very sacred thing: our community. You come after our desert, and you’re stealing our water. You’re poisoning our land, and enough is enough.”

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A Northern California federal judge ruled this month that Siskiyou County officials cannot stop trucks delivering water to Hmong unlicensed cannabis growers, writing that the ban raises “serious questions” about their right to be free of racial discrimination. 

In a decision handed down earlier this month, Chief U.S. District Judge Kimberly J. Mueller wrote that preventing the deliveries to the Mount Shasta Vista subdivision in the Big Springs area of inland Northern California also leaves the families living there without a source of water for drinking, cooking and bathing. To enforce her order, Mueller issued a temporary injunction against the county’s ban on water deliveries trucked into the community.

“Without an injunction, the plaintiffs and other members of the Shasta Vista Hmong community will likely go without water for their basic needs and will likely lose more plants and livestock,” she wrote. “Fires may burn more homes. People may be forced to leave their homes and land behind without compensation.

“The plaintiffs have also raised serious questions about their constitutional right to be free from racial discrimination,” Mueller added.

Thousands of Illicit Greenhouses

Officials estimate that there are 5,000 to 6,000 greenhouses growing unlicensed marijuana in the Big Springs area, many of them in the Shasta Vista subdivision operated by Hmong and Chinese immigrants and their families who have moved to the community over the last five years. Officials say the illicit grow sites have led to a rise in crime in the area and complaints from residents who say the cannabis cultivation operations are causing their wells to run dry.

To address the issue, Siskiyou County officials approved ordinances this spring to prohibit selling well water without a permit and to ban water trucks on roads leading to Shasta Vista. County deputies enforced the ordinances by aggressively pulling over people they believed were hauling water illegally, according to reporting by the Sacramento Bee.

Attorneys for a group of Hmong farmers filed suit in federal court in Sacramento to block the ordinances, arguing that they were racially motivated and left the families without water for their homes, gardens and livestock. They also noted that the ban left the community without water to fight wildfires, such as the Lava Fire that burned through parts of Shasta Vista in June after a nearby lightning strike.

Suit Alleges Ordinances Were Racially Motivated

Mueller wrote in her September 3 ruling that the growers have a case to allege “the ordinances are motivated by racial animus,” but acknowledged that Siskiyou County attorneys had presented a compelling case that crime was on the upswing in the area.

“Violent crime in Shasta Vista has also spiked in recent years,” she wrote. “The Sheriff’s Office has responded to reports of armed robbery, assault and murder. In just one recent week, a man was pistol-whipped and robbed; another was the target of gunshots fired by a neighbor, and six people were bound and robbed by gunmen wielding AK-47s. Few similar crimes were reported in Shasta Vista before illegal cannabis cultivation took hold.”

Mueller let stand a county ordinance that specifically banned selling water for illegal cannabis cultivation. The injunction only applies to water sales and deliveries to the community intended for needs including bathing and gardening. Mueller rejected county arguments that the prohibition on water deliveries was needed to protect residents of Shasta Vista, many of whom live in unpermitted residences and are subject to unsafe living conditions. The judge ruled that the county has other laws including zoning ordinances to address those issues.

“Shasta Vista residents might drink and bathe in unpotable water trucked into Shasta Vista from nearby agricultural wells, but the alternative is very little water or no water at all,” she wrote. “If potable water is in fact ready available, as the county claims… this order in no way prohibits officials from helping the people in Shasta Vista find and use that potable water.”

The attorneys for the lead plaintiff, Dilevon Lo, are Allison Margolin and James Raza Lawrence of Margolin & Lawrence. Raza Lawrence said that he hopes that Mueller’s injunction becomes permanent in order to avert a “humanitarian crisis” in the area.

“Now they can finally get back to living their lives like normal on their land,” he said.

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