Here Come the Weed Growers: What Future do we want for our Acequias?
Acequia communities should brace themselves for the many individuals and corporations intent on growing commercial marijuana in our villages. As the Cannabis Advisory Committee meets for the first and only time before rules are officially promulgated, we should consider two potential scenarios:
SCENARIO #1: First, imagine New Mexico in ten years after cannabis legalization where our policymakers and communities have been successful in fostering a socially just, equitable cannabis economy where small-scale growers and small business are thriving. Because of robust water protections and social equity mandates in the law, New Mexico grew a cannabis industry that provides economic opportunities for producers and small businesses as well as provides a healthy product for both medicinal and recreational use. New Mexico had the foresight to make it possible for small-scale businesses to get established with access to capital.
Imagine driving through rural New Mexico and seeing small-scale cannabis operations alongside fields of locally grown food. Farmers work cooperatively to produce, process, and market their product and have developed high-quality, small-scale cannabis crops that earn them a good livelihood. Because of the profitability of cannabis, more farmers have stayed on the land and more farmers are growing food for their local communities. The population of rural communities has stabilized after decades of outmigration. Rural farmers have a fair opportunity at making an income from cannabis.
SCENARIO #2: Second, imagine New Mexico in ten years after cannabis legalization without water protections and social equity mandates. In their rush to gain tax revenue from the cannabis industry, policymakers hastily enacted legislation and rules that prioritized a quick start up for the industry over the concerns of rural communities, acequias, and social justice advocates. The corporations who already were established for medical cannabis had the advantage of scale and successfully advocated for large-scale production. Because a variety of producers, both small and large, opposed water protections, the new cannabis economy resulted in a raid on New Mexico’s water with promulgation of new rules that undermined over a century of water laws that protected existing water rights.
Out of desperation for water, cannabis producers of all sizes got variances to drill wells, obtain water leases through unlawful means, and otherwise undermine New Mexico’s water laws. Lack of start up capital for local producers and small businesses benefited out of state corporations to move into New Mexico and gain substantial advantages over New Mexico residents. After ten years, New Mexico has an oligopoly of out of state operations who gave seized control of the cannabis market along with vast areas of farmland and water rights. Cannabis is legal but it is corporate-grown. Acequia communities have been overrun by outside corporations to grow cannabis and outmigration of land-based families has accelerated, replaced by low-wage workers tending to corporate cannabis.
BACK TO THE PRESENT: The Regulation and Licensing Department and the Cannabis Control Division just completed a hearing on regulations to implement the Cannabis Regulation Act. Earlier this year, New Mexico was at a crossroads in how to proceed with cannabis legalization. Policymakers had good intentions to make legal cannabis available for medicinal and recreational uses, as well as to decriminalize cannabis possession and to expunge records of those convicted in the past. However, it took extraordinary effort by acequias, land grants, and social equity advocates to get some important language in the CRA regarding water and social equity. These were important gains but the CRA could have been much stronger. Specifically, stronger social equity provisions would could have ensured that New Mexico residents who are small-scale producers or small-business owners would have access such as start-up capital and technical assistance.
After two hearings on the proposed rules, New Mexico appears to be on track for Scenario #2. The proposed rules that were the subject of a hearing on August 6, 2021 failed to address the most basic concerns of a variety of advocates from acequias, land grants, and social equity advocates:
- Although the CRA required appointment of a Cannabis Advisory Committee to advise on the content of regulations, the rules were drafted without input from a committee. A committee was appointed just days before an agency deadline to finalize the rules. The committee appointments were announced just three days before their official meeting to “advise” on the rules. At a meeting scheduled for August 10, 2021, the RLD and CCD are expecting the committee to give them the green light to proceed with the regulations as drafted.
- Of greatest concern is a new provision in the regulations allowing applicants for licenses to obtain a variance that could allow them to circumvent the basic water protections in the CRA. Due to the intense advocacy of the NMAA and other allies, the CRA requires that an application for a cannabis license include either documentation from the OSE of a valid water rights or certification of compliance with the rules of the water provider for that new use. These are reasonable requirements. The variance provision may allow licenses to be granted via a variance and without adherence to the legal water requirements.
Beyond the concerns about water and the flawed process of rulemaking, the emerging cannabis industry is on track to be dominated by corporations without the needed access to capital for locally-owned businesses. There is still time to get this process on track to achieve a more equitable economy that does not jeopardize our water supplies. To start, we must act quickly on the following:
- The rulemaking process should be deferred at least until the CAC has had adequate time to review and deliberate on the proposed rules. The RLD and CCD should substantially revise their regulations based on the input provided by the New Mexico Acequia Association and the New Mexico Land Grant Consejo. The provision for granting variances must be removed or explicitly limited such that a variance cannot be granted to circumvent statutory requirements regarding water.
- Additional legislation is needed to address social equity, including revisiting the language that was previously in drafts of the CRA that included both a Community Reinvestment Fund and Social Equity Fund which provided that some of the tax revenue from cannabis be used to improve the quality of life and equity of New Mexicans.
- The concerns about water rights extend beyond cannabis laws and rulemaking. The OSE has a practice of granting “preliminary approval” on water leases, which is unlawful. The NMAA and other entities in New Mexico have expressed grave concern about this practice and have raised concerns repeatedly. Two factors that add fuel to this fire are 1) the urgency of cannabis producers who need water and 2) the proposed variance in the regulations that could allow a license without compliance with the CRA water protections. As long as the OSE is granting these unlawful water lease permits, it is opening the door for illegal water uses for cannabis production.