Though it’s legal to grow industrial hemp in Colorado, many farmers are breaking the law if they try to water their crops.

In western states, water rights are governed by complex laws that determine how farmers irrigate their crops. Even rainwater that falls on land owned by a farmer may be affected by federal water rights laws, and the federal government still essentially considers hemp illegal.

“That has been an issue almost from the onset that has stopped people from growing industrial hemp unless they had wells of their own or were using city water, which is difficult when you move into real agricultural areas,” said Duane Sinning, seed coordinator at the Colorado Department of Agriculture, in an interview with Ministry of Hemp.

Though Colorado recently passed legislation addressing hemp water rights, the law still needs to change at the federal level. In the meantime, hemp farmers are struggling across the West with thirsty plants. In Montana, at least one farmer lost her crops due to a federal water dispute.

Fortunately, hemp has bipartisan support in Congress and a bill called the Industrial Hemp Water Rights Act would make water supplies available to every farmer who has the right to use them on other agricultural crops. Last month, the Senate Appropriations Committee added the act to a must-pass energy and water funding bill, where it has a good chance of being signed into law.

Veronica Carpio, a hemp farmer who operates Grow Hemp Colorado, a hemp advocacy and education site, applauded the measure.

“Hemp is supposed to be treated just like corn and carrots so trying to disallow the allocated water for that particular premise is not OK,” Carpio told us. “So that’s a major fix.”

When we caught up with Sinning and Carpio by phone last week, both described a thriving industrial hemp industry in Colorado that’s strongly supported by the state government, but hampered by legal questions and red tape surrounding the crop.

12,000 Acres and Counting: A Successful State Industry With Support From Colorado Lawmakers

Sinning told us that about 12,000 acres were registered with his agency for growing hemp this year, which will probably equate to about 9,000 acres successfully grown and harvested by the end of the season. He also mentioned an additional 2.1 million square feet of hemp is grown indoors in the state.

Carpio, who was one of the first registered legal hemp growers in the state, told us Colorado hemp farmers can be divided into two groups based on how they use and grow the plant.

“One is traditional hemp farmers, which is pollinated crops, so they’re growing seed and they’re growing both female and male plants,” she explained.

Carpio is one of these traditional, or “pollinated” farmers. Their crops can be used for a wide range of hemp products, from textiles to food to CBD oil.

The other type of hemp farmer grows only female plants, typically from clones rather than from seed, and solely produces CBD. “Those are the two dominant forces in Colorado which are thriving,” she said.

Carpio told us that Colorado hemp farmers have sometimes struggled to present a unified political front when advocating for improved laws.

“There’s not one single cohesive message unfortunately,” she said. “Some of that has caused issues with passing really important legislative actions we wanted to pass last session in Colorado.”

Despite this occasional infighting among growers, hemp has strong support from the state government and its lawmakers. Senate Bill 17-117, “Recognize Industrial Hemp Agricultural Product For Agricultural Water Right,” addresses state and federal water issues around hemp, was sponsored by two Republicans and a Democrat and faced almost no opposition in the general assembly.

Among the other hemp-related bills signed into law during the most recent legislative session was a bill to study the feasibility of using hemp in animal feed, which Carpio and other supporters of Grow Colorado Hemp helped to pass with their lobbying.

Growing Hemp in Colorado and the Problem of “Colored” Water

Though SB 17-117 made the state’s position on water use by hemp growers clear, it didn’t solve the issue.

“The state law says ‘Hey Feds, we want this, this is what we believe,” Sinning said. “But the Feds still have the ultimate authority over that water.”

Water law in the western United States is an extremely complex subject that’s beyond the scope of this article to explain in detail, but what follows is a brief explanation of how it affects hemp growers.

In these arid, frequently drought-ridden states, access to water is hotly contested. Even when rainwater falls in Colorado, the right to use it might already be claimed by another state like California. Additionally, any water that flows through reservoirs or irrigation ditches created with federal funds is considered “colored” water under control of the Bureau of Reclamation, even if it initially fell on privately owned agricultural land. Considerable sums are paid for access to this colored water supply; in some cases farmers obtain year round access, or they may purchase the water for only part of a year.

The 2014 Farm Bill allowed states like Colorado to create their own industrial hemp growing programs. Despite all the evidence of hemp and CBD’s healing potential, the Drug Enforcement Agency still classifies hemp, alongside psychoactive cannabis, the form of the plant people ingest to get “high,” as a Schedule I substance, a harmful illegal substance with absolutely no benefit to humanity. When it comes to water rights, the Bureau of Reclamation is deferring to the DEA.

“If that water through that ditch is colored water, it’s federally touched at one point in time even if the stream started on your land. If that ditch that it’s running through used any federal funds, you cannot take water out of that ditch and use it on industrial hemp,” Sinning told us.

Colorado’s Democratic Sen. Michael Bennet introduced the Industrial Hemp Water Rights Act to fix this problem. From there, it picked up five additional cosponsors from both sides of the aisle, hailing from hemp-growing states around the west: Colorado’s Republican Sen. Cory Gardner, Sens. Steve Daines and Jon Tester of Montana (a Republican and a Democrat), and Sens. Ron Wyden and Jeff Merkley, Democrats from Oregon.

“This is a step in the right direction to ensure that Colorado farmers will have the water they need to grow industrial hemp and the opportunity to innovate and strengthen our agricultural economy,” declared Bennet said in a statement.

Now that the Senate Appropriations Committee added the Hemp Water Rights Act to the Energy and Water Development appropriations bill for fiscal year 2018, the Senate and the House of Representatives will have until October to pass some version of the bill.

Growing National Support for Hemp Forces Congress to Get Educated and Discuss Legalization

Carpio told us she thinks the federal water rights bill is likely to pass, and will benefit farmers like her. “I do think it will be resolved through those actions.”

However, further legal changes are needed to fully open up the U.S. to hemp growing. Despite the 2014 Farm Bill and subsequent measures by Congress to protect industrial hemp and derivative products, the DEA continues to insist that CBD oil is illegal. Though consumers of CBD oil nutritional supplements haven’t faced significant problems, hemp remains in a legal gray area, which causes serious concern for growers and vendors.

The Industrial Hemp Farming Act, introduced July 28 by Rep. Bob Goodlatte, a Republican from Virginia, would remove industrial hemp from the DEA’s list of Schedule I substances, and slightly expand the levels of THC allowed in industrial hemp for research purposes. Some growers have already endorsed the bill, though Carpio expressed strong objections to leaving marijuana, or psychoactive cannabis, as a Schedule I substance.

“For me, there can’t be a division of a good cannabis plant and a bad cannabis plant,” she said, expressing her support for total legalization. Still, she told us that the Industrial Hemp Farming Act is a sign that changing national attitudes toward hemp are having an effect on Congress.

“This is good progress in the sense of us having discussions now at the federal level,” Carpio said. “They’re being forced to discuss this, they’re being forced to discuss marijuana and get more educated.”