interviews
Water and the American West
by Richard Frank
October 25, 2021
This interview with Richard Frank, professor of environmental practice at the UC Davis School of Law and Director of the California Environmental Law and Policy Center, was conducted and condensed by franknews.
frank | Can you tell me a little bit about the story of water and how it's tied to the West, and to California in particular?
Richard | A friend of mine who's a Court of Appeals Justice here in California wrote an opinion on a water law dispute and started it with the quote, "the history of California is written on its waters." And I think that the point is true of the entire American West.
Water policy and legal issues are inextricably tied to the development of the Western United States; water is the limiting factor in so many ways to settlement, to economic development, to prosperity, and to the environment and environmental preservation.
Can you talk about the difference between groundwater and surface water– and the policies that regulate each?
There are really two types of water when it comes to human consumption. There's surface water: that is the water that is transmitted by lakes, rivers, and streams. Then there is groundwater, and a substantial amount of water that Americans and the American West rely on is groundwater. That is water that is stored in groundwater aquifers, which are naturally occurring groundwater basins. Both groundwater and surface water are critical to the American West and its economy and its culture.
Traditionally a couple of things are important to note, first of all, water is finite. Second, water gets allocated in the Western United States generally at the state level. There's a limited federal role. Primarily, policy decisions about who gets how much water for what purpose are made state by state.
I think allocation is really interesting in that it's more state-level than federal. How was water and the allocation of water in California designed? Is it a public-private combination? What goes on in terms of the infrastructure of water?
Another very good question. The answer is it depends. Most of our water infrastructure is public in nature.
Again, in the American West, the regulation of water rights is generally done at the state level, but the federal government, historically, has a major water footprint in the American West because it has been federal dollars and federal design and management that really controlled much of the major water infrastructure in the American West — you know, Hoover Dam, and the complex system of dams and reservoirs on the Colorado River in California, with the Central Valley Project that was built and managed by the federal government with Shasta Dam on the upper Sacramento River as the centerpiece of that project. But we also have a California State Water Project, the key facility being the Oroville Dam and reservoir on the Southern River that is managed by state water managers. If we were starting over, that kind of parallel system would make no particular engineering or operational sense.
But, we are captive to our history.
And then you have these massive systems of aqueducts and canals that move water from one place to another throughout the American West. They are particularly responsible for moving water from surface water storage facilities to population centers. In the last 50 to 75 years, these population centers have really expanded dramatically, so you need massive infrastructure to deliver water from those storage facilities, the dams, and reservoirs, which generally are located in remote areas to the population centers. So it takes a lot of time and energy to transport the water, from where it is captured and stored to where it is needed for human use.
California has faced continuous drought – what measures is the state taking now to manage water?
Just to frame the issue a little bit — we have, as I mentioned, a growing population in the American Southwest at a time when the amount of available water is shrinking due to drought and due to the impacts of climate change. We have growing human demand for residential and commercial purposes and at the same time, we have a shrinking water supply. That is a huge looming crisis.
And it is beginning to play out in real-time. You see that playing out in real-time. For example, several different states and Mexico rely on Colorado River flows based on an allocation system that was created in the 1920s, which is overly optimistic about the amount of available water. From the 1920s until now, that water supply has decreased, and decreased, and decreased. Now you have interstate agreements, and in the case of Mexico, international agreements that allocate the finite Colorado river water supplies based on faulty, now obsolete, information. It is a real problem.
What measures do you take now, knowing this information?
If you look at the US Drought Monitor, it is obvious the problem is not limited to the Colorado River. We are in a mega-drought, so cutbacks are being imposed by federal and state water agencies to encourage agricultural, urban, and commercial water users to cut their water use and, and stretch finite supplies as much as possible through conservation efforts.
In California, we have the State Water Resources Control Board, the state water regulator in California, and they have issued curtailment orders. Meaning, they have told water rights holders, many of whom have had those water rights for over a hundred years, that, for the first time, the water that they feel they are entitled to, is not available. Local water districts are also issuing water conservation mandates; the San Francisco water department is doing that, in Los Angeles, the metropolitan water district, is urging urban users to curtail their efforts.
And then agriculture. Agricultural users — farmers and ranchers — have had to get water rights in many cases through the federal government, as the federal government is the operator of these water projects. They have contracts with water users, individual farmers, ranchers, or districts, and they are now issuing curtailment orders. They're saying, we know you contracted for X amount of water for this calendar year, but we are telling you because of the drought shortages we don't have that water to supply. Our reservoirs are low at Lake Shasta or at the Oroville Dam.
When you drive from San Francisco to LA on the five, you see a lot of signage from the agricultural farming community about water. There's apparently some frustration about this. What are the other options for them?
About 80% of all human consumed water goes to agriculture. That is by far the biggest component of water use, as opposed to 20% used for urban and commercial, and industrial purposes.
Over the years, ranchers and farmers, and agricultural water districts assumed that the water would always be there — as we all do.
And the farmers and ranchers have, in hindsight, exacerbated the problem by bringing more and more land into production. You see on those drives between San Francisco and Los Angeles, particularly in the San Joaquin Valley, all these orchards are being planted. Orchards are more lucrative crops than row crops — cotton, alfalfa, and rice. But, if you are growing a row crop, you can leave the land fallow in times of drought.
We don't have to plant. If the water stopped there, or if it's too expensive to get, it may make economic sense, but if you have an orchard or a vineyard it's a high value, those are high value crops, you don't have that operational flexibility and they need to be irrigated in wet years and in dry years. Now, you see these orchards, which were only planted a few years ago, are now being uprooted because the farmers realized that they don't have the water necessary to keep those vineyards and orchards alive. For ranchers, the same thing is true with their herds. They don’t have enough water for their livestock.
The water shortage has never been drier than it is right now. Farmers and ranchers are being deprived of water that they traditionally believed was theirs and they're very understandably, very unhappy about it. They see it as a threat to their livelihood and to the livelihood of the folks who work for them. Their anger and frustration are to be expected, but it's nobody's fault.
To say, as some farmers do, that it is mismanagement by state and federal government officials, I think is overly simplistic and misplaced in the face of a mega-drought. Everybody's going to have to sacrifice. Everybody's going to have to be more efficient in how they use water. All sectors are going to need to be more efficient with the water that does exist.
Looking at this percentage breakdown of water use – is it actually important for individual users to change their water habits?
Well, every little bit helps. When you're talking about homeowners, about 70% of urban water use is for outdoor irrigation. So we're talking parks and cemeteries and golf courses and folks' yards. You know, that used to be considered part of that American dream and the California dream — you would have a big lawn in front of your house and behind your house. Truth be told, that has never made much sense in an arid environment. That's where the water savings in urban areas is critical in the way it really involves aesthetics rather than critical human needs, like water for drinking and bathing and sanitation purposes. There is a growing movement away from big lawns, and away from the type of landscaping that you see in the Eastern US — there is no drought in the Eastern United States. As Hurricane Ida and other recent storms have shown, the problem is too much water, or rather than too little in most of the Eastern United States. So it really is a tale of two countries.
We just need to recognize that the American West is an arid region. It has always been an arid region, we can't make the desert bloom with water that doesn't exist. We need to be more efficient in how we allocate those water supplies. And it seems to me in an urban area, the best way to conserve and most effective way is to reduce urban landscaping, which is the major component of urban water use.
You also write about water markets and making them better – for those who don’t know, what is the water market?
Water markets, that is, the voluntary transfer of water between water users, is more robust in some other Western states. Again Arizona and New Mexico come to mind. California somewhat surprisingly is behind the curve. We are in the dark ages compared to other states. Water markets are kind of anecdotal. There is not much of a statewide system. It is done at the local level, through individual transactions without much oversight and without much transparency. And I have concerns about all of those things.
I believe conceptually watermarks are a way to stretch scarce, finite water resources to make water use more efficient. I can, for example, allow farmers or ranchers to sell water to urban uses or commercial usage or factories in times of drought.
Farmers sometimes can make more money by farming water, than they can by farming crops.
There are efficiencies to be gained here.
The problem in my view is really one of transparency. The water markets are not publicly regulated, and some of the people who are engaging in water transactions like it that way, frankly, they want to operate under the radar.
In my opinion, water markets need to be overseen by a public entity rather than private or nonprofit entities. We need oversight and transparency, so that folks like you and myself can follow the markets to see who's selling water to whom, for what purpose, and make sure that those water transfers serve the public interests and not just the private interests.
There have been a number of stories in the New York Times and the Wall Street Journal and the Salt Lake City Tribune about efforts in some parts to privatize water transfer. Hedge fund managers are buying and selling water, as a means of profiting. And it strikes me that when you're talking about an essential public resource — and in California, it is embedded in the law that public water is an inherently public resource, that water is owned by the public and it can be used for private purposes, but it is an inherently public resource — the idea of commoditizing water through the private, opaque markets is very troublesome to me. I think it represents a very dangerous trend and one that needs to be corrected and avoided.
Why is California so behind?
There's no good reason for it. It's largely inexplicable that since the state was created on September 9th, 1860, we've been fighting over water. In the 19th century, it was miners versus farmers ranchers. In the 20th century, with the growth of urban communities, the evolution of California into one of the most populous states with 40 million Californians, it has been a struggle between urban and agricultural uses of water.
In the second half of the 20th century, there was a recognition that some component of water had to be left in streams to protect ecosystems, landscape, and wildlife, including the threatened and endangered wildlife. That suggestion has made agricultural users in California angry. You will see those signs that allude to the idea that food and farming are more important than environmental values. I don't happen to believe that's true. I believe both are critically important to our society. But the advocates for the environment have a proverbial seat at the water table. So that's another demand for water allocation that exists.
Do you maintain optimism?
Yes. I think it's human nature to look on the bright side. I try to do that through research scholarships and teaching. There are models for how we can do this better in the United States. Israel and Saudi Arabia and Singapore are far more efficient with their water policies and efforts. Australia went through a severe megadrought. They came out of it a few years ago, but they used that opportunity to dramatically reform their water allocation systems. That's an additional model. I think most people would agree in hindsight that their previous system was antiquated, and not able to meet the challenges of climate change and the growing water shortage in some parts of the world.
Here in the United States, we can learn from those efforts. There are also some ways to expand the water supply. Desalination for one. Again, Singapore and Saudi Arabia have led the world in terms of removing the salt content from ocean water and increasing water supply that way. In Carlsbad, California, north of San Diego, we have the biggest desalination plant in the United States right now, and that is currently satisfying a significant component of the San Diego metropolitan areas’ water needs. It's more expensive than other water supplies, but the technology is getting more refined, so the cost of desalinated water is coming down at a time when other water supplies, due to shortages and the workings of the free market are going up.
At some point, they're going to meet or get closer. Unlike some of my environmental colleagues, I think desalination is an important part of the equation.
In a proposal that came up in the recall election, one of the candidates was talking about how we just need to build a canal from the Mississippi River to California to take care of all our problems. That ignores political problems associated with that effort, as well as the massive infrastructure costs that would be required to build and maintain a major aqueduct for 2000 miles from the Mississippi to California. That's just not going to happen. Some of those pie in the sky thoughts of how we expand the water supply, I think, are unrealistic.
interviews
Q&A with Catalina de Onís
by Catalina de Onís
February 8, 2019
Catalina M. de Onís is an Assistant Professor in the Department of Civic Communication and Media at Willamette University. Her research and teaching engage Latina/o/x studies, de/coloniality, race, environmental and energy studies, gender, and fieldwork. She is an affiliated faculty member with the Latin American Studies program and the Sustainability Institute.
How would you define Energy Democracy?
Energy democracy is essential for advancing energy justice, including by foregrounding the experiences, concerns, and needs of community members most impacted by different energy projects. A shift to renewable energy can replicate unjust power relations, so it’s important to be critical of “big green” projects that lack local community involvement and direction. For years, many Puerto Rican energy democracy advocates have been calling for roof-top solar and the need to have companies invest in local energy projects, rather than exporting the money to another place.
Elsewhere, I have defined “energy justice” as:
“Informed by environmental and climate justice, energy justice is concerned with how People of Color and low-income communities are impacted by global climate disruption, energy poverty, energy vulnerability, and decarbonization (i.e. transitioning from high-carbon energy sources, such as petroleum and coal, to low-carbon energies, such as wind and solar). Energy justice also struggles against the exploitation of indigenous lands and communities for high-risk and toxic energy development, from nuclear to fracked gas, and also recognizes the importance of sustainable jobs in the renewable energy sector and achieving energy security and sovereignty in relation to infrastructure, distribution, and access. Thus, this movement and discourse strives for direct community engagement to advance sustainable practices, including considerations of how, where, and for/by whom energy is produced, distributed, consumed, maintained, and disposed of (Sovacool & Dworkin, 2014).”
Is Energy Democracy inherently political?
Yes, energy democracy always involves politics and power struggles over energy sources and infrastructure, how that infrastructure comes to be, who decides, how it is maintained, and what policies advance or impede such projects. The political system in the United States, Puerto Rico, and in other countries throughout the world is entwined with energy industry interests that often have no problem with treating some communities as sacrifice zones to maximize their profits. There are large barriers to full participation in Puerto Rico, as evinced by the Fiscal Control Board’s website and the “public comment” process that requires submitting responses online and in English. As a result, the majority of Puerto Ricans in Puerto Rico are not able to participate in their preferred language. Furthermore, energy conversations among liquefied gas (LNG) industry officials, members of la junta fiscal/the control board, and local politicians are discussing lifting the suffocating 1920 Merchant Marine Act, or the Jones Act, only for the purposes of importing LNG. This exception epitomizes how corporate energy interests and their political allies are willing to waive one aspect of an arbitrary law only to the extent convenient for them, rather than addressing widespread calls from civil society to lift this act entirely to transform Puerto Rico’s dependence on US ships and imports. One of the LNG tankers making the route between Florida and Puerto Rico is “Taino,” named after the Indigenous peoples who faced the brutalities of colonization.
What does the history of energy operations look like in Puerto Rico? What sort of legacies are left?
Puerto Rico’s heavy reliance on imported fuel oil from South America and liquefied gas from Trinidad and Tobago and increasingly from the United States shows how energy sovereignty has been denied. During the height of Operation Bootstrap, in the mid-1900s, Puerto Rico was used as a test site for the petrochemical industry; the energy required was enormous to support this component of US-empire building. Local artist Rafael Trelles illuminates the problem of abandoned industries, job loss, and environmental contamination in his moving 2011 artistic piece: “Monumento al Fracaso” (Monument to Failure). Another artistic intervention against environmental injustice, titled “Contaminado,” emphasizes the problem of coal ash dumping and the impacts on human health in the southern region of Puerto Rico. These artistic efforts have unfolded synergistically with grassroots movements agitating for Puerto Ricans’ self-determination over their own energy futures.
How do you begin to move past them?
First, it’s important to call attention to the toxic legacies that scar Puerto Rico’s landscape and that harm the health of local communities. For example, a 2016 epidemiological study found that various diseases and respiratory problems are disproportionately high in communities that are nearby fossil fuel plants. So, instead of moving past these toxic legacies, it’s important to note that many communities continue to live with this contamination on a daily basis. Given this reality, it’s important to note the urgency of a just transition to grassroots, renewable energy alternatives that both improve human and environmental health conditions and create local jobs to grow struggling local economies.
Can you describe the grassroots led efforts for energy happening in Puerto Rico right now?
Numerous grassroots solar energy projects are unfolding throughout Puerto Rico. The longtime environmental justice group Casa Pueblo has been a large solar advocate and leader. Another effort, which existed pre-Hurricane Maria, is Coqui Solar in southern Puerto Rico, home to the two most polluting power plants in the Big Island, and yet many residents in this area often face power outages and were some of the last to have power restored after the 2017 hurricane season. The project involves already-installed solar panels on the community center and the development of resident-installed solar panels on surrounding homes. Service-learning with Drs. Efrain O’Neill-Carrillo and Marcel Castro and their engineering students has been at the heart of this collaboration. Also with university ties, El Instituto Nacional de Energia y Sostenibilidad Isleña (the National Institute of Island Energy and Sustainability, or INESI) is involved in many projects and has been a champion of energy democracy for years, including hosting “dialogue tables” with various members of civil society.
How have citizens responded to these efforts?
Those who are locally impacted tend to respond with excitement about the possibilities, but it’s important to not suggest that every Puerto Rican supports solar. It’s important to not treat Puerto Ricans as a monolith.
How has this work adapted since Hurricane Maria? Is resilience built into each energy project?
There’s now greater financial and academic support for these grassroots, roof-top solar projects from outside groups. For example, local Puerto Rican scholars and community activists have been supporting visits and collaborations of numerous university groups—from the University of Oregon to MIT. These collaborations can be helpful, if they are committed to a long-term, sustainable relationships and put the interests and needs of local communities first. Otherwise, colonial relational patterns can too easily develop.
What policy is central to this work?
Energy policy must center the realities of impacted communities. Too often in Puerto Rico, there’s the façade of public participation. However, from language to technology barriers, a dramatic transformation must be made before approaches to energy projects in Puerto Rico begin to be about the people instead of maintaining fossil fuel energy interests and their political cronies.
What sort of new policy would benefit your efforts and incentivize more participation?
The efforts of INESI create a vision for energy democracy, based on years of conversations that include diverse energy actors. Ayuda Legal Puerto Rico also is an important legal resource.