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
Becoming Prosumers Of Energy
by Ruth Santiago
February 16, 2019
This interview with Ruth Santiago, a lawyer who works with community and environmental groups in southeastern Puerto Rico, was conducted and condensed by frank news.
How do you think of energy democracy?
Energy democracy stems from the effects of energy coloniality and how certain jurisdictions have been used for extractive and exploitative practices and have become sacrifice zones for operations that create great wealth for other people over time.
How did you get involved in this work?
I got involved because of proximity. We have this saying in one of the groups I work with that says, "The environment unites us and identifies us." Not just the subtropical dry forest, and mangrove forest, and salt flats, and offshore cays, but also things that impact that environment – they also unite us and define us.
I was raised to a certain extent in Salinas. I spent my formative, adolescent years here. I was born in the South Bronx, my parents were part of the return migration to Southeastern Puerto Rico. They were from a municipality that's a little bit further east of Salinas, but very similar in many ways in terms of being part of the sugarcane monoculture, a high concentration of Afro descendent people, and real situations of struggle and survival. They decided to return to Puerto Rico when I was 12. I was raised along this Southeastern coast on and off from that time. One of my memories of growing up here as an adolescent was the Aguirre Power Complex being built in the early 70s. It was something that came to us. We did not come to the nuisances. Nuisance was built where we are.
The government of Puerto Rico tried Operation Bootstrap. Rapid industrialization and a very intense industrialization program that affected Guayama with industry coming in. First, light manufacturing and then the petrochemical industry. Then, pharmaceuticals, which are still very present. These energy plants were meant to serve more than the communities. These big, central station, fossil fuel plants were meant to provide energy to those heavy industrial uses that consumed and required a lot of energy.
What we saw in two places in Southern Puerto Rico, one here in Salinas and the other over in Guayanilla in Southwestern Puerto Rico, was how the power plants were set up very close to the petrochemical industries. We had the Phillips Puerto Rico Core Petro Refinery. Aguirre Power Complex was basically in service to that and other heavy industrial users. People were told they would get jobs. They said, "Oh, we're going to generate upwards of 2,000 jobs." People were a little skeptical and concerned about how that would impact the possibility of safe fishing at least. They were told it would not be impacted. Ultimately, what happened was Phillips did not generate anything close to 2,000 jobs and folded after a few decades, but did leave a terrible legacy of contamination to air, water, and land. People lost a lot of their ability to do the subsistence fishing even.
Aguirre Power Complex came in stages. They had two power plants in one. In 1972, they set up what was known as the Thermoelectric Plant. Again, people were told they’d get jobs from this. Again, the plant does not hire many local residents. It’s estimated there was 20-25% local hires, and the rest came from all over, anywhere but Salinas and Guayama. The same thing with the Combined Cycle units, because as I said, it's two plants in one.
At the dawn of the 20th century Puerto Rico got its first coal-burning power plant and the only coal-burning power plant that was established by AES. They're a Delaware corporation with their headquarters in Arlington, Virginia, but they do business all over the world. In November 2002, they started a brand-new, so called clean-coal power plant. It's been disastrous. Again, people were told, this is going to be beneficial in terms of stimulating the local economy and bringing down the electric rates. None of that happened. What has happened is that people are getting more and more exposed to pollutants and heavy metals and public health is being impacted.
Your work seems two-fold. One is dedicated to producing energy that is actually clean and that will not leave a legacy of toxicity. The other is in trying to invert the power structure of how that energy is produced and sold. Correct?
Absolutely. Absolutely.
Can you talk about your work in both areas and how they come together?
We have done a lot of resistance work, and a lot of work to promote community alternatives on energy and sustainability issues. There's a long history of activism here. I became more active in energy issues around 2003. We started participating in the monitoring of the Aguirre Power Complex and how it impacts public health, air quality, and water. Both the sea water and the potable water. The only source of potable water here is the South Coast Aquifer. That was monitoring.
We started participating in different administrative proceedings with a group called Comite Dialogo Ambiental, the Environmental Dialogue Committee. Then we participated in proceedings against PREPA, the Puerto Rico Electric Power Authority, but also the AES Corporation.
I've done both administrative proceedings and litigation in courts related to different impacts from those plants, and most recently a company called Excelerate Energy out of Texas was proposing to build what they call an offshore gas port and a marine natural gas pipeline, that we just defeated. It would have been running right through the middle of Jobos Bay National Estuarine Research Reserve and impacted corals and seagrass beds and offshore cays and all kinds of things, and the ability of people to do subsistence fishing and ecotourism and otherwise just use and be in the environment.
We've done a huge amount of work with respect to the coal combustion residuals or coal ash waste related to the AES Power Plant. The coal ash waste is a concentration of heavy metals, toxic heavy metals that were being spread all over, and is now being accumulated at the AES Power Plant site in Guayama, Puerto Rico.
That summarizes the energy resistance work that we've done. In terms of going beyond resistance and seeking to build the solutions and the alternatives, we've done a lot of environmental education, both with Comite Dialogo Ambiental Inc. and another group, an umbrella organization called, Eco Development Initiative.
Prior to the hurricane in conjunction with IDEBAJO and a community board called Junta Comunitaria del Poblado Coqui, in Salinas, we helped start what is known as the Coqui Solar project. It's a community solar initiative. It was started with lots of workshops and consultation and collaboration with professors, like Efrain O’Neill from the University of Puerto Rico at Mayagüez, which is the technical campus here.
It was, for years, before the hurricane, quite a struggle to get people to understand, to want to move towards solar energy, especially rooftop solar communities. It was going very slow. We were certainly doing the education work and the policy work, but not getting very far on the ground in terms of actual implementation of the first steps, the pilot project for the solar community. But right after the hurricane when it became clear to, I think, everyone in Puerto Rico and probably anyone familiar with Puerto Rico that the current electric grid does not work for the people of Puerto Rico. People have been much more receptive to the Coqui Solar project and initiatives of solar communities and other alternatives to central station, fossil fuel generation.
Can you tell me how a solar community works?
That's something that's being developed right now. The way people in Coqui Solar envision it is people who have the appropriate rooftops, usually cement, which is not the case for everyone, are able to come together to think about and work on generating energy using PV systems on their rooftops. It's certainly much more than just everyone in the community having PV equipment. This is beyond just a technological solution. It's about the social agreements necessary to make that energy and that technology serve community needs in the most efficient way.
Are you seeing a lot of progress in new ways of approaching energy? From the community, but also from a municipal government level?
That's really hard to answer. Certainly with the mind set and attitudes. There's much more receptiveness to the things that we've been talking about for years about solar communities. That has definitely changed and there's a lot more interest and it's a very dynamic situation with respect to energy. After the hurricane, honestly, people realized we're basically on our own here and the government, local, federal, municipal, comes to help us. We have to figure out these solutions.
We're seeing a lot more on the formal scale. A group called ACONER, the Association of Renewable Energy Consultants and Contractors, say they're doing five to six times the number of installations they were prior to the hurricane.
Things have definitely changed. We don't know exactly how much.
There is what can be called, lip service. A lot of lip service about renewable energy which is dangerous, especially with the government of Puerto Rico. They're saying they're adopting the 100% renewable energy goal for 2050, and I think 50% by 2040, but their actions are promoting lots of natural and fracked gas. It's a tricky situation in that sense because you hear everyone saying we adopt renewable energy, but not only are they putting the money elsewhere, they're also talking about a kind of renewable energy that's not community-based,.
What we're seeing is that the government is being pushed by every energy company you can imagine. It seems everyone has an interest in doing some kind of project here, including at utility scale. That it is not the same as the kind of alternatives we're talking about in terms of solar communities.
Why is this an urgent issue for you right now?
We saw here in Puerto Rico, that it's a matter of life or death. People need to take this into their own hands, energy by and for the people. Become more than just passive consumers but actual producers of energy and control their means of production.
We knew before the hurricanes, and we experienced it afterwards. This huge and deadly hurricane was compounded by this terrible electric infrastructure system. It's not serving the people of Puerto Rico in a real way. Maybe that was the best we could do at some point, but that's no longer the situation here and we an opportunity to do things differently. To do better. Much better.