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
In Conversation with INESI
by INESI
February 22, 2019
This interview with Dr. Marla Perez-Lugo and Dr. Cecilio Ortiz Garcia, was conducted and condensed by frank news. Both are faculty at INESI. INESI is the National Institute of Energy and Island Sustainability. It is a multidisciplinary and multi-campus institute of the University of Puerto Rico (INESI) that seeks to insert the university community more effectively into the public energy policy of the country and in the resolution of energy and sustainability problems using as a basis for empirical research and academic knowledge.
Let’s talk about the work you’re doing at INESI.
Dr. Pérez: INESI is the National Institute for Energy and Island Sustainability. It was created in 2014 when we realized that the university was being excluded from the process of developing a new energy policy for Puerto Rico. It was very interesting to us because we have one of the biggest programs in electrical engineering in the nation, and we have expertise in many areas that could contribute to the understanding of what energy issues in Puerto Rico are all about.
We understand them as social technical issues, in the sense that yes, they have a technical component that involves technological development and the physical infrastructure, but also energy issues have a cultural component, and a political component.
We started INESI in trying to insert the University of Puerto Rico into that conversation. We have about 90 affiliates across the 11 campuses of the UPR system. Those affiliates represent more than 23 academic disciplines including psychology, law, electrical engineering, sociology, philosophy, art, natural sciences, and economists. One of our concerns was that most of the resources being included in the conversation were all concentrated in the metropolitan area of San Juan. For us, that was a metaphor for the concentration and the density of decision making in energy policy in general.
What we tried to do was de-concentrate the knowledge being used in decision making by including resources from the other campuses of the UPR system. Since then, we have a standard set approach, to not only the UPR, but also members and sectors of society that are being excluded from those processes. Community based organizations, grass roots movements.
We created the energy stakeholder forum. That includes about 30 organizations across the islands, that at the beginning of this maybe didn't perceive themselves as energy stakeholders. But Maria had a very important function in showing how energy is embedded in all aspects of life.
Dr. Garcia: I want to emphasize that number one, INESI as an institute, is a platform that seeks to interconnect all of the resources Dr. Pérez was mentioning across the 11 campuses of the UPR. It is also a knowledge organization. Before the institute, the way the university was organized, actually created an unequal space for the utilization of resources or knowledge in academia, to impact energy issues in Puerto Rico. By highlighting only the work associated with the technological aspects of energy, like electrical engineering, physics, and maybe economics or law, those become the only areas that can contribute to the transformation of energy issues in Puerto Rico. INESI makes a contribution in terms of energy democracy in Puerto Rico by reframing energy issues in terms of them being not only technical, but like the professor said, socio-technical. We are re-organizing knowledge.
We foster knowledge from outside academia to be mixed with scientific knowledge in order to gain an interdisciplinary view of energy.
Part of the reason this group exists is because you felt left out of the conversation by the government. Has there been a response from the government to your work?
Dr. Pérez: [laughter].
Has that relationship changed?
Dr. Garcia: That's an excellent question.
Dr. Pérez: After Maria, it has gotten worse. When Maria struck, and the electric system collapsed, it would make sense that we were the ones who had a lot to contribute to the rebuilding process, because we knew the system very well.
Dr. Garcia: That was a faulty logic.
Dr. Pérez: Yes, faulty logic. We approached our president, we approached our governor, we approached FEMA, we approached everybody. Systematically the resources in the UPR has been left out from the rebuilding process. What we’ve come to find out is that actors from the outside have been hired. They have been contributing more to the rebuilding process than the people who know the system best, and the people who are going to live with the consequences of that process. We have met universities from the States that have been contracted by our governor's office to do work for hundreds of thousands of dollars that have already been done by UPR resources.
As my colleague here says, it's a manufactured ignorance phenomenon, in which for many reasons, the local government is manufacturing ignorance in terms of the resources and knowledge Puerto Rico has, when talking to outside actors.
Why do you think that is?
Dr. Garcia: It's not that linear. It requires switching frameworks when you talk about governmental resources, or even institutional resources to extreme operating environments after Hurricane Maria in Puerto Rico. It's rather difficult to draw a direct line between the intentional misrepresentation of resources that one has, or does not have, for a particular resource. You are talking about different levels of decision making converging in a particular way, that make it expedient, for certain actors on the ground like the government of Puerto Rico, to behave in a certain way. One of the behaviors we are alleging is happening, is a behavior of not being transparent, with the type of resources you might have available for you to get out of this hole.
When I say, "this hole," you have to look at Maria in the context of Puerto Rico when Maria hit. Puerto Rico was already under certain legislation, and under the fiscal control board series of attacks on our society, and on behalf of US bond holders that are looking to get repaid for their investment. You have a multiplicity of actors, that virtually established a regime where it becomes logical for the Puerto Rican government to act how it acts.
Dr. Pérez:
Our constitution recognizes higher education as a societal investment. That has been an ideological fight between the constitution and the more conservative, or pro-statehood administrations. When the fiscal control board came to power, the first thing they did was to claim power over the UPR, and claim that there was too much money going into the UPR system. So the budget for the UPR has been severely cut. In fact we have experienced a budget cut of more than 50%, and some of the campuses are singled out for closing in the incoming years.
The budget cuts are increasing, and increasing, and increasing, and the tuition cost for the students are increasing as well, but not enough to cover all the UPR expenses. When you have 95% of the research being conducted in Puerto Rico, conducted in the UPR system, you are killing research, and you are killing the resources that have the knowledge to actually contribute to the betterment of Puerto Rican society.
Dr. Garcia: That's an excellent point. Hurricane Maria brought the administration to a fork in the road. "How am I going to use my research? Well I have to manufacture reality, for outsiders in order for me to be aligned with what I've been using as my policy towards the university." It’s a policy of killing. It's a policy of closing. It's a policy of minimizing.
Dr. Pérez: Exactly.
Dr. Garcia: I cannot be highlighting those same resources out in the open, because I left myself open for questions about, "Well wait a second, aren't you killing the University of Puerto Rico?" It gets really complicated. It's in a complex policy environment. And all Maria did was serve as a catalyst for all of these different pathways, the visions of Puerto Rico's reality, to come up to the surface.
What is your mission moving forward?
Dr. Pérez: We connected with municipal governments. Instead of going to the state government, we connected with municipal governments, mostly in the mountain regions that were communities that were basically identified as low reconnection priority. After the collapse of the electrical system, it was said by authorities that communities in the mountains were less likely to be reconnected because it was not cost effective. So we drew our attention to that region. While working with mountain communities, we started assembling an electric oasis, a solar oasis. So people in the town square could recharge small electronics, and store medication in small fridges.
We realized there were more than 20 universities from the States coming to Puerto Rico to do several things. To do humanitarian work. Using the disaster as the classroom in a study abroad course, or doing quick response research, rapid grants, from foundations and other funding sources. We realized that those initiatives, although very well intentioned, were disorganized. They lacked coordination. And because there was nobody looking at the big picture, most of the universities were concentrating their efforts in less than 10 municipalities. We have 78 of them. That is a problem for several reasons. From the humanitarian standpoint, if you saturate some areas with aid, but then neglect other areas, that means not everybody is able to receive the aid you’re bringing from the outside. From the scientific perspective, if you base your science in very few, and selected case studies, your science will be faulty.
We started contacting all these universities, and realized that there were teams from the same universities on the ground that didn't know about each other. We started connecting them. We started organizing virtual workshops to give them the context, and to give them the most updated information about the state of the electrical system, because we mainly focused on electricity and sustainability. After that we focused on allowing them to talk to each other, so they could start collaborating instead of competing for spaces, money, etc. Then we invited them all to Puerto Rico for a three day workshop last June to reflect on their experiences, and identify what was wrong and what was right. What can we learn and extrapolate for future occurrences? In the climate change era, these things are going to occur more often now, and in more severe ways.
What do you think the future looks like?
Dr. Garcia: Unfortunately there's many steps, and they are all going to have to be taken at the same time. There is no recipe book for doing this. But the main thing that stands out, with regards to Puerto Rico being an example for both disaster environments and interventions by federal agencies, by universities, by multiple units of government, is that we have a long way to go in learning how to organize ourselves to do better.
We have to build relations in places we know are prone to these events, so that we do not fall prey to the manufactured ignorance we've been talking to you about.
More directly for universities, even though were are not set up to be first responders, our experience with Maria has shown us that we are. We end up being first responders. We have a responsibility to look at ourselves, to get together and at least discuss what our role is as universities, in post disaster situations. This goes from how we organize our resources, to how we organize our scientific and non-scientific knowledge, and how we provide spaces of collaboration between different discipline.
Is the goal of your stakeholders forum to raise awareness but also to raise a sense of responsibility in this mission?
Dr. Garcia: Absolutely. If I was going to rank them, the stakeholder forum has been our most effective tool in fighting manufactured ignorance. Not only has it served as a sounding board, and a bulletin board for many, many, many groups who have not historically haven't been included in energy decision making, it has also allowed for an honest dialogue and an open dialogue to exist between university resources and civil society. That is very, very powerful. Especially as we aspire to higher levels of energy democracy in Puerto Rico.
We hope the stakeholder forum internally in Puerto Rico keeps on making big strides towards energy democracy in the islands. And we want to experience that with the RISE platform that can bring a better understanding of what energy democracy involves, not only inside the island, but with other localities around the globe.
To reinforce the point – global warming and climate change are global phenomenons. The relationship between human beings and those phenomenons are local. And as local phenomena, we cannot change that, or expect that one recipe is going to fix every local experience. So it's up to us, universities around the world, to embrace this fact, and to develop new relationships between ourselves and our own communities, and share those experiences between other universities and other communities. That exchange, not only of data, and of science, but also of human relationships, and communication, is the only way that we can develop true local resolutions to what are becoming very, very, wicked problems around us. And if INESI can help in attaining that, then we have been successful.