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
There Is No Particular Entity In Charge
by Michael Casey
April 30, 2019
The interview below was originally published February 20, 2019 in our Energy Democracy Issue.
This interview with Michael Casey was conducted and condensed by frank news.
Michael Casey is a writer and researcher in the fields of economics, finance, and digital-currency technology. He is a Senior Lecturer at the MIT Sloan School of Management and Senior Advisor for the Digital Currency Initiative at MIT's Media Lab, where he explores blockchain applications that advance financial inclusion, economic development, and resource efficiency.
We look to define terms as we enter new themes, incorporating blockchain and what it represents within energy democracy would be especially helpful.
To start, how do you define energy democracy?
There's a spectrum of things that would encompass it. The one we've been most focused on, in terms of how it impacts blockchain, is the idea of the ability of the user, and therefore the pro-sumer [the person who is consuming and producing power], to have the right to sell and buy at a market determined price. As it is now, utility is in the middle, purchasing power at a rate they predetermine. There's no capacity to sell to an alternative, other than a single provider.
A world in which I can enter into agreements that have my power purchased at a particular rate, whether that is literally delivering the electrons, or is a contract in which my provision to the grid is compensated at a rate that is determined by the demand for that particular quality of power, is something we're really focused on.
Which is the way the current structure is. You build onto that notions of broader democracy. The right to go off-grid, the right to establish your own systems for setting smart meters, for determining what devices are used and when. There's something of a spectrum in the concept, but the starting point we care about most is price, at least that I do.
What about ownership?
That would fall into it for sure. Yes, we definitely would put that into that same spectrum. The idea that the assets can be owned by an individual. There’s varying degrees to this. One is ownership and the other one is finance. The ability for me to finance the acquisition with whomever I can tap, rather than the electricity infrastructure I depend upon, being itself dependent upon the financing vehicles of utility. That I, or my community, can tap external sources to fund what is essentially our contribution to the broader infrastructure. You can get broader and broader with it, but the right to own and control those assets would be part of it. The right to determine how and who finances it is another part.
Where does blockchain come in?
I'll speak to it from the projects I've been specifically involved in. One is a microgrid we are experimenting with in Puerto Rico. I look at it in two ways. First is this concept of finance. I can tap my home or community and establish a microgrid. How might we have that financed by some sort of external direct investor, a social impact investor or investment fund? The blockchain creates the capacity to form what are known as smart contracts.
Are you aware of that term?
No.
Blockchain is a distributed ledger. It, in a decentralized manner, without any particular entity in charge, records the sequence of transactions and then, through a consensus mechanism, every node, every computer, within that network, each maintain their own version of the ledger, and update that ledger through this consensus process.
If you think about how we might move to a world where my transactions, my sale of power, my provision of power, and the funds I receive for those, are not being dictated by centralized utility – then the idea that we’re now no longer going to have one entity in charge of those transactions, and who gets to set those prices and who doesn't, starts to move us into this direction of decentralization.
We might, as a community, decide we're going to nominate some party to be in charge of the ledger, but again you're now trusting that entity to do so. Maybe the community appoints one household to run the ledger, and they're billing everybody, they're acting essentially as a local utility. You really haven't changed the model that much, you've just made it smaller, but it's okay. That could be a more efficient way to do things. Once you bring an outside investor in who says, "I want to make sure my collateral, some claim on that power, and the income that's generated, is being managed in a way that I can trust. I'm external to the community. Who am I going to trust to do that?"
A distributed ledger that nobody can change, gives me the capacity, potentially – I always use the word potentially, because all of this stuff is completely and utterly, in experimental phase right now – it gives us the potential to have my transactions verified without me having to trust the community member that is in charge.
You can imagine a situation where there's an investor in the United States, let's say in Seattle, who has put a five-year bond into the financing of a local community's grid in Africa. He's going to want to have some assurances that asset is being managed in a way that is in the interest to what they paid for. This is one principle idea to think about. Decentralization gives us the capacity, not just for those inside the community, but also outside, to have a relationship like this.
A smart contract is the idea that in addition to managing transactions, in the plain vanilla notion of what that is, payments of money, the actions that are taken by software to instruct devices to do things, or manage a set of contracts, can be executed without any one computer being in charge.
A smart contract is a bit of a misnomer. It implies that the contract is what's going on. The contract is an agreement between you and I. A smart contract says that you and I enter into an agreement and neither you nor I have any power over the computers executing the terms and obligations of that contract, to manipulate it.
How does this work in terms of smart property? I've got collateral, even though I'm living in Seattle and the microgrid I’m financing is in Nairobi. If payments are not met, it's a form of foreclosure or default protection. I funded this thing at a low interest rate because I'm protected. If the payments are not being made, at a certain point the system recognizes this because those payments are digital, they have programmable money qualities, and they stop. A device – a smart meter, one of the devices within the system, can divert that power back to the grid for example, so that the user is no longer using it. You can create a pay-per-use type of structure.
We thought long and hard about this from a social impact, developing world scenario. Could you build tiers into it so that certain devices always stay on because they have to? The hospital needs to have its power. Various things need to stay on, but you could then have some sort of structure in which the least necessary, or least important devices, can be turned off. And that power is diverted back to the grid until the loan is renewed and payments are revived.
You're creating a certain amount of de facto property rights that is the structure of so many other forms of lending. That's the way we think we can drive down the cost of lending. Rather than having to depend upon very centralized public finance models, in which infrastructure is built with access to Wall Street's funding, we now have the capacity, potentially, because I don't need to trust anybody in terms of the execution.
In that structure we can potentially bypass all of that, and have pools of social impact investors have direct stakes in, and help to fund the development of these smaller off-grid or on-grid types of microgrids. That's what we're working on in Puerto Rico right now. That access to finance. How do we create a sufficient level of protection? There's always the capacity that somebody could monkey with the smart meter. There's various things that could go wrong, but any investment has these factors.
The other part of it is, if you have a true transactive grid, it's not just a two way transaction with me and utility. I'm actually trading with my neighbors and setting up transactions and relationships. Then potentially the blockchain could be there as a way to tokenize the rights of that electricity. The transaction is between each of the participants in that network which itself would also be managed in a decentralized way. There's no utility. There's no large national or state level utility, nor is there even a local community utility. The utility in a sense, is the blockchain. There has to be built into it some sort of price mechanism. People are only going to enter into deals if you can potentially program devices, inverters and like, to accept or divert power over their prices, and meet whatever parameters you've set.
All that functionality, do I transact, do I not? Has the transaction been recorded? So there's no way I could do a deal with one person and actually divert the power somewhere else, and essentially double dip on the thing. All of that needs to be managed to keep the system in balance. That is where we see the second layer of a decentralized blockchain to come.
I feel at this stage, after a long time looking at all this, unconvinced that transactive systems like this are necessarily going to work. I do believe that in some shape or form, if you're going to reach this true energy democracy idea, something like this is where we need to go. But we're not there now. I think that's partly because we have these big, sensitive, national grid structures and it's not clear that the power loads and various sensitivities that go with how you keep the grid alive, and not kill people, can be managed entirely by this sort of structure.
This is just my thinking at the moment. It's not as if the broad principle of a more decentralized way to manage transactions between users and the grid isn't something we should be striving for. I am a believer in the finance part of it. Transactive systems, certainly in on-grid environments, are going to have to be capable of interacting with the demands of large service operators needs.
What about working on microgrids, or moving off the grid? Do you think that creates a better opportunity at moving towards decentralization?
Harvey [Micahel] is actually more of a visionary when it comes to the broader idea of energy democracy. A lot of his thinking has helped me on this sort of stuff.
There's certainly potential in off-grid settings.
Can we have a hybrid? Where you have an off-grid community based microgrid? It's not plugged into the national grid, except at such times when it needs it. So the national grid becomes the back up. That would be ideal. There's a huge political move. You'd need to get these utilities to really step back into a different role. While the grid is functioning in it's off-grid strategy, that is the microgrid, if you wanted to manage transactions within that community in a decentralized way, the blockchain could step in and be that management protocol for that system.
It seems like the private sector and academic institutions are the ones leading this thinking. Do you think the public and the political follow private sector investments?
That's a really good question. I think there are two barriers at arriving at this broad image of energy democracy. The first is that incumbents have a lot of power. Public utilities are heavily regulated. We find this in banking as well.
The regulators are told they must regulate the grid in such and such a way, and that is defined by default, under this current centralized paradigm. You have a lot of inertia from regulators who don't want to disrupt the model because you'd obviously have to design completely different regulations for a world in which these decentralized microgrids are built along the lines I just described. That's one barrier.
Then of course, the utilities themselves have their own political clout. If we want to depend upon their infrastructure, all that expensive capital that’s been invested into it, so that their wires are the ones we use to transact amongst each other, how are we going to compensate those utilities? There's an interesting question about how we might do so. It could be that they cease to be the providers of the power, or at least the sole providers of the power, and instead are just service managers and they take a service fee. One way to think about it might be to think about how the US telecoms industry was deregulated in the middle of the '90's. The baby bells were broken up and the like, there was a mandate that the pipes had to be provided to all comers, there would be a fee that would be paid, but there was no way you could prevent, as the owner of those cables, other providers from providing services along that infrastructure. That's one model that might be interesting when you think about it. But those guys, nonetheless, because the way their current profit models are built, and because of their political clout, are a barrier.
It’s probably at this stage, too marginal. There's not a big enough change in my savings or my profits as a pro-sumer, to really exist. It just hasn't got that "gee whiz", great motivator behind it. I think that's essentially the problem with lots of business models. It's just too incremental. How do you make this big shift if there are a lot of inconveniences involved? On the other hand, I think there is something wrong with that to some extent. We're not thinking hard about how, if we do decentralize, there's all these other business models and ideas that can be built on top of a more decentralized energy democracy system. Rather than thinking about the savings or profits, that I as a household pro-sumer may or may not make on my existing usage and sale of electricity, how do we incentivize bill systems? We now have all this information generated around price levels and the use of IOT devices, and we get more and more sophisticated, down to the device level – there is a way to actually build all these other services in the community. You treat the excess electricity that's produced as a way to then produce batteries. There's a way to fuel electric vehicles that run bus routes around the system, and those buses end up being almost like a back up battery component to the system. You end up running a much, much cheaper traffic system because there's a dual purpose here. You're the backup, you're the recipient of the excess power, and you're providing a service.
How does that get baked into a model that makes the provision of those services cheaper and regulated through this decentralized price signaling mechanism that is a combination of IOT and blockchain, that renewable decentralized energy systems could provide? I don't know what that looks like, but I can envision some very smart, econometric design systems that bring in smart IOT devices that turn on here, turn off there, and create a really rich pool of data around optimizing power, and where and when. There's a whole lot of benefits that could be derived, in a future model that we're not yet visiting, beyond the pros and cons of using it under our current structure.
The problem is people just can't think beyond their monthly power bill. To do that, you need communities to be really forward thinking and experimental in what they could build in the future.
Utility is massive and ubiquitous, but still weirdly opaque, which leaves most people confused. I never think about my utilities bill. Where does trust come into play? Especially with blockchain. Does the public have a distrust in blockchain?
If designed appropriately, and if we reach the point where software and the models and protocalls that are being developed and constantly refined and proved, are trusted to the extent they should be, then they're actually a trust replacement system. That's exactly what they're supposed to be.
When I was talking about how a social impact investor in Seattle can feel confident that their interests are being protected in a smart property financing structure with a microgrid somewhere else, the question of trust is key. I can't trust the local village chief to act in my interest. We just cannot. We have all these barriers to trust around our economy built on those things. Just as there's no reason why the villagers should trust that if I had control over the devices, I wouldn't manipulate and divert the power to my own interests.
It is precisely the problem of trust you're trying to resolve through a blockchain solution. But you asked the right question because we're not yet there in terms of the public perception of blockchain. I personally feel there's a host of misplaced narratives and a deep level of misunderstanding. Some of which is promoted by vested interests who don't understand what's going on.
There's also a lot of really shady, funky people working in this space that have done some bad things. And they've been able to do bad things because the technology itself isn't advanced enough to be able to give the right level of protection. The good news is there is a lot of work being done on security and improving the system so that we're going to reach this level where a) the confidence that people can have that they won't loose their phones is higher and b) they can do so in a way that they don't actually have to trust a custodian. Because right now in a blockchain, bitcoin type solution, the broader ecosystem around it is still being serviced by entities who have control over your money. It's a bit of a hybrid that's not necessarily reliable.
Systems that have a more decentralized, but also highly reliable security model are coming, and that is going to hopefully bring people around to start placing better confidence and trust in the system itself.
If you just look at the way Puerto Rico’s public utility was run, and the abuse, it's hard to say I should trust that. Wait until you see PREPA and what's happened there. There's no trust in the system. One of the reasons why I think Puerto Rico looks like a really good opportunity for us to explore this is because there's such a breakdown of trust in the publicly run system. They're looking for alternatives and we're able to dive in and explore ways we can make it fairer for everybody.