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
RISE | Part One
by Max Lubin
May 7, 2019
This interview with Max Lubin, the co-founder of RISE, a student advocacy organization working on free college in California, was conducted and condensed by frank news.
Max: I started working in advocacy organizing a little over 10 years ago when I was still a high school student. Barack Obama started running for president and I showed up at an event for people who were interested in supporting him. This was some point in 2007 and the campaign at that stage was just about recruiting people to come share your stories, share what inspired you about then Senator Obama, and why you want to get involved.
Through that I learned how to organize, how to build a volunteer team, how to get involved in a campaign and I spent the next year or so working to elect Barack Obama as president. I graduated, threw everything in my car, moved down to Florida, I worked in Palm Beach County organizing volunteers and voters, worked on a couple other local and state elections in different parts of the country, and then I moved to New York to help Mayor Bloomberg build what is now Everytown for Gun Safety. I was there for almost a year and then moved back to D.C. to join Obamaworld working in the Education Department.
If you care about women's reproductive rights you can go to Planned Parenthood. If you care about civil rights you can go work at the ACLU. But if you care about college affordability there's not really a home group you could go to. There's amazing research and policy groups, but in terms of grassroots organizing and advocacy, there's not really a home for that work.
frank: How did you choose which states to focus on?
We started in California because California has a progressive tradition. We have democratic super majorities, we have very liberal voters in California, but California legislators have cut billions of dollars from higher education funding. In the late seventies, higher education was about 18% of the state budget. Today it's under 11.5% to 12%.
We were saying that if these so called progressive legislators have been cutting funding for four decades, let's see if we can bring students to advocate in an environment where we can hold people accountable to their values.
In 2018 we supported the student Get Out the Vote efforts in a handful of states; Arizona, Florida, Ohio, Nebraska, and looking at those states we wanted to help elect representatives that would advocate for free college at the state level, the governor's office, state legislature, we did a little bit of federal work but principally focused on states. When we think about expansion we look at an opportunity to really move the needle.
We look at, is there an opportunity where student advocacy can really make a difference? Do we have relationships with student advocacy groups and student organizations in that state, and do we feel like we have the capacity and bandwidth to make a difference there?
What does free college mean? Do you mean tuition? Housing? Food? All of it?
Our policy platform is run on any student being able to attend college – community college, or a four year university, without paying tuition or fees. With enough financial aid to have all their basic needs, like food and housing met, and to graduate on time with enough support to limit, if not eliminate, their student loan debt.
Our avenue to get there is principally through advocacy at the state level, since most higher education budgets are set by the state. It's about on-going sustainable investment so that colleges and universities can offer a great educational experience, that's subsidized by the public instead of by student's tuition.
In the midst of a crowded democratic primary, what do you want candidates to be talking about in terms of free college?
Without going into specific candidates or specific plans because I think more are still forthcoming – not every candidate in this race is on the same page. The Elizabeth Warren plan is a bold and progressive plan that is multiple billions of dollars and has a funding mechanism. Other candidates are saying just free community college, or in some cases, not even.
Even though free college has become a political rally cry, it's really important to look at the fine points of each plan before we make an assessment about whether that's going to be good for students or not.
Most of the work you do is at the State level. How much of this falls to the Federal level?
To act like the Federal Government doesn't have a role or doesn't have a powerful mechanism to make this a reality just isn't the case. Even though most of the funding does come from the state level where states are the principal players in this space.
In terms of priorities you would look at a dramatic expansion of Pell Grants, you'd look at different forms of student loan forgiveness. You'd look at incentive for states to maintain, if not increase their investments in higher education. It's a provision in the K-12 universe we refer to as supplement not supplant. There's a whole variety of things that can happen at the federal level. It's more about the political will to get something done. College students just don't have the kinds of lobbyists and advocates that the other groups do. They're going to state legislators and congress up against groups spending millions, in some cases tens of millions of dollars a year on lobbying and advocacy.
They're more often than not losing out to these other items. What's striking to me about free college in the context of the presidential debates, is its usually couched as a liberal or progressive dream item alongside the Green New Deal and alongside some form of universal healthcare. But the fact of the matter is its far more affordable, it's something that would be relatively easy to do compared to the first two items. That would be about going back to a tradition of free or nearly free higher education that most states have had for quite some time.
California didn't have a tuition system like most of the public colleges and universities until the late seventies or early eighties.
CUNY and SUNY in New York were free for probably 100 years. If you look at the fee schedule for the University of Michigan, it's not until the last few decades that you see this change.
What happened?
What happened is a number of states have followed California in terms of making these big cuts to higher education funding.
When there's a recession or some sort of state budget crisis, unlike roads, health care, or a number of the other big state budget items, you can cut back funding for students and raise tuition on out of state students in particular, to fund the public colleges and universities. We've gone from this most free or nearly free model of higher education, where we treat college like a public good, to something that costs a lot of money. The notion is that a very expensive tuition system will redirect that funding to low income students so that they can participate. So that's egalitarian.
But in practice, two things happen. One, the sticker price of college, which is the price you would pay before any financial aid, discourages students of color and students from low income backgrounds from pursuing college at all. The second thing that happens is because financial aid is typically a patchwork of private and public funding, local, state and federal funding, that if something doesn't happen, if one of those pieces doesn't come together for some reason – because a financial aid officer's overwhelmed, because there's a glitch in FAFSA, because the timing is just late – then that student doesn't get the financial aid and then they're taking out student loan debt to compensate.
In California, the average student loan debt for our graduates is around $23,000, which doesn't seem like a lot to someone who is maybe in their forties earning six figures. They think, "Okay, you'll pay that off in no time." But for a family who's coming from nothing, who's trying to make every dollar work for their family, $23,000 is enough to say, why should I go to college just to be in debt afterwards?
It's really hard to change the culture around college going, and the mindset around college going as an investment. If for the best case scenario, graduating from a four year university, you're going to be left with this amount of debt on average.
Right, let alone grad school...
Let alone any of those other. A lot of this debate around, well free tuition isn't the best investment of our money, we should make these more targeted investments in subgroups or other things. We say that ultimately we have to not put students in a position where they need to choose between free college and the financial aid they need to graduate. We need to do both things. We need to reduce tuition and fees at our colleges and universities. We need to make more aid available, and we need to walk and chew gum, instead of as advocates saying, "We have to pick these small pieces", because clearly that approach from an advocacy perspective has not been working.
Is it really as simple as when money issues hit a state, education is the first thing to go? Or is it more intentional than that?
It's both. I think there are a lot of legislators who in those tough moments, really wrestled with the morals and ethics of cutting funding for colleges and universities, and a number of other things that have to get cut during a recession or a budget crisis.
I don't want to say all legislators are bad, grumpy people. What you saw in California and then a number of other states in the late 70's and early 80's, was this movement driven by then President Nixon, Governor Reagan and then President Reagan, that was largely a state level anti-tax revolt. So California had Prop 13, is the number of other tax initiatives, grant and tax initiatives in other states that basically capped the state's ability to raise revenue around certain items in particular.
In California, property taxes and commercial real estate taxes are capped at a certain percentage, which means that people are paying today, several decades later, a lot less than they would in state funding that would go to schools, universities, et cetera. You have a combination of this more politically motivated effort because they saw this sort of free college system as a political threat. And the realities of state budget making in a constrained environment, combined with broader social forces that we have.
Part of the issue we're experiencing right now is not just that we have defunded colleges and universities and financial aid, it's that living in cities is exorbitantly expensive.
Very complex.
It is. It's a very wonky topic.
So many of our perceptions around college and college affordability are driven by this individualistic mindset. By this idea of a college degree is something I need to get a better job later on. Therefore I'm going to think about the cost and do whatever I need to do to afford it. That's how we justify students working three jobs. That's how justify $50,000 in student loan debt. Part of what the scholarship on this looks at is this idea from the past around looking at higher education as a public good, as an investment, as part of our social fabric. We don't do that anymore.
That's not very American dream.
Right, right. People talk about college dropouts. Is there a crisis of college dropouts in the country? About 40% of students aren't completing college. It might be closer to half in some states. In community colleges it's even higher. But people talk about college dropouts and they think Bill Gates. They think Steve Jobs. The reality for most college dropouts, is they get stuck with loans that they can't pay off because they can't get a good job, not that they invent Apple. But because we have this individualistic mindset about education, it's a real anchor for our ability to move this field forward.
How do you change it?
We're trying.
How do I try?
I would say in the public university system we have to stop looking at how to make elite public universities more. We can't define elite as being the most expensive tuition, the most amenities, the most students from out of state.
I would say principally, I don't think that the obligation is on us as lay people. To think about this issue and make talking about public education as a collective good part of our daily practice – I don't think that's in and of itself going to solve the problem.We need to see is a much bigger advocacy infrastructure where students being the leaders of higher education advocacy groups in multiple states is the norm.
That's a real spirit of grassroots organizing that's missing from higher education. We have to build stronger relationships between students and administrators who are university leaders. In the past that's been an acrimonious relationship because trustees or regions will raise tuition. Students will protest the trustees or regents for doing that instead of them working together at the state level to get more money and avert a a tuition hike, which is what we did in California last year.
Part of that is about seeing the intrinsic value in students as leaders.
Are you optimistic about your work?
I am. It's hard to feel hopeful these days about anything that has to do with our political system or public policy but there's a couple things that make me feel hopeful. One is when you start an advocacy organization you don't expect to win. You expect to lose. A lot. That's principally what happens in advocacy. You fight for the priorities you care about and you come up short. The next year you try again and you just make progress one day at a time.
For me, coming from a situation where we've already had a number of advocacy wins under our belt in less than two years as an organization, shows me, not that I'm an incredible leader or RISE is an incredible organization, it shows me that when we really accomplish our mission, which is putting students front and center in policy conversations, that we really change those conversations in a clear way.
The second thing, and the thing that really keeps me going in this work, is just the students themselves. They are by far the best advocates and organizers I've ever worked with including lots of professional campaigners with fancy degrees. They are overcoming extraordinary things.