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 Morley Winograd and Jack MacKenzie
by Morley Winograd & Jack MacKenzie
May 28, 2019
This interview with Morley Winograd and Jack MacKenzie was conducted and condensed by frank news.
Morley Winograd is an author, speaker, Senior Fellow at the University of Southern California, and former Senior Policy Advisor to Vice President Al Gore. He is currently the president and CEO of the Campaign for Free College Tuition.
Jack MacKenzie is Executive Vice President and Market Lead for PSB’s Media & Entertainment Group, based in Los Angeles. MacKenzie is the 2015 recipient of the Market Research Association’s Impact Award for research innovation.
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Morley Winograd: I'm the president and CEO of the Campaign for Free College Tuition. I've been working the issue for about six years, trying to do something about economic mobility for the millennial generation – who I've written three books about.
Jack MacKenzie: I've read all of Morley's books and am on the strategic advisory council for Campaign for Free College. I offer up polling on the issue.
Morley, given your political background, why did free college become your focus?
MW: I've had a long career in business and politics, and my interest in public policy and American democracy's been a lifelong concern. When I turned 70, I retired from the academic world. A friend visited who I've known since high school – we were talking about what to do in our 70's. His argument was that we needed to return to the original motivation for our life's work and figure out what we could do in our 70's that we weren't able to do in our previous age.
Our lifelong issue is American democracy, and how to make it work better. What was keeping it from working better and what were the dangers and threats?
We thought about America in the 21st century and it's economic challenges. Economic mobility became more and more difficult and less and less frequent. The barrier seemed to be the vast value placed on having an education in our new information age economy. And the barrier for that, of course, was the price of getting a higher education. Unless we did something about that price, we weren't going to fundamentally address structural economic inequality in America.
We started talking about making college free. I coauthored a book called, Millennial Momentum, in the chapter on higher education, I came across the The Kalamazoo Promise. In the course of writing that subsection of the chapter, I got carried away at the end and said that some day the Kalamazoo promise should be American's promise – or will be America's promise, and that college would be free for everybody.
I re-raised that in the course of this conversation amongst people for whom that was the furthest thought in their mind. It struck a chord in the group of people we were talking to, who were politicians who had, like us, finished a career in public life and thought the notion of free college would be a very attractive one, but of course impossible, a crazy idea. One of them called me on his way home from the golf course one day, and said, “I figured it out.”
I said, what do you mean you figured it out?
He said, "I figured out how we can make college free." We reconvened everybody and he presented his ideas – half the group quit because they thought it was such a stupid thing to do. Other people in the group, like Sara Goldrick-Rab, said yeah, that's what I've been arguing for. Out of that was born this non-profit of the Campaign For Free College Tuition.
Jack, how did you get involved?
JM: Morley and I go back 15 years. This was a perfect match of both our professional interests and our private interests. I was a journalist for the first half of my career, and a market researcher in the second half. In both of those careers I’ve seen the disintegration of the middle class and the growing disparity of life success that seems to be drawn on educational lines. It didn't used to be that way because we had a different kind of economy and you could have a high school diploma, get a good job in a factory or in a number of manufacturing jobs, and do okay in America. You can't now.
People say it's a good idea but not possible. That's actually the perfect combination, which is, no one says it's a bad idea. They just want to come up with logistical reasons why it wouldn't work – money, process, whatever. People in this country need an education. I believe that 14 or 16 is the new 12 when it comes to the amount of school necessary to compete in this economy, and if that's the case then we ought to make it possible.
How does the organization operate? What are your goals for policy, specifically at the state level?
MW: In the course of our organization's history, we've kept our eye on the goal of making college tuition free, and then tried to figure out different strategies for getting there. Originally we were very focused on the federal government. We were fortunate to have president Obama decide it was a good idea also, and when he announced his idea for how the federal government could support state efforts to make their community colleges free, it became the thing we focused on for almost a year.
We made almost no progress at the federal level, but there were states like Tennessee and Oregon, that were actually going ahead and doing it. We concluded that the most progress we were likely to be able to make over the next few years would be at the state level, and that we could provide resources.
We're a 501C3, we can't do political campaigns, but we can advocate for the idea. There was a crying need for expertise, resources, information at the state level on what Tennessee was doing, what other states were thinking of doing, and what other states had actually done that fell short of the promise, but were still greatly improving college enrollment and affordability.
We decided to devote the rest of the 2016 campaign year to putting together what we called a briefing book. It was initially a policy resource center designed for state leaders. That strategy proved to be our best idea yet because since then, we're up to a dozen states with truly free college programs at some scale and level, and the universality that qualifies them for recognition from us.
The most recent one, which is always surprising to people, although it shouldn't be, is in the state of West Virginia.
The president of the senate, who's their lieutenant governor, was the prime sponsor, the republican governor signed it, and they did so on the strength of the economic development argument and providing more opportunity for West Virginians.
When I tell people that, they say no, no, no, that's not what free college is about. It's about free college for all or some other federal program. We say in reality, the idea that states should make their colleges tuition free is not a democratic idea, it's very much a bipartisan idea. The pioneer was a republican governor in a very conservative Tennessee legislature. The second one was a democratic legislature in Oregon. The governor who inherited the idea is a democrat, but really wasn’t active in making it happen. It's passed in not only red and blue states, but purple states. The Nevada legislature, which became democratic and passed it, was signed by a republican governor, so it's a purple state.
Same is true in Maryland. Democratic legislature, republican governor, easily reelected in blue state Maryland. Made their community colleges tuition free. It doesn't have any partisan perspective, it's something that almost every parent and now most children and students, are recognizing as a necessity, and we have such a hard time convincing people that it's not only a by partisan idea, but enjoys universal popularity. Universal's too strong a word for the way polling is done, but 80% of the population supporting an idea is unheard of.
JM: And that's my job. To give people the political courage and cover that what sounds like a progressive issue as an all American, everyone's in idea.
Why does it “sound progressive”? Who decided that sounds progressive?
MW: Bernie Sanders.
JM: At some point, high schools became free.
MW: 100 years ago.
JW: So we haven't talked about the government providing more education than 12 for 100 years. And in today's lingo, something that the government provides...
MW: Free.
JM: Free, generally is perceived, or at least marked with, the progressive or liberal tag. It's a question of how they spend the money.
Right.
JM: Lower taxes or do we offer free college? But they're not mutually exclusive. Morley's point that in West Virginia, the economic development storyline is what took hold, is just a different way to look at how to spend the state's resources. If you look at it as Johnny gets a free education, that feels like a government hand out. If you look at it like we're going to make Johnny a better member of society…
MW: Pay more taxes.
JM: Pay more taxes. That's an investment, it's not a cost. It’s going to take some time for those numbers to come around. It plays out over the course of years. But, the early return suggests that it's a really smart investment. More kids are getting educated, which means they're getting better jobs, they're probably staying in the state, and contributing to the economy, and not draining the economy, or not sitting unemployed, not sitting in job insecurity because they don't have the skills for the next job and the next job.
MW: A lot of debates at the state level, legitimately so, turn on the question of affordability, not the affordability of college but the affordability of a program that takes away the tuition revenue from the existing system and has the state back fill it. I wrote a piece after looking at some of the research data which continues to grow, thanks to Michelle Miller Adams and Sara Goldrick-Rab, on the impact of free college on employment and economic opportunity.
Because in the long run, if they don't do it, their individual economies will fall so far behind they won't be able to afford the kind of government, lifestyle, society and economic environment they tell their voters they're in favor of.
That's where it's come to, and it's a powerful argument. It's the reason it gets a lot of bipartisan support. Obviously, a lot of the support comes from a traditional, liberal perspective. We need to do right by people and give them opportunity and therefore we have to do this. But it has just as much power as an economic argument on the other side of the political aisle.
Speaking to people's desire to work and participate makes education a big part of that conversation.
MW: It's always been apart of the American conversation. The first major bill in American legislative history was the Northwest Ordinance. It set aside one subsection of a six mile township in all the northwest territories to be devoted to school, you had to have a free one room schoolhouse for every township. Jefferson was saying, without an educated citizenry, democracy won't work.
Education has become elitist in sentiment. Where did that come from?
JM: I think it's a politicized sentiment. It is, at the core of a lot of populism over the years, which is the anti-elites. But we're not talking about making people elite. We're talking about making people job ready. This isn't join the fortune 100, this is get a good job that allows you to pay a mortgage and live with some level of confidence, and have the belief that you can have children, and that you can set something up for them. This is really about keeping a middle class versus the elite class, and what is increasingly the growing disenfranchised.
MW: Some people have come to us saying we can't get this past a republican legislature because they don't think everybody ought to go to college, and they're not convinced college is necessary. It turns out they don't have any children college age. For the most part, anybody with kids understands the necessity of a higher education experience in order for their children to be successful. What they don't understand is how they can possibly afford it, that's why the message of free college breaks through, because it's such a startling message.
I was told by one democrat in one state that will go unmentioned, that I could come in there and talk about making community college more affordable and college more affordable, but I couldn't talk about making them free if I wanted to get republican support. I said well, you know, the name of the organization is the Campaign for Free College Tuition, not the campaign for more affordable college. It's without the message of free, and without its ability to change the culture. People think it's about the money. Money's important, we've got to have the money to pay for it.
You mean I could go to college if I just applied myself? I don't have to worry about how much it costs? The price of college is pretty high even if you make tuition free. We have to deal with those issues as well, but it begins with making tuition free, and then you can talk about everything else.
What messaging works best according to polling?
JW: What's interesting is our research and polling is with people. What Morley has to face is the difference between talking to politicians and how they might frame something either internally within their legislative bodies, or back to their consumers. What we say is, here are the things you can say if you like this idea, here are things you can say to your voters and they will respond to. What works from a messaging standpoint with people is the argument that young people can have a better life if the state does this for them. All the messages that have to do with individual gain work for people.
At the state level, inside the state houses, often times you have to couch the idea and you have to turn that into the economic development question. The economic development question is hard for an individual person sitting at their house because they've got a kid across the table, they're going, can we send you to Pasadena Community College? Can we do that? They don't care that Pasadena may benefit.
Right.
JM: They care that their child could benefit. At that point it goes into the political sphere of making the larger economic development issue.
You don't lose people at “the state should help”?
MW: No.
JM: No. These numbers are incredible. Our company polls on national issues all the time and the idea that anything debated in public discourse right now has 81% support, is incredible.
Perpetuating a debate that you say doesn’t actually exist, by framing this issue as a debate is problematic then. Because your data says there isn't a substantial disagreement on this.
JM: There is not a disagreement.
So, why does it seem like there's a disagreement?
MW: The difference between voters and politicians. If you phrase it in a very ideological way, the state owes everybody a free education, that's going nowhere. If you say students need education in order to be successful, and the state should help by making tuition free, everybody says yeah, that's right, because you're not saying it's a hand out, you're not saying it's a give away, you're not saying it's all about fairness and equality, you're saying hey, this is an economic reality out there and state's ought to do their part.
If on the ideological right, you say there's no such thing as a free lunch, therefore there can't be free college. Somebody's got to pay for it. Well, how does high school work? Now we go back into the murky world of cost versus price.
You will hear many higher education people, particularly those who are involved in the financial aid policy world, say the solution to high price is to make sure poor people get in free, and have the people who can afford to pay the high price, pay for it. That's the most equitable solution. And that's what our entire system is built around – scholarships for the needy, and then everybody else pays. Unfortunately it doesn't quite work for the middle class, because it's unaffordable for the middle class, as well as for students from poor families. The fact of the matter is it doesn't work at all. The system has been tried for 30 years and hasn't done anything about improving college enrollment for minorities or poor students.
The point is that despite its popularity, despite its practical importance, despite its political power, the institutions of existing financial aid which inhabit vast administrative desks in colleges all across the country, and those who support it like the college board, are devoted to making sure faculty don't lose out and don't get the raises they're used to or don't get a job they want. Those forces are very powerful inside the legislative process. They've been working it for 30 years.
JW: One of the challenges, and this is the God's work that Morley and his team are doing, is any state legislature has say 100 to 120 people, and they all have ideas about what's important to them. They went back to their district and campaigned on roads, or infrastructure, it could be all kinds of things. In each of those states you've got to find someone who says, yeah I want to take this on.
MW: Right.
JM: You can't just throw it out there.
MW: You need a champion.
JM: You need a champion, and you need someone who's willing to take some heat.
MW: In California the champion would be somebody you've already interviewed, Ortiz Oakley.
Chancellor Oakley, yeah.
MW: You need to find those, and it's not quite as frustrating as it sounds. It's frustrating to hear the same old debate, the same old arguments, played out.
Stale.
MW: In national media, no reference to research. People putting up theoretical reasons why it can't be done, ignoring the practicality that is has been done and has been successful. That's frustrating. But at the state level, when you find a champion it's too much fun, it's not frustrating at all.
Presidential debates are coming. This will come up in the democratic primaries. If you were to phrase your own debate question about free college, what would it be?
JW: Were you sitting with us at lunch?
I wish.
MW:
JM: A good one.
Jack, would you have the same question?
JM: It's a good one. Because people want their state to administer the program. They trust their state. It's closer.
MW: Education's local. K-12 done by a school board, universities are done by the state, everybody gets that.
JM: The idea of a federal government getting involved in a heavy handed way, brings in all of the mistrust, all of the, “my state's different than their state.” We wanted something that works for a community. The key line there is, the federal government helping states support the programs. The idea that there's a federal solution to communities that are so different is hard to imagine and in today's environment, the idea that something could get passed at a national basis, is hard to fathom. But things get done at the state level all the time.
Every single day, states are accomplishing.