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.
Working at the Supranational Level
by Daniel Naujoks
July 31, 2019
This interview with Daniel Naujoks was conducted and condensed by frank news. It is part two of our conversation on The Mobility Mandala.
frank: Today, we often hear about a crisis of cooperation at the international level. It seems that many countries are reluctant to work together and many wonder about the place of the United Nations in today’s world. This is broad – but what influence does the UN have on nations today?
Daniel Naujoks: When we think about the influence of the UN it’s important to recognize that the UN isn't one entity. What we call “the UN” includes many different ways in which states interact with each other, often mitigated or moderated by certain entities of the UN. You have the General Assembly, which, for many people is the quintessential UN. And the Security Council – a highly political body and the only UN organ that has the power to take decisions infringing on states’ sovereignty. On the other hand, there is the UN of the many programs and agencies that have specific mandates and that work with governments and non-state actors to achieve something, like the UN Development Programme, the International Labour Organization, or the UN Environment Programme, to name a few.
When it comes to migration and displacement, we actually had several discussions on these topics at the General Assembly. In 2006, the UN organized the first high level dialogue on international migration and development, for which I was part of the organization team at the UN Population Division. In 2013, we had another high-level dialogue at the UN General Assembly. And after preparing and negotiating for two years, in December 2018, the global community adopted two new compacts. The UN adopted the UN Global Compact for Migration, for safe, orderly and regular migration, and the UN Global Compact on Refugees. These are non-binding agreements but the entire process of drafting these compacts was influential for spurring discussions among countries, between countries and civil society at the international level, and, even more importantly, at the national level.
Often we think of UN issues as matters at the supranational level, happening at the UN General Assembly hall here in New York or in Geneva. And that's true, that is an important venue. But, when we have a UN event or UN treaty, or in this case, a compact, there are also national stakeholders, human rights commissions, NGO networks, ministries at the national level, who have an interest in promoting certain issues. And they have consultations, the press picks up issues. Each country is a little different and it depends on the strength of certain stakeholders and their interests. For example, the U.S. government was largely absent from the process of the UN Global Compact for Migration.
The risk of somewhat being held accountable would actually be low. And remaining in the discussions would have given the US a way to influence the content. But I think it was more about sending a political message to certain local constituents than an actual policy move in the international sphere.
What is remarkable is that even though the national government withdrew from the process, many U.S. cities said, "Can we be part of that?" New York, Chicago,and other cities really stepped in. Thus, in the end, there was a lot of participation in the U.S., even though the national government declared they don't want to have anything to do with it. So, sometimes, how the UN works is a little more complex than just what the official state department position is on an issue. And there are many venues. There are bilateral consultations, there are regional consultations on human trafficking, on labor migration and so on. There is a Global Forum on Migration and Development, the GFMD, which, since 2007, takes place every year. Governments come, they exchange notes on good policies, and on what can be done, mostly at the working level. At the working level, government officials cooperate and learn from each other. Again, it's non-binding. And the UN provides inputs, they chair sessions, they write background papers, they present case studies.
This is to exemplify that there are systems where policy learning happens in a much more informal setting, than through rigid rules-setting and treaty-making. This is something students in the UN Studies specialization here at Columbia’s School of International and Public Affairs, that I direct, focus on when studying global governance. There are many different ways in which local and national governments, countries’ specific ministries, institutions, and agencies, international organizations, NGOs, and other groups negotiate and collaborate.
And then in the developing world, of course, the UN has a different role, because they are not just advising, they're working with local partners and in actual programs, like funding. And they're advising governments directly on how to do things.
So, when Kenya says that they want to close the refugee camps for Somalia refugees, UNHCR can plead, "Oh, please, refugees have rights and camps are bad." But, unless the Kenyan government gives UNHCR authority to work on certain programs, and provides UNDP consent to implement initiatives on livelihood strategies targeting refugees, these agencies can't do much. This being said, because of certain power asymmetries and donor interests, the so-called technical assistance from UN agencies in the Global South has the potential to influence policy decisions and exemplifies how the work of the UN can have an impact. But the political leverage of many agencies is not as large as is often seen. Which is why there's a lot of bargaining in the background. The things that you don't see that are not official.
Can you give an example?
DN: An example for the fact that the UN has to always ask for permission to work on certain issues is the persistence of the use of refugee camps. For the last 15 to 20 years, we know that refugee camps are not good for refugees. In the very short term, in the immediate aftermath of an atrocity, of a civil war, of a calamity, in the case of a sudden influx, camps may make sense to provide shelter and food and medical services to a large number of people. But, even in the medium term, they're very bad for the human development outcomes of people.
Camps generally don't provide sufficient economic opportunities for people, et cetera. That's why for some time now, we know that limited humanitarian responses to large refugee and IDP movements are not good for development. Definitely not for those people who are displaced, but mostly equally for surrounding communities. I actually developed a role-play simulation on the reasons for and against refugee camps and participants understand quite clearly the mix of international development and human rights logic with local politics and interests.
Addressing the shortcomings of classic humanitarian approaches, different UN agencies have been very strong in advocating for a more development-based strategy. For example, in the Syrian context, there has been the 3RP, the regional refugee and resilience plan, which is headed by UNDP and UNHCR, with I think, about 270 partners. It’s implemented in Syria’s neighboring countries, Jordan, Turkey, Lebanon, Iraq, and Egypt. In addition to each country’s national plan there's a regional plan, which focuses not only on the humanitarian side but also development side. UNDP has been leading these efforts to provide livelihood support, skills, training, et cetera. But even there, we see that the implementation is hampered by a lot of challenges. Take Jordan. In the 2013 donor conference in London, Jordan pledged to give work permits to 200,000 Syrian refugees. They were very committed at the highest level of government.
But, a year later, there were almost no permits for refugees, and everyone asked why. We did a project with Better Work Jordan, which is a collaboration between the International Labour Organization and the World Bank. BetterWork Jordan published a report that my students drafted on why Syrian refugees did not get more official work permits. There are many reasons why employers couldn't employ refugees or couldn't expand their production. The refugees could only work in the export-oriented zones, mostly in the garment sector. They couldn't work in other areas. There was a distance they had to travel. Refugees often didn't want these jobs for a variety of reasons. There were many bottlenecks in the bureaucratic procedure to get work permits. In brief, there were many challenges at the supply side, the demand side, as well as on the bureaucratic transaction side.
These issues combined led to a situation in which this great policy that was mediated by the UN and other donors to actually empower refugees to be economic actors, didn't have the impact people had hoped for. While much of what the UN does can have important impacts, this shows that what can be done at the national level depends a lot on national priorities and politics. How politicians are afraid of negative impacts for the local voting populations. And then, of course, it has also to do with the commitment of the international donors to actually put in money to say, "Yes, we will not only give you minor funds to warehouse refugees but we will partner with you to empower them and your populations." Part of the agreement with Jordan that I mentioned was a pact with the EU. The EU said, "If refugees are employed you can export garments and other goods from export-oriented zones to us duty free." The idea was to use trade and the increase in production in the Jordanian garment sector as a way to increase employment opportunities for refugees. A great idea.
But, you probably need to do more to help Jordanian products to be competitive on the EU market. There's also a time lag. Even if you open up the market right away, these products may not satisfy the EU standards for garments. So, there are many things that the partners need to do to support these endeavors and to really make sure that local leaders are not afraid that if they open the labor market, if they open chances for local integration, that in two years, donors will pull out. And then, they will get stuck with the additional population without the support financial community. So, that's where the UN can help a lot. But, without real commitments from large donor countries or any countries to resettle and share the responsibility for refugees, there's only that much the UN can do.
Thank you so much for your time.