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
Solutions From The Land
by Ernie Shae
September 11, 2019
Clean Energy Solutions from the Land’s Clean Energy Platform is led by the newly added 25x’25 Alliance. 25x’25’s Vision: By 2025, America's farms, forests and ranches will provide 25 percent of the total energy consumed in the United States, while continuing to produce safe, abundant, and affordable food, feed and fiber.
Ernie Shea: I am the president of a relatively new not-for-profit called Solutions from the Land. It's a farmer led entity that is about putting farmers in the forefront of global challenges. We have three primary areas of focus. One is clean energy solutions that sustainably managed farms can deliver. Second is climate smart agriculture, which asks how do we adapt to these changing conditions and simultaneously deliver climate solutions? The third is really closely related, but it's more broadly focused on ecosystem services such as improving soil health and increasing organic content, filtering and storing water and enhancing biodiversity.
When we work with the livestock community and do a better job of managing manure, methane emissions off of manure can be used to produce electricity and renewable natural gas, both of which are important ways that the animal agriculture sector can directly contribute climate solutions that also benefit them. In the transport sector farmers grow feedstocks like corn, sorghum and soybeans that are used to produce much cleaner and renewable liquid transportation fuels to power the vehicles that we depend on every day. Biodiesel and ethanol have a significant advantage over petroleum gasoline in that they have significantly less greenhouse gas emissions.
Those are just three examples of the climate mitigation solutions farmers and ranchers can provide.
How do you explain the importance of agriculture to climate conversations?
It depends. Are we talking about the United States here?
Yes.
The science is very clear about what we're experiencing and what we need to expect. Warmer temperatures, more volatile weather conditions, more frequent extreme precipitation events, along with more subtle changes, things like higher nighttime temperatures that affect pollination of crops. Seasonal shifts in terms of the growing season, false springs – these are all examples of climate variations that disrupt production agriculture.
Depending upon where you are you experience the impacts. The eastern Corn Belt this year is one example where precipitation last fall, over the winter, and continuing into this spring, is off the charts and has resulted in places like Ohio with significant percentages of the cropland acreage not being planted in corn and beans because the ground was too wet.That's an example of climate change that scientists tell us is becoming the new norm.
The flooding that has occurred throughout the Mississippi River Valley this year was the direct result of significantly abnormal wet conditions in the winter and the spring, and the flooding that resulted led to infrastructure failure. The levees that failed along the Missouri River inundated cropland and totally shutting producers out from using those bottom lands this year and maybe for some more years because of the amount of damage that was done.
The flooding also took out critical infrastructure and capital investments such as grain storage facilities and irrigation systems. Another example of how climate change is disrupting what was once was a pretty stable and productive system.
We can go west to California, where in the San Joaquin Valley, you have a recurring concern over water availability. We're now managing water much differently than we were before. In some cases it's resulted in a transformational change in what is grown when water is no longer available. In some cases irrigated crops are no longer produced.
The agricultural system is constantly evolving and changing. What we're finding is that the climate impacts are so pronounced and so extreme that it's even threatening the ability to manage through them.
Agriculture is a technology-driven industry and would have benefited greatly from precision agriculture, hybrid seeds, controlled environment systems that can adapt. But the climate scientists tell us that as we move forward we're going to be even more pressed and challenged, and while there may be some regions where there are some temporary enhanced growing conditions such as the Upper Great Plains and into Canada, where the corn and soybean production regions are moving North, those regions eventually will be affected as well.
There's a lot of concern about the future viability of agriculture, the future ability to feed 10 billion people by 2050. That's why we're putting so much time into this Climate Smart Agriculture movement.
What sort of policy will incentivize people to take SDGs into consideration on a small scale?
There's no silver bullet. There's lots of things that are needed and are happening at different scales. Some are changes in production practices and conservation systems. Here in the United States our bread and butter USDA conservation programs, like EQIP and the Conservation Security Program that NRCS runs, are really important in helping farmers adopt no-till or reduced tillage farming systems and other best management practices that help them become more resistant to climate shocks.
Risk management strategies need to be revisited. The government and the private sector can help farmers mitigate risk from by trying new practices and systems that can provide production benefits as well as public benefits in the form of ecosystem services.
The water levels in rivers are affected by extended droughts compromising the functionality of major river systems where agricultural goods flow. Locks and dams that are aging need to be upgraded to deal with the new norm of extreme weather events.
There's many areas where enabling policy can provide support and assistance. Another one would be research. We are critically dependent upon our government and private sector research partners helping us come up with things like new crop varieties that can help farmers adapt and improve resilience. Examples include drought resistant and shorter maturity seed varieties that can allow a producer to get a crop in late like this year and still have a crop at the end of the season. We need a lot more investment in agricultural research. We're looking towards USDA, Agriculture Research Service, our state land grant partners, our extension partners that help with knowledge sharing, to team up and come up with new solutions that can then be disseminated to farmers across the country.
Is there a debate question you’d like to ask the primary candidates in this race?
I guess I'm encouraged by what I've seen so far on the Democratic side – there's a lot of attention being paid to agriculture. The fact that agriculture has historically been a cornerstone of the economy is well-known, but what's not well-known and appreciated is how the agricultural sector can meet not just the food, feed, fiber needs of the country, but also can simultaneously provide high value ecosystem services like sinkign carbon the ground and filtering and storing water. I'd like to see a bigger conversation with the presidential candidates around policies, programs, incentives that they can back that will allow farming landscapes to deliver a wider range of goods and services.
What is their position on incentivizing producers to encourage practices that deliver public goods? There's a growing conversation about the value and need for payments for ecosystem services. Right now when a farmer farms sustainably he's producing a crop that he sells, but he's also producing a lot of free externalities that the public benefits from: cleaner water, more carbon intensive soils, a more diverse habitat that supports wildlife and endangered species.
Right now the producers bear most of the expenses to produce those public goods. Can we find a way to incentivize more of that good work with public investments that will achieve the outcomes that the public want? That'd be a good question to pose to the candidates.
Are you optimistic about the answer?
There's a growing awareness that we've been undervaluing the contributions of the agricultural community, and we've been fixated on identifying problems and focusing the conversation on challenges. Well, there's challenges in every industry. But if you're not looking at the other side of the coin, the net solutions that we can deliver, and what does it take to deliver those solutions, then you're not keeping your eye on the ball, so that's our challenge to the policymakers to avoid the rush to judgment, the public sport of attacking, and really think about constructive solutions that are going to lead to delivering the win-win outcomes for producers and the public.
Let's not forget the fact that we live in a free enterprise country, and our economy is driven by capitalism. If we forget the fact that farmers, ranchers, foresters have to earn a living to be able to provide these public goods and services, and if we fall into the trap of expecting we can regulate all this to happen without an economic return, we're not going to get the outcomes that we both want and need.