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
What does the Constitution Say About an Uprising?
by Ben Sheehan
June 9, 2020
This Interview with Ben Sheehan, author of the new book “OMG WTF Does the Constitution Actually Say?” was conducted and condensed by franknews.
frank | The most urgent question is what is the President's real power – what is he allowed to do?
Ben Sheehan | The truth is that the Constitution doesn't give the president that much direct power. I think in modern times we tend to focus on the executive branch as the most powerful part of our federal government, but that is not the original design. We've been told our entire lives that we have three co-equal branches of government, and that they have checks and balances. Checks and balances doesn't necessarily mean an equal distribution of power. The power is not evenly divided in thirds among the branches. Congress, made up of representatives of the people, is supposed to be the driver of the federal government.
The president can pardon federal crimes. The president acts as the ambassador on the world stage representing the country. They appoint Cabinet officials, as well as justices to all the federal courts. Of course, they have to be confirmed by the Senate, but that is a sweeping power because justices on the Supreme court, the circuit court and the district courts serve for life.
But really where the president's power lies is as Commander in Chief of the Army, the Navy and what used to be called the Militia, but is now referred to as the National Guard. The power of that role is not specified in the constitution, so it is sort of up in the air as to what that exactly extends to. Congress has the power to set regulations, fund, and discipline the military, but when they are called into active service, they follow the president.
How does that come into play or conflict with the states, specifically as we are seeing now with Trump threatening to send in armed forces into individual states?
I think it's important to discern between three different levels of law enforcement. We're talking about the federal law enforcement, state law enforcement, and local law enforcement. Cities and counties have their own police departments. There are state defense forces that serve at the will of the governor. And then there is the federal law enforcement. Part of the president's job, and really the job of the government in general, is to provide for the common defense. That includes both defending the country from outside invaders, and preventing uprisings.
States can request federal government forces to help protect them from a domestic uprising. If there was an insurrection, or a domestic terrorist organization threatening the state, the state legislature can request federal military assistance, or the governor if the legislature can’t meet. You saw this a lot in the wake of the Civil War during Reconstruction. There was all this white suprematist violence, the KKK, the White League and the Red Shirts, and certain states would request the federal government's help to enforce civil rights laws in the wake of the Civil War.
Is that considered martial law?
Martial law refers to the military enforcing a system of law and order. There is nothing specifically about it in the Constitution pertaining to the president. The Constitution does mention Congress’s ability to suspend habeas corpus, which is the ability to see a judge if you’re arrested and you don’t think you did anything wrong. But martial law vaguely falls under the President's power as the Commander in Chief. It is something the courts have ruled on over time.
The scary thing is that when it comes to issues that both the state and the federal government have claims to authority over, according to the Constitution’s Sixth Article, federal law trumps state law. But if federal powers are vaguely defined -- like, the full extent of the president’s power as Commander-in-Chief -- then the federal government could abuse its power over the states.
So scary.
It is. And part of the reason there isn't a lot of martial law in the document to begin with is because the founders were trying to decentralize the power. At a time of crisis, when you're at war, there needs to be a chain of command, which is why there is one person at the top. But they didn't want to give someone the power to invade states, or to take over cities for no reason. That was explicitly what they did not want to happen. In fact, the whole reason the Bill of Rights exists, is to protect the rights of the individual from a tyrannical federal government.
One thing that I really learned during this process of writing my book is that the federal government is designed to have limits. It is only allowed to do what the Constitution says it can, and anything beyond that is a state issue, or a local issue.
Where does DC fall under this? And with Trump having deployed the military into the streets of Washington, DC and now the mayor is calling for them to be removed. What does that power structure look like?
Washington D.C. is carved out in the Constitution as the seat of the federal government. In Federalist 43, James Madison makes the argument that even though D.C. isn't a state, it would be allowed to have its own local government. D.C. could decide things as a municipality, rather than having the federal government have complete control. But with the Mayor of DC, Muriel Bowzer, fighting back against President Trump, we see the grey areas of federal vs. local control of the capital playing out. But she clearly says that the federal government’s help is not needed and that the protests are peaceful.
It's interesting to think of the Third Amendment in light of this, because when the founders were writing the Declaration of Independence, King George was sending over defense forces from Britain to keep the peace. Obviously there were no hotels or AirBB, so they would just force their way into people's homes and stay there without their permission- eat their food, and sleep in their beds. That was the impetus behind the idea of preventing the federal army from being able to quarter in someone's home. Right now, the federal government is not exactly forcing their way into individual people's homes, but they are occupying hotels, which are private businesses in the city of D.C. So again, it is a power struggle between the municipal government and the federal government.
It is also interesting to think about how the call of more help seems arbitrary, and anecdotal. You think of Megan Mccain's tweet about New York when she wasn't even there, or about news coverage of LA. I mean I’m in LA and I look out my window and I see a tank sitting in the middle of the street, even though it mostly feels normal here. What qualifies justification for calling in extra military service?
This goes back to what I mentioned at the top, where cities can request help from states, and states can request help from the federal government. But again, the president can’t randomly insert himself in the affairs of a self-governing city if there isn’t a problem. His powers are dictated by the Constitution, and also by the laws Congress passes. This goes back to the whole idea that Congress is really the driver of our government. The president can only enforce the federal laws that Congress passes.
However, Congress is so broken. It is heavily partisan due to gerrymandering and campaign finance loopholes. Little is getting done. In response, you have presidents trying to legislate through executive orders, or you have the Supreme Court using opinions to strike down laws, which is actually not in the Constitution by the way.
So is the way to understand the general split in power between Congress and the president as the drafter or laws and the enforcer of laws?
Exactly.
It is a law enforcement job. It doesn't make laws, but it enforces them. And with enforcement comes the power to oversee the enforcers. Everyone from generals all the way down through the police in many regards.
But the thing is, Congress has slowly delegated to the executive branch. A lot of this started in the 70s, and you are seeing the fruits of that pay off now. For example, The War Powers Act allows the president to act without advanced congressional approval, as long as the President informs the Speaker of the House and the head of the Senate within 48 hours. It gives the President leeway to act alone, as long as it is in the “national interest.”
This didn't start under Trump. It goes back a long time by Congress just outsourcing its power to more and more of the executive branch. A lot of it was done, based on the good faith of the person at the top. When we don't have someone who's acting in good faith, suddenly we have to reckon with the fact that maybe we shouldn't have given them all that power in the first place, and we have the power to change that in November.
Speaking of November, I think one of the biggest concerns is a fear over Trump interfering with the election. Does the Constitution grant the president any power over that?
That is definitely a common misconception about the president's power that I have been hearing lately.
The president has no power to cancel the election, or move the election date. That is purely in the hands of Congress. There are barely any emergency powers in the Constitution, and certainly not one that gives the president the ability to interfere with an election.
What can Congress technically do?
Congress has the ability to move the election date if they want to. They also have the ability to override state legislatures in each state around their voting laws. There is currently a bill in the Senate that is sponsored by Ron Wyden and Amy Klobuchar that would mandate that every state offer no-excuse-absentee voting by mail. Congress can override the states on the times, places and manner of elections, and as such they can implement nation wide vote-by-mail.
What can or should Congress be doing with that power to safeguard elections?
To begin, they could give financial support to states, which could go to their county election boards and local governments, to help them strengthen their election security. There is already a bill that's been proposed around election security that will strengthen websites and voter registration databases against cyber attacks from foreign or domestic adversaries.
They could also overrule certain discriminating state level policies. States with the history of discrimination used to have to get permission from the federal government to change their voting laws. According to the Voting Rights Act of 1965, if certain states wanted to change their voting laws, they had to get permission through the federal government. That was to make sure that they weren't disenfranchising people of color. In 2013, the Supreme Court struck down that part of the Voting Rights Act. That decision opened the door to a lot of voter-id laws. Hours after the decision came down, Texas started enforcing a really strict voter ID law. Georgia started kicking more people off the voter rolls. States were mailing postcards to voters, and if they didn't return them in a quick enough time, they got removed from the registration roles as if they had moved out of the state or as if they died. States would purposely not deliver enough voting machines to communities of color,and deliver more than enough voting machines to Republican districts. These are all things that are done at the state level, but things that Congress ultimately has the ability to override.
For anything to get done, it's going to require passing the House, passing the Senate and getting a presidential signature. Unless two thirds of the house, and two thirds of the Senate vote to override the veto. Right now it doesn't look like we're getting two thirds of the Senate and two thirds of the House to agree on anything. So even though Congress does have this power, who knows if they'll actually be able to use it.
We have 150 days left. What really can Congress do in that amount of time? Obviously you just outlined the ideal goals, but is likely within that time frame?
In theory, they could pass legislation quickly to affect any number of things for the election. But in reality, we are seeing the fact that Congress can’t agree on anything.
They can't even pass an anti-lynching bill. We can't agree in 2020 to pass a federal law to make lynching a federal hate crime? So it feels nearly impossible to pass voting laws.
This is one of the reasons in 2018 my organization was so focused on Secretaries of State. I was worried that we were not going to have a Congress that could agree on things, so it was going to come down to the state level. I would say that it is important to get active in putting pressure on your state officials. Know who runs the election in your County. Volunteer as a poll worker. You can provide rides for people to polling places. You can take them to register to vote. We can put pressure on Congress, but because of how broken it is, there's a lot that can -- and must -- be done at the local and state level. It looks unlikely that Congress is going to pass important legislation in the next 150 days, so citizen pressure -- and action -- is crucial.