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.
Reflections on Portland
by Commissioner Sharon Meieran
August 10, 2020
This interview with The Multnomah County Commissioner Sharon Meieran was conducted and condensed by franknews.
frank | As an emergency room doctor, community health advocate, and a Counry Commissioner, I am curious how you see your roles intersect at this moment?
Sharon Meieran | That is a particularly complex starting point. To be honest, I've been really trying to sort out that trifecta. It has been extremely difficult as a human to process the confluence of these crises, the different roles that I play, and the identities that I have.
I do really see this moment as the confluence of two separate pandemics. The first obviously being the global pandemic of the Coronavirus. The second is the pandemic, rather the public health crisis, of racism. Those two have come together in shocking ways, and it needs to be addressed in a much more complicated way.
How does it feel to be in Portland right now?
Portland has a long and proud history of peaceful protest and community engagement. This has been a historic moment of self-examination around racial justice across the country and the world. And in Portland, we have been having the necessary conversations on a community engagement level, on a local political level, and on a person to person level. Thousands of people were having these important conversations, by and large peacefully - we were an epicenter of a kind of community engagement and peaceful protest. I believe the Trump administration wanted to quash that, at least that is what it feels like on the ground.
He came in with federal agents, maybe hoping Americans would look the other way after the horrific response to the COVID-19 pandemic. But that is not what happened.
Why Portland? Do you know why it started there?
Well, that's the question everyone has been asking themselves. I don't know the answer, but it feels very political.
It is a place for them to make a stand in some ways.
And as somebody who's elected on a local level, what are you trying to do? What can you do?
It was hard as an elected official to get any information initially about who the federal troops were that were coming in and what the real purpose was. All we can do is try to respond and support our residents and fight back in the ways available to us. For example, our attorney general has filed suit. At a local level, Multnomah County has thought about banning the use of tear gas as the local public health authority. It's still not clear if we can do this, but we're looking at the local ways that we can fight back against the federal government. To be honest, those are limited.
You were personally teargassed recently, right? What was that experience like?
Extremely painful and really unpleasant. It was traumatic. It was scary. There was chaos. I was with a group of women just standing in front of the federal building, and sort of milling about around the area. There was literally nothing happening at the time. Then, a group of what we later learned to be federal troops came out and threw down canisters of tear gas. Initially, I was not affected, I ran down the street, but I came back to see what was happening, and see if I could potentially help in some ways as an ER doctor. I thought that I was at the periphery of the tear gas, but I wasn't. I first started feeling irritation in the eyes and then really in a split second, just searing, severe pain in my eyes, mouth, throat, and face. It was difficult to swallow and it was scary to take a breath.
It seems particularly cruel to use a gas-based weapon in the middle of a respiratory pandemic.
You're exactly right. I could not have said that better.
The indiscriminate use against hundreds, if not thousands of people, many of whom are elderly and who have underlying respiratory conditions, is unconscionable.
As a doctor, how are you understanding the confluence of these two crises and the contradictory prescription for each of them?
It's really challenging. You don't have to be a healthcare provider to know that mass gatherings are places where there can be increased transmission of the Coronavirus. We do things to mitigate the transmission such as masking, and trying to keep physical distance, which is impossible in the kind of protest situation that we're seeing. Being outdoors does help some. I've been to a number of the protests now, and by and large, virtually everyone is wearing a mask and is highly aware and doing their best to distance themselves. It is hard to determine if there has been any additional uptake in transmission from the protests.
But the problem is that, again, it is a confluence really of the two pandemics. We know that the response to COVID should be to mitigate risk. And similarly, when George Floyd was murdered, the appropriate response was outrage and protest. That's an appropriate response to a different public health pandemic, one of structural racism, but we need to respond to both crises at the same time. We need to do whatever we can to mitigate the impact of a protest being a mass gathering.
Do you feel like there is anything missing in the coverage of Portland you're seeing nationally? Is it an accurate assessment of the city right now?
I think that what is being portrayed is very small, maybe a two square block area of downtown Portland, between the hours of 10:00 PM and 3:00 AM.
I think that is lost in the conversation.
Where does Portland go from here?
I honestly don't know. One thing I appreciate has been the effort to bring back the focus to what prompted the protests in the first place. This is now, I think, the 60th day of protest. This is about racial injustice, the violence perpetrated by police against people of color, particularly Black men. This is what we have been protesting for, and that focus I feel was lost somewhat, with the seeming occupation of these federal troops. I believe, led by the Black Lives Matter movement and other Black leaders in the community, that we can bring back the focus to the issues that originally sparked the peaceful protest.
Is there any sign of the federal occupation leaving?
I have not seen any indication of that, which also is very scary. I think that that's part of that challenge of sorting through the confluence of so many elements. For example, if the endpoint for one aspect of protest is federal agents disarming and leaving the city, I don't see that happening any time soon, because I don't think that they feel any incentive to leave. There are so many different goals and purposes mixed in protest right now that we can't rely on any one thing happening to diffuse the larger picture of protest. What we need to do, I believe, is highlight the change that we want to see in the Black Lives Matter movement, and separate that out. Highlight a peaceful way of protesting against the federal occupation in Portland, and separate that and address that. If these issues are dealt with separately, they wouldn't be all conflated into this one giant protest, which I think only serves to divide.
[Shortly after this interview, there was an announcement, without any warning and without engagement of local government, that Governor Brown and the Trump administration had reached an agreement about federal troops leaving. I was as surprised as anyone, and am hopeful this will result in the de-escalation of the violence incited by the presence of the federal officers. I also hope this failure and escalation of violence will prevent the Trump administration from deploying federal agents to other communities. However, I understand federal officers are still present in Portland, and it is difficult to get any specific information on this.]
It certainly ends up distracting from the initial asks. I think part of it is that it is just shocking to see federal troops firing weapons at its own citizens.
It is shocking to be really upfront in that and watch fireworks being thrown at the federal building, hear the fence being torn down, and the plumes of tear gas overtaking all of that – it is all really shocking.
Probably not something you expected to see this year.
There are so many things this year that I just didn't expect to see.
To hear friends of mine say, "Yeah, I don't think I'm going to be staying for the tear gas tonight." Who'd have thought that phrase would be uttered?
It is crazy. It makes me wonder where the bottom is in all of the chaos. And whether that chaos is intentional from the top-down.
It's extremely stressful. Even if on a day to day basis, the vast majority of Portland is very peaceful, and we're not actually living in a war or riot zone, those questions and that stress is pervasive.
Has this stretched your imagination of what's possible on a civic level?
I think one of the benefits of this happening in Portland is the degree of engagement and pushback against the federal government being here. I'm not sure there is a limit to that pushback in this particular region.
Hopefully, there will be a similar level of pushback if this spreads to other cities. Hopefully, the federal occupying force coming in won't be perceived as normal, and instead, people stand up and exercise their voices to say no, not here.