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
The Looming Eviction Crisis
by Dr. Khalil Shahyd
September 28, 2020
This interview with Dr. Khalil Shahyd, a senior policy advocate with the Natural Resources Defense Council, was conducted and condensed by franknews.
frank | The Natural Resources Defense Council, from my understanding, is traditionally focused on environmental advocacy? How is it that you moved into the affordable housing space?
Khalil | We have gone through a lot of internal learning as an environmental organization. We used to be singularly focused on things like reducing energy demand, improving energy efficiency programs, and curbing carbon emissions. We hadn't really considered that if we were successful in retrofitting every home and apartment, we could also be contributing to the drastically increasing cost of housing and contributing to the housing affordability crisis.
We quickly realized that we could not just be singularly focused, we had to also address the affordable housing crisis while helping people make their homes more energy-efficient, which lowers their bills and improves their health.
How do we expect to mobilize millions of people across the country to support climate policy, and to participate in a green transition, if they don't have stable homes? The issue of affordable housing is very central to our environmental and climate mission.
Right. You had a recent piece about the massive amount of debt renters currently find themselves in.
I use the term “debt time bomb” to speak to the massive amount of debt that renters have continued to accrue during this pandemic.
The Urban Institute did a really good study on what it would cost to provide rental support to those who can't pay their rent; you can think about this number as the total amount of outstanding debt. The total was $5 billion, every month. And 50 percent of the renter population is already rent-burdened, meaning they put 30 percent or more of their income toward rent each month.
There's no plan in place to resolve it. This is a neglected threat that can have severe consequences that blow back rather quickly. People are going to be struggling, I think, for some time. Unfortunately, our nation’s policies have been biased against the needs of low-income families in general, and specifically against renters.
What policies do you see as examples of being negatively biased toward renters?
Well, the CARES Act (Coronavirus Aid, Relief, and Economic Security) included emergency rental assistance, but the amount it included was very small and the money dried up very quickly.
There has not been any other rental assistance since the initial round in the CARES Act. The HEROES Act (Health and Economic Recovery Omnibus Emergency Solutions) passed by the U.S. House included $100 billion in additional rental assistance, but it is sitting in the Senate. Meanwhile, much of the relief has gone through the mortgage sector and the banking sector. Relief has been granted to the property owner.
Landlords are still filing notices in the court even though, according to CDC's guidelines, the court can't actually hear the cases yet. They use the filing as a threat. The landlord will make the filing, go back to the unit, and post a notice on the door that they have made the filing. Some renters are not fully aware of what that means or what their legal rights are, so in many cases folks are being illegally forced out.
In many local jurisdictions, the rule in landlord-tenant court often favors the landlord. In Florida, for example, the tenant has to pay back all their rent before they can even have their case heard. That speaks to something we need to have a larger conversation about: rights in this country are reserved for property owners.
Do you think there's a way to use this crisis to shift that power structure?
In the same way that we are having an ongoing and necessary conversation about the role of race in our political and legal institutions, we need to talk about how property owners are privileged in our political and legal institutions. We prioritized property owners over everyone else and disenfranchise people who did not own property. It's literally laid out in our Constitution and it still exists today.
In the past, landlords have benefited from the denigration of renters' rights. But now they're actually suffering from the long-standing neglect of renters: if renters don't get emergency rental assistance, then they can't pay their landlord, and the landlords aren't getting any real assistance besides some mortgage payment forgiveness. The acknowledgment that their fates are intertwined presents an opportunity to push forward the conversation about the neglect of renters, and the real threat that neglect poses for the rental market and for the overall housing economy.
Because Congress has continuously passed housing and land use issues down to local jurisdictions, Congress has been oblivious to what's really happening.
Through this crisis and through these calls for substantive rental assistance from the federal government, Congress is now confronted with the fact that yes, the rent is too damn high. We've been so neglectful on these issues for so long. We've just allowed property values to soar unchecked. We have allowed rent to soar unchecked.
And that is often part of a city's economic development strategy; it is a strategy based on the idea of the continual growth of property value, which is counterintuitive to the need for affordable housing and counterintuitive to the right to housing.
What would you want to see at a national level?
Our organization drafted a series of transition memos that targeted every federal agency; I led the transition memo targeting HUD and affordable housing. One of our recommendations was to create an interagency office at the federal level for renter rights and protections. We believe it is critical that we begin to investigate and understand where we are as a nation, and where we need to be.
A lot of housing policy is deferred from the federal government to the local level. Cities and municipalities have a lot of discretion and control over local land use and local property laws. If you go into any city that has community input around land use and zoning, renters are hardly ever represented in those conversations. They are an afterthought. There's an assumption that they would not have any valuable input.
How does the fact that renters being in mountains of debt to their landlords fundamentally change their relationship?
In a way, you are tying that person to that building and that owner, until they are able to pay off that debt.
If they move, there is some sort of timed payment – likely they will have to pay all of the debt that they have accumulated upfront. It makes it impossible for them to move and traps them in that relationship, in that location. The landlord has leverage over the renter in terms of refusing to do any maintenance because the renter has no alternative. It creates the potential for a very exploitative relationship.
That is why we are advocating for the elimination of the debt.
Do you think it is possible that such a type of decision would come from the national level?
I am hoping there can be some national leadership on this, but that would require the federal government to rethink its standing approach and perspective on these issues. They have deferred a lot of these decisions to municipal and local authorities.
That is why the CARES Act did not include a uniform national eviction moratorium – they were so unsure of their authority to do so, they were afraid of pushback from local governments who felt like that was their area of authority. The initial moratorium only covered HUD housing since it was federal housing. Significant policy would require them to take a leap and push forward with a very different approach to housing, and I am not sure they will be willing to do that, no matter the administration.