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
From a Public Health Crisis to a Constitutional Crisis
by Dave Daley
October 7, 2020
This interview with David Daley, a senior fellow for FairVote and the author of Ratf**ked: The True Story Behind the Secret Plan to Steal America's Democracy and Unrigged: How Americans Are Battling Back to Save Democracy, was conducted and condensed by franknews. This article was originally published in May 2020.
Dave Daley | I focus on democracy issues and voting rights. I was the editor-in-chief of Salon for many years, and in 2013, when I was running our politics coverage, it seemed the news out of the House of Representatives became more and more extreme by the day. We were covering 50 different repeal votes on Obamacare, a government shutdown, and an astounding conversation about guns after a massacre at an elementary school.
One day I asked a really simple question: why didn't Democrats take back the House in 2012, the same year Obama had been reelected and Democrats held onto the Senate? The Democrats had won 1.4 million more votes in 2012, but they failed to take back the House.
While doing research on this question, I came across something called REDMAP, The Redistricting Majority Project, in which Republicans take credit for using gerrymandering to give them control of state legislatures and Congress — even in a year that was not good for them at the ballot box. I had never heard of REDMAP, and I was running politics for a liberal publication under incredibly sharp people.
frank | There certainly was a story there. We're all familiar with what gerrymandering is now, and in a sense, it finally energized the left. Who do you think has the momentum in 2020?
I think regular citizens in gerrymandered states figured out what had happened sooner than Democratic politicians did. They started seeing extreme bills coming out of their state legislatures that they couldn’t do anything about. The transgender bathroom bill passed in North Carolina. Anti-labor bills started coming out of Michigan, a one-time labor hotspot. Anti-teacher and anti-university legislation started coming out of Wisconsin, a place that had once been so proud of its public schools. These legislatures became so unaccountable to their citizens largely because of gerrymandering.
The momentum for reform has come from citizens understanding what needed to be fixed if they wanted to have accountable politicians. It's no coincidence that this movement begins in Michigan, a state in which Democratic State House candidates have won more votes in every election this decade, but Republicans maintain control. It's no coincidence that North Carolina has been such a hotbed of this movement, given that gerrymandered legislatures immediately went after voting rights — enacting surgically focused voter ID laws, eliminating days of early voting, closing precincts, and purging voter rolls in order to entrench their own power.
It’s exhausting. When democracy is working well, citizens shouldn’t be completely and constantly preoccupied with politics.
You are exactly right. When our politics works well, citizens can trust that their representatives are actually doing that — representing them.
With gerrymandering, you get politics that are pushed so far to the edge that regular people lose all influence. One of my favorite stories of this in my book comes from Idaho. I think the number of registered Democrats in Idaho is around 14%. You can count the number of Democrats in The Idaho State House of Representatives on two hands, and sometimes one.
But, when the state legislature refused to take Obamacare money to cover healthcare for their citizens, 70,000 citizens in Idaho fell into a gap that made healthcare unaffordable. The simple truth of the matter is that in a state as rural as Idaho, without Medicaid, you can't do a good job providing healthcare to people. Reclaim Idaho built a coalition, in an extremely red state, that supports Medicaid expansion with more than 60% of the vote. This was not the work of Democrats, this was not even the work of Democrats and Independents coming together, it was the work of citizens coming together to say, this is the right thing to do, and our legislature isn't doing their job.
You wrote recently that we need to make sure this public health crisis doesn't also turn into a constitutional crisis. What needs to be done to ensure that we don’t reach that point in November?
We need to take a really hard look at what happened in Wisconsin and do everything we can to ensure that doesn't happen nationwide in November.
What happened there ought to shake and terrify every American. Wisconsinites lined up in masks in long voting lines and were forced to vote in person by a legislature that refused to reschedule the election. Voters in Milwaukee were limited to 5 of the usual 180 voting precincts. We are already seeing reports that at least 19 people who either voted that day or were working the polls have caught the virus, and that number is certain to go up. Local election officials, overwhelmed and underfunded, had to mail out something in the ballpark of 1.2 million absentee ballots, five or six times more than they've seen in any election before. They did heroic work in getting most of those ballots out, but they were not set up to do that. The U.S. Supreme Court weighed in at the last minute on a 5 to 4, party-line vote, that refused to grant any additional time for absentee ballots to arrive in the mail. Days after the election, post offices across the state are reporting piles of undelivered absentee ballots.
That seems to be a situation we would want to avoid in the fall: Americans forced to vote in person in the middle of a virus, overwhelmed election officials trying to get an unprecedented number of absentee ballots out the door, an underfunded post office system having to deliver and return all of these ballots, only a fraction of available precincts actually open, and the U.S. Supreme Court issuing a party-line ruling on how people want to get to vote.
What's possible if we're triaging action between today and November to make sure all of the things you just outlined don't happen?
Triage really is the keyword here. We have fewer than 200 days. The States that have instituted vote-by-mail have had years to refine it. We are going to have to learn what we can from their experience and do our best in the time that we have left to ensure that Americans can vote safely and securely.
This has to start with funding the process adequately. The Brennan Center and nonpartisan reform groups have said this is going to cost anywhere between $2 to $4 billion. Congress has appropriated $400 million so far. That is not enough, and $2 to $4 billion spent on preserving democracy is a rounding error relative to other packages coming out of Congress right now.
Then, there is a lot of work to be done. Ballots have to be printed and translated, optical scanners have to be purchased so that states can actually read the results quickly, poll workers have to be trained, and voters, who are not used to voting-by-mail, have to be educated on the process.
We also have to be thoughtful and considerate about making this process equitable. It will not be easy to vote-by-mail for everyone. The mail service is not as secure and reliable on Native American lands or in public housing projects, for example. Some in-person voting is going to have to be arranged and available, so how do we ensure that it is safe and secure? Are we making it easy for people to get ballots by sending them to everybody who was a registered voter? Or are we making them jump through additional hoops of applying for a ballot and then getting one back? Are we putting postage on those ballots for everybody so that we are not adding an additional poll tax? What are we doing to ensure that Americans can register to vote between now and the election? Can people register online? We have to be thinking about these factors in the days that we have available to us. It's doable, and it's very important, but we have to move quickly.
You talked about budgets tied up in Congress – but is this something states can pursue independently?
Yes, individual states could step up and fund this themselves, but individual states have got a lot that they're trying to step up and fund themselves right now. This is something that the federal government should be able to do. It is a critical part of one person, one vote. It shouldn't be easier to vote in New York than it is to vote in Georgia. If we are setting up an election system where there are going to be additional barriers in some states that you don't have in others, that is not equitable.
Right now there is no-excuse absentee ballot voting in two-thirds of our states, but in the other third, you need a specific excuse. A pandemic, as many local officials are making clear, doesn't count. It would be extraordinarily useful if Congress would pass a law that said in all 50 States, you can vote absentee without an excuse.
Is that constitutionally plausible?
It is absolutely constitutionally plausible, it just requires a statute. Whether it is politically possible is the question.
Voting rights, quite unhelpfully, have become so partisan. The President talks about how vote-by-mail will give us levels of voting in this country that will never elect a Republican President again. A Congressman from Kentucky spoke about how vote-by-mail would upend the American way of life. Republican senators, in the middle of the last stimulus debate, claimed that they couldn't understand the connection between the virus and voting. I mean, if you can't understand the connection please take a look at those pictures coming out of Wisconsin. That ought to make it really, really clear.
It makes me wonder what the future of the conservative party in the United States is. If one person, one vote is not only detrimental to them but possibly the end of them, what does that suggest?
I think you have your finger on perhaps the most important question of our time. This has been a long term effort by a Republican party that sees itself on the wrong side of demographic trends, and is trying to maintain power with a shrinking base. When you make that decision, you have to rely on gerrymandering, voter ID laws, purging voter rolls, and closing precincts. And here we are.
I can't understand the long-term benefit of turning your party into this. I guess the answer is just about power, but that seems too simplistic somehow when you watch the abandonment of the principles of a party.
I think that's what happened. Conservatives made a deal with the side of the party that was racist, nationalist, and had its roots in John Birch America or Jim Crow America. These were factions that they thought were a small piece of a party. They thought they were stored safely under the bed. But decisions were made that unlocked that box under the bed and put it at the forefront of the party.
The first decision was when Republicans responded to their 2008 loss by deciding that their best attempt at a path back to power was through redistricting rather than responding to the changing demographics of a nation. 2008 was a historic Democratic sweep, but 2010 was a census year, a redistricting year. The folks who executed REDMAP understood the opportunity that it posed for Republicans. They redrew these states to give themselves these incredible majorities with a minority of the vote, by doing so, created districts that push your party to the extreme.
My favorite example of this is Mark Meadows in North Carolina. Mark Meadows’ district in Asheville was represented first by a Republican and then by a conservative Democrat, Heath Shuler, throughout the 2000s. When Republicans redrew the map in 2011, Shuler took one look at the new map and decided he could not win. Republicans had cracked Asheville in half — divided the one Democratic area down the middle and ensured a conservative Republican would win. Who goes on to win that seat? Mark Meadows, a sandwich shop owner who runs as a birther. It is that district line that puts Mark Meadows in power. It's Mark Meadows who comes to Washington and files the parliamentary motion that essentially forced John Boehner to resign. It's Meadows who forced the 2013 government shutdown. It's Meadows who's now Chief of Staff to Donald Trump. He doesn't exist if not for gerrymandering. Mark Meadows is the Frankenstein that is unleashed by what the Republicans did.
Betting on the extreme right-wing, instead of adapting to new and inevitable demographics, is again, a very interesting choice. And again, not one I really understand. What is a Republican in 2030?
I don’t think they are looking to 2030. The Republican strategists who came up with REDMAP in 2009 believed this would buy them some time while they began to figure out how to appeal to younger voters and minority voters. Instead, the gerrymandered districts produced political figures who were so far right that the Republican Party became forever unpalatable to minorities and young voters.
And everybody else fell in line with the new extreme figures. And if you didn't fall in line, like Bob Corker and Jeff Flake, you were out. All who remain, like Lindsey Graham, are unrecognizable from who they were in 2015 and 2016.
You spoke in your book about Pelosi putting forth the For the People Act, an act full of electoral reforms that would end gerrymandering and restore the Voting Rights Act, among other things. It met its end in the Senate. Do you think there will be a continued effort from the Democrats to sustain voting progress?
The reforms proposed in the For the People Act are tremendous and far-reaching. If Democrats take back Washington in 2021 we will see if they are sincere in their efforts, or if the reforms were proposed performatively knowing they would die on Mitch McConnell's desk. I'm not at all certain it will remain a continued effort.
I think that the Democratic leadership in both the House and Senate has been extraordinarily weak on winning the kinds of funding that we will need to safeguard elections in the fall. They expanded the PPP earlier and reached another deal with Mitch McConnell, and yet once again, there was nothing for vote-by-mail. That was shocking to me. I don't know when they think they will have more leverage and I don't know why they're not willing to use the leverage that they have on behalf of a fair election.
The leadership of the Democratic Party appears to have a weak understanding of the importance of fair elections. They need to take a good hard look at what happened in Wisconsin and remind themselves of what might happen if they don't get their act in order.
Are you hopeful?
There's a lot to be optimistic about when you look at how many citizens' movements there are around the country and how they have managed to win by uniting nonpartisan coalitions — left, right, center, white, black, young, old. These coalitions are built by uniting people around the common American ideal of fair elections. I think we can take real heart in that success, but the political class is hanging on.
The fight for voting rights didn't end with the passage of the 13th, 14th, and 15th amendments, it didn't end with the passage of the Voting Rights Act. These are fights that all Americans need to be engaged in. I think the lesson of the last couple of years is that these battles have fully begun — and that we are coming.