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
In Conversation with the Sisters in Law
by Sisters in Law
October 12, 2020
This interview with the Sisters in Law, Valerie Baston, Alisha Darden, Maryellen Hicks, Lakesha Smith, Delonia Watson, and Karen Williams, was conducted and condensed by franknews.
Can you describe what the Sisters in Law is and what your goals are?
Lakesha Smith: We are six African American female attorneys who decided to fill a gap in our community — the gap being the absence of African American female representation in our Tarrant County district courts.
In Tarrant County, we have never elected an African American female to a criminal district court or civil district court. The only African American female we've ever elected in Tarrant County was Maryellen Hicks, a Sister in Law, to a family court in 1981where she served for ten years. Judge Hicks was the first and the last African American female to serve at the district level in Tarrant County. We are ready to add to that list.
Photo via Maryellen Hicks
We value diversity and feel it is critical to create a more diverse judiciary in Tarrant County, especially considering we have such a diverse population. The county is no longer a majority-majority county, it is a minority-majority county. We need more diversity to reflect the makeup of our community and to ensure we have diversity of thought and experiences in our courts.
There are six of us and together we make up the Sisters in Law. We’re excited about what we offer Tarrant County as a whole.
What positions are you each running for?
Lakesha Smith: Karen Williams and I are running for criminal court in the district. Karen is the candidate for criminal district court number 2 and I am the candidate for the 213th district court. Delonia Watson is running for justice for Second Court of Appeals, Place 6. Everyone else is running as a candidate for civil district courts: Alisha Darden is running for the 153rd, Valerie Baston is running for the 342nd, and Maryellen Hicks is running for the 348th.
What has the campaigning process been like?
Valerie Baston: I'm not going to lie. It's been very difficult to campaign during this global pandemic. We've been relying on social media and on tapping into our networks and organizations. We do try to get to events that observe CDC guidelines so we can meet people and let them know we're running. We want people to know who we are and what our platform is about because it is so important that people know that they have a choice in this election. Normally in Tarrant County, you don't see anyone who isn’t a Republican running for office.
But, Tarrant County is a diverse county. The state of Texas is a diverse state. We have different ethnicities, different races, different religions, and gender identities. I feel like it's time for Tarrant County to have a judiciary that actually reflects the community.
The RNC is dumping money into Texas. What do you think that indicates?
Valeria Baston: When Beto ran for US Senate, Tarrant County went blue. Beto came to Tarrant County, put in the work, and as a result, Tarrant County went blue.
Right now, the polls are showing that Trump and Biden are very close. Republicans are concerned and they are right to be concerned. This administration has not taken COVID seriously here in Texas. Our local Republican leadership hasn't taken COVID seriously. Republicans understand that even their base doesn't like where we have been going as a state, and as a nation.
Republicans don't want to lose Texas because we have a lot of electoral votes. They don't want to lose the House or the Senate seats in the Texas Congress, and they definitely don't want to lose the judiciary.
Lakesha Smith: In addition, the governor is up for election in the next cycle. As Valerie said, Beto won Tarrant County, which was huge. Alarm bells are going off because Democrats are threatening their power structure.
Governor Abbott has an interest in maintaining power in places like Tarrant County. When you see a presidential race pouring money into Texas, you know the Republicans are worried — and that is exactly what we are seeing.
The appointment process here is a testament to the existing power structure. Right now, Republican judges step down early, so that Governor Greg Abbott's power is triggered and he can appoint the judge. Then, when these judges eventually go on the ballot in subsequent races, they are on the ballot as an incumbent. It gives them an advantage.
Maryellen Hicks: There are no Democrats on a district-level court, which is the highest trial court, or the appellate court that Ms. Watson is running for.
Right now, the courts are packed with Republicans, many of whom are members of the Federalist Society or are closely aligned with the Tea Party.
Are you worried about voter suppression on election day? Texas notoriously has had horrible gerrymandering and broad strokes of voter suppression that are very obvious, but are there things in Tarrant County specifically that you are looking for?
Karen Williams: We are definitely worried about voter suppression here. We are constantly reminding people to register to vote, and pushing people to vote in the early time period. We have two weeks of early voting prior to the general election, so we are encouraging people to go out and vote early.
We want to make sure that people get out and vote early. And in any case, whatever day that they choose to go and vote, we want people to know not to expect to go in and get out in five minutes. Be prepared to take some time so that if you do have to wait, you can wait.
How do you make sure people feel like they understand their voting rights? And what do you want to see from the media, in particular?
Delonia Watson: The Biden campaign has hundreds of attorneys ready to make sure that every voter's vote matters, but it is a very real threat that some of these issues will go to court. We have to make sure that we have a judiciary that is independent, and will not permit their ideology to control the law, but instead will apply the law fairly.
Lakesha Smith: In terms of the media, I don't think it's so much the media’s responsibility to take a side as to who's right, and who's wrong. But right now, I think it's very important to get out voter education and allow the voters to understand the issues that impact leadership in their local elections. When people hear about these things, they can come to their own conclusion about how the government is usurping the rights of the voters. Voters need to understand how the government has found a way to manipulate elections.
Are you paying attention to polling? Can you see where voter registration and enthusiasm, especially for nonwhite voters, stands in Tarrant County?
Lakesha Smith: Texas has registered over 2 million new voters. I can't speak to the demographics, but I feel confident based on conversations with voters that there’s enthusiasm to vote. Our base has been energized, unfortunately by the actions of the president. People are encouraged to get out and vote.
Delonia Watson: We are seeing a significant amount of excitement from people. People are galvanized. People are posting things about us, people are passing out flyers for us. People are excited about seeing a judiciary that looks more and more like them.
Karen Williams: Voter registration and voter turnout are up this year from the last presidential election. The Democratic vote and voter turnout were up by 14% in our primaries this year. In Tarrant County, the Democrats out voted the Republicans. Since the primary, there has been a lot more voter registration and the polls are saying that a lot more people are planning to vote Democratic. It goes beyond the people we are talking to.