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 Constitution on Your Right to Vote
by Joshua Douglas
October 13, 2020
This interview with Joshua Douglas, professor of law at the J. David Rosenberg College of Law at the University of Kentucky, was conducted and condensed by franknews.
Joshua | I'm the author of a book titled Vote for US: How to Take Back Our Elections and Change the Future of Voting. I've written extensively in law review articles and in the popular press about the constitutional right to vote. I focus, in particular, on state constitutions and what they say on voting rights, election law procedure, and a slew of other topics.
frank | You write a lot about how voting issues get a lot of attention on a federal level and less so on a state level. Why do you think that is and do you think it is important that we shift our focus to state courts?
Well, that may be changing a bit. Voting rights advocates have not had a lot of success at the federal court level, so, increasingly, they are bringing more claims in state court. Generally, however, we tend to think of federal courts as the protectors of civil rights. I don't know if that's a remnant of the Warren Court expanding civil rights protections in the sixties, but I do think that it's true that the state courts' role in the election process has been overlooked, at least in the past.
How do state courts shape the meaning of the constitutional right to vote? What is up for debate in terms of an individual's right to vote?
The interesting thing is that many of the plaintiffs are now bringing cases about voting rights to the state courts under state constitutions, not under the U.S. Constitution.
The right is listed in the negative. There are four constitutional amendments, the 15th, the 19th, the 24th, and the 26th, that say that the states can't deny the right to vote on the basis of a particular characteristic, but there is no actual affirmative grant of the right to vote. Instead, the Supreme Court has found protection implicitly within the Equal Protection Clause. However, almost every single state constitution does affirmatively grant the right to vote. It says things like, "every citizen of the state shall be a qualified voter" or "all citizens shall be entitled to vote."
So, over the past several years, state courts have been using the more explicit and broader grant of the right to vote in state constitutions as grounds to strike down state laws. States are saying that though the federal constitution does not explicitly grant the right to vote, our state constitution does. We see this in the Missouri Supreme Court ruling on a voter ID case, as well as the Pennsylvania Supreme Court ruling on a redistricting case. This is also seen in a case currently in the Supreme Court, originally out of Pennsylvania, extending the absentee balloting receipt deadline. State courts are looking at their state constitution and saying, "Hey, there's actually explicit language here that protects the right to vote here that is not present in the U.S. Constitution."
If we understand that the electoral system is a state's issue, do we have to accept that sometimes it's harder to vote in Texas or Georgia than it is in California or New York?
I mean, that always has been the case. That is in large part because of the U.S. Constitution’s Elections Clause, Article One, Section Four, which says that the times, place, and manner of the election is up to state legislatures.
Now, that clause also says that Congress may alter or amend those regulations.
For example, the Voting Rights Act of 1965 imposes nationwide rules that ban literacy tests and forbids discrimination on the basis of race in voting. Congress enacted rules again in 1993 through the National Voter Registration Act, which implemented a federal law and is the reason why every DMV in the country has to offer voting registration opportunities. HR1, a bill proposed by the Democrats that would impose national voting rules.
But, historically, we have not seen many rules come out of Congress. Combine that with the federal courts being unwilling to affirmatively impose certain rules, and, in my view, being less protective of the right to vote under the federal equal protection clause, and it leads to a patchwork system of state rules and how to vote.
Do you have pressing concerns in your state, Kentucky, right now?
I actually think we are doing pretty well in Kentucky. There was a bipartisan agreement between the Democratic Governor and the Republican Secretary of State in administering this election that set in place fairly extensive voting rules. Basically, anyone can vote via absentee ballot. An excuse is still required, but COVID-19 concerns qualify as an excuse — the Republican Secretary of State made it very clear that it's the voter's subjective understanding of their own concerns.
There is also going to be three weeks of early voting, including three Saturdays, in addition to the traditional polling place voting on November 3rd. I am a little bit concerned about long lines at the polls. We're going to have a lot fewer polling stations than normally, and most neighborhood precincts are not going to be open due to COVID. There is a lack of poll workers and a lack of places that are set up to have adequate ventilation and adequate social distancing.
For example, Jefferson County, which includes Louisville and is the largest county, is going to have 20 in-person polling places. Lexington, which is the second-largest county, is going to have eight polling places. I am concerned about things like the lines and transportation, but all that said, I think the Kentucky plan is pretty darn good and could be a model for the nation.
What other states are you watching?
Wisconsin looks like it's going to be a mess, especially with the decision that just came down out of the seventh circuit — federal judges blocked a lower court’s order that extended the deadline for returning absentee ballots. Texas is very concerning because of its restrictive voting rules, including an executive order that only allows for one ballot drop off location per county. The 5th Circuit Court of Appeals just upheld that rule. That means in places like Harris County, which includes Houston, there is one spot to drop off your ballot. That is crazy.
There are also five states, Texas, Louisiana, Mississippi, Tennessee, and Indiana, that don't accept COVID as an excuse to vote absentee. That is particularly concerning because it is going to force people who may have genuine concerns about the virus to vote in person.
In a state like Texas, where they have shut down so many of the ballot drop off locations, is there anything to do at this point, or is it too little, too late?
In Texas, the courts have rejected the challenges to the law, unfortunately. Even the Texas Supreme Court, so the state court route hasn't really worked.
The only other thing to do is voter education — to try to get people to fill out and mail their ballots early so that we are not overwhelming the postal service.
We have a month of voting. It is important that we take advantage of that by making a plan and voting early.