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 "Do It Your Way" State
by Judd Choate
October 17, 2020
This interview with Judd Choate, the State Election Director in Colorado, was conducted and condensed by frank news. The article was originally published in May 2020.
Colorado made the change to widespread vote-by-mail six years ago. Can you talk about what that process looked like, and where you received the most pushback if any?
There was basically no pushback. Our change was over a long period of time. In 1980, Colorado allowed no-excuse absentee — People would sign up each year to be on the mail-in ballot list, and after each election, they would have to again request a mail-in ballot. In 2006, we created what's called the Permanent Mail-in Voter (the PMIV list), and in 2010, we provided an online way to sign for the PMIV through our online voter registration system. By the 2012 election, over 70% of our voters were receiving their ballots by mail.
While it's true that that legislation was part of a very partisan bill – only Democrats voted for it and every Republican voted against it – it was not partisan because of vote-by-mail. Republicans didn't like other pieces of legislation. That became law in 2013, and we have been a vote-by-mail state ever since.
What did you see a change in the electorate? Did more people of a certain demographic start to vote because they were allowed to vote-by-mail? Did more people in general vote?
Well, these are really hard questions to answer. I'm a social scientist, I have a Ph.D. in political science, and I was a professor for several years. When I am posed with these questions, I always struggle because, yes, there is a relationship between the adoption of vote-by-mail and voter turnout, but did it cause it? I don't know.
It is certainly true that over the last 20 years we went from a state with an average turnout to a state with one of the highest turnouts. In the 2000 federal election, we were just slightly above the national average turnout. Since then, we have become the state with the highest turnout in the country behind only Minnesota. Minnesota always has the highest turnout, and we hate them for it. They are always the rockstar of turnout and we are now consistently trailing just behind them.
But, is that because of vote-by-mail? I think vote-by-mail did have a positive effect and increased our turnout, but there are a whole bunch of other things that are in that calculus as well. I haven't run the numbers, I haven't collected the data, I haven’t run the regressions, so I'm uncomfortable with the idea of saying that the increase is due to just that one factor. But, there is no doubt that vote-by-mail was one important factor in driving up our turnout.
Right. Do you feel like you act as a model for other States?
Yes, I do believe we're a model, and that is not just me talking. The California legislation that was adopted a couple of years ago was largely patterned after Colorado. In fact, I went to California and testified and explained what the transformation Colorado undertook looked like and how this legislation takes a lot of those pieces and incorporates them into a California timeline. So yes, absolutely. We have been a model for Utah and Hawaii as well.
We mail a ballot to you 22 days prior to the election. Then we open early voting locations 15 days prior to the election, and we have early voting all the way through until election day. And then on election day, we have additional vote centers. All of the early voting stations also operate as voting centers, and then we are statutorily required to have many more. And we have same-day voter registration. No other state has all of these elements.
All these elements are designed around this idea that our voters are our customers and the customers should be able to make decisions that best match their needs to be able to vote. We just try to maximize that opportunity by creating as many opportunities to have the chance to vote the way that you need to do it to correspond with your lifestyle.
It seems like common sense that states would try and make this as easy as possible for people, but obviously, that is not true. Which red states have adopted these tools?
Utah conducts all elections entirely by mail, and that was a recent adoption. They looked around and they saw Colorado, Oregon, Washington use vote-by-mail, thought that the model looked right to them, and adopted it statewide. Over 70% of the votes cast in Montana are vote-by-mail, and I don't think anybody could argue that Montana is not a red state. Arizona has over 70% vote-by-mail. Nevada, which has a Republican Secretary of State, is adopting vote-by-mail for the elections this year. I don't know if they are going to keep it, but they are for this year, given the COVID-19 issues. Iowa has over 70% vote-by-mail, and Iowa also has a Republican Secretary of State.
Clearly, there are a lot of Republican election administrators or people who are the chief election officials who look at the data in other states that have adopted vote-by-mail and see it's a model that could work for them.
What do you anticipate the response from the states to President Trump's wariness about vote-by-mail to be? Are you thinking about November any differently?
Well, I'm not going to talk about the president.
All of the people that operate in this space, all of the election officials, understand how vote-by-mail verifies voters and only counts ballots that we can verify came from the right person. The states that employ vote-by-mail aggressively use verification methods. When people who don't understand elections, idly throw bombs at it, that just shows they don’t understand how it operates. There are built-in safeguards all along the way, which in many respects are much greater than are required for in-person voting.
What are some of those safeguards?
We mail the ballot to you. If that ballot comes back as undeliverable, we know you don't live there anymore. That in itself is a verification of the fact that you are who you say you are and you live where you say you live. States with polling place elections have to take people's word for that. We're validating that they live in our state or jurisdiction every single time they vote. That's a huge piece of verification that vote-by-mail states have that polling place states do not have.
The second thing is that in Colorado, and most vote-by-mail states, the way that voters verify their identity is by signing the back of that ballot. For every single voter, that signature on the back of that envelope is verified against the signature that we have on file for that voter. There is no better verification, that is not biometric, than comparing the signature that voters gave when they got their driver's license to the one on the ballot.
Are you looking for even more ways to engage voters in Colorado?
Absolutely, we want to be the new Minnesota. We want to be the state that every other state hates. The way we do that is to figure out any possible way that we can maximize voter participation while protecting against voter fraud. So how are we doing that? Well, this year we're going to send a postcard to every person who appears to be eligible and is not currently registered to vote. Colorado has the highest rate of registration in the country at over 90% — 90% of our eligible voters are registered to vote. But if you have 5 million people who live in a state, 90% means you still have 500,000 people out there who might be eligible to vote and are not registered. If we register them to vote, they are in our database, and we're going to send them a ballot 22 days prior to the election. That is going to drive up turnout.
We are also installing drop boxes all around the state. We already have over 400, but we've set aside some of the federal money that we have received recently to encourage our counties to install more. We hope that by this election we will have closer to 500 drop boxes around the state. We would like to capture metrics about how close every voter in the state is to a dropbox to try to figure out how we can reach every single one of our voters, not just in the metropolitan area, but all around the state.
We have a number of different little things that we do on the edges to try to maximize voter participation, and I can walk you through a couple of those.
We used to be pretty restrictive when it came to felons. Now, the only restriction on felons is if you are currently incarcerated for a felony. If you are out on probation, if you are on parole, if you are an ex-felon, you can vote with no problem whatsoever. We also created a program to get people who are in felony status registered to vote more quickly. We require parole officers to alert people who are leaving an institution to the fact that they can register to vote, and tell them how.
Recently, we have also allowed 17-year-olds to vote in primaries if they will be 18 by the general. So for Colorado, that means you could have been 17 and voted in the presidential primary, and you could have been 17 and voted in the state primary. That has proven to be a really nice way to get young people engaged. In fact, among 17-year-olds who were eligible in the last presidential primary election, we had over 50% turnout. That's an amazing number. And that means they are very likely to vote in the general election because they are already engaged.