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
After the Polls Close
by John Fortier
October 19, 2020
This interview with John Fortier, Director of Bipartisan Policy Center’s Democracy Project, was conducted and condensed by franknews.
Why do we have an Electoral College?
Our election system is really much more of a states’ issue than people realize. We vote differently in different states, and the Electoral College really is the mechanism by which we vote through the states.
Who makes up the Electoral College? Who are our electors?
Slates of electors — one Republican, one Democrat — are nominated or elected by the parties in each state. On election day, the public votes for one of those slates.
The vote on November 3rd typically results in an Electoral College majority. There is a second election in December amongst electors, but it is not widely discussed or covered, mostly, because it doesn’t matter. Electors are loyal to their parties and typically vote as expected. The new Congress then votes to validate the Electoral College votes on January 6th, and by January 20th we reach inauguration. Usually, there are not any great hiccups in the process.
Does that change if it is a close election?
Even in a close election, we don’t think too much about the Electoral College. However, there are a few things that have happened in the past that could happen again.
First, there can be “faithless electors” — electors who vote against the popular vote of their state. Electors, for the most part, have the ability to act freely, and some people worry that they could tip a very close election if a few electors were to change their votes at the last minute — they could move the total for a candidate from 270 to 268, for example. However, in the past, faithless votes tend to be protest votes that do not really amount to anything.
Recently, a number of states have passed strict laws that bind their electors to the popular vote of their state. Previously, laws asked that electors be bound and, in some cases, imposed small fines on faithless electors, but there were no severe constraints. In the 15 States that now have this power, electors will be replaced if they vote the wrong way.
I wasn't sure if that was going to pass constitutional muster, but The Supreme Court upheld it this summer. The Supreme Court actually, in their footnote, hinted at the idea that the only case where this would cause additional hiccups is in the scenario that a candidate unexpectedly drops out, dies, or, for one reason or another, is not on the ticket. Which, of course, is something that has been in the conversation over the last couple of weeks with the president having Covid.
Another thing that can happen is the bargaining amongst the electors. In the 1968 election, George Wallace, a third-party candidate, won states and won electoral votes. Amongst the Nixon and the Humphrey electors, there was some discussion about coming together to exclude the Wallace electors. They didn’t want the election thrown into the House of Representatives, which is what happens if the Electoral College is tied.
But these are sort of odd situations, and these aren't the issues that keep me up at night.
What would you consider to be the more pressing concerns with the Electoral College during this election cycle?
I think the more realistic scenario that we could see is something like what started to happen in 2000 or what happened in 1876. In both cases, because the state race was so tight, there was a real question as to which slate of electors, the Republican slate or the Democratic slate, should be appointed.
In Florida 2000, if Al Gore were to pull ahead in the recount, would a second slate of electors need to be appointed? Eventually the Supreme Court stepped in and halted the recount in Florida, and the Republican slate of electors was appointed. But, imagine a scenario where the dispute is not resolved.
Eventually, the dispute will end up in Congress’ hands, but it is not clear in The Constitution how Congress is supposed to decide. After 1876, when multiple slates of electors were actually sent in, Congress passed the Electoral Count Act to try to address how to approach that sort of scenario, but, I would say, it still is ambiguous.
Early on in our democracy, many state legislatures would directly appoint state electors. If you had a Republican legislature, you would appoint a Republican slate of electors. While this faded out after the Civil War, an argument — a controversial argument — was made by the Florida legislature in 2000. The Republican legislature felt that Democratic attorney generals were unfairly favoring the recount for Gore, so they wanted to step in and send the slate of electors to Washington themselves.
If I wanted to think of disaster scenarios — this is the sort of case that would be the disaster scenario. This is where there is the least amount of clarity in the election mechanisms after November 3rd. This is where parties could really seriously disagree, and this is where we have no third arbitrator to decide between the two of them. The parties would have to work it out on their own.
Are there deadlines that are important to know in the electoral process?
The president’s term ends on January 20th at noon.
If the election is not resolved by the inauguration, if it is still with the House of Representatives, then perhaps we have to go to the line of succession. But January the 20th at noon is when a new president has to take office.
There are two other dates that might matter. They're both in law, not in The Constitution, so theoretically they could be moved. There is the meeting of the electors, which is on December 14th this year. There is also the “safe harbor” deadline which is 6 days before the meeting of the electors, which is set by law to try and aid in the counting by ensuring no interference from Congress if the counting is complete by the set deadline. This date was highlighted by The Supreme Court in Bush v. Gore, and was one of the reasons they stopped the recount.
Recently, it seems there have been a lot of claims that the electoral process is undemocratic, and a push to move us towards a national popular vote. Do you think the Electoral College is still a democratic system?
The Electoral College has never been particularly popular in the modern era. Many people think that we should have a national popular vote — it is a more natural line of thought. And if we were to start from scratch now, maybe we would instill a national popular vote.
We are a country of states. And though a few times there has been a difference between who wins the Electoral College and who wins the popular vote, it still is very unlikely to happen.
The proposal for a national vote, as it stands, is a halfway house, because it is really hard to amend The Constitution. States can appoint electors directly based on whatever criterion they want, and so the idea would be to appoint electors based on national popular, rather than the states' vote. But, there are some issues with that. What happens if the election is really close? You can’t really recount a national election, you can only recount the states. You would also have to make sure that all the states are uniform in their elections. And maybe that's a good thing, maybe people would like that. But maybe when we get down to the nitty-gritty and people will say, "Well, we really liked the way we vote in Alaska, it's good for us, or we like the way we vote in Oregon."