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
Those Enumerated
by David Schulltz
October 19, 2020
This interview with David Schultz, professor of political science and legal studies at Hamlin University in Saint Paul, Minnesota, and a professor of law at the University of Minnesota, was conducted and condensed by franknews.
What is the origin of the census?
The census has a constitutional foundation and is tied to the core notion of our democracy. The purpose of the census is to ensure that we provide a good count of how many people there are and link that count to representation.
The census is listed in Article I, Section 2 of The Constitution. Article I deals with the powers of Congress. It discusses how the House of Representatives is apportioned based on the state population and calls for a census every 10 years in order to count all the persons who are living in the United States.
Can you clarify how people are counted? Is the process still a door to door, head by head counting?
Some of it is. Traditionally that is the way the census is run. A lot of it has, especially during the pandemic, switched to brochures through the US mail that ask people to go online and to fill out the census form. Even now, outside of the efforts throughout the mail and on the internet, there are still census takers who go door to door to try to reach whoever has not responded.
How do you count for a homeless population, a population that doesn't have access to technology, or a population living below the poverty line who might have a harder time being counted? How do you ensure that those people are also being represented within the census?
I'm also going to add to this consideration individuals who are not documented. It's very difficult to count all of these different populations. Some of them may be afraid of answering the questions, some of them may be hard to locate, and some of them simply do not want to respond.
Occasionally, there will be some slight statistical corrections within the census — it is possible to extrapolate from existing numbers to say that there might be additional individuals in specific areas. But, to a large extent, the census has to try to identify pockets of where people are living in tents or may not want to respond to the census, and go out and count them. These are not easy things to do.
The Constitution says that the only people to be counted are free persons — and all other persons are to be counted as three-fifths of a person. How did we move past that? Have there been efforts to make sure we count everyone?
The original constitution is really the product of compromise, fear, and distrust. Go back to 1787. The fear and distrust was between the small populous states versus the large populous states, the North versus the South, the slave states versus free states. All of them were really concerned that if the new constitution was not structured in a certain way, they might be the loser.
Among the battles that were fought was the gap between the free and the slave states over representation. The three-fifths clause was really central to the original constitution but has been removed from the constitution through various amendments, including the 14th amendment, which provides for equal protection under the law, and the 13th amendment, which outlawed slavery. The three-fifths clause counted slaves as three-fifths persons for the purpose of representation and taxes, but in neither case were African-Americans given any rights, let alone voting rights.
Historically, there have been strong efforts to try to count everybody. Of course, when you think back to the 19th century, we were dealing with a much more agrarian, much more rural America. Now, in very large urban areas, it can be difficult to count everyone.
But, over time, at least since the Civil War and maybe even since the beginning of The Republic, there hasn't been a politicization over the census and the counting of people to the degree that we are seeing this year. This polarization over counting is unique.
What is the point of politicizing something like the census? What can the census shape? Can we back up and look at how the census shaped American politics after the 2010 census year?
The census shapes the political landscape in a variety of ways.
The 2010 census happened to be in a year that Republicans did exceedingly well across the United States at the polls — they captured state legislatures, governorships, and so forth. In 2011, when it was time to draw the district lines across the United States, Republicans, who were in control of many statehouses, drew lines to their advantage.
The elections this year are still taking place under the district lines that were drawn in 2011. Of course, we know that partisan gerrymandering is a problem, but the Supreme Court has said that they don't want the federal courts to address it. Again, remember why the census is so important. It affects your count for the population. The count for the population affects the representation in Congress.
The census also impacts how many electoral votes a state has in the election of the president. It has an enormous impact on federal aid money that comes back to the state.
It can also affect how money is earmarked for particular types of programs.
Right. There has been a push to end the census count early, and a recent Supreme Court ruling to end the count by October 31st. Why is the timeline so contentious?
Normally one would think that in a pandemic as serious as what we are experiencing right now, that there would be all kinds of reasons to want to extend the date of the census to ensure an accurate count. Right now people are afraid to open doors. Right now people probably need more time to do the census because of all the other challenges that they are facing.
But, we have wound up with a partisan divide over the census that is due, in part, to the political rhetoric Donald Trump started four years ago, where he was critical of immigration and critical of immigrants, including those lacking documentation in the United States. In addition, Trump would prefer to not count undocumented immigrants in the United States. That has the potential to have a significant impact on representation. Some people are arguing that it could hurt areas of the country where the Democratic party leads, such as big cities. But even for those legally in the US, they may fear that completing the census puts them at risk for deportation.
Who decides the timeline of the census?
Congress has established parameters for the conducting of a census — it has the authority to do so under the Constitution. The president, in many ways, is trying to preempt the authority of Congress. At this point, it looks like the census is going to end on October 31 and there will not be an extension. The next battle is going to be a hearing on November 30th regarding whether the president can exclude undocumented individuals from the census count.
Is there a precedent for that?
Not really, no. The census says all persons, but it doesn't specify a particular type of person — it's broad language seems to suggest that anybody who is permanently dwelling in the United States should be counted as a person. Again, we haven't had a case like this before the Supreme Court. This decision will be brand new in terms of who should be counted.
Do you think that there's a better or more efficient way to run the census?
The census could be improved by using the technologies that are available. But, of course, we know there is an enormous digital divide, which means some people are not going to have access to that sort of technology. but I think the real question about the census is not how do we make it more efficient, but rather how do we deal with the political factors around the counting process.
By some estimates, we have 12 million individuals who live in the United States without documentation.
There are also those legally in the US who fear answering the census puts them at risk. Part of getting an accurate census gets into immigration policy and gets into the question of how to instill trust among people.
Are there suggestions for how people might feel more comfortable? Is there a legal way to ensure protection for those people who might feel nervous about participating?
You could pass laws that say that the information that individuals disclose on the census would not be shared with any immigration authorities. But again, even if those laws were in place, how do you address the basic fear and suspicion and distrust that many people have? It probably would require a really significant education program. It probably would also require the hiring of census workers who look at the people who are taking the census. I'm not sure if the Census Bureau has done a good enough job with that kind of diversity.
In many ways, we've never faced this problem to this degree before. And to a large extent, the centrality of the issue lies in blaming immigrants for America's problems and labeling individuals who are not documented as part of the problem.