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 People Who Run This Are Your Neighbors
by Mitchell Brown and Kathleen Hale
October 23, 2020
This interview with Kathleen Hale and Mitchell Brown, professors of political science at Auburn University and coauthors of How We Vote: Innovation in American Elections, was conducted and condensed by franknews.
Kathleen: I'm Kathleen Hale. I am a professor of political science at Auburn University where I direct the graduate program on election administration. I work with Auburn faculty to conduct training and certification for election officials around the country. I've worked in and published in this field pretty much exclusively for the last decade.
Mitchell: I am Mitchell Brown. I'm also a professor of political science at Auburn University and have worked closely with Kathleen in our efforts around election administration for the past decade. We write a lot about how elections are run, how election administration works, and what that means for understanding the election system here in the US.
We're at a critical moment, in a very unique election — what’s most concerning to you?
Kathleen: Well, there's a lot going on. We study elections and the process of conducting elections as a system, and by definition, it's a complex process. There is interaction across local government, state government, and, in a limited scope, the national government. What I'm most concerned about right now is trust in the system — the trust voters have to place in something that they don't know a lot about. Especially right now, voters are learning new information, they're confused, and they may not trust what they hear.
Mitchell: I'll add to that. I would say that the biggest threat to American democracy right now is declining trust in the electoral system specifically. People who have studied political science have watched the American public's trust in the government decline since the late sixties, but, for the first time, we are seeing a real distrust in the electoral system, and it's coming from a very political place.
There is a lot of partisan fighting right now, and a real attempt to rile people up — on one side about access, and on the other side about integrity. But, there is very little evidence that supports either narrative.
Can you explain how the election administration system collaborates between the federal, state, and local agencies?
Kathleen: Elections are a local enterprise. While the federal government has a duty to ensure equity, the federal government does not run the election. The states, through localities, run elections. Local offices run elections, and state officials support local offices.
Should we want to see uniformity across states? Are unique statewide barriers to voting something we need to accept?
Mitchell: We discuss this in our recent book, How We Vote: Innovation in American Elections. There is a lot of conversation right now about moving to a standardized federal election system, which would ensure uniformity across states. At the end of the book, we conclude that this is probably not a good idea. There is, of course, a real history of voter suppression for groups of people, particularly for African Americans. We think that the federal government needs to play a role in protecting citizens' right to vote and in ensuring equal access to the ballots. However, we think that moving to a uniform system across all of the states would hamper certain responsiveness to local conditions that election offices have now. Much of the positive change that we have seen in how elections are run has come from election offices responding to local conditions and local needs, and these needs and conditions aren't the same everywhere.
We also think that a move towards a federal election might actually make us less secure.
Another piece to consider is the cost of the transition. The cost associated with moving to a federal model would be really breathtaking. Right now the localities bear most of the expense of running elections, and it would be a breathtaking undertaking to move to a federal system like that.
Can you speak more to what the cost of moving to a unified, national system looks like?
Kathleen: I'll share two pieces in terms of what we learned about finance. One, every state's election laws are different. States use the same words to talk about very different processes, and different words to talk about exactly the same thing. For a nationalized process, verbage, of course, would all have to be leveled out — that is a seemingly low bar for nationalizing, well, anything. However, in the discussions we have had, right away, this is where the conversation melts. The response is, we have no money, why would we spend what little money we have on standardizing language?
Two, there isn't much in the election environment around the country that wouldn't be significantly improved with a significant infusion of resources. In the study that Mitchell's referring to, we looked at a sample of states and we compared what counties claim as their election budget, versus what the election office claims that their election budget is. That shows us what the share of the election office would be.
Zooming in on just Brooklyn — there were lots of people who received ballots that were addressed to someone else. That mailing process was outsourced to a private company. What does that do to trust in the system?
Mitchell: Election systems are complicated. While the local election office is in charge, very few state governments have the capacity in-house to do their own printing of all their ballots, particularly if you've got a large population. So they outsource to vendors. Across the country, there are over 8,000 different election offices creating multiple different kinds of ballots for all the different precincts. The idea that we're going to have a perfect election is not realistic. There are redundancies and checks put in place, but accidents happen.
My understanding of what happened in New York is that it was a vendor problem and when the problem was recognized, the vendor stepped in and said they would bear the cost of reprinting everything. Accidents do happen and bouncing back is a real thing. Election officials need to respond immediately and positively in order to assure the public they are not top of this.
Kathleen: This is a complex system that isn't fully automated. There's a significant amount of human activity, and room for error. When mistakes are made and when accidents happen, we can choose the sort of narrative to push. We can play into the idea of a larger conspiracy, but I think that has longer-term consequences. Sure, the errors are disturbing. But, hopefully, the narrative that things are being corrected is the louder voice. It is up to the people telling the stories.
Mitchell: On both sides of the political debate there is this narrative that there is this giant conspiracy, that there are people in the shadows pulling all of our strings. The people running these elections are your neighbors. Like Kathleen said earlier, this is a hyperlocal function. This isn't this giant conspiracy. Accidents happen. People need to reframe how they are understanding what's happening in elections.
We've said the word narrative a lot in this conversation — how can we better step away from ‘narrative’ and story & into facts.
Kathleen: I have to commend the media. Over the last six months, the narrative has shifted to focus on the mechanisms of election night and on the idea that we won't know the results on election night. It has always been true that the results when the polls close on election night, we don't have the final count. If the ballots that were counted by that time were the only ballots we counted, we would disenfranchise millions of voters. That has always been true. This is an area that takes a long time to understand and I am heartened by the shifts in conversation that I have seen.
Mitchell:
We have a real job to do in this country to build a higher level of information literacy in all people. That's obviously a bigger problem that exists outside of the contexts of elections.
Kathleen: We have started to think about how to recast the way we think about all of this, which is through the lens of civic responsibility. The act of going to vote was in person and seeing your neighbors in the school gym or the church basement was such a part of our culture, and it is clear that it's something that people still value. People are still voting in person. The engrained civic responsibility of that act hasn't gone away. That piece is still there.
I can say that local election officials go to work every day with the voter in mind. They are focused on voter confidence, voter trust, and serving the voter. That's why they do their jobs. These jobs are not easy to do. These jobs are not glamorous, they're hard, and the people who do these jobs, as Mitchell said, are part of your community. They only want to do the job the right way. They want voters to trust the work that they're doing. They want their communities to trust the work that they're doing. Their message is not a partisan message.
How do we bolster the functionality of local offices?
Mitchell: In addition to getting involved — volunteering as a poll worker, for example — it is important to support local initiatives to increase the amount of money we are spending on the electoral system. We spend so little money on it, and people just don't think about it very often. Instead of insisting that your local tax base be as low as possible, we need to recognize that just a little bit of money would make a real difference in what these offices have the capacity to do. It affects who they can hire, how many people they can hire, what kind of training and support they can give people, and what kind of equipment they can purchase. There are also real disparities across election offices. What a local office in a small town is capable of supporting versus a big city offers is really different. The willingness to say, raise my taxes just a little bit to support this function is pretty important.
How would additional funds and resources need to be spent to support integrity, access, and finality?
Kathleen: Amongst the election community, the understanding is that you can have accuracy and speed and low cost, but you can't have all three at the same time. You can have two. In order to have all three, you need more money and more resources. General operating money at the local level is what is needed.
Mitchell: You need resources to build professionalism and capacity. That is a long-term process. It's not money for a specific function, it's money for a broader infusion of the things that we need to build capacity and professionalism.
What is the best way to fund local election offices?
Kathleen: There are two ways to do this. One is to increase the local allocation of existing local resources. I think it's important to recognize we're in a place right now where state and local resources are really challenged and stretched. The tax base for states and for localities, in particular, has been really challenged by the pandemic. That's real. The cake is kind of baked for the next couple of years with limited, limited resources. And so one of the questions would be whether there is a role for federal funding here -- perhaps a dollar, a voter or $2 a voter allocated across the country as permanent operating fund funding for local election offices.
Arnold Schwarzenegger and USC were in the news recently for trying to distribute money into certain areas — most of which seemed to be in the South — where people were complaining about polling places closing down or there not being enough PPE. Do you see that as a positive thing?
Mitchell: I think there's more than just Schwartzenegger doing this. There are other groups that are doing this. This is not something that I have studied in-depth, but what I hear anecdotally is that the groups that are trying to do this have met some real roadblocks in the places where they've been trying to distribute money. There is distrust about the political motivations behind the private money, and there is a fear about whether the outside money wants to change local practices. That has led to some pushback about receiving the money. I think this raises a bigger question about how government should be run and how the government should be resourced and about the role of private philanthropy.
We have dealt with these questions as a country before. If you look at the beginning of the country, services for widows and orphans were private. We didn't have any social service function. But, at some point, we decided that it creates further inequity when this function is left to charitable giving societies. We came to the conclusion that it would be more equitable if the government were to provide those functions.
Kathleen: Nationally and historically, as a nation, we have had a deep suspicion of the role of private money. And I say all of this being convinced that we need resources.
I've seen some of the grant applications, I have seen the amounts of money these offices are asking for. These are not extreme asks. Elections are the way we measure democracy. All of us, regardless of political affiliation, should be invested in making sure that they are done right. We should be willing to fund this at a level that it needs in order to run effectively.
The difference between the way the government has to provide a service and the way a nonprofit can choose to provide service is exactly that — one is a choice and one is an imperative. The widows and orphans fund can choose who is eligible. The government takes all comers. The voting office takes all comers. The thresholds for eligibility are very clear — we are obligated to serve everybody. So while I applaud efforts like USC's, it raises a lot of questions. And in fact, I would be quite surprised if they were allowed to take the money.
Kathleen: There is also a question of what can be addressed without actual cash. What other resources do we have? What about the resources in the judicial system? We've defined a national role in this arena to balance out the competing constitutional claims of the national government and the states in running elections. The role of the federal courts here is important. The absence of judicial enforcement of long-standing, well-understood practices that protect voter access and voter participation has to be acknowledged. That has been a missing piece since 2013.
What happened in 2013?
Kathleen: In 2013, in Shelby v. Holder, The US Supreme Court made a portion of the Voting Rights Act essentially null and void. Since 1965, there was a formula that had been used that required particular states, and sometimes counties, to receive a prior review and federal approval of changes in their voting laws and voting practices. Things like redistricting and early voting periods had to be presented to the federal government. The Department of Justice would look at the changes states were making and decide if the changes were okay or not okay, if they were discriminatory or not discriminatory.
All change away from democracy seems to happen slowly, then all at once. I think Americans suffer from an inability to imagine that the version of democracy we grew up with could change drastically or disappear entirely.
Mitchell: Yeah. The other thing we talk about is how the parties are gearing up for this, the bevy of lawyers on both sides for court challenges.
That’s something we should think more about — whether we really want to do that.
Kathleen: The default to litigation feeds mistrust. If everything has gone so far to hell that only the courts can resolve this, it feeds into cynicism on the part of voters. Voters should feel that they have some agency. I dread this election going to the courts, not because of any particular decision, but because of the impact that may have on the perspectives of institutions as a whole.
Mitchell: It changes the quality of our democracy. Imagine the courts become the final arbiter of all actions that are important at the federal level. That has to lead to a decrease in political ethicacy at the individual level. That has to lead to more voter apathy. That can't be good for American democracy.
Kathleen: No, it's on the path to wholesale disengagement. It will become self-evident that it doesn't matter how I participate because a court will decide anyway. Following the crazy train down the track, let's just not have elections — other countries don't, let's just not have elections. Let's just ask the courts to decide. In fact, let's not even ask them, they'll just tell us. It is disheartening to think that only 20 years ago it was almost unthinkable that the Supreme Court would become involved in the results of a state election process. Bush V Gore changed everything.
Are you hopeful moving forward?
Kathleen: In the profession, we are known as the optimists and the people who aren’t political hysterics. We are very much on the side of wanting things to work.
We think local elections are a good government story — a good government story every time. We see local elections surmount amazing challenges. We conducted local elections in New York City on 9/11, we began the process and then rescheduled them for another day. We conducted elections in Texas and Louisiana after Hurricane Katrina, when hundreds of thousands of people were relocated or dislocated. It comes down to the people who run the elections. They know how to do hard work, under really challenging conditions, with a smile. Their message is not a political message. There's not a political way to vote, there's only participating in democracy.