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
Disputed Elections
by Lawrence Douglas
October 26, 2020
This interview with Lawrence Douglas, professor at Amherst and author of Will He Go, was conducted and condensed by franknews.
You wrote a book recently called, Will He Go, about what may happen in a contested election. What are you most concerned about this election cycle?
We have never had a sitting president or even a candidate for higher office who is telling the American people that our electoral system lacks integrity. This is unprecedented in American history and has been a pretty constant message emerging from Trump. He has consistently said that the only way for our electoral system to demonstrate its integrity is for him to win and if he loses it is proof that the election was rigged.
We can look back to his claims about the popular vote being stolen from him in the 2016 election. We can look back to when he refused to say that he would accept the outcome of the election in 2016 during a debate with Hilary Clinton. We can look back to when he was a candidate for the Republican nomination, and lost the Iowa caucus to Ted Cruz. The very next day he was out there tweeting saying, "I didn't lose the Iowa caucus, Ted Cruz stole it. The results should be tossed out." He has consistently spewed an unprecedented, toxic message.
Can he, or any other president in power, refuse a transfer of power?
My primary concern is that he might do something to muddy the waters as to who has won the election if it hinges on tight margins in a handful of swing states like Michigan, Wisconsin, Pennsylvania, and North Carolina.
It is not unlikely that he might have a lead on November 3rd, given the fact that his supporters are more likely to vote in person than Biden supporters. Trump supporters are more than twice as likely as Biden supporters. Trump could try to leverage that lead and claim that he's been reelected and that any coming mail-in ballots have been irretrievably corrupted by fraud.
At one point does this “muddying of the waters” turn into a power grab? When does the rhetoric shift into political gain?
In key swing states, there are going to be millions of mail-in ballots. There's no doubt that there'll be instances of mistakes in counting those ballots. Any mistake will create an opportunity for Trump to spin that into a conspiracy theory. We've already seen him do that in Luzerne County, Pennsylvania. A part-time election official who had been on the job three days accidentally threw out nine mail-in-ballots, seven of which apparently had Trump's name on it, and in the first presidential debate, Trump used that instance of harmless error as evidence of a grand conspiracy. And it's not just that Trump was making those claims. We saw that the Department of Justice under Barr launched a formal inquiry into those nine discarded ballots, which gave a sense of legitimacy to the claim that there was some kind of larger malfeasance behind this action.
What role do you see the courts playing in scenarios like that?
It is certainly going to be the case that the courts will play an important role. There is already a lot of litigation coming through the courts, and there is no doubt that there is going to be more in the wake of the election. Again, a lot of the litigation will be focused on these key swing states.
Both sides will bring various court challenges regarding the qualification or disqualification of mail-in-ballots. There are technical reasons for disqualifying mail-in-ballots, including things like if the ballots were submitted in an untimely fashion or if the signature on the envelope doesn't match a signature on state records. And regardless of the actual outcome, these cases will slow the final count. I think any kind of delay works to Trump's favor — in that it permits him to continue to perpetuate a narrative that he has been reelected and that the mail-in-ballots are fraudulent.
At what point does litigation reach the Supreme Court? Do you anticipate that happening and does that concern you?
It is not entirely clear if or when the Supreme Court would step in to resolve these sorts of disputes.
But, they are already involved to an extent. The Supreme Court just ruled that ballots in Pennsylvania will be counted if they are received within three days of Election Day even if they do not have a legible postmark. One possibility is that Amy Coney Barrett could be a deciding vote, and it remains to be seen whether she would recuse herself or not. That is concerning to me.
Right. Are there mechanisms the Constitution puts in place to prevent a refusal to transfer power? In ways you think might be outside the scope of what is contested in this election, in what ways does the Constitution ensure a peaceful transfer of power and the preservation of democracy?
Neither the Constitution nor federal law does a whole lot.
The president can't delay an election, only Congress can. January 20th, inauguration day, is a hard stop, set in the Constitution. If Trump loses, he becomes a civilian at noon on January 20th. If there is no decision either amongst the electoral college or between Congress by the inauguration, we go by the terms of the Presidential Succession Act of 1947, and Nancy Pelosi would be sworn in as the acting president. But beyond that, the Constitution and federal law don't do a lot to secure the peaceful transfer of power; they presuppose it, as opposed to securing it.
A number of people, particularly those from other countries have asked, when do you get a re-vote? In a parliamentary system, you can call for new elections, but we don't have anything like that. There is no plan B.
Are there other times in our nation’s history, where the electoral system has been stretched and tested?
The two elections that came the closest to genuine electoral meltdowns are the race between Hayes and Tilden in 1876, and the race between Bush and Gore in 2000.
In 2000, the swing state was Florida. The entire election was going to turn on what happened in Florida, where the count was mired in litigation and confusion for 35 days after the election. Finally, the Supreme Court stepped in and basically stopped the Florida recount that had Bush with a 537 vote lead.
It's impossible to imagine Trump acting in that fashion.
The election of 1876 was even more complicated. Three states couldn't decide who had carried their state and submitted conflicting electrical certificates. That particular electoral dispute was resolved by a one-off electoral commission, and it wasn't resolved until two days before the inauguration. I should say that the actual compromise was a disaster, particularly for the Black citizens of the United States. Democrats agreed to recognize the Republican winner, Hayes, in return for the removal of federal troops from the South, paving the way for the creation of the Jim Crow era.
You can imagine a similar situation in 2020. If you get conflicting electoral certificates in swing states, the key swing states, Wisconsin, Pennsylvania, Michigan, and North Carolina, all have Republican legislatures and Democratic governors. And you can imagine a hold up in Congress, especially if Congress remains divided as it is now. It is important to note that it is not the present Congress that will be deciding things, it will be the newly elected Congress.
Which puts a new emphasis on down-ballot races.
Absolutely. These down-ballot elections could be hugely important, particularly in respect to the composition of the Senate. But, to make things even more complicated, these senate races could also be mired in counts and recounts involving mail-in-ballots. It's not necessarily clear that we will even know what the composition of the Senate is, come January.
Clearly, this election is unlike anything we have ever seen before. There is distrust on both sides. Do you think we can recover from this?
It's true that it's not only the Republicans who have lost trust in the electoral process, Democrats have lost faith as well. However, there is a real asymmetry in the reasons for that loss of trust. We know that there's no reason to doubt the integrity of mail-in-ballots. Trump's attack is baseless. His own FBI director has said there's no evidence whatsoever of any kind of a concerted effort to rig the election with mail-in ballots. On the other hand, the Democrat's concern over voter suppression is legitimate. There is a long history of Republican lawmakers trying to suppress votes, particularly of black voters, poor voters, and other ethnic minorities who tend to vote overwhelmingly Democratic.
It's absolutely essential that, regardless of the result of this election, we try and restore that faith. There are things that we can do to restore that faith. We can work really aggressively to protect the right to vote, we can try to invest in election infrastructure to ensure it is not vulnerable to hacking, and we can get rid of the stupid electoral college — which is an archaic, anti-democratic, dysfunctional, and dangerous mechanism by which we elect the president.
Speaking to the asymmetry — do you think that says something about the cultural and political propensity of Republican voters, or a larger shifting American penchant towards authoritarianism?
I am not sure I could necessarily say that there is a willingness amongst a certain number of Republicans to support authoritarianism, but one thing I do think is fair to say is that there is this incredibly siloed media environment.
If you're being fed disinformation, you're incapable of making an informed choice and that's an incredibly dangerous thing for democracy. I think we can stay with that observation — that the American public is not getting accurate information, and they are making their political conclusions and decisions based on misinformation campaigns.