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
States Are the Laboratories of Democracy
by Michael Miller
December 9, 2020
This interview with Michael Miller, Assistant Professor of Political Science at Barnard and author of Subsidizing Democracy: How Public Funding Changes Elections and How It Can Work in the Future, was conducted and condensed by franknews.
frank | A big takeaway from this election cycle is the record low levels of trust in the election system. Do you think that the way campaigns are financed plays into that sense?
Michael | Trust is really the crucial variable here. I recently participated in a webinar for the New York Chapter of the American Association for Public Opinion Research, and one of the things we were talking about was exit poll data. The AP Fox pre-election poll asked the question, "how confident are you that votes will be counted correctly?"
Among the people who said that they're very confident that votes are counted correctly, only 32% of them voted for Trump. We have similar findings when we ask people about how confident they are that people who are eligible will be allowed to vote? Out of the people who believe that voter suppression is a serious problem, 74% of them voted for Biden.
There is a huge lack of trust, and you can't point to any one reason.
Ultimately that is going to have severe implications for democracy, and I don't know how you fix it. I don't think that reforming campaign finance systems alone can restore trust. In fact, a long time ago, I wrote a paper looking at the effects of public campaign funding. We asked: once public funding was put in place, did voters have greater efficacy or trust in government? We found that there was no change. For the most part, nerds like me overestimate the potential efficacy of policy changes. It turns out that very few people actually know very much about these laws, and unless you are a donor, which fewer than 3% of Americans are, you really have no reason to know what the rules are. I don't think there's any theoretical reason to believe that campaign finance reform is going to trickle down into greater trust in the system.
I do think you're right to seize on it. Almost any of the other problems we are facing right now can be traced back to this trust gap. For instance, one of the questions right now is why the polls were wrong in 2016 and 2020. If you dig down into it, you actually find in 2020, anyway, most of the polls got Biden right, but they got Trump wrong. I think the most compelling explanation as to why is because the political right in the United States has lower levels of social trust. That fuels non-response. They just don't participate in exit pools or pre-election polls, which explains why we see Trump's number understated. It's not that the polls are wrong, it's that these trust deficits have created different buckets of Americans who are participating and engaging with various aspects of our democracy in completely different ways.
You mentioned most people don't have a strong understanding of the current laws that govern campaign finance. What do you find are the most widespread misconceptions that the public has around campaign finance? Is there a disparity between party affiliation?
The disparities between parties aren't really that great. I think the largest misunderstanding that people have about federal campaign finance law is that people don't know that corporations can not donate directly to political candidates. After the Citizens United ruling, the headline was that corporate money was infiltrating American politics. And people absorbed that, but didn't understand the more esoteric nature of that case, which was, corporations can spend money in elections, but they can’t donate to candidates. In a 2014 book, my coauthor and I found that a solid majority of people incorrectly believe that corporations can give money directly to candidates.
Do you think the changes in the composition of the type of money going into candidates and campaigns after Citizens United warrants the amount of concern around it, or do you think it's become an outsized talking point?
We wrote a book about that very question. When we set off to write that book, I had the pitchforks out. I looked at that decision as among the most egregious examples of judicial activism in the history of the Supreme Court. I still believe that. I expected to find that that decision eroded democracy, but the data tell a completely different story. There is more money coming into the election system, that is true, but it's not affecting elections in any different way than any other money in American politics.
When you get down to it, they behave the way that most other political committees have behaved for a long time.
The Supreme Court's position on campaign finance often boils down to, "all we're doing is ensuring that there's more speech in the American political system." In our book, we were left with that as a conclusion. We really came to see that as sort of a neutral outcome. There is money coming in on both sides, and ultimately these elite actors, the super PAC heads, or even just normal political action committees, are taking the temperature of the electorate in a given district and putting money with people who they think are going to win. super PAC, or any PAC money, is really about an investment in trying to get access. PACs want to pick winners so that when it comes time to get access to a legislator for that 10-minute meeting, they have their card in their back pocket, because they gave $10,000.
Well is that where the idea of corruption coming from money comes from? Paying to play, essentially?
Corruption is a hard word. If I'm a member of Congress and you're a donor, and I'm totally anti-gun and you're a pro-gun organization, and you gave me $10,000 one night, and I suddenly changed my vote, that is corruption. That would be a vote purchase, and it's been very difficult to find any evidence of this. We should expect that it is difficult to find because illegal acts are covered up, but, generally, what we find is that these organizations are not trying to change people's minds. They're finding people who already agree with them and who are well-positioned to run for office in order to protect their friendly members in the majority. I don't think that's corrupt. The Supreme Court would definitely say that that's quintessential political speech. It is supporting candidates who agree with you. I think we have to be careful about what we brand corrupt.
I certainly understand that the average person looks at these sums of money and says, how could that not be corrupting? If you're concerned about corruption, judicial elections at the state level is really the arena to focus on. The Supreme Court has agreed. In the Caperton v. A. T. Massey Coal Co. case, the Supreme Court decided that a $3 million contribution to a judge was probably corrupting. So there is a threshold somewhere, but it hasn't been defined.
When I've done work with state legislators, one of the questions that I always ask them, just to see what they're going to say is, can I buy your vote? What does it cost to buy your vote? And the answer that I often get is, "Well, my vote is not for sale, but some other people might be interested." So there is a belief even among legislators that some of this stuff is going on, but especially at the state level.
You've done a lot of work studying state reforms. I am curious about the effects that reforms like matching systems or clean election programs have. How does it change the decisions campaigns make? Does it change how people feel about their elected officials?
There are really two kinds of major public funding reforms at the state level.
Arizona, Connecticut, and Maine, for example, have “Clean Elections” systems. If I'm running for the Arizona House of Representatives, they give me something like $35,000, which is about what it costs to run for that seat, and I can't raise any more money.
You asked, how do campaigns change? One of the findings in a book I wrote about Clean Elections is that the campaigns take the time they were spending raising money, and reinvest in public interaction. They spend more time going out and meeting voters, they knock on more doors, meet with more interest groups. Nobody runs for office so they can sit in a conference room and call donors. They want to be in the parades and kiss the babies and shake the hands. With Clean Elections, they are freed from the responsibilities of raising money and are able to do that.
And on the other side of the coin, there is more interaction taking place between candidates and voters, so more people vote.
If I knock on your door, when you go to vote and see a name there, you can put a face to it. You remember that conversation you had back in October when that person knocked on your door and asked what you care about. Maybe that conversation made you vote for them, or maybe you hated them, but either way, you are more inclined to express an opinion because you have context.
But, the Supreme Court has really kneecapped those systems. The future of state-level public funding is small-dollar matching programs like the one New York City pioneered. Mike Malbin, the director of the Campaign Finance Institute, has a paper that looks at how candidates become more democratic in their efforts to fundraise due to these reforms. The donor map expands because the incentive for candidates to interact with small donors changes with the matching program. I don't think we've done nearly enough work to figure out what the downstream implications of all this are. I would be amazed if there wasn't more civic participation to come from that. I mean you are literally investing in a campaign, that has got to pull you into other things like voting and volunteering.
The conversation around campaign finance oftentimes revolves around federal reform, and specifically around Citizens United, should we shift our focus to local and state reforms?
There’s a saying that states are the laboratories of democracy. When it comes to campaign finance, I think that's totally true. There is such wide variation in campaign finance policies across the states. I was glad to see the state of New York adopt the New York City model, even if the courts have stalled that effort. If New York or other states are able to implement these programs, we'll be able to trace how it changes state elections, and so I would expect that other states are paying attention.
Campaigns cost money. There's no way to have a democratic election these days without spending sums of money. I think most people recognize that and are okay with that. The question then becomes, who owns this infrastructure? Should it be million-dollar contributors, or should it be the people?