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 Evolution of Brand Presidents
by Ciara Torres-Spelliscy
December 13, 2020
This interview with Ciara Torres-Spelliscy, a Brennan Center fellow, professor of law at Stetson University College of Law, and author of Political Brands, was conducted and condensed by franknews.
frank | You wrote a book recently about political brands, and in it you talk about the "rebranding of corruption." What does that mean?
Ciara | The Roberts Supreme Court has systematically redefined what counts as corruption, both in campaign finance law and in white-collar crime. The Roberts Court has made the definition of corruption so incredibly narrow that almost nothing counts as corruption anymore. And the people most delighted with what the Roberts Court has done, are corrupt politicians.
Are there examples of politicians taking advantage of the narrowed down scope of corruption?
Just this spring, the Roberts Supreme Court decided the Kelly v. U.S. case, better known as the Bridgegate case. Bridget Anne Kelly, who worked for Governor Chris Christie at the time, used her influence to close down most of the George Washington Bridge, and she did it for a really petty political reason: she was trying to get back at the mayor of Fort Lee, who hadn't endorsed Chris Christie for re-election. By closing this bridge down, she created traffic that was so epic it backed all the way into the town of Fort Lee. She lied about the bridge closure. She had been prosecuted and charged for commandeering the public bridge essentially for private use. But when her conviction was appealed to the Supreme Court, the Supreme Court wrote a unanimous decision that said that “not every corrupt act by state or local officials is a federal crime.” So she did not go to jail.
Another example is Bob McDonnell. He was the governor of Virginia. There was this businessman who wanted to sell tobacco-based pills to the employees of the government in Virginia. And the governor sets up all of these meetings for the businessmen. Meanwhile, the businessman gave the first lady of Virginia high fashion clothes, he gave the governor a Rolex, he gave the governor money.
This was not that subtle. But when the Supreme Court looks at the case, they decide that the governor’s setting up meetings for the businessmen to pitch the tobacco pills is not an official act. And because it's not an official act, there was no quid pro quo. And thus no crime was committed. I think the McDonnell case is another instance of the Supreme Court so narrowing what a normal person thinks is corrupt. Most people would think that this businessman who keeps on giving money and gifts to the governor of Virginia is wrong, but the Roberts Supreme Court does not have a common-sense view of corruption.
Do you think that the rise of money in politics, or the narrowed rebranding of corruption, has set us up for what you call "brand presidents?"
One of the reasons I got interested in branding in the first place was that most of the money spent in politics is spent on advertising. The millions of dollars gathered by PACS, or super PACS, in large part, goes to buy ads. And Trump is just sort of the most extreme example of this, but arguably we've been electing presidents as brands since at least 1952.
Eisenhower was the first candidate to really use television in a successful presidential campaign. He literally gets Madison Avenue ad executives, or Mad Men, to help him with his 1952 political campaign. And they use the same branding techniques that companies would use in a commercial branding situation — repetition, short, clear messages, one idea per ad, with catchy tunes. They really packaged him. One of the things I concluded after writing that book was that, maybe with the exception of the 2020 election, the candidate who was more willing to be merchandised, won the election.
Eisenhower runs against Adlai Stevenson twice and crushes him both times. Adlai doesn’t believe that the presidency should be sold in the same way that a bar of soap is sold. He once said, “This isn’t a soap opera. This isn’t Ivory Soap versus Palmolive.” Eisenhower, by contrast, was willing to be merchandised with songs like “I like Ike.”
Obama was willing to be merchandised – his hope posters, the music videos around him, the whole “yes we can” spiel was very clever and very effective political branding. Besides Trump, Obama was the best political brander that this country has ever seen.
Do you know just how much money was spent on advertising in this last election cycle? Is that an increase from the previous cycle? Does increased advertising make it easier to craft a "brand" president?
Much more money was raised and spent on advertising during the 2020 presidential election than the 2016 election. The Wesleyan Media Project, in conjunction with the Center for Responsive Politics, estimated $1.5 billion was spent on TV, digital, and radio in the presidential general election between April 9 and October 25. In 2016, these same sources found that Trump and Clinton spent $295.9 million combined. Increased spending on advertising has bolstered the ability of both major party candidates to brand themselves and their opponents.
Merchandising or commodification of a political figure is something that supersedes any campaign finance changes that came from Citizens United. Do you see them interacting with each other at all?
There are times when political branding and money in politics interact and make each other worse. For example, I think it is easier for extreme positions to generate funding. If you’re fundraising and your stance as a Republican is that you will never compromise with the Democrats, or if you are a Democrat your position is that you will never compromise with the Republicans, you will find an audience for that. That's one way of fundraising.
But I think the forces causing political polarization in our country are much bigger than the campaign finance system. Take the ridiculous information silos many Americans place themselves into, for one. Almost all of us have done this. If we are left-leaning, we want to see news that confirms that thinking about things in a liberal way is the correct way. If we're conservative, we want conservative media to echo all of our preconceived notions. We are in these very different information silos that make it very hard to have a shared view of reality.
How do these silos affect our understanding of politics?
One thing that struck me while doing this research on political brands was that anything could be normalized with enough branding, and anything could be pathologized with enough branding. By branding, I mean the purposeful repetition of a word, a phrase, or a logo until it gets stuck in the mind of an audience.
We are seeing both of these things occur after the 2020 election. Trump is pathologizing democracy right now by repeating over and over that the election was stolen. He knows that if he repeats a word or a phrase, it will penetrate his audience. He pathologized the investigation by special counsel Robert Mueller by repeatedly calling it a hoax, and a witch hunt. He is doing the very same thing with democracy itself right now, which is very dangerous.
You can also normalize anything with branding. I think that's what Trump tried to do with COVID-19. He tried to downplay it. His messaging was almost always about how it's less serious than it is, how you should get back to work, and how you shouldn't let it take over your life. For certain populations who got their news all from conservative sources, who listened to and believed Trump over the past four years, they were much more likely to fall for the lie that COVID-19 wasn't a real problem.
Does there seem to be an asymmetry between the two silos? The liberal media attempts to adhere to traditional liberal values – which calls for balanced media, time for the other side. Conservative media doesn’t seem to feel that need, Trump’s brand is based on a willingness to tear it all down.
Danielle Citron writes about there being a liar's dividend. What she means by that is lying is easy. You can literally just make things up. Sticking to the facts can be difficult, especially if the facts are complicated or if telling the truth literally takes hundreds of pages. A lie can be pithy. A lie can be effective, especially if it appeals to an audience's pre-existing biases. Saying to Republican voters that the 2020 presidential election was stolen is a very seductive lie. It plays into their worst conspiratory fears, and it plays into their suspicion that the only way they could have lost was if the other side was cheating.
The truth about the 2020 election is much more complicated. The truth is we have federal elections that are run not just by the 50 States, but by localities within the 50 States. There are different technologies that are used state to state, and in some cases, county to county. There are different election laws that apply in each of the 50 States. They had different rules about who could have a mail-in ballot. They had different rules about early voting. They had different rules about signatures. When you're trying to describe what happened in the 2020 election, it's very hard to do it with nuance in a quick way. A lie — that it was “rigged” — is much easier. And I hope the press gets better at holding everyone to the same standard and not paving an easier path for lies for one side of the partisan aisle.
History and context take time – which much news doesn’t have apparently.
Yes. That actually makes me think of the racial reckoning that we had this summer. For a couple of months, it seemed that Americans were starting to have conversations about structural racism, which is something that doesn't fit very well into soundbites. For a while there, there was some actual introspection. People could actually process the horror of George Floyd’s killing and have some historical discussions about race relations in the United States. And then that devolved into a debate around the 2020 election about whether the term "defunding the police" was productive for the democratic side electorally. Young activists on the street won’t have the image-makers and advertising Mad Men to help them craft the perfect focus-group-tested message.
It will always be seductive to try to have a slogan for fixing race relations in the Americas, but I hope we have more moments of introspection, more moments of learning history and we can actually build some empathy so that we get out of these stupid information silos that we put ourselves in. At some point, political branding loses some of its power if regular people recognize it for what it is: a means of manipulation. Branders tell you what you want to hear so that they get something in return whether that’s your attention, your money, or your vote.