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
Insulated From the Ballot Box
by Dave Daley
December 30, 2020
This interview with Dave Daley, a senior fellow for FairVote and the author of Ratf**ked: The True Story Behind the Secret Plan to Steal America's Democracy and most recently, Unrigged: How Americans Are Battling Back to Save Democracy, was conducted and condensed by franknews. We first spoke to Dave in May 2020.
Dave Daley | Redistricting happens at the state level. If you want to try to understand the lay of the land as we head into the next cycle, we've got to look at it state by state. Democrats will be in a slightly stronger position in some of the states where they were wiped off the board during the last round of redistricting.
I think what's important to start with is that in 2010 Republicans ran a really sophisticated and tactically superior effort than the Democrats in an important redistricting year. They took control of all of the state legislatures in many states that were key: Pennsylvania, Wisconsin, Michigan, North Carolina, Ohio, and Florida. Republicans never surrendered control in any of those state legislatures over the course of the entire decade, even in years when Democratic candidates won hundreds of thousands of more votes in statewide races.
There are similar stories in Michigan, similar stories in North Carolina, and similar stories in Wisconsin. The 2010 maps held. We have never seen gerrymandering the likes of which we had this last decade at the state legislative level. Ordinarily, gerrymandering fades over time: people die, new voters of age, people move, and political opinion shifts. Certainly, all of those things happened over this decade, but the results did not change in any of those states.
frank | Was there any successful efforts mounted against this reality? When we redistrict with results from the 2020 census, how will it affect the next decade?
Over the past decade, Democrats had to find other ways to gain a seat at the table for redistricting. In some of these states, the easiest way is to win a governor's race. Governors have veto power over proposed redistricting maps. Democrats won the governorship in Pennsylvania, Wisconsin, and Michigan. Those will be important positions. Democrats have also won important victories in Supreme Court races. In Ohio, Democrats will control the state Supreme court 4:3, in North Carolina those advantages eroded a little bit in 2020, but Democrats will still control the court, and in Pennsylvania, Democrats took back the court in 2018 and that court in 2018 and overturned a gerrymandered congressional map and replaced it with a fair one that immediately turned to a 13:5 Republican map into a representational 9:9.
Citizens have stepped up and won reforms.
Virginia just passed a bi-partisan citizen politician hybrid commission, meaning that citizens will have a seat at the table there. Colorado will have a commission that is drawing the lines. There's certainly some good news in all of that. When both parties have seats at the table, you usually end up with more representative maps. The bad news is that there are still too many places where one party is going to control the process completely on their own. There will be many states that are closely divided where Republicans will be given a huge advantage because they will have the power to redistrict.
What are some of those key states?
Democrats had hoped to flip the Texas House of Representatives. They needed to win nine seats, but they did not even come close in 2020. Republicans will have a free hand to draw those districts for the state congress. Texas is likely to get an additional three US house seats. Republicans will likely be able to draw state house districts that bolster the state being a red state, and push back the timeline for the Democrats who imagined the demographic changes might turn it blue.
In North Carolina, the governor does not have a seat at the table for redistricting. The state House and Senate controlled that process — and Republicans held onto both. In Florida, Republicans will run the entire show. In Georgia, Democrats won't have any influence over redistricting. In Kansas, there is a Democratic governor who would ordinarily have been able to veto an extreme map, but Democrats had to take one seat in the statehouse to have veto power over an extreme map. And they didn't. And as a result, Democrats will likely lose a congressional seat.
In Kentucky, Democrats have one seat right now in the Louisville area. I imagine it would be easy for Republicans to draw a map that cracks Louisville in half and gets rid of that seat. There is a Democratic governor in Kentucky, but you can override the governor's veto with a bare majority and Republicans have far more than that in both houses.
Democrats are only going to have probably a five or seven-seat advantage in House when it is sworn in January, and they could lose all of that off the bat in 2022, just with new redistricting in Texas, North Carolina, Kansas, and Kentucky. And that's before Republicans work their magic drawing new districts in Florida, Georgia. and Ohio.
We just conducted the census, what are the next steps?
First, the Department of Labor will release the new census data. We don't know when that is going to arrive. COVID has pushed back the timeline – potentially until April. Once the census data is available, we move to Reappointment. The number of U.S. House seats that each state gets is, of course, determined by the census, and states will draw new districts for that legislative body.
You're going to see a real panic, I think, in the states that have legislative elections in November of 2021. If the census data really does come out in April, they could probably get the new maps shaped by June, but that begins to really compress the calendar for the primaries. And, if that gets pushed much later, you might have some states that have to decide whether they want to continue on the current maps for another cycle.
Are there legal battles you expect to see during the redistricting process?
I think the most consequential fight that a lot of the states are going to have is over the citizen voting-age population. The long time standard for drawing state legislative districts has been the total population. The U.S. constitution mandates the use of total population for drawing congressional districts, but there is an open question over whether or not to do it for a state legislative district.
Republicans have been playing around with this notion of only counting citizens over the age of 18. In a state like Texas, for example, that would reduce the number of districts in South Texas, a Democratic stronghold, as well as the Houston, Dallas, and the Fort Worth area. When you deduct non-citizens and children from the population count, you are dramatically lowering the population of cities. Political power is shifted from cities to areas that tend to be older, whiter, more rural, more conservative. I imagine that's going to be something that Republicans attempt to do in the states where they have trifecta power, and then I think very quickly that will be challenged in court.
These decisions about new districts will happen at a state level, correct?
That's right. The U.S. Supreme Court got out of the partisan gerrymandering game. Activists and reformers then began filing these cases in state Supreme Courts, where oftentimes there are more robust protections of voting rights under free and fair election clauses.
I imagine you will be seeing more of those challenges in state courts over the course of the next decade. I think what is concerning to advocates right now, however, is some of the litigation that has emerged in the last month as far as the president's challenges in various states. You have seen at least four justices on the U.S. Supreme court advancing legal claims that state Supreme Courts do not have the authority to interpret state constitutions on election issues. And there appear to be at least four justices that are willing to sign on to this. We don't know where the newest, Justice Coney Barrett, comes down on this yet.
If the Supreme Court decided it wasn’t a federal issue in 2013, and might be willing to say, additionally, the state Supreme Courts cannot make redistricting calls, who is left?
Well, if they go that direction, they're saying that the federal courts can't do anything to fix a partisan gerrymander and a legislature that has entrenched itself in power, and the state supreme court can’t do it. That would leave no one else to do it.
That seems incredibly concerning.
To what extent do you see gerrymandering contributing to this political landscape and to this disconnect that people feel between themselves and who is governing them?
I think it's huge. I think gerrymandering has been the key step in perpetuating and enduring a Republican minority rule across the country. After the 2018 election, there were 59 million people who lived in a state in which one or both chambers of the state legislature was controlled by the party that won fewer votes in that year's election. It's tough to look at that and call yourself a democracy when power in the state legislature can't be shifted by a majority of citizens. When the maps are so unresponsive that the huge majority can't budge partisan control, politicians are insulated from the ballot box and are able to act in unaccountable ways.
Gerrymandered state legislatures create extreme policies that most Americans don't agree with, and policies that most the residents in these states don't agree with. Residents are powerless to stop the growth of personhood, abortion, reproductive rights bills in Ohio and Alabama and Georgia and Missouri. The transgender bathroom bills in North Carolina and the assaults on labor rights across the Midwest are, in large part, due to these gerrymandered legislatures.
Oftentimes it starts in state legislatures.
What role did the gerrymandered legislatures play in the 2020 election cycle?
The scheme that we have seen in this 2020 election, the president alleging all kinds of fraud and irregularities, was made possible by partisan gerrymandering. It's not a coincidence that this scheme was based around state legislators in Pennsylvania, Michigan, and Wisconsin. These are state legislators who first had to enable the president's narrative by refusing to allow mail-in ballots to be opened, processed, and tabulated before the election, like in 40 other states. That allowed Trump to be able to say, "Let me tell you what's going to happen. I'm going to have the lead on election day. And then all of these votes are going to be counted from Detroit and Philadelphia and Milwaukee, and they're going to steal it from me."
And beyond that, this ploy to have these state legislatures potentially overturn the popular vote in their states and cast electors for Trump, is also only made possible because Republicans control these states with fewer votes. It is wild to me that the Michigan house speaker goes to the White House to celebrate afterward with an $800 bottle of champagne at the Trump hotel. He's the Republican speaker of a house that Democrats always get more votes for statewide. Trump knew where to go when he was trying to hold onto power with fewer votes. The state legislatures in Michigan, Wisconsin, and Pennsylvania, are the experts at it. They have been doing it all decade.
The crisis in this election would be if state legislators decided to send their own slate for electors to the electoral college. It is an interesting point that gerrymandering is not only creating an ideological gap between constituents and representatives, but it is also potentially creating the point where our democracy, one day, crumbles.
We were staggeringly lucky that this race wasn't just a little bit closer in a couple more states. They would have pushed that much harder and potentially run this entire experiment off the roads.
Where do we go from here? Are there reforms to push for?
A lot depends on what happens in these races in Georgia, and whether or not Democrats will have control of the Senate. And whether or not they'll be able to pass the electoral reform packages that they've proposed. If they're not able to do that, we're in for a complicated period.
We got lucky this time. We might not get lucky next time. We're already seeing some of these state legislatures are beginning to tighten up voting restrictions. There's already a bill in Texas that is attempting to make it illegal for counties to send out mail-in voting applications to citizens.
This period of minority rule and voting rights games didn't start with Donald Trump and it's not going to end with Donald Trump. Trump was not responsible for the gerrymandering of 2010, which set so much of this up. Trump was not on the Supreme court that gutted the Voting Rights Act in 2013.
There are lots of reforms that would help: ranked-choice voting, a national popular vote, independent redistricting commissions, campaign finance reform, the restoration of pre-clearance. But, it is a question of whether or not there is an appetite for addressing these sorts of topics in what is likely to be a divided Congress. While there is much to be hopeful about on the front of citizens organizing and working across party lines to try to fix these things, there's a little less to be optimistic about when it comes to politicians who rely on these divisions to win elections.