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 Political Marketplace
by Robert Boatright
December 31, 2020
This interview with Robert Boatright, professor of political science at Clark University and author, was conducted and condensed by franknews.
Robert | It is common for people to single out the Supreme Court’s Citizens United v. FEC decision as the reason for the increase over the past decade in election-related spending. But, it was widely and incorrectly portrayed in the media as something that gave corporations speech rights, or gave corporations the right to contribute money to candidates. Corporations have had political speech rights of various sorts since the 1980s, but they were not the main beneficiaries of the decision.
It's important to point out that this small group of wealthy people is not made up of the best-known billionaires. We don't necessarily see humongous campaign contributions by somebody like Bill Gates and Mark Zuckerberg. Instead, the people who have taken advantage of the decision are people like Sheldon Adelson or Tom Steyer — people who were not particularly well known before they began their political spending, and who wanted to make a name for themselves as political players.
Do you think it's important for the public understanding of “money in politics” to draw a distinction between individual billionaires with political aspirations vs. corporate spending?
Yes. There are many avenues for corporation influence in politics. But most American corporations are pretty risk-averse. Take, for instance, the American automobile industry. They got used to emission standards during the Obama years and before. Maybe they didn't like them, but they started building their cars to comply with the law about what sorts of emissions you can have. When the Trump administration came in and said, no, we're going to do away with these things entirely, they didn't care for that. American businesses for a variety of reasons do not want to disrupt the status quo. On the other hand, major super donors do.
American corporations are concerned about public opinion. It's not like corporations are going to be a force for radical social change, but corporations will move with the public. Take an issue like same-sex marriage for instance. Broadly, American corporations have moved with the American people on that, and corporations that didn't wound up finding it politically problematic. When Target, for instance, was exposed as having contributed to a Super PAC that supported really conservative candidates back in 2012, they apologized profusely and put a whole lot of money behind LGBTQ causes. After that, they really got out of the business of funding super PACs. The individuals who tend to support or create super PACs, on the other hand, are not necessarily concerned with public opinion.
If Citizens United and the rise of the Super PACs did not open new doors for spending money, what are the typical channels that corporations spend money through?
There are several ways to do this. Individual corporate leaders can make their own contributions. Corporations can establish political action committees. They can't compel their employees to contribute to PACS, but by and large, the executives and the people with money to throw around to big corporations will contribute to the PACS. And then PACS can turn around and contribute to candidates in limited amounts, you'll have 5,000 bucks for a candidate per cycle, or to the party committee.
A lot of influence can be wielded if you put that together, but it's influence that's accountable. It’s a different thing to say that corporations contribute a lot of money to politicians than it is to say that any single corporation has significant influence. I think much of the influence that corporations have is not necessarily money, but in that they have access to politicians through lobbyists, because they have expertise on matters of legislation, or because they employ significant numbers of people in a legislator’s district.
In your book The Deregulatory Moment you talk about how we are one of the only countries that equate money with speech. Can you talk about that?
I'm not an expert on international comparative constitutional law, but many countries do not have this sort of first amendment absolutism that we have. Other countries generally have protection for free speech but have various kinds of circumstances in which the government can limit it.
We do not, due to a series of Supreme Court decisions on campaign finance that have been made since the mid-1970s. In large part, it has a lot to do with this very idiosyncratic, composition of the court, and the decisions of individual judges. Campaign spending has been framed as speech, and it has been decided that it should not be limited, except in the instance of quid pro quo corruption by an individual donor. Other countries I think have had different sorts of values.
What explains our First Amendment absolutism?
There's business rhetoric about deregulation that has been popular in the U.S. for a few decades. When Citizens United was handed down in 2010, a lot of folks on the political right started talking about politics in this way: ‘We need to deregulate political campaigns. We need to get the government out of the business of deciding who gets to speak and who doesn't.’
Other countries have had rhetoric about deregulation for some time, but they’ve been slower to apply this rhetoric to political campaigns..
The U.S. is one of many countries where business interests have become more interested in elections, but we’ve responded differently. As I document in my book Interest Groups and Campaign Finance Reform in the United States and Canada, Canada responded by helping candidates by creating a really extensive system of public financing. The U.S. did nothing of the sort. The U.S. basically raised limits on what people could give to candidates and tried to balance things that way, which was not nearly as effective. This has created a sort of arms race.
You can think of deregulating some sort of business product to make it possible for corporations to present that product to the consumers. But ultimately, I think the analogy of the market to politics doesn't necessarily translate. If beverage companies, for instance, put dozens of soft drinks on the grocery store shelves, we can be confident that ultimately we can find the product that we want. We're going to be able to find a way to select what we want from a range of options.
This sort of argument has an intuitive appeal, it plays on the notion that we want to have choice. But in a two-party system, we're going to wind up in the end with a relatively narrow list of options. I think the average American is resistant to the idea that political parties would whittle down our choices or that there should be some structure imposed on our politics before we get to the point of voting. But, when we don't do that, we get candidates we don't want. We wind up with other people making those decisions for us in a far less democratic way.
What would it look like to increase political parties' influence?
Parties have limits on what they can contribute to candidates, and these limits are higher than they used to be but are still relatively restrictive. There are also limits on parties' abilities to coordinate with candidates and their campaigns. Both of those things could be lifted to allow for direct cooperation and the sharing of resources. I think part of the issue here is not so much what limits there are in parties, but the fact that interest groups don't have similar limits. Instead of thinking about giving parties more power, if you limit what interest groups can do, parties in effect have more power.
Why do you think Americans are resistant to political parties?
I struggle with that because I teach in a college with a lot of very idealistic 18 to 19-year-olds. They don't want to believe that the political parties are doing them a favor. If you think back to the 2016 election, many of my students thought that the Democratic Party did them wrong by putting its finger on the scale for Hillary Clinton. They see this in congressional races too. They'll find these congressional races where it's clear that the Democratic party thought that its best chance of winning was in picking a more centrist, more moderate candidate. My students get pretty upset about this.
My students are representative of a lot of the American public in that people get excited about the long-shot candidate. They don't necessarily want to support efforts that would limit those candidates, even if limiting those candidates would bring about ultimately more acceptable political outcomes for the system.
What is your argument for parties being good vehicles of selecting "acceptable" candidates with specific policy proposals that seem to be at odds with, as you said, a lot of the American public?
Parties will always contain diversity within them. Take the Democratic party. The Democratic party is always going to have some sort of regional diversity because the party wants to win. You're going to have candidates like Alexandria Ocasio-Cortez in districts that will support somebody that's relatively far to the left. At the same time, it is in the interest of the Democratic Party to try to support more conservative candidates in more conservative parts of the country. Parties learn over time; if candidates with different ideas do particularly well in particular places, parties will take an interest in them. Parties are not undemocratic, but they do act as filters between individual candidates and the public that I think ultimately citizens need.
Your point that parties may produce more moderate candidates is an interesting one. We recently spoke to Wendell Potter, an ex communications executive, who did a lot of work lobbying. He mentioned they would target moderate candidates because that’s who was most amenable to big business interests. Is there a danger in parties producing those sorts of candidates?
It's a different kind of money. You have all these instances of corporate interests that want to broadly support candidates in the middle of the political spectrum. Many of the issues that groups like these care about are things that are technical enough that you're never going to have exciting political campaigns based on that.
To clarify, he was working for the healthcare insurance industry, and specifically recalled lobbying against healthcare reforms, at both the state and federal levels. Reforms which it does seem campaigns have been run on lately, and which the public does have an opinion on.
It's a valid criticism to say that corporate interests are going to want to reinforce the status quo at a moment when America has got all sorts of pressing problems that status quo politics was not going to address. That's a different sort of financial problem because what you're talking about there is the ability of corporate PACS to speak to politicians, and the ability of people who can round up a substantial number of individual donors to speak to politicians directly. That's something that you can criticize, but something that has been a feature of our politics for decades.
Efforts like Potter’s are important, but it’s important that we understand that the reforms he’s talking about don’t require us to get rid of Citizens United and that the problems he’s talking about were there before Citizens United.
Public financing reforms are one solution, of many, that experts look at. Do you think we will ever return to a federal financing system for presidential elections?
At the moment there doesn’t seem to be much political will to do this, but the presidential public financing system did also play a role in limiting spending and leveling the general election playing field. It’s important to distinguish here between public financing in the primary and the general election. From 1976 through 2008, we had a system of funding primary campaigns, where small contributions to a presidential campaign, were matched by a federal contribution up to a particular amount. And then we had full financing for general election campaigns.
The last general election nominee that took the primary election subsidy was Al Gore back in 2000 and the last candidate to use the general election subsidies was John McCain in 2008.
We can't tell candidates to limit what they spend — that is unconstitutional. But there’s a lot we could do to make public financing more attractive or to use it to incentivize certain kinds of behaviors. For instance, we could perhaps tell candidates they will get public financing if they disavow the efforts of any super PACs spending money on your behalf. That would be kind of effective in ensuring that the candidates who were able to progress in the primary were people who had broad public support, as opposed to having the support of one super PAC that was funded largely by one person. It would ensure that we had a primary process that to some extent reflects the will of the voters, as opposed to the will of a few rich people.
I haven’t run into a lot of arguments that put all of these different pieces of campaign finance together in a way that would really excite the public, however. Many Americans worry about the effect of money in politics, but just as it’s hard to convince people that we should give more power to political parties, so it can be difficult to convince people that the government should give money to candidates. I think most campaign finance scholars agree that our system faces challenges today that it didn’t face a generation ago, but we’re not yet at a moment in our history where a clear alternative is emerging, and just saying we should go back to the system we had in the 1990s or so isn’t feasible in today’s world.