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.
Our Policy Plutocrats
by Kristin Goss
May 25, 2021
This interview with Kristin Goss, Kevin D. Gorter Professor of Public Policy and Political Science at Duke University, was conducted and condensed by franknews.
Kristin | I am a political scientist. I study civic engagement and political participation in the United States. One of the things I think a lot about is philanthropy.
frank | You wrote a paper on “policy plutocrats” — what do you mean by that?
I was interested in what I perceived to be the growing interest among the very wealthy in affecting public policy. There's a long tradition in the U.S., and other countries, of wealthy people doing charitable good works — giving money for scholarships or hospital wings or museums. That is lovely and worthwhile.
I think we've all benefited from those gifts, but it seemed to me that increasing numbers of these very, very wealthy individuals were trying to have an impact on public policy.
I took an encompassing view, but I was interested in that subset of very wealthy philanthropists. The Gates family would be a good example, or before them Walter Annenberg, who was very interested in public school reform. Michael Bloomberg is very interested in gun control and climate policy. We have all this anecdotal evidence that there are these very high-profile figures deeply engaged in policy work, but there wasn't really a good estimate of how many of our nation's biggest philanthropists were engaged in policy, how much money they controlled, what they were giving, and what their interests were.
Walker, Allan Dean. [Barbara Jordan Sitting With a Man at a Table], photograph, 1978; (https://texashistory.unt.edu/ark:/67531/metapth843502/m1/1/?q=Walter%20Annenberg: accessed May 26, 2021), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting Texas Southern University.
There's not a national database of these folks. My article was a first attempt at really trying to get a handle on how big that universe is. It's hard because philanthropists can do a lot of their work privately or non-transparently.
Was there an acute change in the way the very wealthy were moving philanthropically?
I didn't do an over-time analysis. My perception is that this phenomenon has been growing probably since the 1990s, but that's just a perception.
There are a lot of people who think about the motives of big philanthropists. I think that's an interesting debate. My father was a trial lawyer and he said that you can never really understand people's motivations. That is not something that I've studied directly or that I've especially been concerned with because I think it's sort of unknowable.
I think it's interesting to see how major philanthropists present themselves. There has been work around the Giving Pledge. There are letters where a lot of these folks stated their rationale for joining the pledge. There have been scholars who have gone through and coded those rationales. But, are those their true motives?
I don't know.
I'm more concerned with the effects of the gifts and their implications for democratic theory. When you get closer to the world of public policy and policy implementation, you're going to get more controversy than perhaps if you were endowing a hospital wing. And this is sort of anecdotal, but big philanthropy seems to be moving increasingly into the public sphere, as opposed to the more traditional charitable sphere. That's generating a renewal of this debate, over whether we want that kind of power in a few hands with little formal accountability.
[Photograph of Ronald Reagan at Barbecue Meal], photograph, Date Unknown; (https://texashistory.unt.edu/ark:/67531/metapth875718/m1/1/?q=reagan: accessed May 26, 2021), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting University of Texas Permian Basin.
This growth is in tandem to the decrease of government trust.
Reagan validated distrust in government, but it had been rising since the mid 20th century. Just as a political science geek's side note, one thing we have to be cautious about is that there weren't really good measures of government trust before the mid 20th century. So it looks like a decline, but what we don't know is if that mid-century was, in fact, a really unique time. It may be that we're at a more normal level of trusting government now and mid-century had an unusually high level of trust.
Douglass, Neal. Portrait of Governor Beauford H. Jester, photograph, January 18, 1949; (https://texashistory.unt.edu/ark:/67531/metapth74359/m1/1/?q=government: accessed May 26, 2021), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting Austin History Center, Austin Public Library.
But trust in government has been coming down since mid-century. Reagan's whole ideology was to be highly distrustful and actually to degrade government as a concept. He had that famous line — "The nine most terrifying words in the English language are: I'm from the Government, and I'm here to help."
And that continues. There are some issues that are perpetually at the forefront of political debate and philanthropic giving – gun control, immigration, education – is any amount of money or attention making a real difference?
That's a terrific question. And I think the problem with trying to measure effectiveness is philanthropy is such a broad topic and there is money going into so many different things. I think philanthropists would say that the only way you can really bring social change to scale is through the market or the government — as others have noted, those are the two big scaling mechanisms. So no matter how much money philanthropy has, it's not going to bring wholesale change in the same way that the market and the government can. Seniors used to be one of the poorest demographic groups, and they're now fairly comfortable.
[Senior Day at the Capitol], photograph, February 10, 2009; (https://texashistory.unt.edu/ark:/67531/metapth129982/m1/1/?q=seniors: accessed May 26, 2021), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting Wilson County Historical Society.
I think philanthropy can be really effective, not at supplementing government, but at finding points of leverage for testing new ideas.
The part of philanthropy that I'm the most interested in is how philanthropy helps amplify voices that may not be heard otherwise. I study gun politics, for example, and I do think that big donors have made a difference in helping the gun violence prevention movement consolidate and sustain itself. I think about the issue that the gun owner groups, NRA being the most prominent example, have some inherent structural advantages in organizing and sustaining a broad membership. So there is an asymmetry. And what we call “patrons” (or philanthropists) can step in and level the organizational playing field. I think that that has happened. You can look back at what Michael Bloomberg has done, for example. I haven't checked the numbers recently, but Everytown for Gun Safety, which he substantially funds, really dwarfs all the other gun violence prevention groups in revenue.
[Members of the Alamo Muzzle Loaders at the Texas Folklife Festival], photograph, [1975-08-07..1975-08-10]; (https://texashistory.unt.edu/ark:/67531/metapth227838/: accessed May 26, 2021), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UT San Antonio Libraries Special Collections.
Organizing is everything. You brought up the question of whether philanthropy is an expression of democracy or a threat to democracy. Do you feel one is more true than the other?
I take the critique really seriously. I think that we should, as democratic citizens worry about concentrations of power in whatever form, whether it's philanthropy, business, or government. I subscribe to calls for philanthropy to be more transparent and more accountable in some ways. I'm a little bit of a contrarian in that I don't think it is automatically a terrifying thing to have a very strong philanthropic sector. You could actually argue that some of the freedom the philanthropic sector has can actually be a virtue. If you take seriously, as I do, the possibility that we may not be a flourishing democracy forever, one conception of civil society, of which philanthropy is a part, is that it can be a source of countervailing power against an overweening or autocratic state. Maybe it's not a terrible idea to have other sources of power that can stand up to the excesses of government.
[People Marching in Port Arthur], photograph, 1970~; (https://texashistory.unt.edu/ark:/67531/metapth202370/m1/1/?q=marches%20: accessed May 26, 2021), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting Museum of the Gulf Coast.
I think a lot about the last four years that we have been through, and I do not say this in a partisan way, but there were some pretty alarming things that happened. A lot of civil society groups popped up and fought through the courts, through Freedom of Information Act requests, through protests, through the media — through our systems. Those groups, a lot of them, were not funded by everyday donors. There were patrons behind them. They popped up fast, and they were pretty effective at slowing down a lot of what I would consider to be highly questionable actions by the former administration. And who funds these groups? Big donors. They are not going to get a bunch of money from workplace drives. That's not how it works. I think we have to be vigilant. I think we need more transparency, more reporting, more cracking down on the dark money methods of giving, but I'm probably less concerned than some of my peers about the threat of philanthropy. I see a little bit more redemption in philanthropy done responsibly.
It’s interesting to look at who stepped in to challenge the previous administration. But there is an active right-wing sector of philanthropy that helped usher in a lot of that administration. The Heritage Foundation, the Koch money.
I mean, I agree with that. I think the Koch money is interesting. But I actually don't have a huge problem with a principled conversation between the left and the right. If the Koch brothers want to fund an infrastructure that calls for less regulation and lower taxes, that's their right. Donors on the left can call for a more robust welfare state and higher taxes. That's their right.
Children's Puppet Theater, photograph, 1958; (https://texashistory.unt.edu/ark:/67531/metapth59306/: accessed May 26, 2021), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting Hardin-Simmons University Library.
I have some concerns about a reality where wealthy plutocrats are having an argument up there, and the rest of us are down here, disconnected – an argument that David Callahan has made.
But it is hard for me to draw a line from the Kochs to Trump. It's easier for me to draw a line from the Kochs to the conservative wing of the Republican party. I think the more interesting connection is maybe not the money, but rather the feeling that the middle class isn't growing and the returns of the knowledge economy are going to the people at the very, very top.
Racism is as well. The Koch brothers did not create structural racism. I also want to separate philanthropy from other forms of spending. I'm not talking at all about spending on campaigns and candidates. That is for other people to think about.
Cochran, Jimmy W. [GOP Officals in 1958 GOP Convention], photograph, Date Unknown; (https://texashistory.unt.edu/ark:/67531/metapth847118/m1/1/?q=state%20convention: accessed May 26, 2021), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting Midwestern State University.
I think a lot of stuff that's happening in this country philanthropy benefits from, and probably could push back against harder. I mean, what are the core underlying problems here that are often mentioned? One would be structural racism. I don't think philanthropy created that. I do think they could have done a lot more to challenge it. I think they're doing a lot more now. Or take income inequality. Philanthropists as individuals, not foundations because they can't lobby, but the individuals could be doing a little bit more to accept higher taxes or close some tax loopholes. And some of them have fought for that. But they didn't really create income inequality. Think about the media landscape. Philanthropists didn't create Q Anon or misleading media. They're actually doing a fair amount to help rebuild journalism. My point isn’t to exculpate or celebrate philanthropy – but just to keep the focus on more central drivers of democratic dysfunction, including historical structures and contemporary policy choices.
For me the question is, is this a system anyone would have designed? No. Are there excesses? Yes. But, this is the world we're in right now. I deal in the art of the possible because I'm a political scientist. I'm pragmatic. I don't think that there's going to be a mass confiscation of wealth from foundations or from individual rich people. I just don't see that happening. I think there'll be a tax increase. I think it won't make much of a difference in the vast amounts of wealth that these folks have. So then the question is, how can these people spend this money in a way that is responsible, and in a way that enhances democracy rather than undermining it?