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
Your Brain on the Algorithm
by Phil Napoli
June 18, 2021
This interview with Phil Napoli, Shepley Distinguished Professor of Public Policy at Duke University, was conducted and condensed by franknews.
frank | I want to start with how you see the collapse of local news and the internet becoming more ubiquitous in everybody's lives working in tandem?
Phil| Obviously, one piece of this puzzle is the way digital platforms and their online ad model evolved in ways that made it really impossible for local news outlets to compete. Once a global company like Facebook or Google could offer advertising through all of the different geographic and demographic segments, there was no way for local news sites to really even attract advertisers.
There are platforms like Facebook or Google that have accelerated this problem, but, to avoid sounding bitter, the internet was always going to democratize certain spaces and allow people to advertise more widely, probably more freely. If that was always coming, is there another business model that makes sense? Is there a world in which you see local news doing well?
I think that we've been in about a decade and a half of searching for new business models. Certainly, there has been a lot of foundation work to try to support experimentation.
We have to recognize that the model we have to embrace, that we haven't in this country at all, especially compared to other developed countries, is a true public service, public support model. We are at the bottom compared to other developed nations in terms of what we spend per capita, in terms of public support for journalism, for media. We have NPR and, you know, that's primarily member-supported. Our public service media system is minuscule compared to other countries. I really think, whether it's at the state level or the federal level, we need to rethink how many tax dollars go to supporting journalism. This creates a tension that we are justifiably concerned about, but there are, I think, plenty of proposals out there that could make that work in a way that would create the necessary firewall between government and journalism.
Do you have any examples?
One proposal that has been around for about a decade, and is starting to resurface again, is for each individual on your tax returns to pick which outlets you wanted to support. Our primary concern would be if funds were allocated in a way that expressed the political interests of the government at that moment in time. But if you can imagine every individual news consumer being granted the autonomy to determine where their contribution goes, that alleviates some concern. That is one avenue that is possible.
It seems like the is money there. There isn't really a competitor to PBS. It's not a dense marketplace. Is there resistance from donors?
Involvement from the philanthropic sector is growing. There are more foundations turning their attention to this space than I’ve ever seen before. The irony, I think, is that many in the news business are resistant to a more robust and wide-ranging public service or foundation support model out of concerns about infringements on their editorial freedom.
Of course, advertisers have always had that capacity as well. Advertising dollars often come with strings attached or with efforts to influence the news coverage. I mean, if you look at the history of the traditional print newspaper over a few decades, news sections always respond to particular advertiser needs: we need a travel section, we need an auto section. Advertising demand drove a lot of this.
I mean, Ed Murrow was complaining about this in his prime. His questions about sustainability when you need growth constantly were valid then and obviously now.
You talk about algorithmic news – can you explain what you mean?
It can mean a few different things. On the production side, algorithmic systems can play a role in actual content generation. Processes of actually automating news production by taking various databases and feeding them into a software package that's capable of spitting out text in the form of a news story exist. Some of the new local news networks sprouting up are primarily producing journalism that falls into that category.
On the consumption side, it refers to how we engage with news and how we are allowing algorithmic recommendation systems to dictate to a certain extent the stories that we consume.
To what extent are you reliant on what shows up in your Facebook feed? To what extent are you reliant on the recommendation system that Youtube provides? I've seen studies that showed 70% of what people watch on YouTube is determined by the YouTube recommendation engine.
Where does public policy come in?
In terms of the most regulated sector, you have broadcasting. Broadcast TV until the late eighties, had to operate under something called the fairness doctrine – in which the government-mandated balance in opposing viewpoints. That's gone away. Broadcasters were also required to provide minimum amounts of local news at one point in time. That has gone away. That's the most regulated space — some regulations remain today on children's programming and political advertising and that sort of thing.
Then we can think about the online space. Section 230 applies to platforms that engage in the hosting of third-party content. Section 230 basically says, you are entitled to make editorial decisions about the content that you host, but you are not liable for any of that content. You cannot sue Facebook if something false about you is shared on Facebook. You can certainly sue the originator of that falsity. So we have created this incredible incentive for hosting third-party content to be the default business model online; there's no civil liability that comes from hosting that content.
Is there any regulatory framework that exists there now?
There are some ideas being kicked around about modifying or eliminating Section 230.
But what is it that we want to achieve? Do we want these platforms to be more aggressive in policing falsity, which some folks want, while others want the platforms to act like neutral hosts?
If you were to create less immunity from liability for these platforms, you hope that they would in fact then be more aggressive about what they police. For some folks that sounds great. The only thing about that that bothers me is that what we're usually talking about is immunity from civil liability for libel and defamation and things of that nature.
And if you think about all the kinds of falsity that can be disseminated, for example, say someone spreads the falsity that masking does not prevent the spread of the coronavirus. Okay, who have you libeled there? Nobody. We're kidding ourselves if we think tweaking Section 230 is a solution to the range of disinformation and misinformation problems that we have in that space.
We hear Zuckerberg saying, ‘we don't want private companies to have so much control in the decision-making process about how to balance social equities and democracy’. Do you feel he is saying that in earnest? Is he saying to the government, do what you have to do?
That's a great question. I mean, I think they never wanted to be in this space of having to make decisions about what to host and what not to host. It reflects the fact that the user base for these platforms is so different and the uses of the platform are so different from when they originated. They evolved in ways that I don't think the creators ever imagined. They have always been so far behind in terms of thinking of themselves as genuine curators of content. They've thought of themselves as “providers of tools.”
They certainly would have loved a regulatory environment where everyone is on their own to protect themselves, but they've come to realize that the political environment is not supportive of that. At this point, I think they would be interested in delegating that decision-making and all the political blowback that comes with it.
The tying together of news as content is deeply disturbing because they are not the same thing. Is there a way for news to be separated from other kinds of content?
I talk a lot in my book about the good old-fashioned distinction between push and pull media, and how that relates to the distinction between misinformed people and uninformed people. Being informed used to require an active effort. I was going to consciously make a decision to watch the news or read a newspaper or visit a news site. When the news became something that just got pushed into your social media scroll, that was ironically less conducive, rather than more conducive to an informed citizenry because platforms were not doing anything meaningful to distinguish between news and journalism and other types of content. And when some, like Snapchat, have tried to separate news from other content categories, users didn’t embrace it.
To this day, any of us can start an account on Facebook and call ourselves a news organization. There's so little rigor and scrutiny about what constitutes news. We sort of over democratized the notion of what a journalist is, which has contributed to news consumers not being very discriminating about what constitutes a legitimate news organization or source.
I think it encourages individuals to stand out – as personalities, as celebrities. To control their own audience in some ways.
The platform creates these opportunities for individuals to create brands for themselves that absolutely did not exist before. We joke about how disconcerting it is just how many undergraduate students when asked what their career aspirations are, say that they want to be an influencer. That's a career path now, and that's starting to intersect with the realm of journalism, and I don't think that it is healthy.
Do you think it’s possible to change our habits of consumption?
Well, we have to think about this as generational change: can we alter the habits of the next generation of news consumers? This goes to how we educate kids in elementary school about how you go about informing yourself. Other countries are way ahead of us on the basics of news literacy and digital literacy and training people to be critical news consumers, which you have to be in this media environment. I think that is a big part of what we need to figure out going forward.
Do you think local journalism needs to be non-profit in order to succeed?
I've seen some models that I find interesting. In New Jersey, the state had some broadcast licenses that they auctioned off, and part of the proceeds from that auction went to a local news fund that would help support local news nonprofits across the state.
I'm leaning that way.? If you think about who is making money, the New York Times, the Washington Post. One of the key things that is vital to success is economies of scale. Can we distribute our costs across as large an audience as possible? Can we sell and resell our content to more and more audiences? And there are just no economies of scale in local journalism. Every municipality needs its own news organization, and the bottom line is, if you're writing about the school board in your town, it is not interesting to anybody in any other town. That is part of the problem. When we analyze local news outlets, a big part of what they do is just regurgitate national news.
The big caveat here is if we can make people start to pay more directly for local journalism. During the pandemic, local news outlets saw an uptick in subscribers. There are certain things that seem to be able to drive it. But again, maybe this is something we need to train young people to think differently about – the way generations were retrained to pay for music instead of downloading it off of a file-sharing platform.
Our site is both free and ad-free. In some ways, I think I’m doing a disservice to the mentality that this information is provided to you for free. On the other hand, there is this feeling that it is for the public and no one should be excluded. When I see information pay-walled behind a major newspaper and that information is helpful to the public, it feels wrong.
So basically, am I problematic?
With a stronger consumer support model, you start having to worry about these gaps between who can and who cannot afford to be informed.
Last semester I had a student who was working at a local news organization. There was a security camera outside their building, and it kept catching this squirrel. Every day they would put up on their website a video of this squirrel. The whole town loved to watch it. They were like, I can't believe that this is where all our revenue is coming from. All of our clicks are coming from this stupid squirrel video every day, but they could not bring themselves to stop showcasing the squirrel on the roof of their building.
That feels like a great analogy for Trump. CNN could not stop showing us the squirrel.
I've heard CNN's primetime ratings are down something like 70%. The worst part is it creates this incredible incentive system to try to figure out how to resuscitate the ratings. So people are saying, the only reason we're hearing as much as we're hearing about Marjorie Taylor Green is that she helps generate some of the outrage and viewership and clicks that were lost when Trump left office.
I tell people that if you are watching any of the cable news networks in prime time, you are not watching the news. These are preachers. Whether it's CNN, MSNBC, CNBC, or Fox News, they all do it. It goes to the cost issue. They realize that what's really cheap to do relative to doing actual reporting, is to put a talking head up on the screen and let them spout their opinions for hours on end. And, it turns out, that unfortunately, this is something many viewers prefer to actual reporting.
And they all speak in the same voice.
I was interviewed a while back by a typical YouTube guy in his basement discussing the news. When he interviewed me, he said, I've actually just been purchased by CNN. And they specifically don't want me to change anything. They want me to look like a YouTuber in my basement with a homemade set. This guy was a CNN employee. I was just fascinated by the fact that this is how they were having to start to think about how to reach younger news consumers. It really doesn't bear much of a resemblance to what we traditionally think of as bonafide news reporting.
Can we escape algorithm-driven news?
The bottom line is those kinds of data-driven decision-making systems that Netflix uses, hell, that a lot of news outlets use to decide what to feature or what not to feature, inherently can't innovate because it's all historical data. Data tells us people like this, so let's give them more of what the data tells us. They've already demonstrated that they like it.
How do you discover a new show that you would not have known you would have liked? Schitt's Creek is a perfect example.
When it comes to news, that's when we get to these concerns about reinforcing existing biases and political beliefs, and polarized viewpoints, which is what the data show people want the most. We give them more of it, and it ends up having these reinforcing and polarizing effects.
Not to call consumers children, but where are the adults in here being like, who cares what they want, this isn't about what people want, this is about what you need to know to vote properly.
Again, that's where the divorcing of the traditional commercial model becomes particularly important.
The bottom line is that's easier information to get now than it ever was before. It's possible for a news organization to know so much more about people's demonstrated preferences. It's so fascinating to think about how in decades past, newspapers had no clue which stories were being read and which stories were not being read. Granular data on the performance of individual stories and the performance of individual writers was not available. You knew how many copies you sold, and that was it. There is a case to be made that a degree of uncertainty about consumer demand as it relates to the news has some benefits.