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.
Planning, Planning, Planning
by Romany Webb
September 1, 2021
aThis interview with Romany Webb, a research scholar at Columbia Law school and a senior fellow at the Sabin Center for Climate Change Law, was conducted and condensed by franknews.
Romany | The Sabin Center for Climate Change Law is an academic think tank that conducts research and hosts educational programs on various aspects of climate change law. The Center's work spans all aspects of climate change, both mitigation and adaptation, across a range of economic sectors and industries.
My work for the Center focuses primarily on two areas: one is energy and the second is negative emissions, or carbon dioxide removal. So a lot of my work looks at how we can reduce the amount of carbon dioxide and other greenhouse gases going into the atmosphere and how we can remove some of the greenhouse gases that are already there.
frank | I think most people have a hard time understanding the grid. To begin – what issues are utilities facing specifically from climate change?
Yeah, you're absolutely right that most people don't think much about the grid.
But making sure that happens is a real challenge in the age of climate change. I think that there are two ways in which climate change has implications for utility operations.
One tends to get more attention — the need to clean up electricity generation to replace polluting generators that burn fossil fuels with cleaner systems, for example, renewable generating systems. The question is, how do utilities do that in an organized way that doesn't affect the reliability of the system?
The second issue, which gets a lot less attention, is around how the impacts of climate change will affect electricity generation and other parts of the grid. We know that the impacts of climate change will make it much more difficult for utilities to reliably supply electricity to consumers. For example, higher temperatures reduce the operating efficiency of generating plants, so they produce less output. Higher temperatures also reduce the carrying capacity of transmission and distribution lines. So it's harder to deliver the electricity that gets produced. And, at the same time, demand for electricity is going to increase — since the increasing temperatures mean that people are going to run their AC more. It is a very big issue that is under-recognized.
When you think about modernizing the grid, what do you prioritize?
It's such a good question because there are so many different things that will need to happen. Even just responding to one climate impact could be done in a number of different ways. And so we're going to have to choose which of them is most appropriate, which is most cost-effective, which delivers the greatest benefits relative to costs, etc.
Before we can do any of that though, we really need to have a thorough understanding of how different climate impacts will affect different parts of the system. Some generating facilities will be more at risk from climate change because of where they're located or the type of fuel they use or the way in which they operate. So we really need to have this sort of in-depth study of how each part of the system will be impacted. That needs to be a localized assessment that takes into account differences in the climate impacts that are going to occur in different places and differences in the electricity system.
That is often referred to, within energy climate circles, as a climate vulnerability assessment. We've seen a few utilities start to do that, but really not a lot. And quite a few utilities who say they are doing it, are actually doing it really poorly when you dig into the details. For example, they're trying to predict future climate impacts on their system, but they're looking at historic weather data that doesn't take into account climate change. That's a real problem and a real gap that prevents us from even getting to that next step of determining what sort of investments we should be making.
It's interesting too, depending on what utilities you're looking at, who becomes responsible for the cost of adaptation, which must not be cheap.
Many utilities are investor-owned entities that have shareholders, but, because they supply this essential service, they historically existed as a heavily regulated monopoly. There are entities called state public utility commissions that determine things like how much the investor-owned utilities can charge for the services they provide. Now, as part of setting those prices, those rates as they're called, the regulator is meant to do an in-depth analysis of whether the investments that the utility is making are appropriate, justified, and will ensure the least cost delivery of reliable service. If the utility can meet those standards, then it can pass the costs of its investment onto its ratepayers — the customers.
One of the issues that we see now is that utilities are investing huge amounts of money in new infrastructure. But, because they're not doing these climate vulnerability assessments that I talked about, they're often not considering whether that infrastructure will actually withstand future climate impacts. They're making these investments that regulators are deeming prudent and allowing the costs to be passed on to ratepayers without considering climate issues. This is a real problem because it means that we all potentially end up paying for infrastructure that won't be able to be used for its full, useful life, and might not deliver services when we need them.
So is the advice that they work with either academic institutions or private institutions that specialize in this?
Yes, I mean, all utilities need to engage in a new sort of planning for climate change. That includes doing a climate vulnerability assessment that looks at the risks from climate change within their specific service territory. And, once the utilities understand those risks, they then need to look at options for enhancing the climate resilience of their system. That type of planning is quite different from what utilities do now and requires different sorts of data and tools that utilities don't necessarily have access to. Most obviously it requires climate projections so that you make sure that you're looking at anticipated future conditions. So partnering with a university that has a climate science program, or partnering with a consultant that can help you produce that sort of data is really important.
It's definitely not something that utilities can do alone. It's also not something that can be done without utilities. You need the knowledge of their systems -- where they're located, how they operate, all that sort of stuff.
The Department of Energy has published guides for utility companies and grid operators on how to plan effectively. Is there any component of enforcement?
Not a lot at the moment. Those state public utility commissions that I mentioned before could do that. In work that we've done at the Sabin Center, we argue that they have a legal obligation to do that when they're scrutinizing the investments that these utilities are making. They should be checking that the utilities are appropriately planning for climate change. Similarly, at the federal level, the Federal Energy Regulatory Commission could play a similar role, around the bulk power system. But, that's not really happening yet. There have been some moves by some state public utility commissions to require this sort of planning for climate change. Following Superstorm Sandy here in New York, a settlement was reached between ConEd and outsider stakeholder groups, under which ConEd agreed to do a climate vulnerability assessment and develop a resilience plan.
At the time that the New York Public Service Commission approved that settlement. It said we think all utilities should be doing this. Since then, the other utilities have not done it, and the commission has not enforced it. There is a petition that's been filed with the commission that requests that they start requiring utilities to plan for climate change. In California, just last year, the California Public Utility Commission, ordered electric and gas utilities in the state to start doing that sort of planning and set timeframes for the utilities to file their climate vulnerability assessments and resilience plans. Hopefully, there'll be some enforcement of that in that case. Ideally, we'd like to see other state commissions and agencies at the federal level, taking action in this area as well.
It doesn't seem like there's much incentive for accountability. I mean, I grew up in Northern California, PG&E is notorious for lawsuits. But they keep going. Other than paying out, is there any sort of real action that scares them into acting differently?
So one of the things that we've been looking at in our research is the potential for private parties, and potentially the customers, of these utilities, to sue them under tort law, for things like negligence, if they fail to appropriately plan for climate change. It's what we term a “climate resilience suit.” The idea is that the utilities knew that climate change was happening, knew that climate impacts would continue to worsen, and would have impacts on their system.
To the extent that their failure to plan for that causes me some harm or some loss or some damage, I should be able to sue for that. There haven't been any cases brought exactly like that. There have been some cases brought after extreme weather events around utilities’ failure to plan for those events, which has yielded mixed results. I think having the ability for private individuals to bring a sort of suit against utilities would be at least somewhat of an incentive for the utilities to pay more attention to this. Otherwise, they're potentially going to get sued by a lot of people and have to pay out a lot of money.
Is there a case to be made that utilities should be state-run? Is that even a possibility? Is that silly to think we could even do that in the future?
No, it's absolutely not silly. There are lots of people who talk about shifting to a more public model of electricity supply. I mean, electricity is an essential service. Many other essential services are provided by the government or government entities. Intuitively it makes sense to think about electricity in the same way. Having said that though, we do have a long history of private entities, investor-owned, shareholder-owned entities, providing electricity in this country and a wholesale shift to a government-run system would be quite a challenge, I think.
For emerging technologies — solar, wind, etc —is it right to assume they will be private as well?
One part of the challenge in planning for the impacts of climate change is the fact that we do have so many different private players operating different parts of the grid. That creates an opportunity for each one of those players to say, well, the problem occurred upstream of me. I couldn't do anything about that. Or, a problem occurred downstream of me, I couldn't do anything about that.
That creates a real challenge for planning and does, I think, signal the need for more government intervention to promote the sort of intercompany planning that's needed so that we end up with a holistic plan for the whole system.
I think we saw the problems in Texas where the natural gas pipeline system went down, which caused some of the generating plants to go down, which meant electricity could not be delivered to consumers. We really need to be considering the energy system, broadly, as one whole thing that will be impacted. And we need to develop solutions that can address all of those impacts.
As a layman, it was really hard to sort out what happened in Texas. Was it clear to you what happened and who’s fault it was – was it a confusing confluence of things?
All of these different climate impacts we can plan for. We cannot eliminate every outage on the system. We can't afford to gold plate the system so much that there are no risks to it, but we can certainly lessen those risks.
There were clear failings in the Texas example. Generating plants had not been appropriately weatherized, even though previous experience with winter storms had demonstrated the need for that weatherization. And it’s not just on those generators. There was a broader failure of planning. Interestingly the Texas State Commission is looking at how to better facilitate planning at the moment.
It seems to be encountering a real challenge in thinking about planning for climate impacts specifically because, as I said before, it's so different from what utilities and energy system operators are used to doing. And it requires a different sort of data that they're just not used to using. But the data is out there. They just need help finding it and using it.
Once we do that planning, we can significantly reduce those risks. Not eliminate them, but reduce them.
Somebody said to me, if you plan appropriately, it'll look as if you're overreacting because nothing will happen. Whereas if you don't plan and disaster happens, it feels like catastrophe is inevitable. Do you feel optimistic that people are learning because these climate disasters are happening more frequently in the US?
I have mixed feelings. I think it's very disheartening that after some of these extreme weather events, politicians come out and blame it on renewable energy sources when we know that the failures were much more widespread and that there were bigger issues in the operation of the grid that led to those failures. That does not give me a lot of hope.
Having said that, I do think the issue of climate change impacts and what it means for the grid is getting more attention, which is encouraging. I think that companies are increasingly recognizing the risks to their assets. Even if politicians and regulators don't necessarily want to act, companies will be forced to act. And, as you said, these impacts are becoming more obvious and, in many cases, could have really catastrophic effects. It's sort of impossible for people to ignore it, and it is impossible for companies to ignore it.
I am optimistic that change will happen. I'm not necessarily optimistic that it will happen on the timeline that we need.