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
First, You Need Vision
by Klaus Jacob
September 10, 2021
This interview with Klaus Jacob, emeritus research professor with the Lamont-Doherty Earth Observatory, at the Earth Institute of Columbia University, was conducted and condensed by franknews.
Klaus | I am a geophysicist by background, focusing largely on solid earth matters — earthquakes, volcanos, and the like. But, with time I generalized in disasters because earthquakes and volcanoes can be quite disastrous. And so I started to interact with a variety of professional communities, from engineers to architects, urban planners, and so on. One thing led to another, and climate scientists started asking me if I could apply my quantitative hazards and risk assessment skills to climate-related topics. I didn't know if I could, but I tried. So I tried, and now people think I'm a climate scientist. A little career switch.
frank | Are you liking the climate components of the work?
Well, what little did I know! For a while, it was very hard to actually get the public interested in climate change. We had 9/11, after which everything was focused on manmade disasters, terrorism, and the like. It was very difficult to get the attention of people in important decision-making positions, in FEMA and Emergency Management Agencies, to broaden their horizons and look at the broader risk scenarios that existed for society.
Of course, Hurricane Sandy made a big difference, locally in New York. So did Katrina in New Orleans. But, it shows that it needs these extreme events to really catch the attention of people.
And even then, do you feel like there's lasting political will after one of these events? Does infrastructure really become more resilient afterward?
The short answer is NO, and the longer answer is that it depends on opportunities. Infrastructure, in particular, is so dependent on the availability of money.
There is no willingness to plan long-term without having the hope that it will be financed in the foreseeable future. That is one of the major themes that I have pursued. We first need a long-term vision, and then we need to build up plans that consider financing and implementation.
That's interesting which one happens more often?
Well, often, after disasters, suddenly money is available. But, there is a great desire, at least by the public, to get back to normal life as quickly as possible. The focus is not on mitigating hazards and risks, but on getting back to normal life, which unfortunately means, we are living with the same vulnerabilities.
In New York City specifically, transit infrastructure has become a bigger concern for the public — beyond the usual complaints of lateness or cleanliness.
Should transit that the public relies upon be financed through tax money, or should it be financed by those who use it? That is this question. We have a notorious underfinancing of infrastructure and transportation infrastructure, and the MTA is sort of a strange animal. It's partly government-funded, and partly it is a private entity that relies on user fares. I think we never have quite grasped whether they should be supported by the government like highways are, or whether the user should pay for it. That's a policy decision that we have never quite cleared up, so we suffer from a permanent lack of identity.
The MTA is also, in part, a political institution; the governor appoints most of the members of its board and the New York City mayor can add a few positions. It really is an animal that is too political, and it is not good if infrastructure is politicized. It has to serve the users first, not the political organizations.
Is most infrastructure politicized?
Well, we have such a variety. We have highly privatized infrastructure, such as communication, power, electricity, gas; but sewers are public, yet water is private more often than not. There's a whole gamut of it. We often complain about the private sector utilities, especially where there is no competition like with gas and electricity. On the other hand, let's say cable or mobile phone services, you at least have some choice. When it comes to power and gas it's a monopoly with commissions that supervise and regulate these utilities to some degree.
Here is an interesting example. Post-Sandy, Con Edison had a transformer knocked out that essentially took power away from downtown Manhattan for a week or so. When ConEd came back with a plan to fix the problem, they had to submit a proposal to the New York State Public Service Commission.
The Public Service Commission was not happy with the ConEd fix. It asked some experts, and I was one of them, to look into what Con Edison had proposed. Essentially what ConEd did was ask the ratepayers to finance over the next 10 years a billion-dollar investment to make the utility more resilient. But when you looked at the details, it made Con Edison (on the power supply side) more resilient yet it didn't necessarily make the customers or their service (i.e. on the end-user side) more resilient.
So the public service commission went back to Con Edison and said, you better change your plan based on some suggestions we made. But that is not always the case.
So we have private infrastructure, we have public infrastructure, and there are many things in between, like the MTA.
Also following Sandy, there was more cash flushed into the subway, fortifying openings, etc. Was the work that was done, adequate?
There were different sources of funds. One was the rather well-known design competition financed largely by HUD, called Rebuild by Design, for short RBD, which had six winners, and there was money attached to actually implement some of those winning designs. That is still in progress. None of them have been completed, many have barely started, believe it or not.
But there was other money, several billions of dollars, that came from the Federal Transportation Administration — FTA, that went towards, for instance, fixing many of the holes in the subway system. There were 12 different designs which New York City Transit proposed that ranged from steel doors in subway entrances to other devices like plugging manholes.
I initiated a study with several engineering students at Columbia to look at the reliability of those designs and implementations. We found that if those things perform as they were designed to perform, then there is about a 98% reduction of flooding in the subway system.
It is remarkable how effective these fixes could be, but — and there's a big but — there are two major issues. For one, we found that there was no redundancy in the system. If whatever first line of defense works, then everything is just fine. But if it doesn't work for whatever reason, then the results could be devastating.
Then we asked, what can be a remedy to this lack of redundancy? And it then became apparent that it would get very difficult operationally, but also very expensive. Namely, the only fixes would be to either to install, inside the tunnels, permanent closures or bring in inflatables that could expand like a balloon and fill up the entire cross-section of the tunnel.
Both options are either technically difficult or unreliable, respectively. Inflatables are notoriously difficult to operate. Actually, the MTA tested some inflatables and they failed in the tests. To install sealable steel gates within a tunnel while you have to operate the subway system gets both operationally difficult, but also very, very expensive. So, in short, the initial systems that were installed post-Sandy, if they function as designed, are great, but …
… but if things go wrong.
They fixed about 4,000 holes in the subway system. If two or three of those 4,000 holes don’t work as intended, it is almost as if the other 3,998 are not there because underground those tunnel systems are connected and will distribute whatever water gets in at this one influx point. It's not quite as bad as if everything is open because it takes more time. But, nevertheless, there are some key points where you just can't afford any failures whatsoever.
Do you have a philosophy, when it comes to public infrastructure, on how things should operate?
Well, this is interesting because I grew up in Germany and their infrastructure is handled quite differently. It's simply one of the functions of the government. It is part of its duty to the public. That does not mean there are no private utilities, but they're very, very rigorously controlled, especially if they have a monopoly.
In the U.S. there are poles and overhead wires all over the place. There are transformers on the poles. Most Europeans would shake their heads. Most of the distribution system is underground. I mean, I shook my head when I first saw this maze of wires. It is crazy! The standards that we have allowed the utilities to get away with are unbelievable. No wonder if a storm comes, those poles and or wires are down. Or during an ice storm, the high voltage power lines malfunction.
Yes, it costs money, but you get something from your money — reliable service — if it is done right and oversight is properly carried out.
Instead, we are in a constant state of triage, which doesn’t leave too much space for long-term thought.
Too true. I’m not sure what I can add to that.
Well, what comes first — land use or development?
Well, historically land use has been totally controlled by commercial real estate interests. There are few exceptions to that. For instance, when New York City laid out its grid system for Manhattan, and as part of it, developed a vision for a Central Park. We still have not seen many visionary projects with land use by the public — by the people or by its government and or by informed businesses.
There are wonderful landscape architects and urban planners that have developed visions, but often they were just part of competitions and when the competition was over, they were shoved into the drawers.
In New York City right now, pending before its city assembly, is a piece of legislation that asks for a so-called Comprehensive Plan for the city. Believe it or not, New York City has not had a comprehensive plan to develop a vision, not even a decades-long vision. We have the parks department make a 30-year plan for its waterfront. We make the NYC Department of Environmental Protection (DEP), that's in charge of sewer and water, develop financial capital plans for 20 or 30 years ahead. So we finally got a wonderful new, third water tunnel in New York City, which was way overdue.
Again, it was trying to catch up with an obvious need and it wasn't much looking forward to the future growth needs. So, we have a real problem because everything from land use to infrastructure is so controlled by financial constraints; therefore it's practically impossible to develop sustainable planning, whether it's for the cityscape, the landscape, or the infrastructure.
Even when you look in detail at the law to create a comprehensive plan that's right now before the city assembly, it's highly insufficient from where I sit. It is an improvement over what we had, but it doesn't really say what kind of time horizons we need to take into account for various parts of the built environment. Infrastructure has to be around typically for more than a century. For example, if you look at the current infrastructure, much of the transportation system is located near the waterfront. Unless you raise those things 30 feet up in the air and make them elevated roads and rails in place, they would have to move inland and upland.
That is close to impossible unless there is political will. Eminent domain will have to come into play, and that is a very difficult reminder of Robert Moses’ time, where he made much use of eminent domain to put highways through neighborhoods without any regard for how these highways impacted the social life in those neighborhoods. On the other hand, if you look at his counterpart Jane Jacobs, who had all these wonderful ideas about how communities would form the built environment and social life, she hasn't given us any recipe for how the communities can actually make meaningful sustainable plans either. This is a problem where the top-down and bottom-up really have to reinvent how they work together.
It’s hard to imagine a clean energy train that goes from Los Angeles to San Francisco, as a real community endeavor.
No, but it affects communities. So you must have community input in the action. Yes, the larger plan has to come from somewhere else: foresighted government.
Do you have a plan in mind for some of these issues? Waterfront homes, businesses, or transportation in New York City for example?
Yes. My plan is not very popular.
What is it?
Move to higher ground. Don't reinforce the waterfront too much — we might have the desire to stay where we are and defend against this “enemy water.” No. We have to actually learn to live with water.
During Dutch times they existed as such. Broad Street was a canal, just like many are in Old Amsterdam.
Yeah — the Dutch seem to have figured out how this works.
Ah! Nope!
No?!
Now my favorite topic, the Dutch. The Dutch are always referred to as the golden child that has learned how to live with the ocean. True. They did, but it was at a time when sea level was virtually constant, the last 1200 years. Now they face the same problem as everybody else: the sea level is rising. And the Dutch are in trouble too.
Yes, you can close those barriers they have built for storms, but you cannot close them to protect against serious future sea-level rise. Why is that so? Because if you would close them, you would have to close them permanently to keep the ocean out. If you close them permanently, then the Rhine River can’t get out to the North Sea and you get flooded from inside the barriers.
When I was an informal advisor for Resilient by Design (another RBD, i.e. the CA equivalent to NYC's RBD), one team proposed a barrier system, just outboard of the Golden Gate, to keep the Pacific Ocean out of the San Francisco Bay. I said, have you really thought this through?
Do you really want to close off the Pacific? Even if you could do it technically, fine, do it. But it is not sustainable in the long term because the Sacramento River wants to get out to the Pacific, so you will get flooded from behind. It's amazing that even intelligent engineers don't think through the whole system.
And many of these protective systems, whether the Dutch helped out in New Orleans, or the Dutch have their fingers in the pie for New York City barriers that are being discussed for the US Army Corp, they are still selling those engineering solutions, that were good when there was constant sea level, but are not useful any longer in the face of ever-rising seas. Barriers only buy you time. If that is the plan, let’s do that, but what next?
To just install barriers gives the false impression that behind the barriers, we can do business as usual, which is not the case. We still need to get to higher ground.
And this works only where there's higher ground. So the Netherlands has a problem. I always ask my Dutch friends if they have made long-term arrangements with folks in Austria, Switzerland, Italy, Germany, and France because that's where they will have to end up. That's a little bit of a cynical statement, but it tries to make the point. They don't have a long-term solution for the Netherlands. They have a plan for the next hundred years or so, but it is not sustainable. They (and we) need plans beyond that.
Does anybody have a plan post a hundred years?
No. No. And that's the problem. Cities grow in steps of, let's call it, half-centuries. Cities undergo major changes in multi-decadal time steps. Okay. San Francisco doesn't look as it looked 50 years ago.
Unless we know how those short to midterm solutions fit in with the long-term vision, we may mis-invest. We make it harder for future generations to deal with the dilemma that we create for them now. This is an intergenerational injustice and inequity where we decide to focus on what’s good for "me" now, but who cares — what in the hell — future generations have to deal with.
That's what we did with fossil fuels. We used them because they were there, and now we see what the consequences are. And the same thing is essentially happening with land use. We push all our activities, particularly in the context of globalization, to the coastal edge. All the coastal cities have thrived from international shipping trade, import, and export.
Just think how the Los Angeles Harbor has grown over the last 50 years. There was practically no harbor 50 years ago. Now it's a major commercial shipping location largely because of the China-US trade, of course.
Any of our built coastal habitats that are lower than that level will be sooner or later consumed by the ocean — to keep the ocean out is not sustainable. While it has worked so far for the Dutch, and Bangladesh, and Vietnam, it will not work much longer. Vietnam is losing 70 to 80% of its agricultural land by the year 2100. In Bangladesh, it's something like 60%.
Daunting.
Yeah. And it hasn't sunk in. How daunting the whole problem has not sunk into our conscience; we are in denial, and that is the main issue. How can we really truly raise awareness in the public, what we are up against? Sure, I sound like doom and gloom all the time and I hate that. But, I'm not a pessimist. I'm not an optimist. I'm just a realist. And until it sinks in that these are future realities, it doesn't look good — infrastructure or not. Infrastructure is just the tip of the iceberg. The Roman aqueduct is still around even though it doesn't work anymore.