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
An Interview with Dayna Cunningham, Executive Director of CoLab
by Dayna Cunningham
May 6, 2018
This interview with Dayna Cunningham, the Executive Director of CoLab, was conducted and condensed by frank news. Dayna previously worked as an Associate Director at the Rockefeller Foundation and as a voting rights lawyer with the NAACP Legal Defense and Educational Fund.
All right, let's begin.
My name is Dayna Cunningham and I am a civil rights lawyer by training. I spent about seven years in the field working mainly in the Deep South on voting rights cases, and then I went into philanthropy. From philanthropy landed at Sloan, looking particularly at organizational innovation and development.
Why did you come to Sloan [MIT School of Management]?
To get an MBA.
Why get an MBA after already having a law degree?
Philanthropy was a really interesting deep dive for me into the way resources are organized in society. Resources for social justice. I saw a lot of warts in that world. A lot of missed opportunities and ways in which the structure of philanthropy was actually not set up to advance community voice, meaningful participation, real democracy. I also saw that a lot of communities that are on the margins, that are excluded from social institutions, minority communities, communities of color, poor people, have a lot of resources.
I realized if my commitment to democracy and my commitment to voice, particularly to people of color, and at the margins, was going to be fully realized, I had to think more about independent means of generating the resources. Not just philanthropy as a pathway to democracy. So the obvious choice was to go learn about management and the business discipline that every day turns entrepreneurs into people with a lot of resources.
Can you give a specific example of these resources?
I could spend all day on that. I met with a woman who was the head of an organization that works with First Nations people around the world. She had this map that identified the world's remaining reserves of natural resources. Overlaid on that were the areas where First Nations were still predominant. And it was almost a direct fit. The obvious point is that the communities that are on this map are still the ones with these kinds of resources in the world.
But that actually is not the main lesson for me.
There were two main lessons for me. One was, as she showed me this map, she was telling me the story that of course these are the places where there are profound struggles for self-determination. Big struggles to maintain the communities’ control over the assets. So one storyline coming out of this was,
There was another layer of this which was, what are the cultural resources that have enabled the communities to preserve the natural assets? There is something else here at play that is pretty invisible in most development thinking, which is that people held onto something for a reason that was embedded in their culture, and their life ways, and those things obviously result in a set of assets that the biosphere needs.
She came to the Rockefeller Foundation?
Yes.
And the purpose was to…
To get money. To get a grant.
To be able to handle the resources the way they wanted to and keep power over them? Or to protect the land and not extract the resources?
Both. That was one of her points. In some places actually, the need for development is dire. We want to modernize and develop, but on our own terms, and in full possession of our resources. In other places, we, for a variety of reasons, want to preserve things the way they are. Their organization was focused more on, how do you deploy the resources to achieve the goals you set for yourself as a First Nations community? How do you make the arguments on a global scale for this claim of sovereignty and self-determination in deciding how your resources will be used?
Were there things at the Rockefeller Foundation you weren’t able to do that you wanted to do?
It gets back to what I was saying earlier. I think the underlying model of philanthropy – at least in addressing challenges of poverty -- is subsidizing wealthy people to deploy technical reasoning to address problems of poor people in accordance with wealthy people’s values and priorities.
When I was in philanthropy there was a big interest in democracy. And philanthropy, and its support for civil society, as the third leg of the stool in upholding democracy — along with markets and government. Underlying all of this was an assumption that the communities that philanthropy purported to help were baron, were bereft of resources. I had meetings with my colleagues and I’d say , I'm working with community partners trying to figure out what my strategy will be in this area. And they said, what do you mean you are working with community partners? We don’t partner in that way. It is important for us to decide strategic direction. Everybody wants the money, so how can you leave these questions open for decision and deliberation amongst a group of people who really just want the money? But I thought, how do we know if we're effective if the people who we are hoping to build work with, aren't part of the process of framing what the work looks like?
It's a construct that somehow upholds the necessity, or at least inevitability of poverty in a society, and then seeks to ameliorate around the edges. Technical rationality is the way you ameliorate around the edges and the only people who can do this, at the end of the day, are technical experts. And I saw day in and day out, that those coming to see me were not technical experts alone, but stakeholders in all different parts of the problem, and they all brought something really important. And sometimes philanthropy could actually be a barrier to all of these stakeholders having the most meaningful and productive engagement with the problem solving.
Particularly in big philanthropic foundations, are their hearts in the right place and their methods just flawed?
I don't think it's a question of intention. And that's why I think having an understanding of structures is so important. I was in New York the other day and I was learning that New York is one of the most segregated cities in the country.
In what sense?
Racially segregated by geography. Why is that? Is that because New Yorkers are more racist than most other cities?
I would think not.
I would think not, right? But here you are with a city that's deeply racially segregated. The point is, I think it has much more to do with development patterns, with finance, with a set of things that channel human behavior, but aren't driven alone by human intention. It's that segregated because it's really expensive to live in, and people of color don't have those kind of resources. You could go on and on. I'm not apologizing for racism. But I am pointing to structures that share outcomes. Most of the time, we get into the river and get carried along by the current. The river current is the structure. Sometimes you can paddle backwards or against the current. Or you can try to go sideways and find another current where there's more possibility to move differently. But most of the time we go along with the current.
What I wanted to understand by going to business school was, what is the discipline of execution? I have always been a social change activist, it’s the only thing I've ever done in my life. I was shocked to learn that a lot of entrepreneurs are their own form of revolutionaries. They have a crazy idea. Everybody thinks they're out of their minds. They set their sights on a goal and they pursue it to the end, and bring something into the world that solves a problem that didn't exist before, and that creates value.
I was really tired of being on the critic side of the social justice endeavor. I really wanted to try building some stuff, and doing something in entirely different ways. That's what it was. It wasn't about playing the game. In fact, it was understanding the rules of the game, but not to play it, to do something different.
How did this all turn to CoLab?
I left the Sloan school and had worked with professors there I really liked. Otto Scharmer and Peter Senge, who were doing organizational development and social innovation. And that really captured my imagination. I spent a year working with Otto on leadership development and multi-sector initiatives for social transformation that put businesses in collaboration with civil society leaders and government leaders.
And then CoLab happened.
What is CoLab?
Well on our website we say, “CoLab is a planning and development lab in the Department of Urban Studies, and we work with communities at the margins”.
We bring the planning discipline to bear in situations where development is needed; we use planning to support the involvement of people who are usually overlooked.
You say planning discipline, which makes me think that it's not necessarily spatially urban. Is that correct?
It's not always, though it is often.
Why do you think cities are important to what you're doing?
If you go back to the Greeks they believed that cities are the birthplaces of democracy, and that's not trivial to me. It is where you find concentrations of people managing the business of what it means to live in a society with other humans in a concentrated way. They’re figuring out the transportation systems, they figure out the water systems, the food systems. But they're also figuring out how to allocate resources for those systems, and all kinds of other things. It's where markets develop. Cities are the locus of figuring out the problems of human settlement.
Having said that I have recently been in conversations with people working in rural areas who say the formulation I just gave you, about "why cities?", is a way of relegating rural areas to sites of resource extraction. My background predisposes me to see cities the way I just described. Lately, I've been thinking about, in a world of finite resources, where stewardship of living things becomes increasingly important, how do we reframe the relationship between cities and rural areas away from the traditional model?
What do you mean by stewardship of living things?
I used to say human well-being. And I have a much better understanding now that you cannot isolate human well-being from the rest of the living world. It just means to say that you can't have human well-being if the rest of the world is dying.
How do you approach that in CoLab? How do you get past anthropocentric thinking?
I do think part of what we need to understand better is the intelligence of living systems. Not just the availability of living systems for what we would like to use them for.
Would that fall under the idea of ecosystem services, rather than utilitarianism? From an environmental perspective?
That's one cut. But I think that also is not necessarily fully grasping the intelligence of the living world. One way to think about this is if you think about biomimicry. Biomimicry being this idea that there are all of these patterns and phenomena in the natural world that reach near- perfect efficiency by processes that we don't understand. And if we can figure out how these processes work, we will be so much further along in advancing productivity of the living world. Not just more resource extraction, but more long-term viability and sustainability.
Could you highlight some projects going on in the CoLab now?
Our most concerted effort in the U.S. is in New York City, mainly in the Bronx, but also increasingly in Brooklyn, and hopefully looking forward to L.A. We're trying to figure out what are the actual mechanisms and operating principles that underlie a more inclusive economy.
In the Bronx we have this structure called The Community Enterprise Network. The Bronx is the poorest urban county in the U.S. but is full of resources, like billions of dollars in procurement spent each year. And yet it is the poorest urban county. The world's second largest food distribution center yet it is full of food deserts. It has hospitals everywhere and has terrible health outcomes. Highest levels of asthma in the country.
Why is the asthma rate so high?
The Bronx is crisscrossed by superhighways and trucking routes. And, because it has a lot of old buildings that contain indoor risks to air quality.
Like asbestos?
It can be asbestos, it can be dust, it can be outdoor pollution coming from leaky old windows, it can be lead from the paint crumbling on the walls, it can be rodent infestation, it can be mold...
If the way structural philanthropy works is to not hear the voice of community people, perhaps that's because it's more efficient to just do and not communicate. When do you bring the community in, and how do you make the most efficient beneficial structure?
This is an argument that comes up a lot in the environmental space. That we are running out of time so we better do the fastest thing to ameliorate threats to the environment.
A really good example is a lawsuit brought years ago by some environmental groups to stop the New York City Housing Authority from burning garbage. They won, and the city had to stop all kinds of after-school programs, cultural programs, workforce development programs in order to pay for bagging and shipping off the garbage instead of incineration.
I wonder what percentage of those people [in the enviro group lawsuit] were NYCHA residents.
A) Good question. I would guess not many. B) The environmentalists declared victory. They got the city to stop burning trash. But now kids didn't have after school programs, workforce development was scuttled, and when the tenant associations and various groups came back and said congratulations on your victory, can you help us advocate for more money for after school programs, pre-K, workforce development? The environmentalists said well, those aren’t really environmental issues.
So you can imagine a scenario in which the next time environmentalists come around looking for some sort of victory on an environmental threat, public housing residents are organizing to stop them. Why wouldn't you organize to stop them? Even though you might be the most likely to suffer from the environmental threat, you are still trying to get back after-school and workforce and other programs.
Where would CoLab come in on one of these issues? What’s the approach?
Our starting point is where are communities facing disruptive moments of change? Who wants technical support to come up with better solutions than the ones that are being posed that might not take into account the communities’ own lived experience with institutional failure? We are looking for communities where there is sophisticated leadership that can be peer collaborators with us. We go places where we are asked to go, because people have a challenge that they want to address. And then we work with them to figure out what is most urgent and what will be the response.
It's not us coming up with a response, and then backing into a timetable, and then backing into a constituency - it’s the other way around.