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
The Hidden Subsidies of Rural Prisons
by Dr. Hannah Walker
June 13, 2018
This interview with Dr. Hannah Walker, an assistant professor of Political Science and Criminal Justice at Rutgers University was conducted and condensed by frank news. Her research examines the impact of the criminal justice system on American democracy with special attention to minority and immigrant communities. Previously, she served as a post doctoral fellow with the Prisons and Justice Initiative at Georgetown University, and received her PhD from the University of Washington.
In the article "The Hidden Subsidies of Rural Prisons" by Hannah Walker, Rebecca U Thorpe, Emily K Christensen and JP Anderson we were given insight into the collateral consequences of the prison system in rural communities.
The authors write: "This paper links the rise of a punitive punishment regime that disproportionately targets poor, urban minorities and the increasing use of rural spaces to warehouse prisoners. Preliminary evidence from a unique dataset across three states suggests that housing large, institutionalized prison populations inflates population counts in otherwise shrinking rural areas and operates as a hidden subsidy for rural counties with prison infrastructure. Prisons contribute to the immediate economic viability of predominantly white, lower class rural areas, despite devastating costs borne elsewhere."
How did you find yourself doing this particular research?
It came out of a larger project that I've been working on with Rebecca Thorpe. Rebecca Thorpe is a professor at the University of Washington which is where I finished my graduate studies. She was working on a project that tries to look at how political representatives vote on punitive policy issues depending on whether or not they have a prison located in the district that they represent.
Within the work of Hidden Subsidies what were the specific collateral consequences you focused on?
In Hidden Subsidies we were specifically looking at state fiscal transfers to counties. Looking at how having a prison in your County can actually shape those funding streams, because many of the funding formulas that public officials employ to try to determine how much money is going to be given to various entities, take population into account.
In hidden subsidies what we find is that that artificial inflation helps to funnel extra funding to poor rural communities that might go elsewhere. Within that context we are seeing rural communities be advantaged by the placement of a prison within their communities.
Thinking about the collateral damage of prisons and of incarceration it's important to situate the siting of prisons in rural communities within a larger political economic framework.
Rural communities over the last half of the 20th century, have become incredibly neglected, and the businesses, and economic infrastructure that supported those communities originally, for various reasons, began to die in the late 20th century. Those communities needed a way to reinvent themselves to become once again economically viable. Some communities may, because of location, reinvent themselves around tourism. But not all communities have that option.
They court prisons, they give them tax breaks. They do all kinds of things to be able to have a prison located in the community with the idea that prisons will provide jobs for individuals living in those communities, and for other businesses to rise up around to the prison.
Are these prisons primarily private?
No. They are not all private. Many of them are public.
Still the same courting process?
Yes. Absolutely. They don't always pay out. They often need more skilled labor than the communities can offer, workers come from elsewhere to work in the prison. The type of businesses that rise up around the prison are usually service-based industry, gas stations, restaurants, hotels — that aren’t providing full employment. The other thing that happens in those communities is that because the prison is located there, they become a less desirable site for other types of businesses that might have come in.
And once a prison is in, it’s hard to get rid of.
Yes. Another way we might try to understand what the long-term economic effects of a prison are on a rural community is to look towards New York State, which has been on the leading edge of trying to close down many of their rural prisons. What happened in New York State is that first of all, the residents of those communities fought to keep the prison open because they perceive themselves to be very economically dependent on those prisons. And in places where the prison had shut down, nothing came to replace it.
It’s part of the larger move in New York to try to de-escalate their incarcerated population. There's a pretty strong progressive movement in the state. There has also been a movement in the state to try to reform census practices of counting prisoners were they’re housed and to count those individuals as members of the community where they’re from.
If it’s been shown that prisons in rural communities are not lastingly improving the economy — why are they still so appealing?
There are incentives in terms of getting extra funding from the state. I think there’s still a really strong perception that prisons can help those communities. The other part of it is to remember that these communities are in really, really bad shape. They don't have a lot of options, and so prison siting, even if it comes with some negatives attached to it might seem like a good idea for a community that is in very, very poor condition. Those are some of the political incentives I think to initially site a prison and then once the prison is sited those incentives are self reinforcing.
How do you discuss this with people in a way that moves beyond the statistics?
I focus on explaining that the types of jobs that come associated with the prison are really the type of jobs that they wouldn’t necessarily want to have, aren’t the types of jobs that could provide a viable living. They’re part-time jobs that pay very low wages and don't come attached with benefits.
But that can only be part of the story. We also have to be able to offer these communities an alternative model, and alternative source of funding. I'm not totally sure what that alternative model might look like, but we have to be able to talk to them about other ways in which their communities can become economically viable again if they forego a prison site. Then there are actively larger structural changes that try to support economically impoverished communities both rural and urban.
I would like to complicate the racial frame. We talk about mass incarceration and we talk about the collateral consequences of the incarceral State — we often talk about it in terms of the new Jim Crow and we talk about its disparate impact on black and Latino communities, and that disparate impact cannot be understated.
It's also important to point out that particularly in the South the rural communities where these prisons are located, are communities that are not predominantly white. They’re diverse, they’re communities where black and brown people live.
The companion phenomenon is that increasingly populations that are incarcerated are coming from the rural communities themselves, particularly with the rise of the opioid epidemic. One of the fastest-growing segments of the incarcerated population is among white rural folks. I want to complicate that racial frame to highlight that the way we manage incarceration in the United States right now isn't to the benefit of anyone. It's not to the benefit of the rural communities where our prisons are located.