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
Waste Is A Human Rights Issue
by Baskut Tuncak
January 18, 2019
Baskut Tuncak is the UN Special Rapporteur on human rights and toxics, and a Senior Researcher at Raoul Wallenberg Institute.
What does your role at the UN entail?
The position I have, as Special Rapporteur to the UN Human Rights Council is one of an independent, outside voice, providing information and analysis free of political interference. The position was created almost 25 years ago by the former UN Commission on Human Rights to look at the human rights dimension of the issue of waste, in particular transboundary shipments of waste. Large volumes of waste were, and still continue to be, shipped to developing countries and disposed of in ways that are producing grave impacts on human rights.
The Human Rights Council expanded the scope of the mandate in 2011 to look not only at the issue of waste but also to look at the entire life cycle of hazardous substances waste. It vastly expanded the scope of the mandate and changed the title to explicitly include hazardous substances and waste. So, the full life cycle of consumption and production, and the pollution and contamination that results. Everything from the natural resources we extract to produce various chemicals, materials and energy, to emissions of energy generation, to toxics in the workplace and consumer products, and of course all forms of waste.
Basically what I do for the Human Rights Council, and I've had this position since 2014, is report to them every September on current issues and the UN General Assembly in October. I'm given a broad latitude in how I choose to report. I can focus on a particular set of rights, or even a particular right, a particular issue, whether it's environmental or occupational, or both. I present that report every year. Also, I present reports on visits to various countries to evaluate what different governments are doing in terms of protecting human rights from exposure to toxics.
As Special Rapporteurs we also have a mandate to send letters of allegation to national governments, businesses and other actors who are implicated in cases of alleged human rights violations and abuses relating to our mandate. In my case, these are cases of people who are harmed by exposure to toxic chemicals and wastes, poisoned in essence. It's a process by which we send a letter of allegation and then engage in a conversation with the relevant actors to understand the situation better. That can lead to public expressions or views on the case publicly, or actions by other authorities to end the violations, prevent future recurrence and provide remedies for those whose rights have been violated.
Big job.
It is. It is a pro-bono position. The UN Human Rights Council has Special Rapporteurs, Independent Experts and 5 member teams in Working Groups, the so-called “Special Procedures”. None of us are paid. We do this on a voluntary basis and we are given very limited, if any, financial support in terms of what we need to do to gather the information in order to prepare and present the reports. We're entitled to resources to travel to Geneva and New York to present reports or to undertake the country visits but outside of that, there are very little resources available to us. It's a big job, global in scope, and it's made more challenging by the financial constraints.
How often are you filing allegations?
It depends. Last year we sent quite a few letters of allegation. I would say on average we probably send six to eight per year. Sometimes we do that individually, and sometimes we do it in conjunction with other Special Rapporteurs.
These letters of allegation are publicly available after 60 days, although they're more difficult to find than I think they should be. They usually are the precursor to Special Rapporteurs expressing a view publicly, through a media statement or otherwise.
As an example, would the water crisis in Flint be something you’d write an allegation for?
Absolutely. That's exactly one that we did send. I don't know if you are asking that just by coincidence or because you saw it, but I did send a letter of allegation to the US about the water contamination in Flint, Michigan. That letter focused quite a bit the situation in Flint but also the broader context about minorities and their disproportionate exposure to toxic contaminants in the US. I sent that letter in January of 2016, if I'm not mistaken.
Are governments legally required to respond?
Legally, no, they are not. There's no requirement on a government to respond. In the case of the US, the US was quite responsive historically. They've been one of the better countries in terms of responding, at least sending a response to the letters that have been sent. However, sometimes substantively less than we would hope to have in order to have a meaningful conversation and understand the situation. But regardless, the US has stopped responding to letters of allegation from Special Rapporteurs, including myself. The most recent letter they did not respond to involved the terrible manner in which hazardous military waste has been disposed by the US armed forces in Puerto Rico. I think the lack of responsiveness to letters of allegations reflects the highly regrettable disengagement from the US from the Human Rights Council and from various other international processes.
There's a history of developed countries using developing countries as a dumping ground. Has that changed at all in the time since you've been working in this role? China's recycling ban has forced some change, but I wonder if you've seen real effort since you've held this position?
The reason the mandate was created in the mid-90s is because the Basel Convention, which is the treaty established in the 1980s to try to deal with the problem of waste being dumped in developing countries, and was viewed by a large number of developing countries, especially those in Africa, as grossly inadequate. Within the framework of the Basel Convention, there have been numerous efforts, many concerted efforts, to ban the export of hazardous waste to developing countries, the so-called “Ban Amendment” being the most notable. This amendment would prohibit the shipment of certain hazardous wastes from OECD members to non-OECD members for disposal, recycling or recovery. However the Ban Amendment has not been ratified by enough countries to enter into force.
The recent changes in China regarding waste imports have certainly forced changes, but there are concerns that the waste is not being recycled or disposed of properly in the countries that have taken up the slack.
Waste movements can be traced, but unfortunately much of it lacks transparency regarding where it goes and how it is disposed, recycled or otherwise dealt with. Illegal movements remain a serious concern, as these things by definition not traceable, measured with the same unsatisfactory methods by which the drug trade is assessed. You can only gauge how well you're doing based on how much you're actually confiscating before it becomes a problem, and that's not a very reliable metric. It's in some ways like the drug trade, and unsurprisingly you do see organized criminal activities involved. Interpol has been working to tackle this problem. Certain states have been able to improve their work with customs agents and border controls to try to ensure that waste shipments are leaving for destinations where they'll be disposed of in dangerous manners, potentially dangerous manners. But let’s not forget that some large corporations are also implicated in scandalous cases of illegal waste dumping in Africa, such as the infamous case of the Probo Koala and Trafigura. There's still a lot of waste leaving countries without sufficient understanding where it’s going or how it will be disposed.
If the US were to decide to take full responsibility for their waste, what are the practical solutions?
In an ideal scenario, countries would manage their wastes within their borders, helping to advance sustainability and reducing the intensity with which we consume raw materials. The reality is, however, that we have legitimized the export of waste, building a global waste economy externalizing the health and environmental hazards of wastes to countries with weaker governance structures, corrupt regimes, or otherwise vulnerable, exploitable populations. Most people are unaware of where their waste goes, that the mountains of trash collapse and kill communities in developing countries, that toxic substances in waste contaminate water and food and circulates around the globe. We need systems in place to ensure a safe, circular economy is developed, including the ability trace what goes into materials that become waste and where the waste goes.
Who should be responsible for tracking the waste?
Governments have a duty to protect human rights and must ensure that the actions of companies within their jurisdiction are not resulting human rights impacts, at home or abroad. The relevant authority can vary from government to government.
However, businesses that produce products that become waste have a responsibility to build traceability systems to track their waste and ensure that human rights abuses do not result. Governments must compel businesses to do this. The limited implementation of the UN Guiding Principles on business and human rights after 8 years for the implications of toxic substances and wastes clearly points to the need for governments to obligate businesses to conduct such due diligence through legally-binding obligations, rather that the simply an expectation. That said, the fact that many Governments are not compelling companies to conduct human rights due diligence for the risk of toxic exposures by children, consumers, workers and others, does not absolve companies from their responsibility.
Circular Economies come up in nearly every interview we’ve done this month. Can you break down what it means to you in theory, but also what it looks like in practice?
To me, a circular economy is one in which we have essentially a closed loop. Where the inputs and the outputs from the consumption and production cycle are limited. And so, when, say, a consumer product reaches the end of its lifespan, the materials that are contained in there would be recovered and then re-used in some fashion to feed back in, creating a cycle where we don't have the raw materials extracted at the rate that they are. Like I said, ideally it would be one where we're using the raw materials that we already have, the waste that we already have, but to get to that point it's a very long-term, aspirational and ambitious vision, I'd imagine, and one that requires a very holistic life cycle approach, one that includes eliminating toxic chemicals in products, in particular those that are persistent and toxic. To me, that's what a circular economy is. It's putting those systems in place so that we can reduce our reliance on raw materials, creating healthy, sustainable economies and living within planetary boundaries.
Are you optimistic?
The idea of drastically reducing the extraction of non-renewable natural resources altogether, of oil and gas and metals, and minerals, and others, from energy to consumer products – we're not there yet. In fact, we're probably a long ways away from it unless we have the right leaders in industry, government, and the accumulated financial equity and wealth is redirected to the long-term sustainability of our planet and the human race. However, leaders in industry, government and philanthropy are all finally beginning to see the increasing toxification of our planet as one of major concern, distinct but indivisible from the impacts of climate change. This gives me optimism.
However, to have the entire global economy flip a switch and operate in a circular fashion, I'm not too optimistic. It will probably take time, requiring long-term committment on tha part of all, especially those proving the financial support to usher change. That said, there are huge gains to be had in the short term, particularly in the way that we're senselessly producing materials designed to be thrown away. Everything from single-use plastics to ultra cheap clothing material that's largely synthetic and with limited life spans. Yes, for certain consumer products segments, I am optimistic. But I also see risks. For example, if we move away from petrochemicals and move back toward the use of natural fibers for clothing, what I am afraid we will see is an increased reliance on pesticides, fertilizers and other agrochemical pollutants, which will then likely also have a negative and environmental and human health impact.
So, I am optimistic and think it's the right direction to go in but I think it's going to take a lot of effort and care to avoid unintended consequences.
Yeah, not without some collateral consequences, I'm sure.
I'm trying my best to be sure that these potential collateral impacts are taken into account. For sure.
When you look at the breakdown of plastic waste, packaging is a huge portion of the problem. Amazon Prime has completely changed e-commerce. Do you look at, write about, or research the way that these companies should be responsible for their packaging systems?
Well, we could. There have been some efforts in terms of particular waste segments such as electronic waste and medical waste.
These companies like those that you're talking about are part of the massive e-commerce economy and creating a huge, huge problem for us in terms of the way that the products are packaged and how they arrive. The other day I ordered a microwave from a company and it arrived in at least three cardboard boxes that were nested inside each other like a Russian doll. It seemed to me highly inefficient and unnecessary. On top of all the styrofoam and the plastic in there, everything amounted to an enormous pile of waste that the retailer didn't have to deal with.
There needs to be attention to the way the economy is changing including through e-commerce and the waste implications.
What are some pieces of research you've worked on, or you work with, that need more attention?
One of the biggest and underrecognized issues in my view, when it comes to toxic exposures, is the exposure of children during critical periods of development to a complex mixture of toxic chemicals and pollutants, including waste. So much our health throughout our lives depends on what we are not exposed to as children. Children continue to be born pre-polluted exposed to dozens if not hundreds of different toxic chemicals and pollutants - that we are looking for. We don’t understand the implications of this as well as well should. We don’t have the information necessary on developmental effects of pre- and post-natal exposures to various toxic substances that children may be exposed. And we are procrastinating in understanding the implications of what exposure to a cocktail of substances during childhood can mean. Governments continue to rely on assessments of individual substances for health risk, but the reality is that the mixture of substances we are exposed to can interact and collectively produce grave adverse health outcomes that are not predicted by risk assessments of individual substances. We're deceiving ourselves and future generations if we continue to remain ignorant to the health risks of ongoing widespread exposure of children to toxic chemicals and pollutants and fail to do everything in our power to prevent childhood exposure.
Where can we find some of the UN work you described as difficult to find?
I have a website that also has these letters of allegation and the reports to the UN Human Rights Council and the General Assembly. The UN keeps websites for each mandate with their reports, and a database at the UN Office of the High Commissioner for Human Rights where you can search by various mandates for the letters of allegation.
Public awareness of the reports and letters by Special Rapporteurs is unfortunately very limited. The UN needs to do more to make the work of Special Procedures visible. But, of course, there may be some invisible forces that keep that from happening, and from my mandate still not being referred to as focused on toxic waste, despite the changes made in 2011.