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.
Reshaping The Immigration Narrative
by Lizania Cruz
October 15, 2019
Albert Saint Jean, the chief organizer for BAJI and Lizania Cruz, a designer and the founder of We The News, sat down with frank to discuss representation in the immigration narrative.
The partnership between BAJI and We The News exemplifies the ways that issues of race, immigration, and class can and should be written in conversation with one another.
This interview was conducted and condensed by frank news and was originally published on July 15, 2019.
Albert: My name is Albert Saint Jean. I am the New York City organizer for the Black Alliance for Just Immigration [BAJI].
When I heard about BAJI, this was before Trump, I had gotten interested in volunteering, in organizing with BAJI, because a lot of the stuff they were focused on were things I’d seen throughout my life. I was born here, but I was the first of my grandmother's children born here. Everyone older than me had migrated over and I saw what they had to go through with their status, their relationship with law enforcement, their relationship with the criminal justice system, their fear of deportation. I felt like BAJI was at the nexus of a lot of those things when I found out about it three years ago – and long before Trump, because they were things affecting black people. Basically I got into it because it spoke to the things that I saw in my own personal experiences.
Lizania: I'm Lizania Cruz. I'm an artist and a designer originally from the Dominican Republic. I moved here in 2004 when I was 21 to finish college. I started We The News – doing work around shifting the current narrative on migration and trying to figure out how we [people] change.
I was frustrated with the way the current immigration narrative was – only talking about the majority within the minority group, and how the media was taking over the narrative. I didn't feel represented. I didn't feel like our stories were pluralistic in any way. So I started wondering what if we told our own news and our own stories – what would that look like? That's how We The News as a project started. I was talking to different organizations and someone recommended BAJI. I thought it was super interesting how they were talking about migration, blackness, and at the same time talking about the correlation of that and the criminal justice system, which for me, no other organization was doing. Getting involved with BAJI has made the project what it is today. It has also politicized me in ways I wasn't thinking about.
What are those ways?
Lizania: Looking more at the similarities between disenfranchised communities already in the US and the immigrant movement. Again, I don't think we do that as often, and now I'm constantly thinking of ways that story could be told, and what are the lengths, and how do we organize collectively rather than organize in silos. We're organizing for LatinX folks and maybe labor workers, and we're organizing for people that have been affected by mass incarceration, why are those two things not organized in tandem while looking at the policies in the same way?
You mentioned you feel like the narrative is not pluralistic.
And very mono.
Does the division of groups fighting for their specific causes as separate give their stories more autonomy? If all these issues are nuanced, where do they blend and how do you deliver a message that covers, or even touches on, all of the personal?
Albert: Particularly with BAJI, they look at the nexus between the similarities between African Americans and black immigrants.
When we talk about the immigration issue, we shy away from the racial aspect of it. This is a racial issue. The diversity of immigrants we have now is only possible because of the rights that African Americans fought for in the early 60s. The 1965 Immigration Act was a part of that, the whole civil rights act. That allowed for the diversity of other immigrants to come here. When we shy away from that, we miss a large swath of what's going on in the immigrant community. We miss talking about what are the drivers that send people here in the first place?
US policy is responsible for a large bulk of us being here. My family wouldn't have come here if it wasn't for the United States supporting a dictator for so long. Her [Lizania’s] country wouldn't be the way it is if it wasn't for US agribusinesses and foreign policy.
Where did your family come from?
Another place that they [US] supported dictatorships. It's kind of like the stories we're able to show the common thread is US policy, and a lot of it is the racialized aspect of immigration in the United States.
Lizania: I'll add to that. I see specifically in the work that we've been doing with We the News, a creation of a platform where all these stories could live together. There's not as many platforms like that. Finding a place and a platform where people could come together and share their stories and have a voice. None of us are the same and we all have different experiences, but how the commonality becomes the difference, is always what I'm interested in questioning.
Even when we facilitate the story circles, we open with a prompt that is the same for everyone. But nobody responds the same way. How do these stories sit together and how do we make a space for that to happen?
The personal narrative is a driver for policy in this case. Are you guys interested in changing policy?
Albert: Exposing policy, changing policy. Those are important. But I think with my work, what's even more important is changing structural issues.
Is policy complicit in structural issues?
Albert: Well, there's policies that are a symptom of structural racism. Most people look at the Trump era as, for what it is, a terrible era, especially for immigration. But these problems have been going on long before that. The 1996 laws were implemented after Timothy McVeigh bombed Oklahoma City. A provision they made was that anybody that commits a crime that's a foreign national would be deported. Whether it’s retroactive or not, you don't even have to be convicted. A lot of people I come across aren't convicted. Yes, it's policy driven, but a lot of it is also sustainable. I'd say a majority of this is systemic. So yeah, there's policies that are pushing against it – but also these narratives show the systemic issues I see as well.
Lizania: It's a way of popular education. I think policy is important, but I think you have to start from the bottom up and create the popular education. People vaguely understand where all these issues are coming from. And you could potentially organize to create policy – but even at BAJI, those who are organizing and those who are going to Congress to affect policy, are different.
Albert: Yeah, that's true. Sometimes I'll go to DC and help lobby for certain things or meet with city officials along local issues. But the bulk of that work is in the hands of people who specialize in policy. Not that these folks have any faith in this system, it's just that they know that this is another strategy.
They feel as though we still have to use policy as a tool. So my job is to create the pressure that Lizania is talking about. Creating a space for people in the community to not only learn about themselves and their rights, but also learn to advocate for themselves. The more they start to realize that their experience is not an anecdotal experience, that this is more of a trend than a norm, they're able to do all the things she just mentioned. That's an organizer's job. To make sure that education is there. When we look at past movements, it wasn't Malcolm X or Martin Luther King who started those movements. They came out of those respective movements, to articulate the needs of the people. We have to start somewhere. I think the more we share this with people, the more likely people are going to be able to fight for liberation so to speak.
What's your dream in this?
Albert: In an ideal world?
Yeah. What do you want immigration in America to look like? To feel like?
Albert: I would say the way it was when my grandmother came in, in the 70s. You just come here – I honestly don't believe in borders, to tell you the truth. But, in my lifetime, I would like for people that are undocumented to obtain amnesty, I would like for there not to be any caps or quotas, regardless of where people come from.
Lizania: I ask this question to myself all the time. We're doing this work but what does it look like when the work is done? I think that if this system runs how it's supposed to, there wouldn’t be quotas for the people that could come here.
Albert: Diversity visas.
Lizania: There won't be diversity visas. I was just having a meeting with my lawyer, and the type of visa I’m applying for has a two year backlog, and he's like, "that's actually nothing." Plus the amount of money that goes into the process. It's just not realistic.
It’s interesting to look at the immigration argument coming from the GOP in the 80s, Bush H.W. and Reagan in 1980 are wildly different than Ted Cruz today.
Albert: What a lot of people don't realize, and this is where I hate the two party system, for the reason you pointed out, is at one point in time the Republican party was way further to the left than Democrats now, than Obama. What Reagan did, the amnesty – and don't get me wrong, all the fuckery that's happened started with Reagan in this country, it started before, but Reagan really took it off – but he gave general amnesty in the 80s. This is someone who right wing people worship, you know what I mean? When I look at Democrats and I look at how they're like, "Oh no, be realistic. This is what we can fight for."
When people claim to be moderate now and think, "Oh, I'm moderate, I'm in between. I understand both sides." No, you're a conservative. When you look at the historical analysis of it and how far right this country has gotten, how this country doesn't recognize that is even scarier. The fact that it is normalized, even on the democratic side, is scary. The fact that Bernie Sanders and Elizabeth Warren can be considered extreme, it's very scary because these were all basic ideas people had.
It's interesting you brought up this thing with Reagan and Bush. I mean, Republican, Democrat, they were always messed up. But Republicans were more strategic. Coming out of the New Deal Era, they knew they had to make concessions in certain places. Especially since they had a labor shortage for certain sectors of the economy. They needed the Bracero Program and domestic workers to come over. They were like, yeah, why would I be against this? They were very practical.
Wet foot dry foot for Cubans. If they made it to the mainland of the U.S., they automatically got a green card because they were fleeing communism. The Haitians, however, were fleeing a dictator who's indiscriminately massacring whole families, women, and children on the streets. 60,000 people were massacred underneath this dictatorship, and people were fleeing. I had family members who were fleeing, but they didn't have the same privileges Cubans had. Once their foot hit land they could be apprehended and found out. I just thought that aspect of it was very interesting to me. The US link. People magically forgot that the US created the situation in El Salvador and Honduras and all these places as late as the 80s, and no one's talking about that. Why are all these people showing up here?
Do you think there’s a lack of education in America about U.S. presence in Central and South America?
Albert: I think that's true globally. Even when we talk about the Middle East we're not really clear about the roots of all those problems.
Lizania: I did a poster that was also part of We the News looking at all of the different interventions in Latin America specifically by the US.
While you're critical of American actions abroad, are you also hopeful for the "promise" of America?
Albert: No, well, I'll say this. I'm hopeful if we can tear down the structures that we have now.
The majority of Americans want the same things. Majority of Americans do not care about if Lizania has access to citizenship or not. But politics makes us pit each other against each other. Politics is what uplifts white privilege and makes white folks say, "hey look, you know what? These immigrants and these black folks and these other folks are threatening my security." Politics does that. In reality, most Americans want the same thing and I think that the system we have now does not allow the will of the people to really be represented.
Lizania: If we aren't hopeful, why would we do it? With my work, I'm just trying to find ways that our reality could actually be a more inclusive, a better reality for all of us. I think the reason I do the work I do is because I believe that there could be a better way and that we have to construct that way for ourselves. Hopeful is not the right word. Let’s see how America could work for our communities in a better way. Or maybe it's not only America – how can we as people of the world, live better?