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
Geeks Bearing Gifts
by Albert Fox Cahn
May 14, 2020
This interview with Albert Fox Cahn, the Surveillance Technology Oversight Project’s [S.T.O.P.] founder and executive director, fellow at the Engelberg Center on Innovation Law & Policy at N.Y.U. School of Law, was conducted and condensed by franknews.
frank | Tell us a bit about your work.
Albert Fox Cahn | I'm a lawyer, a technologist, and an activist. I founded S.T.O.P. in January of last year and launched it in March. It came out of the work I had been doing as the legal director of the Muslim civil rights group here in New York. I saw that while we had had many of these same privacy debates at the federal level for more than a decade without much movement, there were huge changes happening at the state and local level. The transformation of the surveillance capacity of local and state governments had been met without much local pushback, especially here in New York. So S.T.O.P. came together with an intersectional model to use litigation, education, advocacy, media engagement, and legislative work to turn New York from one of the most invasive surveillance states in the country to one of the most privacy protected.
We've only been around for a short time, but we've started to make a real impact by drafting legislation, class action lawsuits, research papers, open records requests and a variety of other matters. We are constantly highlighting the unique and the disproportionate impact of surveillance on historically over-policed communities, communities of color, and immigrant communities. This is not simply a problem that impacts us all equally. While surveillance may touch all of our lives, the impact it has on those historically marginalized communities is quite different.
How have we seen that play out historically?
In the eighties and nineties, surveillance was expanded mostly through undercover officers and human informants, to deal with the rise in crime. In the 2000s after 9/11, we had the shift to surveillance overwhelmingly targeting terrorism threats. And now, we see the focus shift to health data, as fighting the pandemic becomes the primary claim for necessity.
One of the lessons we have learned throughout history is that though only the high profile risks are cited when agencies ask for this data, it ends up being used in all sorts of other ways. A classic example is that a lot of the data collection that came from the reaction to 9/11 is now being weaponized to target undocumented communities and to help ICE deport Americans.
It definitely feels like the conversation around data privacy has shifted focus to health data. Do you feel like there’s ever a necessary trade off between public health and the public's privacy?
Well, I think part of the question is whose health and whose privacy. I am quite worried that we are going to see dramatically expanded surveillance of communities of color or low income communities in order to promote, disproportionately, the health of more privileged communities.
Much of the surveillance that's being described, such as cell site location information, GPS data aggregation, other forms of location-based tracking, has not been proved to reduce the spread of COVID-19, or help promote social distancing. What we do know is that these same technologies have been used successfully for years as part of law enforcement and immigration enforcement.
Of course, the risks and benefits vary based off of the specifics of the surveillance technology that we are talking about.
You mentioned a lack of evidence in New York about the benefits of expanded surveillance. But South Korea has a more proven concept. South Korea is sending out really granular alerts that include individuals name, sex, age, and records of movement. What do you take away from that?
I am really disturbed by the amount of information that gets shared in South Korea. In addition to the things you mentioned, they will also share the nationality and ethnicity of the individual. They will say it was a Polish individual. If you are in a community with only one Polish person or only two Polish people, then suddenly you have taken that data and made it quite identifiable. Location data in general is very difficult to anonymize, but in South Korea they have made it quite easy to go and use this to basically recreate someone's movement over an extended period of time.
What has made the South Korean model so effective, is something that we haven't been able to replicate here in the U.S., and that is access to quick, reliable testing. Unless people who are alerted to potential coronavirus exposure can get a test, the information is largely useless for fighting the disease. The data is not going to actually help reduce the spread of COVID-19 when people are getting information that they might have been exposed, but never have the ability to follow up on and get a test. That is the current reality for countless of us here in New York where we actively have to presume that we have been exposed to COVID-19 simply because of the number of people who have it and the inability to get tested.
Governor Cuomo has become very popular and has new legislative power to issue directives and make quick decisions to fight COVID. A lot of the people we’re speaking to return to this thought about how deprived of competent leadership we are. How quick we are to label action as heroic. If people are already excited about Cuomo, already praising him, does his newfound public acceptance make this law more powerful?
Oh, it makes it incredibly dangerous. It makes it harder to stop the governor if he seeks to extend the emergency powers after the initial expiration date. I think because of the infuriating incompetence we have seen from the Whitehouse throughout this crisis, the bar for adequacy has been set quite low for state and local officials. Governor Cuomo can be better than the president in responding to this crisis, while still, by many measures, falling short of what we need at this moment.
The Governor and Mayor of New York continue to have lengthy political squabbles that only distract and detract from our response to COVID-19. We continue to see the Governor use these powers to promote issues outside the scope of the emergency response. We see the Governor strong-arm legislators to get through the budget and extend executive authority even further. We see the President claiming his power is absolute and claiming constitutional mandates outside of any reading of the U.S. Constitution.
Why do you think our response is anti-democratic?
I think in a crisis there is always a rally around the flag effect that gives broader support to executive leadership. The practical difficulties of meeting as a legislative body in a time of social distancing has given executives even more ground to frame the need to make these decisions as unilateral.
I also think it reflects in many ways the personalities of the leaders in charge. There are many governors across the country who have done an exemplary job responding to this crisis by working hand in hand with the legislature, not seeking additional emergency powers, using the tools they already had and using a decision making model that's inclusive of dissenting voices. Right now we see Governor Cuomo going down this path of really shutting out dissent, and I don't think that history shows there's a good track record for leaders who pursue unilateral decision making without contrasting views.
What role should technology play in the response to COVID?
I think there are a variety of technologies that have been indispensable in responding to this crisis. The same technologies that allow millions of us to work remotely, allow remote healthcare appointments for non COVID patients and those with mild symptoms. Those sorts of tele-health technologies have been hugely helpful.
I think there is potentially a space for computerized triage tools that use patient data to determine if someone should be prioritized for testing. But there have been a lot of privacy issues with the existing models. We should make clear that the companies offering these services and partnering with government agencies shouldn't be allowed to profit from a public service at times of crisis. If they want to provide triage tools to the public, then they shouldn't be able to sell that data to advertisers or sell it to third parties to monetize our data in all the other ways that our information is monetized.
“Americans should be wary of geeks bearing gifts”, as you say.
Oh yeah. I was way too happy with myself over that one.
Apple and Google have a new app which allows for voluntary embedding of the app for contact tracing. France is calling for Apple and Google to actually ease their restrictions to allow them to make a sovereign app with the technology. How do you feel about it?
I am deeply alarmed by the proposed Apple Google partnership on a bluetooth API for contact tracing. I think this has the capacity to be a highly invasive system and I think that while the cryptographic approach they had outlined would have some privacy preserving features, it will be quite easy for institutional actors to effectively de-anonymize the Bluetooth beacon data so that when someone identifies a positive COVID-19 result, it will be easy to identify who that is.
I also think that there are huge issues with digital equity in such a system, given the fact that you simply don't have smartphone adoption rates among the highest risk communities, older adults in lower income brackets, that would allow the apps to actually be effective and to reach enough market share. I'm also really worried about these so-called “opt-in” features becoming compulsory if employers or schools or churches or other public spaces make use of these systems as a prerequisite to taking part in public life. I don't want a situation where you lose your job potentially as a janitor at a hospital or as a teacher because you refuse to run this on your phone.
You can see the prerequisite argument playing out. Is it inevitable for us to reopen?
I think it's a structural weakness for the system that's been described by Apple and Google. It is far from inevitable that their system will be deployed, but I think it is a real danger and I don't think there's anything in most states that would prevent companies from doing just that. With the idea of an antibody passport, I'm quite concerned as well because a lot of the antibody testing that's on the market doesn't have a high level of accuracy. Many of them have not been FDA approved.
I am quite concerned that we will roll out some sort of antibody passport tracking technology at the expense of continuing to provide the emergency relief that so many families need to get by.
You wrote we face the risk of surveillance turning state borders into “21st century iron curtains”. Is that what you think will happen?
We have been down this road before to a degree in the 1930s. During the height of the great depression, states tried to block people from entering from neighboring states. The Supreme Court struck down that sort of barrier, and said the several states must sink or swim together, and that, in the long run, prosperity and salvation are in union, and not division. We cannot create internal borders against interstate movement. It's a right that they traced the original Constitution itself before even the Bill of Rights.
There is a lot of expertise in this field already. How do you put it to work?
I think part of it is passing these state laws to prevent abuse of this crisis. We were proud to partner with assembly member Dan Quart to introduce a new ban on geolocation data tracking for law enforcement purposes here in New York. The law makes sure that if New York goes down the path of getting public health officials via geolocation data, that it can't be used to put people in jail for unrelated criminal cases.
We need more state laws. We need more restrictions.
I think that may take the form of cease and desist notices against companies that are marketing COVID-19 detection apps that are really just ways to suck in and monetize our data.