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
On Social Media and Protest
by Dr. Meredith Clark
June 16, 2020
I spoke with Dr. Martha Jones recently, who discussed how critical media is to amplifying narratives, but how often national media is drawn to the sensational. I'm curious what you make of that and how you think the media shapes cultural understanding?
There are solidified practices and standards to reporting. I used to be a journalist, I know the pressure. There are specific guidelines and values, and these were created in a time where most women, and certainly people of color, were locked out of journalism. It's a style and an approach that is insufficient. But these practices drive them to look for conflict as readily as they can find it. They tend to focus on the symptom of the problem, rather than the problem itself.
Rather than taking the time to research the history of what has led up to this moment, journalists go for what is obvious, easily accessible and falls in line with mainstream journalistic standards.
How do you think a moment like this would be best reported on?
This moment should be recognized as a part of a larger narrative, a narrative that is about struggles for liberation, for equality, for equity, and for justice. It is a story that is as old as the country itself, if not older. We should be connecting the dots between the protests of 2014 through 2016, the Rodney King riots, the Civil Rights Movement and the the riots that ultimately resulted in the assassination of Martin Luther King and Malcolm X.
There’s also seemingly a disconnect between news on the internet / social media, and news from the mainstream. The LA Times had a headline that read, “Looters Rampage Across Region”, which felt incredibly tone deaf, because we have the internet, we know “when the looting starts, the shooting starts”, and where that history comes from.
The looting headline is an example of the sloppy conflation of protesting, rioting and looting. This goes back to what I mentioned before, there are practices that have really been refined in the newsroom. This particular narrative of “looting” is central to the mainstream media coverage of protests. It's easy to quantify what property losses are going to be, and it's easy to describe a chaotic scene as something being violent.
It is much, much harder to do the work of telling an intricate and nuanced story about what brought people to protest in the street. They focus on the end result of the actions of few. In a lot of cases, the reporters weren't there when the fires were started, and they weren't there when the looting started. They don't know who actually started those things. And even if they did, the bigger story is what is it that drives people in this community to take advantage of the opportunity to take things?
The reporting on this has leaned into the sensational language wise. I live a block from the first scenes of fire and violence in LA. And yes – it was bizarre to see things on fire but I would never describe it as unrecognizable, or scary, or anything else.
Journalists have gotten used to being treated like a protected class. While we need journalists to be respected as the valuable citizens and contributors that they are, they are also human beings like the rest of us.
People every day are exposed to the violence and terror that is being reported on, but they don't have a platform to amplify what life is like on a day to day basis. They're relying on journalists to tell that story and to tell it accurately, fairly and with cultural competency. When journalism focuses on the traumatic, rather than what may seem banal, it's a disservice to people in those communities who will still be dealing with oppressive circumstances once the fires are out, and once everyone has gone home, and once news media has moved on to its next story.
There are a lot of smart, seasoned editors issuing apologies and re-committing to “learning” right now. It is confusing to me because this is not something they are learning, this is something they are facing. Do you think that the current language is effectively making way for a more diverse body of journalists and people reporting the news?
Right.
The apologies really belong to the individuals in the newsroom who tried to present different perspectives, to give context to the stories, or to call something out as problematic, but were ignored, belittled, told they did not belong as part of the newsrooms. Those apologies are really theirs.
The only thing that would give me any confidence in people is action. So yes, you get out here and you say, “I'm learning.” All right. What can you put into action as a result of what you have learned today? What could you do differently? Could you go back and apologize to your staff members who tried to help you with this early on? Could you reevaluate how people in your newsroom get promoted? Can you reevaluate how you write about the communities you’ve hurt? Could you go back and review the coverage that was done under leadership and look for areas where you consistently fell short? For me, the confidence will come when I start seeing some of those actions being taken.
Does social media play a role in harnessing the power of a movement?
I think the power really lies in the connection of people.
That power lies in how people decide to connect and how they use their intellectual and social capital to organize and strategize and mobilize around the causes that are important to them. I think we really need to be reminded of that power structure, and be wary of becoming too focused on the connective technology itself.
At any moment, these corporations that have created the social networking tools can go dark or they can silence people. We have seen all of these things happen in our lifetime. Mark Zuckerberg has said that he doesn't want to be the arbiter of truth. That's not what anyone is asking for. What people are asking for is for these platforms to take responsibility for creating spaces that have been harmful in measurable ways. Deadly rumors have been spread in countries like India or Pakistan on Facebook or on WhatsApp. Because Facebook will not intervene, even though they may know that the rumor is not true, people have been murdered. There's a possibility for the platform ownership and the platform developers and the folks working on the products to have greater influence, but I think most of it lies with the people who are on the platform.
Do you have criticisms of some of the ways in which these platforms are used? There are elements of performance or virtue signaling that are inherent to social media in any context, how do you think about that in conjunction with a social movement?
I am really appreciative of just individuals, and small communities joining in. It shows that online discourse does have an impact outside of online spaces through a process of what I call reaffirmation.
Affirmation happens in the online space. Someone tweets about something, another person responds, whether positively or negatively, and they are able to begin this constructive discourse. Reaffirmation happens when those conversations are taken into offline spaces and put to work. For example, a coffee shop in my neighborhood is donating all its tips to the movement for black lives. When they do something like that, you extend those conversations into spaces where people who aren't on social media can engage with them. I think in that way, the individuals and smaller groups participating is very useful.
I do sort of chafe at brands making these gestures when they have workers who are marginalized and unprotected. They need to do better internally. They're focused on their messaging, because their messaging influences their sales and their profits, but we know that they don't have the work to back up what they're saying. That feels like exploitation of a moment and exploitation of a message. It feels really cheap.
How are you taking care of those people? That to me is more pressing, and that's where I get a little bit frustrated with corporate entities joining in the discussion.
What about the activist-celebrity?
I have a couple of different perspectives on that.
There is a responsibility that lies with us, the people who are giving them our attention, and who have positioned them as leaders. People can't be leaders without followers. People pick out certain voices and rely on them as trusted sources, while lacking the understanding of what activism means today. That's one level of the problem.
And then there's another level where you see people who maybe started with the best of intentions in doing this work, but it has become a gateway to celebrity for them. I find it problematic that people who want to lead, are taking advantage of the opportunity to be in the public eye. Because soon, that becomes about power dynamics that have absolutely nothing to do with the work and everything to do with reputation and with ego. Our progression is severely hindered by personal ego.
When influencers, people who were influential because of something else they did, get involved, I find it interesting. I'm glad that they're willing to use that platform to speak out about issues when they are fact-based and well researched and speak in a way that can translate things to multiple audiences. I have trouble with it when they haven't done their homework, because I really do see that as a wasted opportunity.
Do you feel hopeful that the people in the streets and the conversation about black lives will remain in the national conversation for a long enough period of time to create change?
No. I have evidence that that won't happen. That it's too difficult for people to keep that in mind. Specifically the individuals whose lives since death have mobilized people to get into the streets.
As I was doing research on Black Lives Matter in 2015, and that was just 2015, people could not tell me the names of the individuals whose names had become a hashtag. They simply could not recall the names of people. They knew their story. They might know the pieces about what happened to them, but not their names.
Over time you see the attrition of attention and acknowledgement. People settled back into a more comfortable routine. With the lack of actual intervention, people become disenchanted with the efforts that they put forward. They've been out in the streets, they've been protesting, they've organized petitions, they've even burned some shit down when we had to – and very little has changed. They get discouraged.
We tend to carry the sadness and the discouragement with us as emotional weight. We have seen this before with Eric Garner, and I think that's one of the things that contributed to so many people being motivated to get out and protest this time around. We've got that traumatic memory that we can draw on, and yes, it can be reactivated again, but it goes away. It's unfortunate. And I think we're beginning to see that with Breonna Taylor’s story right now.
I think you are probably right, but I was hoping you might have a different answer.
I can say this. Before we heard about Breonna Taylor's death, before we heard about Ahmaud Arbery’s death, before we heard about George Floyd's death, which I did not watch, I was hopeful – which is not a word I use very often. But I was hopeful that because of what we were experiencing in the pandemic, people would begin to think about a different world and start working towards what a different, more just, more socially equitable world might look like. I do hope that we can capitalize on that momentum and that racial justice will be a part of what we build up to.