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
Everything Must Go
by Alec Karakatsanis
June 23, 2020
This interview with Alec Karakatsanis, Executive Director of Civil Rights Corps and author of Usual Cruelty, was conducted and condensed by franknews.
frank | Can you introduce us to the work that the Civil Rights Corps does?
Alec Karakatsanis | Civil Rights Corps is a small nonprofit organization based in Washington, DC. We seek to use litigation to change the brutality that is inflicted on people, predominantly people of color, by the criminal punishment bureaucracy. We have led a lot of the fights around the country challenging the cash bail system. We have also done work around prosecutorial misconduct, on the militarization of police and some work around the indigent defense system.
More broadly, we are an abolitionist organization that is trying to get our society to think critically about the purpose of the criminal punishment bureaucracy. We push people to think about what kinds of divestment we can make from the current system, and what kind of investment can be made in other areas to help communities flourish.
Has your work changed since the protests began after Geroge Floyd’s murder?
I think it's important to take a step back and think about what our jail and prison system looked like a few months ago in order to understand this moment.
This is the staggering number of people the police are ripping away from their communities and putting into a bureaucracy of cages, courts, lawyers and police officers. Almost all of these jails are places of unspeakable horror. Virtually every one that I have visited over the country is covered in mucus, feces, blood, mold and urine. They are incredibly overcrowded and cramped. There is a total lack of hygiene or adequate medical care.
When COVID hit, our work gained a new urgency. Suddenly a viral pandemic was threatening to sweep through all of these horrific facilities. We reoriented ourselves. We brought a number of big class action lawsuits in major cities on behalf of human beings confined in jails. We challenged the jail's utter failure to protect the people inside. These are extraordinary stakes for our clients and their families. To give one example, after we filed our lawsuit in Chicago, seven people died of COVID in the Cook County Jail.
In the last few months, a lot of our work has shifted towards trying to tell the story of what's happening inside these facilities. Most people have no window into them. They don't know the extent of the brutality inflicted upon people every single day.
What was the original ask from your organization? Mass clemency? Medical release?
There's really two different asks. One is basic improvement of conditions - soap and hand sanitizer, basic ventilation, and basic protocols for responding to medical emergencies more quickly.
Adjustments within the prison, within the facilities.
Yeah. We also want as many people released as possible, so that medically vulnerable people aren't confined in a place that could kill them.
People can't socially distance in jails and prisons, so the infection is spreading like wildfire. That is horrible, not only for those who are incarcerated and their families, but also for the broader public. If you have a contagion in the jail, with the churn of people going in and out of jails, chances are that it's going to be transferred back out into the community. That is a critical realization - that there are public health consequences from throwing human beings away into cages.
Part of our legal strategy is to really force people to think: Do we have a really good reason to take this woman away from her child and put her in a cage during a viral pandemic? If we don't, did we have a really good reason before the viral pandemic? Those are the kinds of questions that we've been trying to ask with our litigation and push into the broader cultural conversation. Especially in this moment, as people realize that these jails are disproportionately full of Black people, people of color, poor people and people with mental illness.
I wanted to talk more about the criminalization of poverty. How do you explain how our current criminal justice system functions to generate revenue from the poorest people in the country?
Various interests profit off of people at every stage of the process. There are all kinds of financial incentives to punish people.
The police are basically paid to make arrests.
There is also this thing called civil forfeiture, which basically allows the police to seize, keep, and sell private property. When they arrest you, without you being convicted of a crime, they can take the cash out of your wallet or confiscate your car.
Early in my career as a public defender, I was involved in a case where the police were stopping people on the streets and taking their money, or claiming the car someone was driving wasn't theirs and taking the car. They would then send these people a letter and say you're welcome to challenge the seizure, but you have to pay us 10% of the value of the property that we took. That is just for the privilege of challenging it. If you're too poor to afford your car payment, you can’t afford to pay 10% its value to get it back. We succeeded in getting that system struck down as unconstitutional, but it is still going on all over the country.
So the police have all these ways of making money, but then it gets even bigger.
How so?
Prosecutors have these things called diversion programs, which means they say if you pay them x amount, they won’t charge you, they will dismiss your case. Rich people can pay, and the system makes money off of them. Poor people can't pay, and they get prosecuted.
Of course, there is the multibillion dollar cash bail industry.
And in many places, if you can't afford to pay the fines and fees that you owe after your traffic conviction or your criminal conviction, you're put on probation. You owe a monthly fee for probation every month, around $30 or $40. When you are on probation, they can drug test you any time they want - every drug test costs you $20.
People get trapped in a cycle of debt. The scheme looks like this - you get a $200 speeding ticket. If you can't afford to pay it, you are put on on probation. Now you owe a private probation company $40 a month - plus your original ticket. Let's say you can only pay $20 toward that. You would never be able to fully pay that off. We saw this in Ferguson. When I went to Ferguson after the death of Michael Brown, the city of Ferguson averaged 3.6 arrests per household. Almost all of those arrest warrants for unpaid debt to the city for this kind of like scheme that I've just described.
Can you sort of simplify the cash bail system?
Historically, bail was an unsecured money bail - meaning that you only owed money if you didn’t show up. Around 1900, we saw the rise of the for-profit commercial money bail industry in the U.S., and with it, the rise of secured money bail. A secured money bail means that you have to pay money before you are even let out of jail.
That's what you sort of see play out on TV. You're arrested, you're brought in and you're told you're free to go back to your family if you hand us some money. Of course, most people who are arrested in this country are very poor and have no hope of paying that money. That is where for-profit bail business comes in. If you pay them 10% of the bail, they will pay the rest. It's kind of like an insurance policy. The companies get paid back in full when you show up to court, but you never see that 10% again.
There are really two problems with the cash bail system. Number one, most people are too poor to pay even 10% of the bail set. If you are charged with a $10,000 money bond, you would have to have a thousand dollars in cash laying around. So, you are just stuck in jail just because you are too poor. Number two, if you can pay, you are paying into a for-profit money bail industry. Take the city of Los Angeles.
And that's just one police department in one American city. The cash bail system monetizes your personal liberty.
Who profits?
That money goes into the hands of the for-profit American money bail industry, which is really controlled by a small group of insurance companies. Prosecutors and the courts, as I mentioned, also benefit every time someone pleads guilty, because they usually pay a fine or a fee that goes back into the court system. They want to coerce as many guilty pleas as possible.
And if you can't afford to pay bail, are you allowed to be held indefinitely?
Well, when we say “allowed,” our team is working to show that it is unconstitutional to keep a human being in a cage just because they can't make a payment. We struck down this system in California two years ago. But you are right, that's exactly what's been happening. If you can't make a payment, you're kept in jail, even though you're presumed innocent until your case ends. And if you want to take your case to trial, it can take a long time.
It’s been central to trying to release people from prison during COVID. One of the profoundly disappointing things is that there's been virtually no change in state prison populations or the federal prison population as a result of COVID. But there has been a significant decrease in local jail populations, largely because places have paused their cash bail schedule. Meaning that for most nonviolent offenses you would be released without having to pay money. In California, it is estimated that that measure reduced the jail population by 20,000 people – in California alone. As of tonight (6/10) around 7:00 PM, it looks like the courts are going to reinstate the cash bail system, which is horrific and inexplicable.
So, in normal circumstances, you just wait until trial comes and hope?
Well many people can't wait. They can’t be away from their children. They can’t be away from their family and their life. And they're told, ‘if you plead guilty today, we'll let you out or we'll give you a much shorter sentence.’
What kind of choice is that? Either you can sit in jail for another seven, eight months until the courts are ready for your trial, and risk a really long sentence, or you can take the deal and plead guilty today. That's why many people, including innocent people, plead guilty every single day in this country.
Can you talk about the relationship between police and prisons?
The police are not raiding Yale and Harvard University for drug use, they're rating poor neighborhoods a few miles down the road. They're not raiding the homes of wealthy Americans for tax evasion, they're raiding the homes of poor people.
95% of all police arrests in this country are for things that the FBI says are not serious violent crimes. We know that there are hundreds of thousands of violations of the clean air and clean water regulations by large corporations every year. We don't devote any police resources to investigate that. Instead we post police officers up in poor neighborhoods and ask them to arrest people who are in possession of a plant that they're not supposed to possess. These are the kind of choices we've been making for a long time with our policing system.
The number one arrest in most jurisdictions is marijuana possession, and it is disproportionately arrests of Black and poor people. In many jurisdictions, the number one arrest driving on a suspended license. There are 13 million licenses that are suspended in this country, not for violations, but for owing the courts debts like those I was speaking about earlier.
Our legal system and the police are choosing certain offenses to prioritize, while allowing others to get away with criminal activity. These are just distributive choices that have disparate impacts across race and class.
Police are choosing who goes to prison, with explicit knowledge about how they’ll be treated.
No question.
I don't think most people appreciate what the consequences can be. Minor arrests can result in people not being able to get a job for the rest of their life. Even if you're fortunate enough to be avoid the problems rampant in jails - sexual assault, infectious diseas, physical beatings, reentry can be very difficult because of all the consequences that our society puts on people with a criminal record.
Professionally, personally, economically.
At the beginning of this, you said your organization is an abolitionist, non profit organization. How do you see the defunding of these institutions working together? Do you feel like it's something that needs to be approached simultaneously or separately?
I think it's simultaneous. I think we need to be talking about removing resources from this entire bloated system. The criminal punishment bureaucracy is five times bigger than it ever was in this country's history until 1980. It's five to ten times bigger than it is in other comparable countries. There's no need for this bureaucracy. There's no evidence that it does anyone any good. There would be outrage if we were to scrutinize the punishment system and its return on investment by the same standards that we scrutinized schools, or medical clinics, or healthcare.
What are we getting from this? Think of the trillions of dollars we spent on the drug war. We’ve caged tens of millions of people in this country. We've separated tens and millions of children from their families. We've surveilled everyone's cell phone. We've sprayed pesticides all over Latin America. Yet drug usage rates are the same or higher in many places in this country.
The people who run the system aren't stupid. It's not like they don't know all of these things. So the only reasonable conclusion is that the purpose of these systems wasn't to reduce drug use, it was something very different.
We must significantly divest from them and then invest in the things that communities need - theater, music, art, poetry, athletics programs for children, in addiction treatment, and in safe places to live. I think it's obvious to anyone who thinks about it honestly, for just a few minutes, that we need to divest from this entire bureaucracy.