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
Two Heads of the Same Monster
by Khalil Cumberbatch
July 8, 2020
This interview with Khalil Cumberbatch, Chief Strategist at New Yorkers United for Justice, was conducted and condensed by franknews.
frank | Can you tell me a bit about your background?
Khalil | I am a native New Yorker. I pretty much grew up in New York City my entire life. I migrated here when I was four years old from my birth country of Guyana with my mother. We came as legal, permanent residents.
I am formerly incarcerated. I served six and a half years in the New York state prison system, from 2003 to 2010. I came home in 2010 and started to rebuild my life, just like most people do when they leave the criminal justice system. I had been home for four years, working the entire time and pursuing my masters, when Immigration Customs Enforcement came to my home to arrest me. My criminal conviction and the fact I am not a naturalized citizen was grounds for deportation proceedings. I spent what ultimately ended up being five and a half months in the detention system. I was released in October of 2014, and two months later I was granted a pardon by Governor Cuomo.
For the past five years, I have been doing policy work around immigration and criminal justice.
I am working to make sure that the two groups work in tandem and are aware of the consequences reform for one group may have on the other.
What kind of work do you do with New Yorkers United for Justice?
I have been at New Yorkers United for Justice since November of 2018. Our goal is to pass legislation in New York state that would help to change the criminal justice system as we know it.
One of the first issues that we became involved in was the pretrial reform efforts in New York - an effort to end the cash bail system that kept poor people in jail until their trial. The work had been going on for years, but it reached a boiling point in 2019. We worked with many other groups to pass the legislation that eliminated cash bail for most misdemeanors and nonviolent felonies. We also pushed back on the false narrative about how the reforms affected public safety, and we educated the general public on the desperate need for the reforms.
Recently, we have been pushing the Governor to expand clemency, and pushing DOCCS for a systemic plan around they are handling the COVID crisis in their facilities. Most recently, we were working with other groups to make sure that 50-A was fully repealed. There was a series of bills that passed in New York that really created a level of police accountability that unfortunately has never existed in New York state.
How do you see the prison system and immigration system working together?
The two systems feed off of each other.
Immigration detention centers are essentially jails. They are run like a jail. They have the same policies and procedures as a jail. They have the same paramilitary structure, in terms of staffing, as a jail or prison. Many immigration detention centers are local jails. Local jails will contract those beds out to ICE.
Most people understand that it was the Clinton administration and the passing of the "Omnibus Crime Bill" that ushered in the modern of mass incarceration. It financially incentivized states, and therefore local municipalities, to ramp up their arrest and imprisonment rates. It gave money to states to build prisons and expanded funding for local law enforcement.
The reality is, under the same administration, immigration laws were dramatically revamped as well. They expanded the list of crimes that someone could be detained indefinitely and mandatorily deported. We have to make the connection that it was because of the Clinton administration, a Democratic administration, that we have these two massive systems that are not producing the outcomes that most people would believe they're tasked with producing.
Are your experiences within the prison system and the detention system comparable?
The reality is that they are one and the same. The conditions are the same. In both, you are physically detained. Obviously, you can't come and go as you like. You are exposed to the same food, you have the same recreation activities, the same law library access, the same phone access, the same visitor access. It is the same dormitory-style settings. The lack of healthcare is prevalent in both. You can't do the things to stop the spread of a virus like COVID or any other communicable diseases. You are not given the basic sanitary to make sure that common surfaces are cleaned or to even make sure that you're protected.
The only thing that makes immigration detention more complicated is the fact that there are people who speak many different languages. From my experience, it is overwhelmingly people who speak Spanish who are languishing in immigration detention centers, but there are also people that speak different tongues of Arabic, Chinese, and Russian. Those folks are the ones that suffer the most because the information is not readily translated into those languages.
And I should mention that it is because of our foreign policies, that these people end up there. US policies have completely decimated local economies, and that has driven people to make the desperate decision to cross the border to make a living. We have entered into a new era of barbarism that I think is equivalent to what we saw with chattel slavery in this country.
Do you feel like this current anti-police push incorporates enough of the discussion around immigration and policing?
No, unfortunately not. There has been a tremendous amount of attention being paid to the level of brutality and police misconduct that has been inflicted on communities of color. While those reforms are sorely needed, the reality is that conversation is being had within a limited context of policing. We are not having that conversation in a broader context of law enforcement. We are not having a conversation about how DHS uses the same militarized tactics in their immigration customs enforcement department, and in the way that they do apprehensions and arrests.
They use the same weapons as local law enforcement entities - they will use tear gas, fully automatic weapons, and full tactical gear for a simple apprehension. We are not having an in-depth conversation around the violence in other law enforcement operations. We are not talking about how quasi law enforcement entities are using violence that is unnecessary and counter to their mandate.
It is well-documented that ICE uses deceptive tactics. They come to someone's door pretending to be police officers. They wear clothing that says "police", rather than anything about immigration customs enforcement. They lie and say that they only want to ask a couple of questions and that if they are let in, they can show their warrants. They do have administrative warrants, but you don't have to let them in with that style of the warrant.
How can the two better be merged in advocacy work?
We need to include DHS, ICE, and other quasi law enforcement entities who have a proven track record of the same levels of brutality. That's the first thing.
The second thing is, we need to severely re-evaluate how we allow law enforcement entities to spend money. New York City is having a robust conversation removing a billion dollars from the budget. But places like DHS are essentially a black hole as it relates to how they are spending money and what they're spending money on. The immigration detention system in and of itself costs this country, billions of dollars a year in private contracts or public contracts.
Also, as advocates, there needs to be better communication between the two parties. Immigrant rights folks often do not work well with criminal justice folks, and vice versa. I'll give you an example: When the Minneapolis City Council voted unanimously to completely restructure the law enforcement, that was a win for anyone that cares about social justice. But, we didn't see many immigrant rights groups speaking up and saying that that was a step closer to the abolition of all quasi law enforcement entities. And then on the flip side, when the court ruled against the Trump administration to uphold DACA as constitutional, we did not see many criminal justice folks holding that up as a win.
Again, the reality is that these systems are two heads of the same monster. They have more in common than not. They both dehumanize, criminalize, and brutalize the people on the margins of society.