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
Disproportionately Targeted
by Ife Kilimanjaro
July 30, 2020
This interview with Ife Kilimanjaro, Senior Network Engagement Director at the US Climate Action Network, was conducted and condensed by franknews.
Could you start by introducing yourself and your work a little bit?
I am Ife Kilimanjaro and I work for a network called the US Climate Action Network. US Climate Action Network is a network of about 185 organizations that work on a variety of issues but come together around climate change. Ultimately, we are trying to meet and exceed the targets of the Paris Agreement as best as we can from a civil society position. We are striving to be a formidable force against the forces that are trying to destroy the planet in the ways that they are.
I came to climate work through environmental justice work. The two are intimately related. It's because of the environmental injustices that climate change is accelerated to the levels it is at right now. Arguably, we might not see the rapid warming of the planet that is happening right now if it were not for environmental injustices.
How do you define environmental justice and injustice?
The term environmental justice came out of a fight that took place in North Carolina. The state planned to dump soil laced with toxic chemicals in Warren County, a predominantly Black community. The people fought back, and though they were able to stall for years, the company was ultimately able to prevail.
This is a consistent pattern that constitutes environmental injustice. And it is only possible because Black and brown populations have fewer protections and power within the existing governance apparatus. It becomes common practice to locate toxic landfills, confined animal feeding operations, coal and ash dumping, and other harmful factories in vulnerable communities - namely native and Black communities.
Conversely, environmental justice means behaving in a way that is morally right towards mother earth and her children. It means embodying a commitment to co-creating a better world for all - one not stratified by race, economic class, and gender.
Environmental justice means righting wrongs of history and righting the wrongs in particular against those who have harmed by the policies and practices that have facilitated the contamination and the destruction of the earth.
How did we get to where we are today? What are the mechanisms that produce environmental injustice?
I tend to think and speak in broader historical processes because I think that it is important to paint the big picture. The origins of the environmental justice movement can be traced to the Civil Rights Movement in the 1960s, as Black communities had been raising concerns about the threats from hazardous wastes and other toxic chemicals in their communities. The term “environmental racism” was coined by Rev. Ben Chavis in a 1987 report he wrote entitled Toxic Wastes and Race in the United States. Though the language of environmental justice and environmental racism emerged in the 1980s, the groundwork had been laid many, many generations before.
There are a few mechanisms by which people are made vulnerable, and then exploited. The main ones within this country are settler colonialism, the system of chattel enslavement, and the formation of a government system whose policies and practices have reinforced systems of white supremacy and extraction of land, labor, and capital.
Can you expand on those a bit more - starting with settler colonialism and how we see that legacy today?
When the early invaders came to the shores of what we now call the United States they swept across the country, they took land and subjugated the early native populations into servitude. As they stole land, they established systems (legal, judicial, legislative) to support perpetual domination. They drafted laws that gave them grounds to say, well we can treat you this way or the right to push you off the land because our laws say so. And these laws were and continue to be enforced through a judicial-military system.
The Indigenous/native populations that survived were forced into reservations onto lands that were considered undesirable to the Europeans. But when coal and uranium were found on these lands, monied interests would go to their elected officials, who were representing their interests within the governing structure, and get policies changed to allow for them to go in and extract these raw materials. And the extraction is an incredibly toxic process that these populations are subject to. Because of the uranium mines, for example, cancer rates are still very high on some of the Navajo and Lakota lands.
We see the modern iteration of this with the fight against the pipelines. When the oil and gas industry wants to build pipelines to move natural gas into new places for processing, they send their lobbyists to Congress and the Senate. They work through these very well funded channels to change folks' minds and pass legislation that makes it possible for them to build their pipelines. Fortunately, the folks who have been fighting on the ground to stop the Keystone XL Pipeline and the Atlantic Coast Pipeline, have seen a couple of wins, at least temporarily. It's still an ongoing fight because there's a tremendous amount of money that is to be made by developing those pipelines.
This leads me to the next mechanism...
Chattel slavery and it's legacy.
Yes, the system of chattel slavery and enslavement. The moment in history that gave rise to the financial infrastructure of capitalism locked in black folks to the bottom of the socioeconomic hierarchy. African people were stolen from Africa and at a certain point, bred as fuel for a brutal system of enslavement and later exploited under debt peonage and industrial systems of production.
It is also where markets, stocks, bonds, insurance, etc. were born. The buying and selling of stocks on an exchange, the insurance industry, all emerged to ensure that landowners would be compensated for any losses of their property (which were human beings - children, women, and men) along the way. We also see manufacturing emerge at this time, and begin to require a larger pool of labor than the working-class poor whites were able to provide. As the industrial revolution found its way to these shores, and enslavement proved unprofitable for the emerging class of capitalists, a war was waged to abolish the formal institution of slavery and make way for a new group of low wage earners. And at a certain point, enslaved African people fled southern plantations for growing cities in the north and south, directed by emerging housing practices and redlining into specific parts of town, often in the polluting footprint of factories.
And of course, these are the folks in the neighborhoods and communities where the wealthy classes would consider it okay to dump in those neighborhoods, or even to form new neighborhoods and communities in the footprint polluting manufacturing centers. Over time, Black communities became the preferred locations for the siting of landfills, coal ash ponds, CAFOs, etc. I'm drawing all of this out because it is important to understand how we got to where we are today.
Political power and who has it seems to be the underlying question throughout all of this. What does it look like when these decisions are made, and what role does political power play?
So while I was living in North Carolina, there were efforts to construct the Atlantic Coast Pipeline. I remember attending an environmental justice summit, and I remember people in that meeting were arguing that based on the behavior of the corporation it was evident that the pipeline route was to go particularly through Black and Native communities and rural areas. These were the areas where, supposedly, folks would be expected to resist the least.
And a few years back, Paul Mohai and Robin Saha found that people of color and low-income neighborhoods and communities in transition are disproportionately targeted by industries that follow the path of least resistance when deciding where to locate hazardous waste sites and other polluting facilities.
It often seems, that though people can fight back, and garner political power on the ground, rarely does it translate into financial risk for corporations to the point where they decide not to proceed. How do you think about political power and trying to harness it within communities that have been excluded from traditional mechanisms of power?
Yeah, I think you've named the two major kinds of power. Of course there is the political power of the group, the ruling class, those who have the greatest influence of the elected officials. And then there's the power of the people, which can be far more powerful.
We've seen the power of the people in the civil rights movement, and we see it with the Black Lives Matter movement - people are coming out in mass to demand change. In response, you see companies changing their brands, shifting their language, and perhaps becoming more sustainable. There is a tremendous amount of power in people to do things like that, and perhaps even more power if the progressive wing wasn't as fractured as it is now.
Then there is also the political power that's held by moneyed interests. And this is a group where it seems, in some ways almost impossible to defeat. They have the military and the police on their side, they have got a tremendous amount of money on their side, and they have representatives in the political structure advocating for their interests.
But there are always weaknesses in something so big. The work of those seeking radical change toward a more just society requires that we continue to find those weaknesses and drill away at them. Ultimately the power of the people to demand accountability and change can organize in the face of that. At best, we can topple the existing power structure, and at the very least we can challenge and reform it. That happens through elections, boycotting, engaging in nonviolent direct action, and so forth. So there is power on all sides. From what I've studied in history, the most determined and the best-equipped win. So I think that justice can be on our side, we just have a series of fights and battles ahead of us.
I want to talk a little bit about solutions. Do you often think about solutions within an existing market-based framework? For example, cap and trade policies.
Well in terms of carbon pricing, one of our working groups developed a policy platform that took on the question of greenhouse gas pricing. They laid out some requirements that policy must have to work within to be equitable. For example, a carbon price should be progressive and must not be regressive, it must not create pollution hotspots or perpetuate environmental injustice, and it must not be a primary source of revenue for climate funding. Within that framework, a market-based pricing system is essentially nullified. So, we answered the question, “well what about pricing.” One, we haven't seen that it works. Two, it is not possible to commodify pollution in a way that is equitable.
Right.
There's a concept called "Just Transition" that began in the labor movement but has been picked up by a number of climate and environmental justice organizations in exploring what just transition looks like more broadly than in the labor movement. A regenerative economy is characterized by the sacredness of earth, ecological and social wellbeing, and democracy; it is about not taking more from the planet and one another than we're able to regenerate and recreate together. How do we move from an extractive economy to one that is regenerative, how do we do that? It requires divestment from extractive systems. It requires keeping oil in the ground, halting any new drilling, investing in creating the systems that support wellbeing, promoting a more locally based economy, and becoming less reliant on the oil and gas industry while becoming more dependent on what we can regenerate.
Shifting our entire framework.
Right. And those who argue for the market-based solutions, argue that it is impossible to live off of renewable energy and maintain the lifestyle that we have now. That's not completely true, but even if it was, do we need to live at a level of consumption that is endless and wasteful? This gets at the heart of our culture.
We need to move away from systems that are based on extraction and exploitation and towards those that are based on regeneration.
Do you think we can get there? Are you hopeful?
Yes. And what makes me hopeful is that it seems this moment has triggered something that was already kind of itching at people. People and communities are tired of extreme injustice, and they want to do something about it.
We are also seeing the connection between the divisions that already exist within communities and climate change. Climate change is a threat multiplier; as the climate continues to warm, those divisions will worsen. If we see this as like the tip of an iceberg for more struggles to come, what I see and what I hope for, is that this time is used to get their teeth sharpened in these fights. People are learning in the process of participating in these fights, learning how to be strategic in the struggle moving forward, and seeing the ways that all of these fights converge.
And lastly, there are many who - in their efforts to reconnect with the cultural traditions of their ancestors - are relearning and regrounding in the “old ways.” This is incredibly important and promising as Indigenous people around the world lived in a generative relationship with the planet for millennia. There is much to learn from our ancestors. And that people are doing this is incredibly promising.