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
Poverty Framed As Neglect
by Joyce McMillan
August 12, 2020
This interview with Joyce McMillan, former director of programming for the Child Welfare Organizing Project, was conducted and condensed by franknews.
frank | How did you get involved in the child welfare system?
Joyce | I was impacted by child welfare 21 years ago, and the experience was so horrific that here I am, this many years later, doing the work to make the changes. What I learned between then and now, is that once you are impacted by these systems, you are stuck. Recidivism happens, and it is no fault of your own.
What does that system look like? How does that recidivism operate?
The majority of people who come under the surveillance of the administration for the services here in New York because either shelters or school systems make a call to the ACS [New York City Administration for Children's Services]. You have to understand, even though this is not in the news, the Administration for Children's Services in New York has contracts with hospitals, and they have contracts with schools. The ACS will make schools aware when you have a prior case. That creates an environment where they are more susceptible to find you suspicious of anything. Shelters also make calls. I was living in a shelter 20 something years ago, and although my shelter, in particular, did not make those calls, the school system was aware that I was in a shelter.
Do you remember the Bloomberg stop-and-frisk? Everyone rallied around it as a policy that was going to get guns and drugs off of the streets. That didn't happen. What did happen is that people who fit a certain description were stopped, searched, fingerprinted, photographed, and thrown in jail. These people would have never come under the surveillance of the police if had there not been that stop-and-frisk model. It created a profile of people who should and would be stopped. Stop-and-frisk reinforced and strengthened racist practices - it did not reduce crime. Similarly, mandated reporting does not keep children safe, it profiles the parents.
Once the school system or the shelter system or any other system becomes aware of your history with ACS, then anything you do is suspect. One, because that's just how it is for people of color. And secondly, because there's a threat upon people who are mandated reporters. If you see something and you don't report it, you can lose your license and can be held responsible on a criminal level. And because the mandated reporting training is very vague, people often are not sure what they should and should not report. So they report everything, which brings more families under the surveillance of the family police. Anything that looks different than what they are used to or what they would do, becomes something to report.
Right now, you have these child welfare agents holding news conferences and talking about how the lack of children in school right now leads to low reporting and a lack of oversight by mandated reporters. They say that puts children in danger.
And safety is not the issue for the separation in the first place, it is poverty framed as neglect.
Can you talk more about the role poverty plays?
Most children, about 85% of children, are in the system for reasons related to poverty that is then framed as neglect.
The family is lacking something, whether they're lacking a babysitter, childcare, food, or copays for medicine. To take a child out of the home because the family doesn't have enough food is just plain insanity to me, especially when you're going to pay how much to the foster family to take care of the child while traumatizing the child? The idea of protection is a falsehood. We are actually inflicting more harm than help on the child. Alienating a child from family because they are poor is just unnecessary trauma that this child and parent and family will forever live with.
What sort of situations have you seen that exemplify how poor people are targeted?
I am working currently with a parent whose child was removed because she picked the child up from school consistently late every single day. And she did admit to me that it was every single day, and she did say it was consistent and was on average between 15 minutes to a half-hour. But that was because mom was working two jobs and really dependent on how transportation was running that day. And even with the two jobs, she could not afford to pay someone to pick up the child.
Ultimately she was left with the choice of not paying rent and feeding her children or continuing to pick the child up late. The school called ACS, and the repercussion was that ultimately the family was separated because ACS came to the school and mom wasn't there. She was charged with child abandonment. She “abandoned” the child at the school because she had not picked her child up at the scheduled time, and because this had happened over a course of a period of time. And so these are the stupid things that ACS does, right. Plain fucking stupid.
So now what? What happens after her kids are taken from her?
Because she didn't know her rights, ACS asked her to take a drug test and she tested positive for marijuana, and so now she's completing her second drug treatment program. The children have been in foster care now for over two years and there's no end in sight because she's under ACS's surveillance. Meaning that now they are continuing to investigate and investigate her. They are following this lead and following that lead - everything becomes a problem. My mom used to say, “you turn a molehill into a mountain,” and that is exactly what happens with ACS.
They align themselves with police tactics when they should be aligning themselves more closely to social work work tactics.
What is the relationship like between parents and their children once they're separated? What's the contact level?
They do everything possible to break the bond of the family. When a child is removed, they are not just separated from their parents, they're separated from their siblings, their aunts, their uncles, their cousins, their neighbors, their godparents, anyone, and everything that they have been familiar with.
Every sensory detail in their body is touched by the removal and the placement into the new home. They may play different music. Ears. The sounds are different. Ears. What they see around them is different, including the colors that can often set one's mood. Eyes. The smells, the type of food that's cooking, the seasoning that is being used is different. Nose. Every sense is touched. Including the material of the chairs, couch, and bed sheet. Touch. It's very traumatic.
Families see their children once a week for two hours. And if you do the math on that for any idiot who thinks that would suffice, that's only four days out of the year. The math says two times 52 divided by 24 is four. How do you maintain a bond? How do you create a bond?
Are those visits supervised?
They are supervised much like the prison system. It's the same system. Someone once called it the fraternal twin. And it is.
They both strip-search. They strip-search children under the guise of checking for marks and bruises, even though they are in the system for reasons related to neglect poverty. They're both separated from everything they know and love. They both change homes or cells regularly. They both use garbage bags or pillowcases to change their location. They both have set visit times on set visit days. They both have oversight during a visiting period. They both eat what it is they are served. They both have “responsibility” to admit on some level wrongdoing if you want to ever become unentangled. So any system built to actually protect children should in no way mimic, a system that tortures adults. It just makes no sense from the foundation.
What the foster care system does is pipeline children from foster care into prison. Because you're more likely to be drug-addicted if you are in the foster system. Where are drugs going to lead you? Incarceration. You're more likely to be homeless if you are in the foster system. Where is homelessness going to lead you to? Incarceration. You're less likely to get a high school diploma. Where is a lack of education going to lead you? Imprisonment. Everything leads to imprisonment. They're saying that they are taking these children to protect them, but if you look at the outcomes, over 50% end up incarcerated.
We talked to somebody recently about how law serves to regulate morality, and how there's a lot of people who can't afford to play by the rules that are set. How do you see this play out within this system of people being punished and their poverty is being interpreted as neglect...
Poverty is not being interpreted as neglect, it is a purposeful entanglement of the two. They are taking the two and acting as if they don't understand the difference. That's not an accident, it is purposeful.
If you get a bunch of white men, Yale-educated, Harvard-educated, Cornell-educated, I'm sure they understand the difference between poverty and neglect, right? Especially since America has designed the failure of communities of color through district lines, redlining, and 60 cents on a dollar in employment fields. These work together to create the outcomes that we see now. They are not by accident. Let's not use language that would insinuate the possibility, because there's not even a possibility that this is by accident. This is called systemic racism.
Should the pressure to defund police systems and defund the prison system be tied to the push to defund the child-welfare system?
Absolutely. We should not be funding any system that's creating poor outcomes.
They tell children, you better behave. You better do your homework. You better this, you better that, because if you don't, they're building a prison for you, right? If you can't read at a certain level, by a certain age, there is a projection that is being done. They're using predictive analytics to make the assumption that that child will then be incarcerated by a certain time in their life, and they're building a prison for them.
Do you not think when they put a child in foster care that they're not utilizing that same system to make the projections based on the outcomes that they've already seen through their process? So that means there's an awareness.
It’s shocking that these very petty, petty things can have such intense and painful consequences.
White America’s punishment of Black people has been very petty, since the time that we were supposed to be free from slavery. They were angry that we were technically no longer slaves, so they wrote into the constitution that we would be slaves if we were incarcerated. That created these petty crimes to incarcerate us and maintain a mass amount of slaves in this country, which is why there is no longer just incarceration, there is mass incarceration.
They prepare children to be slaves while pushing them through the foster care system, by creating prisons instead of reading labs, It's all designed.
It's not even okay to hurt a dog. There are people who spend more time in jail for hurting a dog than for hurting a Black man or woman or child, right? Somehow Black people are not a living breathing thing, unless we are serving white people.
Think of the guy disinfecting the supermarket, sweeping the aisle. You got pissed at him disinfecting the aisle while you were trying to go shop. People would curse at him, report him to the supervisor. People did all types of little malicious nasty things because they're just fucking evil towards people who they think they are better than. And then all of a sudden the same dude becomes an essential worker, and it's "Oh my God, he's the one that's going to keep us safe. He's disinfecting. He's doing such a great job. It was spotless." Now all of a sudden, he fucking matters. Get outta here. Get out of my face with that. He always mattered, people chose to ignore that fact.
For many people and mostly white people, people only matter when they're serving a purpose for them. Not because they're a living breathing person. And so that's why white people have not taken responsibility for not acknowledging what has happened for generations. Suddenly, here's an uprising, and now it's cool to say that Black lives matter. Black lives didn't just begin to matter.
Or when husbands who couldn't see their wives? Or during all of the atrocities that have happened throughout the generations of us being in this damn country? And then to tell us some dumb shit, like "go back to Africa." Go back to where you came from because guess what? You are not originally from America either.
And so what the fear factor is, I'm not sure, but if white people would get off of their bullshit, everybody could have a piece of the pie and everyone could live happily together. White people want to have billions and billions and billions and billions, and they'll sell kids, they'll sell their own fucking mother, they'll kill their granny for her insurance policy. That's white people shit. I'm not saying that Black people don't commit crimes. Black people commit crimes of survival. You're stupid to kill your neighbor and only get $15. But in the moment you thought you needed it. You can't justify it, but it's not based on greed. You kill your fucking grandmother for her insurance policy. Really? It's ridiculous. It's ridiculous. You jump off the roof because your stocks went down. That's a reason to commit suicide? Come on.
I also think we have a really hard time understanding, when you're separated from it, the feeling of desperation or acts of desperation.
Exactly. We weren't allowed to leave anything on the back seat during childhood. Not even our toys. My dad was like, take it off the back seat before somebody breaks my window for that little bullshit.
Right. And it is not insinuating that people are bad, but that people are desperate - if I can’t put myself in that position to understand that, then I am missing the bigger picture.
Absolutely. Well thank you for your time, I have really appreciated having this conversation. If there is anything you want to add...
I'll leave you with this. I taught a class at one of the Ivy League schools. I often lecture at some Ivy Leagues. One day a white student after my lecture said to me, “I am kind of sick and tired of Black people blaming us for their woes. You know? It's not our fault that you have a bunch of baby daddies or baby mamas. It's not our fault that you don't want to learn to read. That you refuse to go to school. It's not our fault that you don't want to go to work every day and you prefer to collect a welfare check.”
Literally. I was just like, is he really going there? It's like three or four Black students in the class, all white students and me. So the class was looking at me when he finished his little speech, and I was still in shock but I gathered my thoughts quickly.
And I say, does anybody in here know what a landmark is? The class is looking at me like I am crazy. I'm just like, bear with me. I pick someone out and say, tell me what a landmark is. And they tell me what a landmark is - a building over 150 years ago that has a protective factor where you cannot even change a light switch in it without having written permission. Yes. That's a landmark. 150 years ago. Did you say 150 years ago? Yes. Who do you think built that building 150 years ago? A Black guy. Probably didn't get paid either. Guess what? Probably didn't have a high school diploma. Guess what? More than likely 99% chance he didn't have a higher education either. What does that tell you? It tells you we're not lazy. We've worked in this country for free for many fucking years. It tells you that we're not dumb because we didn't need a formal education to do it. You understand? It tells us that our work is solid because that building is still standing.