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
Systems Built on Good Intentions are the Most Dangerous: Part 2
by Emma Ketteringham
August 20, 2020
This interview with Emma Ketteringham, managing director of the family defense practice at the Bronx Defenders, was conducted and condensed by franknews. Part one of this conversation on the child welfare system can be found here.
Emma | If you look at all of the systems that do harm, whether it's to poor communities or Black and brown communities, they are all designed by people who will not be subjected to these same systems.
Even well-intentioned people set about fixing what they perceive to be broken, fail to realize, it might not be broken, just different. And they fail to ask these families what it is that they need. The child welfare system is a very clear example of that dynamic. Obviously policing, incarceration, and education are as well.
At the end of the day, to truly address the inequities, white people have to let go of power. They have to back away and say, what is it that is really necessary to improve outcomes? We need to look to a real redistribution of resources rather than a web of social services that no one has even identified as wanted or needed.
frank | How do you see the fear to relinquish power play out structurally in the ACS?
ACS and most child protective services are very large, very well funded bureaucracies. You end up with a very fear-driven system where people are scared to not remove. What I have found over the years is that the case planners, the ones in the organization who are closest to the family, often call us and say, "I'm so glad you won that hearing to get the children home. Those children never should have been removed."
It is really important for people to know all the outcomes for the kids who grow up in the foster system, because, as it turns out, the state does not make such a great parent. You've removed a child from what might have been a very imperfect situation, but where at least they had one adult in their life who loved them. Then you put them in a foster system where they can't even claim that. The outcomes are not good.
I was talking to a youth organizer out in San Francisco the other day and we were talking about how telling it is that the word” love” is hardly ever uttered in a family court courtroom.
The law says nothing about the importance of love whether it's between a mother and child, father, and child or between siblings, even, and yet we all know that as humans having that in our life is critically important. And this is a system that makes decisions without even taking that into consideration. That is another reason why it is so far removed from what we really need.
The big hope is that we, as a country, actually examine what poses the most risk to our children. If we were to do that we would wake up to the fact that it's not, in fact, their parents that pose the greatest danger to children. One of the greatest dangers of this system is that everyone, every politician, every elected official, gets to pretend that we're spending resources and we're doing something about what poses risks to children.
If we were really to examine what poses risk to children, it wouldn't, of course, be their parents. It would be failing schools. It would be dangerous neighborhoods. It would be the housing conditions that are deplorable and uninhabitable. It would be air. It would be water. These are the things the government needs to expend money on addressing.
Children in the Bronx have the highest rates of asthma.
It's a huge red herring that keeps us from addressing the inequities and racism that impacts children in this country. It makes everybody feel really good - especially white liberals - to think that we're doing something for the children by saving them, when, in fact, we're doing them direct harm, destroying communities, and doing nothing about the things that actually pose the greatest risk.
It's like driving a Prius.
(Laughs) Yeah.
Another thing a lot of people don't know about - is that today's child protection foster system reflects its origins.
One needs to go back into history and see when we started separating children from families and why. We have always used family separation as a method of control and as a tool to uphold white supremacy. We have always separated children from the families that were considered outsiders and threatening to people in power - the system has turned its eye on every population of new immigrants moving to urban areas, for example. We worried about the impact that these families would have on this country's values, so we started a practice of removing children from their parents. We then justified it by promulgating racist ideas that their parents were not suitable and were unfit to raise them. And when you look really carefully at the system of today, it's doing the same thing today.
When you look at this system and you see that it is predominantly Black and brown children who are taken from their parents to be raised by the state, it is clear that only a system that holds little to zero regards for that child, that child's bond with their parent, and that parent's bond to that child, could ever do that. It would not happen to a family whose bonds are valued.
I was always told to be wary of pity - that it skews our ability to see people clearly as individuals. I wonder if you think that this translates into adoption in the United States as well?
And you are usually not examining your motives for how you are seeking to hold onto power through your actions. And it's really dangerous. And I think this one of the primary motivators in the creation and operation of the whole child protective system.
One thing I want to note about adoption is that in private adoptions there has been a move toward open adoptions. There's the recognition that even if you can't be raised by the person who gave birth to you, it might do harm to just legally cut that relationship off. We are trying to push dynamic and flexible and creative family arrangements forward in the foster system, but of course, it is nowhere as welcome or as prevalent.
So for example, we do have cases where someone cannot safely be or they don't want to be the full-time caretaker of their own child. In those situations, if our client wants us to, and usually they do, we fight for some room for them to have a relationship with their child. The same arguments supporting these kinds of arrangements in private adoptions also make sense here.
Why wouldn't children prefer their own childhood narrative to be - yeah, that's my mom, I can't live with her all the time because she's got X, Y, and Z going on, so I live over here, but, I see my mom, I have a relationship with my mom, and I know she loves me. Or even if a child rejects their mother, to do that on their own terms is her human right and should not be done for her, on her behalf, by a government that does not serve her interests equally. Flexible and open arrangements that put the children at the center are clearly the trend in private adoptions for a reason, but not in this system, which was, again, designed by people that have families that are not their own in mind.
There's a big concept in our system that drives everything and it is very detached from human experience, and that is permanency. The creators and drivers of the foster system believe that permanency - a final permanent, living, arrangement for a child, no matter what that is, is the most important thing for children and the system must move as quickly toward achieving that goal as possible. While the system technically prioritizes keeping children with their families of origin, the tension with achieving that goal is the system itself which is rushing toward permanency, no matter what it might be. Looming over all of these cases is the Federal Adoption and Safe Families Act (ASFA) which basically requires permanency to be achieved quickly or for children to be adopted. These timelines are out of whack with which the vast majority of families are facing in the system.
So, if a child’s mother can't turn around her dependence on the use of an illegal drug in 15 months, that is it. The system rewards moving swiftly toward the adoption of her child if she fails within that short unrealistic time frame. If she fails to achieve that, then the state is encouraged through financial incentives created by ASFA to come in and terminate parental rights immediately so that we can achieve permanency for this child. That does not comport with the openness that is encouraged in the private adoption world and does not comport with what is in the best interest of children and families.
And frankly, to be honest, it’s a farce. Even when the court terminates your parental rights and children are adopted away, children often find their way to their parents regardless. That is just an inevitability. I've had many, many 18-year-olds come into my office and say, “Hey, you're a public defender. You represent the parents. This is my mom's name. Did you represent her? What happened in my case? Why didn't she want me?” And I've ordered the records and gone over them with them and showed them the fight their mother put up for them and helped them to understand the narrative that was hidden from them in the name of their own happiness.
Understanding your own self worth is so tied to your parents, it feels so obvious and fundamental.
But therein lies the cognitive dissonance of this system - I think this system believes that not all parents are worthy and believe that the parents before them are not to be valued. This is because of racism and our society’s belief that poverty reflects a personal fundamental flaw.
People hold such misconceptions about the system. First and foremost they believe that all the parents in the system have abused their children and that all the children in foster care have been abused. That is a fundamental misconception that must be changed. And changing that misconception would not be enough. Because when you realize that the system plays a role in the distribution of power in our society and largely operates to uphold white supremacy, you realize that this is not a system that can be tinkered with or reformed. It is a system that must be abolished and replaced by a completely different approach to family poverty.
The understanding of this system is just beginning. The world was horrified by its witness of the removal of children from their families on the border. It allowed people to see and hear and experience family separations viscerally.
This is our chosen response to poverty. One of the most disappointing things about the reaction to what people saw on the border was the reaction of many privileged parents. Many immediately went to the place of believing that becoming a foster parent was the answer. As if that was better. As if that will save the children ripped from their parents’ arms. They believed that they were the best antidote. They think they'll just wrap their arms around those kids. But you cannot make up for that harm. And the only reason why you think you'd be an adequate substitute is that you're not seeing them the way you want your own family to be seen. Because you would never assume that some stranger could hug and comfort your child better than you, right.
I have been reading a lot about carceral feminism and really thinking about some of the most well-intentioned programs, the child protection system, of course, but even responses to domestic violence or other white identified social problems. And often what you see is that white women's answers and solutions that end up being really harmful to other communities in ways that they don’t think through.
It is interesting to contrast the traditional liberal ideal of interjecting and helping people, with the traditional conservative response of individual freedom in this system.
People say to me, “Like - what are you, a libertarian?” No. I think that we need to look at what role the government should play, not that the government should not play a role. I think we need to look primarily at the distribution of resources and power.
We need more money, more support, and more care for people. And most importantly we need to ask communities what they need. We need to reimagine what support truly looks like.
It requires a shift in political imagination.
Exactly right. Just like people who are asking to defund and abolish the carceral system have asked us to reimagine what that could look like, we need to do the same with the current so-called child protection and the foster system. It’s cut from the same cloth. There is another way to imagine keeping children safe and with their families who love them too. And yes, it would require seismic change because it would really require us to really look at how resources are distributed amongst people, and who has what to help them raise healthy families.
There are so many well-intentioned people, even progressive people, people who are really almost considered radical in other areas, that just don't believe that this could be happening the way it is happening. But it is happening.