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.
Othering and its Consequences
by Philip Melendez
August 25, 2020
This interview with Philip Melendez was conducted and condensed by franknews.
My name is Philip Melendez and I am the program manager at Re:Store Justice. I was formerly incarcerated. I served nearly 20 years and I've been home for nearly three years.
Can you tell me more about the work that Re:Store Justice does?
Our focus at Re:Store Justice is to go from proximity to policy.
Before COVID, we did a lot of work inside of prisons. We brought survivors of crime, people who had lost loved ones to violence, district attorneys, legislators, people who just had an interest in criminal justice reform, into the prisons, and held events to give them a different perspective. We want to create a shift in the way people think about prisons, and about the transformation and rehabilitation that can happen on the inside.
How has the work changed since COVID? What have your priorities become?
That work inside has much halted since we can not hold events inside.
Initially, we started helping by donating PPE. We donated masks and gloves to some of the hardest-hit prisons where the outbreak started. We don't know what happened to the supplies, but obviously, with the numbers we are seeing now, it didn't help them enough.
We recently started the Canteen Project, raising money to go directly to prisoners so they use that money in the commissary for food and other hygiene projects. I don’t know if you saw our post the other day, but the food that they are serving, during a pandemic, is abysmal. It’s like a piece of bread and some cornflakes. There is no nutrition, there is no holistic focus on health during a pandemic.
That reminds me of a quote from a previous interview. "The Department of Corrections has never prepared for a health crisis. They have one solution to a health crisis, and that is punishment." Like looking back, can you see mechanisms of that mindset?
I remember once when I was sick, I decided to tough it out and not leave my cell. I remember going to sleep and hoping that I would not die, hoping that I would wake up the next morning. Two or three days later, I was feeling better and asked the nurse for some lozenges. They asked what I had had and took my temperature.
It was just barely a high temperature, but they sent me to the hold, which is the same as solitary confinement. I had to sit in a solitary cell for a couple of days. And they stripped me of everything. They took all my belongings, which are everything when you are inside of the prison especially if you have pictures of loved ones.
So is that the standard approach? You get sick, you get put in an isolated cell?
If there's something more severe, like Coronavirus, or if you needed surgery or if you were having a heart attack, they simply can't help you. As the quote said, they don't have anything in place. It's not a hospital. They can hold you until the helicopter comes. If people get stabbed, they don't get care. Hopefully, the helicopter gets there soon enough, and they'll do what they can, but they're just not prepared or, I don't think, educated enough to handle any major medical issues.
How has this crisis has forced us to look at the intersection between public health and prisons?
Public health concerns are very much intertwined with what happens in prison. And that is not something that people ever really even gave a second thought before this crisis. But it is real.
The spread is all on the prison staff - 100%. The guards, the kitchen staff, the maintenance staff, it's all on them. Once they bring a virus in and an outbreak starts, it's impossible to socially distance inside. Prisons are like incubators, and they are run like incubators - everything from food distribution, cross-contamination between cells, the cramped spaces, the terrible ventilation. All of it. And then prison staff comes in and out, every day, all over the state, and spreads it to their families, and it goes on and on.
Our organization has been very active in talking about the San Quentin outbreak.
What are you asking for during this pandemic?
The specific asks for San Quentin are to cut the population by 50%. The prison itself is overcapacity. Buildings made to house 400 people, house 800. The cells themselves are 4X10. They were originally one-man cells but they added bunks in these spaces. I used to be able to reach out and have both hands touching each wall. The windows are welded shut and the ventilation is horrible. Based on these horrific conditions, we have asked that San Quentin reduce the population to have a hope at social distancing.
We want mass releases, and we don’t want there to be a distinction between release for violent and nonviolent offenders. We think that that is a horrible distinction that deems some people deserving and others not deserving. It's not considerate of data on recidivism rates, it doesn't consider violence as situational rather than indicative of a person's being.
Our organization has been very much involved with San Quentin. We have a team of seven, and three of us are formerly incarcerated and spent time together at San Quentin. We left a lot of good friends behind. A lot of people who have committed horrible crimes in their past, but have made very huge shifts in their personality and became people that we are very fond of and love.
Do you see prisons effectively implementing rehabilitative programs?
San Quentin has been known as the “Ivy League school” of rehabilitation. I have been told that I have the “San Quentin privilege" largely because of where we are situated in Marin. We have all these very affluent, very progressive communities, and people around us.
But San Quentin is an anomaly.
But during my time in San Quentin, I learned a lot. I learned that I have emotions. I learned that I was taught toxic masculinity and to hide my emotions. I learned that I was hurt. I learned that I had traumas. I was a really sensitive kid. I realized that I went above and beyond to prove that I did belong.
I unpacked all of that during my time at San Quentin, but the way that the system is set up right now is just stupid. You are going to wait for us to kill somebody, to teach us how to not kill somebody, to teach us how to be okay with ourselves? That is backward.
How do you think we should be thinking about crime as a society?
As situational. Poverty is one of the biggest drivers of crime. Crime not indicative of people's culture - that is one of the most ignorant and racist things that I hear. And the ethos of, “oh just pick your up by the bootstraps” is ridiculous. How can we pick ourselves up by our bootstraps when we have nothing, when we have all these disadvantages.
There are human needs at the root of crime - and not just physical needs, emotional needs are critical. Safety, security, and self-esteem are essential. Maslow's hierarchy is real.
Otherization is a big thing as well. It stems from a natural fear - we don't trust outsiders. It sets the stage for xenophobia and tribalism, things that are being stoked on a national scale. But it also happens on a micro-scale- within gangs for example. In gangs, we almost always have derogatory terms for the opposition. We reduce them from a person to a thing. We do all that we can to dehumanize people so that we can then cause harm.
How do you see that same mindset playing out within the courts?
And I said, “Well, sir, you know, that is murderer logic.” That is a little something I learned from anger management class - our tendency to objectify and dehumanize people allows us to harm them. He was just speechless.
With law enforcement in general, there is a societal disconnect. The general mindset is that these people who come in are criminals, that our job, in the courts, is to uphold law and order, and we are righteous in our job. But in giving themselves that righteousness, they are implicitly saying to the people in front of them, you are not righteous. We are all humans, but with this mindset, they take away people's humanity and people's dignity. The courts lead to so many injustices, under the guise of the pursuit of justice.
Many district attorneys that we work with come in with those biases, but when they see the humanity of the folks, their whole psyche is messed up. The goal of our programs is to have people in the system see the personhood of the people behind bars, and it works. I have had district attorneys themselves tell me, "I don't know how I'm going to do my job again." They work in an assembly line of sorts. They'll get a case, see gruesome photos, hear a horrible story, give conviction, move on, and never see what happens in the aftermath.
How do we make sure that this shift in our collective psyche is carried out beyond this moment?
I mean, that's the big question of 2020. It ties together the Coronavirus outbreak, and the Black Lives Matter protests. These things are intertwined and this moment has exposed a lot of people to the horrors of the criminal justice system.
I hope we can keep these conversations going and keep the pressure on lawmakers. We need to keep the family members and advocates emboldened and passionate. We also need to continue to combat these negative narratives and this idea that everyone behind bars is a monster, that they are dangerous, and that we can’t let them back out into society.