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.
You Can't Serve Us, if You Don't Know Us
by Jecorey Arthur
August 27, 2020
This interview with Jecorey Arthur, Louisville Councilman-Elect, Professor, and Musician, was conducted and condensed by franknews.
My name is Jecorey.
I'm also known as Corey to my family. I was born, raised, and still live in the West End of Louisville, it has the highest concentration of Black people in the state of Kentucky. I'm the eldest of 13 siblings between my father and my mother's side.
I'm also known as Mr. Arthur, when I'm working with my little students in public schools, in community centers, at the Boys and Girls Clubs, or anywhere there's youth - the porch or the park.
I'm also known as Professor Arthur to my big students at Simmons College of Kentucky, which is our city's only HBCU. I'm in the music department and helping lead our ADOS Center, a department for social justice.
I'm also known as 1200. I am a performing artist, a recording artist, and a composer who makes hip hop music and classical music. I'm a classically trained percussionist. I got a bachelor's and a master's by age 22 at the University of Louisville. I've performed with our city’s symphony orchestra and symphony orchestras around the world.
I am the Councilman-Elect in Louisville, Metro Council District 4. In November, if no write-in candidates jump into the race, I will be the Councilman. I am the youngest elected metro council person in city history, maybe even state history.
Tell us about your district.
The district encompasses downtown Louisville, our business district, and every surrounding neighborhood. The East End tends to be wealthier with higher homeownership rates. The West End, where I'm at, has some of the poorest neighborhoods in all of the city, and, really, in all of the region. It is predominantly Black and very neglected. It [District 4] encompasses all of the issues that exist in Louisville. It is the most homeless district, the most starved district, the most segregated district, and the most dangerous district. If we fix this district, we can fix this city.
I am curious about how you ran your campaign.
I am Black. Beyond being Black by look, I'm Black by lineage. Meaning, I have inherited debt, I have inherited trauma from generation after generation of neglected people, of enslaved people, of Jim Crow people. That was the lens I announced my campaign from. I have been very clear from the start that my goal is to fix Black Louisville.
And that ruffled feathers.
People often confuse Louisville as progressive and compassionate - one of our nicknames is the “Compassionate City.” But when my ancestors were escaping for freedom, they didn't stop in Louisville, they ran across the Ohio River and into Southern Indiana.
A lot of people don’t know that Louisville had one of the largest slave ports just because we are right up against the Ohio River. A lot of people don't know that the slave named Jim Crow was in Louisville. A lot of people don't know that the Lewis and Clark expedition had its roots in Louisville and that York, the slave who made that expedition happen, lived most of his life in Louisville. And they also don't know that Harlem Bartholomew based his plans for urban planning, redlining and pushing Black people into modern concentration camps and ghettos, out of what he did in Louisville. Louisville is the worst in terms of racism, in terms of segregation, in terms of income, inequality, wealth, inequality, the racial wealth gap, the lineage wealth gap.
When I announced that I was going to headbutt those issues directly, I was told to shut up about race and to not talk about being black. Don't talk about those issues. Don't talk about homelessness. People don't want to hear that. It will scare people. Louisville is not ready to have that conversation.
Fast forward, and a few months later, COVID hits and destroys our country. And everyone's talking about racial inequality. Fast forward beyond that, and Breonna Taylor’s story is global. Now everyone is talking about Black life. Well, we have been saying these things. I was addressing these issues before and when I announced and I was told to shut up. All of a sudden it's trendy to talk about Black issues. I was here before the protests, during the protests and I will be here after the protest doing this work.
So now, as one of the voices of the protests, as one of the faces of the protest, I am going to be on the other side of the table on the Council and will be able to impact some of that change.
How do you see development and planning and gentrification linked to police terror?
A billion dollars of investment is coming to the West End of Louisville. Blocks are being purchased by our city's government and renovated. Entire neighborhoods are being completely shifted, and people being displaced.
Beecher Terrace, a public housing development, is being torn down and replaced with mixed-income housing. The 1,300 people who lived there are gone and not all of them can come back. Less than a third of them will be able to come back in and get an apartment in the renovated Beecher Terrace. All over the city Black people and poor people are being displaced under the guise of renovation.
From gentrification to racial banishment. When you update and upgrade, you displace people. It's always assumed that they have somewhere to go, but often we see that they don't, people have nowhere to go besides a prison yard or a graveyard.
Breonna Taylor’s home was part of several no-knock warrants and one home was being acquired by the city. When you look at the history of the United States government if they killed hundreds of millions of slaves and indigenous people to get land, why would they spare Breonna Taylor's life to get land? It is one in the same.
To push that point even further with data. The 2020 census data shows that our district is currently 44% Black. Over the years it has been as high as 73% percent Black. So you mean to tell me over the past decade, we went from three-quarters Black to less than half Black?
In your new position, you'll be wielding political power and working from within the institution, rather than against the institution. I'm curious how you view political power in the office you're about to step into and how you feel about working within the system?
There are so many issues that exist in our city, and specifically in our district. The big five are: people don't have money, people don't have housing, people are not safe, people are starving, and people are not healthy. I think we have to start with people's economic condition because that impacts all other issues. MLK once said, “What does it profit a man to be able to eat at an integrated lunch counter if he doesn't have enough money to buy a hamburger?”
For example, when it comes to housing, I hear people say that we need to build affordable housing. I would rather create a reality where people can just afford housing, instead of continuing to build cheap housing. It makes much more sense to me to make sure that people have the means to buy or rent a quality home.
We don't have a system in place for communities to not be exploited. And a solution would be to implement what I've called Community Commandments - agreements between our residents and the developers who come in and want to set up shop. I live at the corner of 15th and Jefferson. There are three empty lots next to me. If I don't know what's happening, developers could drop in yet another liquor store or yet another Dollar Store.
The developers come to our neighborhoods, but they don't necessarily serve our neighborhood, because they don't belong to it. My goal is to make sure that the community is organized and educated in such a way that we can fight back.
You mentioned the idea of developers coming in and missing the mark about what a community needs because they don't come from there. How do you see that playing out in politics?
I've never run a political campaign in my life, but what I noticed very quickly when we started to run our campaign is that everybody was talking about our issues, about being poor, about housing, about safety, about health, about inclusion, from a third-person perspective. I talk about these issues because I have lived these issues. There is a very different level of commitment from a politician when you live the issues that other politicians talk about.
To a certain extent, people are vetted to be politicians. I was never vetted to be a politician. I have always been one to speak out against some of the work of politicians and look at them as the opposition. But I am the newcomer, the black sheep of the Metro council, and I'm interested to see how it plays out.
You spoke before about the failure of Black idols - can you elaborate on that?
As a Black person in America, you are 13% of the population, 40% of the incarcerated population, 40% of the homeless population, about 50% of homeless families, 40% of school suspensions and have 2.6% of the country's wealth. But when you look at our entertainers, athletes, comedians, actors, and musicians, you might think that Black people are doing all right, because of the perceived success that they cast into the public light. The issue that we face as Black People is that we don't have anything. But there is this perceived idea of us having something because we see people on social media and on TV who have something. It creates this decadent veil, a phrase I have stolen from LA Attorney Antonio Moore.
It shields the failure to invest in Black America. It looks like we have fixed our problems because of the image relayed in the media - we are thriving, we are succeeding.
And it's sad. I mean, Jay Z is a perfect example. When you break down Jay Z assets, some of those assets have been detrimental to our community, such as the liquor company he invested in or such as prison ankle bracelets that he invested in. When you look at Oprah, what has she done for the black community? She built a school in South Africa. Meanwhile, Chicago has been setting record high shootings and killings for the past decade.
American culture is Black culture. Our largest exports in a lot of spaces – sports, film, and television, reflect Black culture.
What you just said about exports is so profound. If you look at the history of America, Black people were the imports, and made the exports. Nothing has changed.
The people who "make it" fail to realize that when you make it out, there are still millions of people here that are stuck. So now you are a symbol, but what does that mean? What does that do for us? We're still here.
I'll use myself as an example. Before COVID, I got to travel the world, making music and teaching. But, it doesn't matter if I'm performing on stage with orchestras as a soloist around this country when less than 2% of orchestras are Black. There is no access for my folks in these groups that I am a token in. It doesn't matter that I am a teacher, when Black men are 2% of the professional teaching field. It doesn’t matter that I have a master's degree, which was celebrated as something so wonderful when in the Parkland neighborhood, where I am from, 0.3% of residents have master's degrees.
Parkland is important because that's where Muhammad Ali is from. And I would say Muhammad Ali, before all of these celebrity activists, Muhammad Ali was the cream of the crop of, of a celebrity who didn't sell out. He spoke out against issues no matter what. And he was from Parkland where I'm from. I actually played him in an opera with our orchestra. Muhammad Ali was very clear about letting you know, I don't care if I'm sitting on this yacht because the people back home are dirt poor. They have nothing.
We named our airport, Muhammad Ali international airport. And I got invited to a think tank about how we make it reflect him and his culture and what he believed in. I said, well, you already failed because you named the airport after him in a city where 45% of the Black kids live in poverty and will never step foot in that airport ever. They will never be in that airport to fly anywhere. They will live and die in these neighborhoods that Muhammad Ali spoke out about fixing.
Right. How much of these issues do you feel like you will be able to tackle on a local level?
A lot of this stems from centuries-long issues, systemic issues. We can’t fix all of it locally, specifically the racial wealth gap. We can't close the racial wealth gap in Louisville without closing the racial wealth gap in America. When you have families in my neighborhood that are making $9,000 a year, you can't lean on a city government that is already pinching pennies. The federal government needs to address this issue. The federal government needs to pay direct payment reparations to the American descendants of slavery.
Black Enterprise predicted by 2053 Black wealth would shrink to zero. By 2030 low skill jobs in the Black community were predicted to disappear by McKinsey & Company. With the COVID-19 pandemic, these dates are getting moved up. That is concerning, and it is even more concerning when Donald Trump and Joe Biden are our only two options.
We have paid billions and billions of dollars in reparations to Japanese Americans and Native Americans. And we've seen reparations happen overseas with our Jewish brothers and sisters who were tracked down all over the world to receive their reparations. The argument is always that we can't afford that debt, but the debt already exists, we just never paid it. I want to be very clear as we talk about solving these issues in Louisville, that these are bandaids. These are minor fixes, but what is going to transform America is direct payment reparations and a program of protections and rights and laws for the American descendants of slavery.
I have one more question for you now. Are you encouraging people to vote for Joe Biden?
I'm writing in and I'm prioritizing down-ballot. I'm not encouraging people to vote for Joe Biden.
Does that feel dangerous to do?
Well, I'm 28, so I don't know everything. But what I do know is there are people, including Joe Biden, who have been in elected office for decades upon decades who have such horrible track records. People are scapegoating Donald Trump as we sit in this "divided America." Trump has only been there for a term. What about the 231 years of presidents before him that got us to where we are today?
I get a lot of pushback online for my position. It's usually from white folks who will say, "Well, we are going to have another term of Trump." White people voted for Donald Trump at a 54% rate. Why are you telling me to fix the issue that you created? You need to call your cousins and your aunts, your uncles, and your grandparents, and tell them to vote for Joe Biden. Don't call on me to fix your issue.
There is no encouragement for me to vote for either candidate. A lot of people want you to vote for their interests, but they don't want you to vote for your interests, especially if you Black.
Do you feel like there's a possibility he doesn't concede if the numbers aren't overwhelming?
Well, I'm less threatened by the people who tell me who they are. I am more threatened by the people who don't tell me who they are. We know who Donald Trump is - he just laid it out. Who is Joe Biden? Who is Kamala Harris? Who are they? One day Kamala was Black, one day she's Indian. One day Joe Biden was saying that we were predators and need to be swept out of society, and then one day he's saying that if you don't vote for him, you ain't Black. They confuse me. I don't know what they believe in. I don't know what they stand for, but I know exactly what Trump stands for.