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
When Wealth Determines Culpability
by Vincent M. Southerland
September 30, 2020
This interview with Vincent M. Southerland, the inaugural Executive Director of the Center on Race, Inequality, and the Law at NYU Law, was conducted and condensed by franknews.
Vincent | I'm the executive director of the Center on Race, Inequality, and the Law at NYU School of Law. The center focuses on the past, present, and future of race and inequality in America. We look at how race taints the operation of the criminal legal system and, in turn, taints experiences and outcomes for people in that system. Our work is focused on policy advocacy, research, litigation, and public education; we both expose racial inequality in the criminal legal system and attempt to rectify it in some way.
Before I joined the center, I was a federal public defender. I worked at the NAACP legal defense fund where I handled death penalty cases and cases of youth sentenced to life without parole. I also worked as a state public defender. Most of my career has focused on issues of racial justice in the criminal legal system.
frank | A lot of your work centers around bail system reform. Why do you think it is important to focus on that part of the criminal justice system?
The bail system is a point in our criminal legal system where the harms of the system at large are made readily apparent.
It ignores the presumption of innocence. It perpetuates mass incarceration. It is steeped in racial injustice. It is emblematic of a lot of the problems that we see in our system, and it is a place that is in dire need of reform and reimagination.
The harms of being held in pretrial detention are significant. It is hard for a lot of people to wrap their heads around the harm that comes from being plucked out of your life for a day or two. Imagine if you were stuck in jail for weeks or months on end, disconnected from employment, from health care, from your family, from your community, and from all the things that make your life vibrant. How would you go about resolving that if someone came to you and said, just plead guilty, and we will let you out of custody?
It demonstrates the inequities and harms that the criminal justice system imposes on people at a macro level. And to be clear, the pretrial justice system has operated as a coercive tool for decades — the cash bail system forces people to resolve cases by pleading guilty in instances where they otherwise might want to fight the allegations against them. And the connection between race and economic disadvantage adds a layer of injustice to the entire pretrial system.
Anecdotally, how have you seen how the bail system encourages people to plead guilty?
As a public defender, I've had countless cases where an individual was accused of a low-level offense and was essentially told that because of their prior criminal history, because of their personal history, because of barriers and hurdles that they had struggled with in their own lives, it was likely that bail or detention would be requested by a prosecutor, that a judge would likely agree with that request, and they would be required to post some amount of money to avoid pretrial detention. Their alternative was to plead guilty and be able to go home within a few days.
Faced with those options — knowing that you're stuck in jail, knowing you don't have family members who can post a couple of thousand dollars for you, knowing you can't afford to pay a bail bondsman to post bail for you, and knowing that you will potentially be sitting in jails for some indeterminate amount of time while waiting to get your day in court, it becomes very apparent to folks that the easiest and quickest way out of these situations is to plead guilty.
As a public defender, as the person defending them, what do you advocate for in that situation?
You have to strike a really careful balance. You don't want your clients to lie to the court. However, at the same time, you have to understand that people are in an incredibly difficult position, and they need to make the best choice for their lives under the circumstances.
The tradeoff has always troubled me. There were instances where I thought that there was a possibility that this person could fight the case and have a much different outcome, but I knew that fighting the case meant that they would be sitting in jail if they could not afford bail while waiting for that case to be resolved.
It's not unusual or extraordinary that a system founded to control populations is still doing the same work generations after our country's founding. It was nevertheless disappointing and frustrating.
Do people take debt to be able to afford cash bail?
In a way. There are processing fees and extra costs associated with both the bail bondsmen and the courts. You can use a bail bondsman who you pay a percentage of the bail amount and they'll post the rest of the bond for you. Out of what you have given them, they take their own fees. And if you or a family member post bail yourself, the court system also holds onto some percent of that money.
The real challenge with cash bail is that most Americans don’t have enough savings to cover a $1,000 emergency. And the bail process itself poses a challenge. Even if you are able to come up with a couple of thousand dollars, that money belongs to the court until your case is resolved. It takes even more time after the resolution of the case to get that money back.
I'll just speak from my own experience. I had a family member who had to post bail, and his case took the better part of two years to be resolved. After that, it took us another three and a half months to get the money we had posted back. Imagine if you or your family is out of that money for all that time. That is money that can be used to buy food, buy medicine, or to support your kids. That is money that can be used to cover any number of critical expenses that are especially challenging to cover when people are living paycheck to paycheck.
The idea of cash bail is rooted in the assumption that people will only show up to court if they have a financial incentive. Do you think that assumption holds?
The assumption that people will only come back to court if they have some financial skin in the game is one that is belied by the experience of the vast majority of people in the criminal legal system.
In my experience of representing people accused of crimes, they want to live up to their obligations to the court. They want to come back to court and resolve their criminal cases.
And the instrument we are using to ensure appearance — cash bail — is divorced from reality. Because of bias in policing and enforcement patterns, most people who are arrested in misdemeanor cases are not folks of significant means. They are often living at the margins. They are not going to be able to flee a jurisdiction or flee the country. We are talking about people who are living paycheck to paycheck. The reality is that people come to court, and people come back to court, in overwhelming numbers.
If that premise is false, are there other ways that we should be looking at the bail system?
I'm on the board of the Bail Project, which is a national organization that pays bail for people — the goal is to restore meaning to the presumption of innocence and to reinvigorate our pretrial system with some semblance of justice.
The work of the Bail Project has demonstrated that pretrial release with support is what people need. In about 20 jurisdictions across the country, the Bail Project serves as a bail fund for individuals who are accused of crimes — individuals who are facing the possibility that they may join the over half million people who are stuck in jail because they can’t afford to post bail.
Working with local public defenders and community-based organizations, the Bail Project’s bail disruptors post bail for the accused at no cost to them, and provide supportive services like court reminders, rides to court, and other assistance to ensure that they can get back and forth to court. They make sure clients are able to successfully resolve their cases by providing the support that people need in order to abide by whatever conditions of release the court has placed on them. At the end of the case, the bail posted is returned to the Bail Project to be used again for future clients.
We've seen overwhelming success in people coming back to court. And again, these individuals are not posting their own money. They don't have any financial incentive to return, and yet even in those circumstances, they come back to court, repeatedly and successfully. This idea that we need to impose a financial condition on folks has been debunked by the work that bail funds across the country are doing and by the experiences of people every day.
If there is a concern that an individual may pose a flight risk or a threat to public safety — the two things that state bail statutes most often require judges to consider — then we should have a robust hearing that requires the prosecutor to demonstrate why that person should be detained. There are reforms that we can look to, rather than using the blunt instrument of imposing unaffordable cash bail on preemptively detained individuals.