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
A Total Deprivation of Liberty
by Beth Colgan
October 28, 2020
This interview with Beth Colgan, professor at the UCLA School of Law, was conducted and condensed by franknews.
Beth | My teaching and research focuses on criminal legal systems, and in particular on the intersection of poverty and those systems.
frank | How does the inability to pay fees and fines impact people's ability to vote?
Poverty can affect the eligibility to vote in a variety of different ways — the manner of which depends on both the criminal rules and election rules in a state. For example, in Maine and Vermont, there is no eligibility requirement for voting that ties to a criminal conviction, but in other states, there are rules that disenfranchise people convicted of certain offenses.
In most jurisdictions, there is a process that will restore your right to vote. These processes have different contingencies that you have to meet, and in some cases, the right to vote can only be restored explicitly upon payment of economic sanctions.
In Alabama, for example, their statute says that you can't be restored to vote until you pay all fines, court costs, fees, and victim restitution. In other states, the relevant language is a bit less clear. It might say that you must “complete all terms of your sentence.” In fact, Amendment 4 in the Florida Constitution required the “completion of all terms of your sentence.” Recent disputes have been over what “completion” meant. Does completion just refer to a period of incarceration, probation and parole, or does it also require payment of all economic sanctions?
Has that language been clarified in Florida?
Yes. After Amendment 4 was passed, Florida's legislature passed additional legislation designed to clarify that requirement, and it explicitly required the payment of all economic sanctions in order to be able to vote again.
There are other jurisdictions where the rules are even more complicated and ambiguous than Florida. There are jurisdictions where you are allowed to vote again, but you have an ongoing payment requirement.
For example, in Washington state, they have a provisional voter restoration process that allows a person who still has to pay economic sanctions, the ability to provisionally register to vote and vote as long as they're making a good faith effort to pay off their debts. The question becomes what is a good faith effort? That is a fairly recent change in the law to allow provisional restoration, so there's not a lot of information about how that's playing out on the ground.
There are also jurisdictions that say nothing about paying off fines and fees explicitly but require you to complete probation and parole. And a common term of probation and parole is that you must pay off economic sanctions. That is another way in which economic sanctions can become an eligibility requirement.
Mike Bloomberg is paying off carceral related fines in Florida — and I know other groups in other states are attempting something similar. Legally — is this appropriate? Is this a skirt around this specific issue of economic disenfranchisement?
There has been some pushback from some officials in Florida who have suggested that it might be inappropriate. My understanding is that there is no issue in the way that Mike Bloomberg and other groups designed the process. If they had designed the system to say, “we'll pay off your economic sanctions if you registered to vote, and you vote for this particular candidate,” then they could get into some trouble. However, all they are doing is allowing people convicted of felonies to become eligible to register to vote by paying off fines and fees. They are not requiring them to register.
How do you propose challenging the penal disenfranchisement system? You write about a few different lenses through which you can challenge these kinds of laws. Can you lay out the approaches?
There has been very little litigation on this issue because it's so hidden.
One of the approaches to this is through the lens of voting rights. In a case called Richardson v. Ramirez, the Supreme Court interpreted Section II of the 14th amendment — which says that states cannot deny the vote through the US House of Representatives, except for those who have participated in rebellion or other crimes — to give the states the authority to disenfranchise people who have been convicted of felony offenses.
That has been understood to mean that if you are stripped of your right to vote due to a conviction, your right to vote is no longer fundamental.
And because of that, if you challenge these laws through the lens of voting rights, you only get the benefit of something called rational basis review. As a very quick and dirty tutorial — there are tiers of scrutiny that are used when you're challenging something under the 14th Amendment’s due process and equal protection clauses. The highest form of scrutiny, the most protective, is strict scrutiny.
Strict scrutiny is used in cases where there's a question of discrimination based on race, and in cases that involve fundamental rights.
Intermediate scrutiny is the next step down. That usually applies in cases involved in gender discrimination.
Rational basis review is the catch-all for everything else. It means that if there's any rational justification for the government's behavior, the law will stand.
In a case called Jones v. DeSantis in Florida, we can see how using the voting rights lens offers the least amount of protection to those challenging the law.
Basically, the 11th Circuit said that Richard vs. Ramirez says there is no fundamental right to vote once you've been stripped of your right to vote through a conviction, and strict scrutiny does not apply.
That means rational basis review applies. And according to that court, there is a rational explanation for the state to require full payment of economic sanctions — the state has an interest in people who've been convicted of crimes, fulfilling their punishment, and in being rehabilitated through the completion of that process.
What is the other lens?
I have posited that there is another approach, a different lens.
That puts you in a very different position in terms of the tests that apply.
Are there cases where this approach is used?
There are two areas of the law important to the contextualization of this approach.
The first demonstrates that the Court has treated cases that deal with criminal legal systems differently than other types of discrimination.
The first case that this is seen in is Griffin v. Illinois, a case decided in 1956. Illinois had a system where people could appeal their criminal convictions, but they had to provide a transcript of the lower court hearing at the trial. Those transcripts weren't free. Those who couldn't pay for transcripts were effectively barred from being able to appeal their conviction. The Court held that was unconstitutional.
If that were the case, that would mean that wealth would fall into the strict scrutiny category — wealth would be a suspect class.
There were a number of cases that followed Griffin that are key. In the early 1970s, Williams v. Illinois and Tate v. Short, the court held it was unconstitutional to automatically convert a person's fines into jail time if they couldn't pay.
However, as this line of cases moved along, several members of the court started to get nervous about the idea of wealth being treated as a suspect class because they worried that that might lead to a constitutional requirement that the government affirmatively engage in practices that ensured wealth equality in the United States. In fact, in one of Justice Powell’s notes in his old files, which I've looked through, he called the idea of wealth being a suspect class, "communist doctrine, not even accepted, except in a limited sense in socialist countries."
So, in 1973, the Court took up a case called San Antonio Independent School District v. Rodriguez, which involved a challenge to public school financing based on local tax assessments. Essentially the way that the financing scheme worked is that poor neighborhoods with lower taxes would have less funding for their school districts. The Court upheld that tax scheme as constitutional in an opinion, authored by Justice Powell. In that opinion, the Court said, wealth is not a suspect class, meaning it's subject only to rational basis review.
It is in that line of cases we see the Court separating out the criminal cases from the traditional tiers of scrutiny approach.
That is seen in Gideon v. Wainwright and the Sixth Amendment right to counsel for indigent defendants.
So in Jones v. DeSantis, where, again, the court decided that Richard vs. Ramirez says that there is no fundamental right to vote after you have been convicted, the 11th Circuit’s opinion said that the line of Griffin cases differ because they involve deprivations of liberty. They argued that a liberty interest is much stronger than a voting interest because the right to vote is, of course, no longer fundamental after Richardson v. Ramirez.
What they miss, however, is that the Supreme Court never limited the Griffin line of cases to the deprivation of liberty.
When you compare the Griffin line of cases to the Gideon, Sixth Amendment, right to counsel line of cases, it becomes obvious. The million-dollar question in Gideon was whether the right to counsel should be limited to deprivations of liberty. Ultimately, the Court decided that it should be. There is no Sixth Amendment right to counsel unless a person is imprisoned or subject to a suspended sentence that could result in imprisonment, like probation. The cases were decided contemporaneously, so we know that the Court was thinking about these sorts of limitations, but they are nowhere in the rules that emerge from the Griffin lines of cases.
That flat prohibition doesn't fall within the traditional tiers of scrutiny approach, and it potentially gives much more robust protection than the rational basis approach to those challenging wealth-based penal disenfranchisement. That is basically the difference between the two different lenses — does this fall under the tiers of scrutiny or are criminal cases fundamentally different in a way that implicates the type of analysis a court should undertake?
Sort of an aside, but is that still how the financing of public schools is structured in a state like California?
I should say that I am in no way, an expert on public school financing, but I do know that it's very different from jurisdiction to jurisdiction. There are ways that fines and fees can play into education funding. There are a couple of jurisdictions, for example, North Carolina and New Mexico, where revenue from various types of economic sanctions like forfeitures, and in some cases, fines and fees, go into the general education fund, and then those monies are distributed for public education. It creates an interesting type of inequality in that most of the fines and fees and forfeitures are coming out of heavily policed communities, but being distributed based on other criteria like student population size.
What is happening with this sort of litigation? Has your research pushed people into approaching these cases through a different lens?
If we look beyond litigation, there have been policy changes among states. In 2019 and 2020, Colorado, Nevada, and New Jersey all changed their laws to allow automatic restoration upon release from prison. People on probation and parole are now eligible to vote. California has a ballot proposition, Proposition 17, that would do the same thing and would restore the vote to about 55,000 Californians.
In Iowa, Governor Kim Reynolds signed an executive order that restores the right to vote for people who've completed any term of probation, parole, or other types of supervised release. Of course, as we talked about earlier, payment of economic sanctions can be a condition of probation, so Iowa is not completely out of the woods, but it does show that there is progress being made.
In other words, it is important to keep in mind that this is not just a constitutional question. Disenfranchisement can also be addressed through policy advocacy.
It is also important to remember that on the litigation side, the federal constitution is not the only constitution in play. There may be more protections under state constitutions. Litigators should be looking to their own state constitutions to determine whether there is a stronger claim to be made there.
Do you find that there's a typical motivation in keeping rights away from people who have been incarcerated or who are struggling to pay fines post-incarceration? Does motivation matter?
I think motivation does matter, but it is hard to pin down motivation because a state is not a monolith. You could have a legislative body the members of which all come to the same conclusion about what the law should say, but for very different reasons.
There is, of course, historical evidence that penal disenfranchisement laws were tied to efforts to ensure that African Americans were not allowed to vote after emancipation.
For some lawmakers that may continue to be the goal, but, when I was engaged in the process of looking at each state's laws, I found that outside of the states who make it explicit, it is tremendously complicated to figure out how paying economic sanctions plays into penal disenfranchisement. I'm not entirely certain lawmakers even know how their own law operates. These laws stack on top of one another in a way that makes it difficult to take a step back and see the system for what it is.
We have always used fines to pay for court systems. We've always used fines to pay for prosecution and law enforcement. That goes back to the colonial era. However, there has been this massive uptick in the use of fees and surcharges to pay public services like we talked about earlier — education, public parks, fire departments, you name it. And again, it's not entirely clear to me that lawmakers are cognizant of how bad this has become. How these laws play into tax systems, into voting, and into education is incredibly complicated. That is why it's important that we have people in positions of authority who are interested in those issues.