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
Power on the Margins
by Jamila Michener
February 3, 2021
This interview with Jamila Michener, professor at Cornell and author of Fragmented Democracy: Medicaid, Federalism & Unequal Politics, was conducted and condensed by franknews.
Jamila | I study poverty, race, racism, public policy. I try to think about the politics of those policy areas, with an emphasis on how those who generally don't have a lot of power in our political system are affected by policies and how they can affect policies. I try to understand the place of economically and racially marginalized folks in our democratic life, and how to enhance their power so that this thing that we have that we call democracy reflects a more ideal democracy.
frank | How long have you been focused on this work?
When I think about how I got into this work, I think about how I always had these questions. Ever since I can remember, I would wonder why the world that I saw was the way it was. My parents immigrated to the U.S. from the Caribbean in the 1970s. I grew up in Brooklyn and Queens. Living in Brooklyn in the late 1980s was an intense thing.
And I remember feeling that. I remember feeling like my neighborhood wasn't a safe place. Thinking back on it now, as an adult, I was right. I recently found this New York Post article from 1993 that called the neighborhood I was living in at that time, Cypress Hills, a “killing ground”.
A lot of this was propaganda on the part of the Post, but there was this line in the article from the mother of a little girl that had just gotten killed by a stray bullet right near where I grew up. She says, “People think that we have to go to Iraq, to see a war zone. We have a war zone right here.” I mean, in that zip code, there was a murder every 63 hours.
I didn't know all of that when I was a kid, and my parents worked really hard to shield us from the worst excesses of it, but I knew that the way that we lived wasn't the way that everyone lived.
I had an aunt who moved from Brooklyn to New Jersey. She was a nurse and had done well for herself. She was able to take my cousin and get out of the hood. They moved to central New Jersey, and we would go to her house to visit. The neighborhood was quiet, the streets were tree-lined, there was a pool in her backyard, and everybody was white. I remember thinking, “Okay, these people live differently than us. Why?”
People don’t need formal education or training to understand politics. They are living it.
Oh, absolutely. That is one of the reasons why so much of my work is qualitative. People know much more about their world than anyone else, and they can make sense of their world. Maybe not in terms that fit within the confines of academic analysis, but when that's the case, I think academics have to change their analytical lenses. Good research has to be informed by people or else it's going to miss the mark, especially when the topic is politics because politics is fundamentally about people and institutions and how they interact.
What does a more people-centered analysis look like?
You have to listen to people and be willing to change course in response to what they tell you, even if it doesn't comport with what the literature says or what other academics think. I think that's really important. I am also increasingly trying to involve people in the research process in really substantive ways that are bi-directional and not extractive. I try to figure out what research questions would be helpful to have answered. I try to talk organizations before I formulate really specific research questions, and talk to folks doing the work about what it is that they need to know, and then sharing my work back out once its done, making it a product that is not just to be consumed by other academics but for the people meant to be at the center of it.
Moving to your article, Power on the Margins, was there a specific need or research question you were trying to answer?
Well, I knew that people living in poverty have some set of rights, but, what good are rights if there is no mechanism for enforcing them? And what can people do so that they have a mechanism for taking power back from the people exploiting them? Those questions had been floating around my head for some time, but I didn't pursue them early on because they don't fit well in the scope of political science.
Then, in 2017, I heard that Intro 214-B passed in New York City. That legislation gives everyone who's facing eviction, and who's at 200% of the poverty line or below, access to an attorney. I knew that there had to be a story here about power behind that law. This was a game-changer. Frederick Douglass said that “power concedes nothing without demand. It never has. It never will.” You don't get legislation like that just because de Blasio decided to do something really nice and really expensive. That is not how this works.
I wanted to understand how this happened, and I wanted to think about it in a way that the insights could be applied broadly to the work of expanding civil legal rights. If we can understand how this happened in New York City, if we can understand the politics of it, that can inform the work in other places.
And more broadly, how can we understand what it looks like for people living in poverty to exercise power?
And it robs people living in poverty of a certain degree of agency. I mean, I don't think of my friends and my family as hapless victims of our larger political economy. In some ways, they are very much victims of a political economy that is built to chew them up and spit them out, but that's not all they are. That's not the entirety of it. I really wanted to think about how agency and power is developed, channeled and how it can lead to successful outcomes in low-income communities.
So what does it look like for people in poverty, or on the margins, to exercise power?
It looks like organizing.
It's interesting because this is an insight to some political scientists, but not so much to organizers. Civil legal problems, like being evicted, are very easy to interpret as individual problems: this is an issue between me and my landlord, either I can't pay the rent or the landlord is being predatory. But, as long as these are viewed as individual issues, we don't really exercise collective action to try to hold landlords or the local officials accountable. That is why organizing is key.
In the article, I find that grassroots membership-based organizations help channel people's individual grievances into collective action and into a collective movement that can lead to significant concessions, even when concessions were not going to be made otherwise.
I mean, de Blasio and a lot of members of city council were initially very clear about their lack of interest in the bill. The movement did not start with them. It started with a really small, local, membership-based organization in the Bronx. They knew that housing court was a source of pain for a lot of the people and they decided to take a survey about people's experiences. In the process of going door to door and asking questions, they learned a lot and they mobilized people. They started to gain momentum through what organizers called people power. It wasn't political elites that made this bill a priority.
That was a point you made in your article. You mentioned it was a coalition of elites and non-elites, but non-elites specifically had a particular power. I think often that is not how we think of the relationship. Can you talk more about it?
There were political elites — lawyers, people in charge of legal aid, civil legal services, and judges — who were quite positively disposed to the expansion of civil legal rights. They tried several times to make it happen, particularly in the 1980s and the 1990s. They tried to identify sympathetic populations, elderly people, families, and get folks on board with providing services to these groups at the least. Even though their sights were set on much smaller and more narrow goals, it didn’t work. They couldn't move the political process on their own. There was just not enough buy-in.
Then, this organization in the Bronx started to organize in their community and realized the depth of demand and the passion and the amount of investment people were willing to make in service of this kind of work. They reached out to their counterparts at organizations in Brooklyn and in Queens and asked how can we work together to try to make this happen? They were able to identify a few members of the city council who were willing and brought them in. They started to do direct action. They started to do rallies. They started to show up outside of people's offices. They started to garner media attention. They started to show up outside of courtrooms. And the more that happened, the more people got brought into the fold.
At the core, always, was people power. Even though we imagine the kinds of folks that find themselves in court, being evicted, without a lawyer, as people without political power, they can be tremendously powerful. Especially through consistent organizing around a struggle, people have incredible power. As a result, we got groundbreaking legislation in New York City. That's the story I tell.
What should people do with that? What should politicians do with that?
One, we should put resources behind things that position people to leverage the power that they have.
There is a sense of, oh we know how to fix them. Why? We're not experiencing what they're experiencing, and we don't necessarily get any input from them. And if we do it can be quite superficial.
I don't use the word “empowering” because nobody is generously giving power to people living in poverty. Those folks already have power. There are just barriers to their power being exercised effectively. It's like when people say Georgia was not a red state, it was a voter suppressed state. In many ways, people in poverty are not powerless, their power is suppressed through institutional design. The Intro 214 legislation shows that when that suppressed power is developed and channeled, it can lead to significant policy change. So politicians and anyone else who cares about change, anyone who wants to see the world look different than it looks now--must be thinking about building power in marginalized communities.