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
The People are Still Protesting
by Representative Attica Scott
March 31, 2021
This interview with Rep. Attica Scott, who serves in the Kentucky House of Representatives for the 41st district, was conducted and condensed by franknews and Payday Report.
AS | I am State Representative Attica Scott. I serve Kentucky House District 41. I was born and raised in Louisville. Before working in government, I worked for seven and a half years as a coordinator with KY Jobs with Justice. We did quite a bit of work around raising the minimum wage, around a single-payer healthcare system, around being on the front lines with workers who were on strike, and so forth.
You were very involved in organizing for Breonna Taylor in Louisville. How do you look back at the summer of 2020 and see its impact today?
We were clear that our work includes protest, it includes advocacy for public policy, and it also includes politics. When I look back, I see a comprehensive picture that highlights the importance of being on the front lines, demanding justice for Breonna Taylor, as well as the importance of folks coming to their state Capitol to advocate for Breonna’s Law. We have people from the streets, folks from the hood, coming to the state Capitol to be advocates. Some of those folks had never been to the State Capitol in their lives, and now folks are running for mayor, for city council, for state representative, and all of these offices up and down the ballot because of it.
Can you expand on Breonna’s Law and where it is now?
Breonna’s Law, HB21, is a bill to ban no-knock warrants across Kentucky. It also mandates that officers submit to alcohol and drug testing when they're involved in deadly incidents. It mandates that officers wear and turn on their body cameras. While we know that body-worn cameras are not at all the answer to police accountability, we also know that this is something that the family was asking for. We worked on this bill for seven months with the community and with the attorney for Breonna Taylor's family.
Basically, they waited until it was so late in the session that we could only hear it for discussion, and could not vote on it.
What was the reasoning for voting against it?
Well, first and foremost, it's because of institutional, systemic racism. We went four years without hearing a bill from any member of the Kentucky Black Legislative Caucus. Republican legislators didn't say anything to me for seven months until the bill was up for discussion. And when it was up for discussion, the main push back I heard was that they did not want to support a full ban on no-knock warrants. The president of the Senate also said that he would not support alcohol and drug testing of officers because he felt like that should be in some separate piece of legislation.
What does this loss mean going forward?
Well, the president of the Senate has put forth a no-knock warrant ban that limits these warrants in some situations but is definitely not a full ban. Now, mind you, when I announced at Injustice Square, in August 2020, where protests were happening, that we had filed Breonna's Law, the Kentucky State Fraternal Order of Police viciously attacked me on their social media. But when the white president of the Senate announced that he was working on this no-knock warrant ban, they said nothing.
One of my colleagues, Representative Minter, put an amendment on the Senate President's bill that addresses some issues that it did not. For example, it addresses the fact that though Breonna Taylor was shot multiple times, there was no aid rendered to her.
There was no EMT nearby. There was nothing. Her amendment mandates that there be an EMT nearby. Her amendment also mandates that law enforcement have insignia on the front of their clothing when they come to a door so people know who is at their door.
We're hopeful that her amendment will get added to that bill so that we can vote for it. If her amendment is not added, we're not voting for it because it is not Breonna's Law. We're not interested in performative politics, which is exactly what's happening right now.
You were also arrested during all of this. More recently, Rep. Park Cannon in Georgia was also arrested. How did seeing that make you feel?
When I saw state Representative Park Cannon getting arrested, I thought, “You have got to be kidding me.” She literally knocked on the door and they arrested her and charged her with a felony. That is targeting Black women in office.
Georgia state Senator Nikema Williams was arrested as well. Virginia Senator Louise Lucas was arrested. I was arrested.
We have a target on our backs. We are Black women in elected office, standing up for justice, whether that be standing up for the foundation of our democracy or standing up for justice when people have been murdered by police, and we get these felony charges thrown on us.
If our charges don't get dropped, there's a legal battle we have to face. And financially, we are often not in the same position as our white colleagues who might be able to afford to fight those losses. We can't afford to fight those losses. That's our reality.
So when I saw that, I immediately went back to our arrest in September. We were arrested for literally walking while Black. We were trying to get to the sanctuary, literally across the street to the church before curfew and the police arrested us.
Did you feel confident charges would be dropped?
I thought they might stick because it was retaliation against us. They knew when they arrested us, they knew who they were arresting. My daughter was with me and one of the officers knew my daughter's name before she even gave him her driver's license. They knew who I was when they took us to jail. They put me in isolation for my role in the Frankfort as a legislator. I'm like, “the folks in here don't want to come for me.” They know I'm fighting for them. I'm not at all afraid of the people who were locked up. But I was concerned that the charges would stick because they wanted to send a message.
And then they were dropped.
Yes, they were dropped over the course of a couple of months. We were arrested in September, felony charges were dropped in October, and then the misdemeanor charges were dropped in November. I guarantee you if I had not been going live on Instagram at the time of our arrest, and if we did not have that evidence to back up what we were saying, I don't think those charges would have been dropped.
Where does the political energy in Louisville feel focused now?
People are still protesting. They're still doing marches and rallies. They are clear that the demands we are making in March 2021 are the same demands we were making in May 2020. And our demands are to fire, arrest, and charge every single officer who was involved with Breonna Taylor's murder.
And now, there's this resurgence of energy because their own people, who they marched side by side with, are running for office. They have this infusion of energy into the movement. Folks are able to say, “I know that person. I marched with them, I got arrested with them and now they're running for office. Oh, hell yeah, I'm staying in this every single day.”
The key is being deeply rooted in community because, first and foremost, people got to trust you. They got to know you. They got to be able to say I marched right next to Representative Scott. It also came down to me reaching out to people who were sustaining the movement. I am not sustaining the movement. I am in government full-time. It is about making those connections and building those relationships with people on the front lines.
I can't imagine functioning without staying directly connected to my community. I don't even know how you serve as an elected official if you're not regularly connected to the people that you represent.
Practically, how do you build community and build those relationships?
For me, in the midst of COVID, this looked very different. Typically I would do community forums, show up at neighborhood association meetings, community gatherings, and things like that. But right now, I have been using the platforms that are available to me. Recently I did a Clubhouse call with folks about Breonna's Law. I do Facebook lives periodically and I do Instagram lives. During the height of COVID, I was doing an Instagram live every week, bringing in different perspectives about COVID by bringing medical professionals, government folks, community folks, and essential workers in to have conversations about the different ways COVID was impacting people.
For over 150 days, I have shown up to Injustice Square Park. When we first started occupying the park, I was there until one in the morning, and then back at 8:00 AM bringing in breakfast and helping people set up. That has been where I've been able to connect to people.
You act often as a resource center for your community. Do you feel you’re filling in a gap where local news may have once been because there is so much information and so much misinformation?
I feel like folks can rely on me because they know that I am the real deal. It doesn't matter to me if you're the mayor or the governor or the chief of police, if it needs to be said, I'm going to say it. And if something needs to be done, I am going to push you to do something.
I will also say, to the credit of activists and organizers, and leaders on the ground, they pushed our local media to step up and do better in their coverage. Initially, the coverage played into the talking points that were coming straight from the Metro Police Department and the Mayor's office — you know, that Breonna Taylor was a drug dealer caught up in a drug situation or that the protests were just violent riots.
Our activists confronted every single media outlet and basically said that we don't want you here in our space if you are going to portray us in this way. If your narrative basically parrots talking points from the police department and the mayor, we don’t want you.
They were told that they needed to be very clear about our demands and they needed to cover us with dignity and respect. And so they came in with that perspective.
How does police presence feel now?
I don't feel like it's changed much at all.
Even with the new chief who was hired in January, who I've met with three times, not much has changed.
On March 13th of this year, we set up a day to honor the memory of Breonna Taylor, and they had concrete barriers up around the park. They had dump trucks up around the park. That was an overly heavy response to people who were in mourning and honoring the memory of Breonna Taylor. And I told the new police chief that.
And I said to her, when white people in Louisville marched from the East End, which is predominantly white, to the Square, there was not one police officer present. There was no one on a bike, no one on a horse, no barricades, there was nothing. There is a huge disparity in police response that is evident every time we have an action. She didn't have anything she could say because it was true. It was all true.
The presence feels antagonistic.
Well, right. What is sad is that instead of hearing us out about how the police presence often feels antagonistic, violent, and aimed at trying to egg people on, they instead decided to file a piece of legislation that says if you curse out or hurt the feelings of a law enforcement officer, they can arrest you. The bill has passed the Senate and is now in the House.
That seems like a first amendment problem. What does it even mean to hurt their feelings?
Right, well, it will get kicked out by the courts, but the point is to try to intimidate us and to try to silence us. They don't care if it gets kicked out by the court. They just want to put that veil of fear over us.
The police have everything in their favor in Kentucky. They have the Law Enforcement Officers' Bill of Rights across the country. They have qualified immunity. And then you have new legislation that's being filed for policy in favor of the police. The response to this summer was legislative.
And then, on the other hand, you have us just trying to live. We are not even trying to thrive. We wish we could thrive, but right now we're just trying to live.
That's why I affirm and applaud and support and celebrate the activists and organizers who were running for office. They looked at this situation and they said, “Oh, so we need to change the laws locally and statewide and in DC. Okay. So then we'll run for office so that we can do that since y'all are not doing it.”
You said labor missed the moment – how do you see them connecting in the future?
I wish labor would see that this is their movement too. Breonna was an essential worker.
She was a frontline worker. I wish labor saw Black people as being part of the movement. I mean, how powerful would it be if every single labor union in Louisville showed up to Injustice Square and stood side by side with the people.
Labor needs to be organizing the unorganized. That's how it builds its numbers, organizing the unorganized. And there are a whole lot of folks who have been showing up for Breonna Taylor and who have been a part of the movement for Black Lives that are working in places that are not organized. This is also an opportunity to build that collective power and labor should be part of that; they should be part of the building of movement, the building of community, the building of power, but labor is not here, they are missing.