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
Disaster Capitalism Happened
by Ashana Bigard
May 18, 2021
This interview with Ashana Bigard, life long resident of New Orleans, mother of three, social justice organizer, and advocate for children and families in Louisiana, was conducted and condensed by franknews.
Ashana | Right after Hurricane Katrina, before most people were even able to gather their thoughts or move back, the Louisiana Legislature passed Act 35.
Act 35 allowed the state to take over the majority of the schools in Orleans Parish. They had the authority to do that throughout the state, but they only took over schools in the Orleans Parish, the blackest parish in our state. The Recovery School District, also known as RSD, which is supposed to revamp “failing schools”, came in and the state ran the schools.
US National Archives. President Barack Obama Visits Dr. Martin Luther King Charter School.
frank | What changed when they [RSD] came in?
They gave charter schools the opportunity to come and take over because some people were attracted to this idea of becoming a “portfolio city,” which is a city that is hundred percent charter schools.
But, this is a bad idea, because a lot of charter schools depend on philanthropy in order to run their programs successfully. Philanthropy money is not dependable and short term. Most funders don't fund projects for 20 or 30 year time periods. They fund projects for 3 to 6 years, max. People were getting $500,000 to start these new schools, and a lot of them have since closed. We remain a 99% charter school city. Even though the community has asked repeatedly that the charter schools that have closed, reopen as traditional public schools, the state continues to open up charter schools.
White House Photo. An aerial view shows the flood-ravaged areas of New Orleans, Louisiana Thursday, September 8, 2005. The damage was created by Hurricane Katrina, which hit both Louisiana and Mississippi on August 29th.
Are charter schools funded by the state as well as philanthropies?
They get state dollars, federal dollars, and philanthropy dollars. We have been advocating around this idea that because they get federal and state funds, they should live up to federal and state mandates. But it's the wild, wild West here. There are no accountability mechanisms. Schools were breaking the law constantly, and when you brought it up to them they would just kind of shrug it off.
What did the new schools look like?
They cut out music and art programs. The whole idea was to focus on core subjects like reading and math. That might sound good in theory, but music and art are therapeutic.
And when you cut music out, you cut access to music scholarships and access to musical income. We have a lot of people who make their living as musicians, but if it had not been for public schools, giving them instruments and access to music, a lot of these people wouldn't exist.
Alvencent Gordon and Band, photograph, October 1971; (https://texashistory.unt.edu/ark:/67531/metapth129675/m1/1/?q=band: accessed May 18, 2021), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting St. Philips College.
And, I mean, our students were traumatized. Before Katrina, we had a high population of children on the trauma spectrum and children with mild to severe PTSD. After the storm, that was exacerbated. I would say at least two-thirds of our population was somewhere on a PTSD trauma spectrum after Katrina. The first thing our government did was cut the mental health budget and close the adolescent hospital. There was literally no recourse for people experiencing trauma and PTSD. In the charter school network, they had one social worker shared between three schools.
And to deal with that they implemented zero-tolerance policies, which meant the kids could get suspended for anything. When I say anything I mean anything — wearing yellow socks, wearing a green bra underneath your white shirt, talking back to teachers, using the bathroom, taking Tylenol, being tardy. The schools in the Recovery School District doubled down on the school-to-prison pipeline. That is not what traumatized children need.
In one of my old advocacy cases, from 2008, there was this six-year-old kid who brought Rolaids to school because he thought it was candy. And he gave some to his friends because, again, he thought he was six and thought it was candy.
This new teacher, instead of calling poison control and just getting rid of the Rolaids, sent the kid go to the hospital. The doctor was like, it's an antacid, it's accidental, he is going to be fine. So the mom comes to the school and she might have to pay hospital bills, and she was super upset. But then they tell her that the school has a zero-tolerance policy against drugs, that her child has been expelled, and that they have to send him to court because the child was in possession of and distributed drugs.
For whatever reason, whoever had the case, just saw possession and distribution and sent him to go take urine tests at the jail. His mom didn't want to bring him to the jail to do a urine test and they told her if she didn't that she would be held in contempt of court. And like, even when she did, the men in line to also take the urine tests, got visibly upset. They were like, why is a baby in here? It was insanity on top of insanity and we had to fight this for three months.
They had meetings with the community — that was a requirement to start a charter school — but not a single thing that the community suggested was implemented.
I feel like I attended over a hundred of these meetings. A lot of times you would hear the same thing. Parents want the children to have therapy because they knew that they had experienced trauma during the storm. They wanted a therapist in those schools. They want washing machines and dryers in the schools because due to the amount of damage that had occurred, washers and dryers were not operational anymore, and there was a high population of homeless kids and extremely poor kids. Parents wanted the kids to have swimming lessons because we're in a city that's literally a bowl and it floods all the time. In Hurricane Katrina, the majority of people who died, died because of drowning, because they didn't know how to swim. None of that was implemented.
The charter schools were really pushing this idea of school choice. In response, the community said, "Well, choice means I have a choice between a traditional public school and a charter school. Having just a whole bunch of charter schools doesn't feel like a choice." It didn’t change anything.
What are the demographics of these schools like?
The majority of the charter schools here in Orleans Parish are black and poor.
So we're talking about a poor black public school population.
If you look at the more quality charter schools, Montessori, Benjamin Franklin, and Lusher, these schools are about 65 to 70% white and middle-class. The white middle-class parents only send their kids to these particular schools. If their children can't get into these schools, then they put them in a private school.
The charter schools that look and operate like prisons are 100% African-American. They are policed. I tell people, if a school has a high suspension and expulsion rate, if the kids don't have any recess or PE or art or music, I guarantee you that's an all-black school.
Kiecke, Albert. [Clear Creek High School Band in a Parade], photograph, April 19, 1986; (https://texashistory.unt.edu/ark:/67531/metapth279278/m1/1/?q=high%20school%20music: accessed May 18, 2021), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting League City Helen Hall Library.
We already had a population that did not really have trust in the government. When you're looking at poor black people or poor people of color, the government is not listening to them anyway. The public school system in New Orleans was a space where people felt that they could make their voices heard.
You had community involvement. You had a lot of musicians and singers who volunteer at the schools and work with the young people. The young people got to work with world-class musicians. They would volunteer at the school, spend time with the kids. Music was important, the arts were important. We looked out for people. People were represented and respected. And then all of that was just wiped out overnight.
US National Archives. Members of "Teach For America" program that places new teachers into inner city and low-income area schools around the nation.
We also lose our culture when that happens. There were a whole bunch of people from Teach for America that came in. After the storm, they fired all of the teachers, then said, oh look we have a teacher shortage. They didn't want to hire back traditional teachers, because TFA was a lot cheaper. These people may be well-intentioned but…
The culture of our city is if you are hungry, we're going to feed you. If you are thirsty, we are going to get you some water. If you look like you're upset, we will ask you if you are okay. People will sit and have a whole hour conversation with you. But when you have people that don't understand that there is a give and take, that we are taking care of each other, they just are taking, taking, taking, taking, taking. And they're calling their friends to come to take. It shifts the mentality in the city.
I remember being a kid asking my grandmother, why do I have to say good morning to everybody? Her response was that everyone is valuable. Everyone is God's child. Everyone deserves to be seen.
I remember walking and feeling ashamed of myself because, especially if someone was young and white, I literally was like I'm not going to even say hello. They don't want to acknowledge my existence, and I don't want to feel that rejection. But then that's changing how I interact in my own city.
I tell people New Orleans is a port city. So we've always had people come in. But if you love the culture, embrace it. If you don’t embrace it, you're probably shifting in a way that's not good.
Has anything changed at all over the last 15 years? Charter schools went back to the Orleans Parish School Board in 2018, did that change anything?
No. They wrote legislation to still allow the charter schools to have the same autonomy.
Even simple things. For example, parents have been requesting that the school's calendars line up so that if I have children in three different schools, they can be on the same schedule. They don’t care. The schools have autonomy and their autonomy literally allows them to do what they want to do. They could care less what the community wants.
What is there to do?
Some folks are working to push for an agenda on children's rights. More parents and more community members are awake to the realization that their children aren't being educated. These schools promised all kinds of things — improved education, more students in college. None of that happened. And if kids do go to college they are unprepared. People are looking around now and asking how schools are accountable to educating our children. Charter schools pitch themselves as a business. Well, then, we should be holding them accountable as customers. We should be making demands as customers.
[Photograph of Charles A. Bower], photograph, Date Unknown; (https://texashistory.unt.edu/ark:/67531/metapth129201/m1/1/?q=math: accessed May 18, 2021), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting St. Philips College.
There is not a lack of spending – rather a problem spending this money effectively. How does that change?
Talk to education experts. We know that we should have only 15 kids per class. We know that teachers need to have a teacher's assistant. We know that kids learn better through play and free environments. We know there should be more field trips and more interactive activities because that is the way children's brains are structured.
And most importantly, listen to the community. Listen to what they value. We had so many CEOs and people who make a lot of money saying things like, “Well, I went to a very strict military school.” But are you happy? Are you a happy person? Are you happy, satisfied, a good father, a good friend, good communicator? Do you go home? Are you like, “I can't wait to get home and engage with my kids”?
[Laughing] Maybe the reason you're trying to acquire so many billions of dollars is that something went wrong for you.
How do you get $500 million and say, I need more money? How will you justify destroying the air, water, and land to make money? How do you justify destroying the air, water, and land to make money that will be worthless when all these things are destroyed? Maybe I don't want my kid learning that logic.
I think creating empathetic, caring human beings should be part of education. Social, emotional learning should be a part of education. It's not separate from school. You can't have kids in school 10 hours a day and say, they're going to get social, emotional learning outside of this. They are there.
You wrote, “when all eyes turned to New Orleans ten years ago, I thought, finally, people will see the poverty, people will see the income inequality, and things will change.” What’s happened to students in New Orleans between then and now?
US National Archives; President George W. Bush at a charter school in New Orleans.
Disaster capitalism. First of all, there's a lot of propaganda going on around how great it once was. Realistically, disaster capitalism happened. A lot of people looked at us and said, “Oh, we can go and pick the bones.” And that's what happened. The population of New Orleans that was already poor lost land, money, and businesses.
I don't know what the nonprofit industrial complex is trying to do. And let me say this: I worked for a very good nonprofit when I was young called Agenda for Children. It was run by a white Jewish lady Judith Watts. She was one of the most progressive women I've ever met running a nonprofit, right. Let me start with that.
The nonprofit industrial complex, on the other hand, is complete and utter garbage. They are not actually trying to help. They are about band-aids. Imagine a tree dying. Their job would be to paint the leaves green.
You have Propeller, which was supposed to start to help people propel new businesses. The majority of people that they helped were new young people from outside of the city. I call them the hub of gentrification. I remember talking to them, they would be like, “We don’t know where to find black local people who are interested in business.” I mean, there's literally a barbershop on the next block — how many times have you gone over?
A lot of these people are also scared of black locals. Nobody wants to admit they have these extreme biases, but they do.