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 Life Work of Senator Rodriguez, Part Two
by Senator Rodriguez
July 12, 2018
This interview with Senator Rodriguez, who represents District 29 in El Paso, was conducted and condensed by frank news. It took place June 28, 2018. This is part one of an ongoing conversation between frank and Senator Rodriguez.
Tatti: We want to clarify the immigration conversation, because what we’re hearing is actually a conflation of lots of issues, and I think it’s detrimental to a real debate about policy.
Sen. Rodriguez: Exactly, you're question earlier was, do you think that there was confusion about the various policies? And the answer is, there is confusion in the American mind. People in any place out of the border, who don't have a sense of what the border is like, what life on the border is like, the reality of border communities, all their impressions of border and border people like myself and immigrants are negative because of the purposeful misinformation that is being put out by politicians and others who are anti-immigrant.
There is no question that there's conflation of refugee versus regular economic immigrants coming in from Mexico or any place else, versus border security with regard to the cartels, human smugglers, the criminal elements, and the category of terrorists.
We never had terrorists come through the Southern border. With regard to the Central American refugees, those are people who the public needs to generally understand are either seeking asylum or are refugees running away from violence or persecution in their countries.
Under our federal laws, long standing policy, international law, anybody who is seeking asylum or refugee status, can legally come up to our ports of entry and legally enter and make an application. They’re supposed to be allowed to be in the country during the period of time that their application winds its way until a final decision. In the meantime when they're here, they're placed with relatives, they’re placed with organizations that care for refugees and people seeking asylum. That's been the long standing policy and process until now. Now we are criminalizing people seeking asylum, everyday I see the headlines, including this morning, of the border patrol stopping people at the middle of the ports of entry, but they have a right to come over and petition, and they’re keeping them from coming over and coming in to petition. Then with the zero tolerance policy under Trump, now separating the children from the mothers, filing criminal charges against the mothers who are seeking asylum status.
With regard to Mexican immigrants, economic immigrants, the long standing migration of Mexicans into this country because of what I said earlier, the demand for labor, what the immigration experts call the push pull factors of economic reality. We need labor? We welcome them in. We don't need them anymore, we push them out.
With respect to whether or not we need comprehensive immigration reform, what do we do with people who have been here without documents for all these years? The estimates have been from 11 to 12 million.
I did some of that work. Pro-bono legalization appeals for some of those who were eligible. A lot of my farm worker clients for example, who have been here without documentation, working for years, paying taxes, contributing to the economy, we got them green cards, permanent legal, permanent resident status.
We have moved from that attitude towards legalization, to a time when amnesty is a bad word for republicans and where we are treating everybody under Trump as a criminal, as a rapist, as a person that should not be tolerated in this country.
All of the rhetoric about immigrants being criminals and harming people and taking jobs away, has caused us to lose sight of doing a humane comprehensive immigration reform that we tried to do several times in the past. The latest one being back in 2006. We did it under Reagan, the Simpson–Mazzoli Act. It was the 1986 immigration reform, what was referred to the Simpson–Mazzoli Act because of the legislators in the senate that passed it.
We've always said that we were going to provide several prongs to comprehensive immigration reform. Legalize the people that are here already, that have paid taxes, that haven't committed crimes, that are contributing to society and of course I always throw in have learned English. Fine. There was the legalization part of it, there was the guest worker part of it to provide permits for workers that were needed by the farmers, by the industry. That was another aspect to it.
The third aspect was to look at our visa system and see what reforms we could make with it. If you are a legal permanent resident, you want to have your parents or your brothers or relatives because our policy on immigration has always been based on family reunification, family ties get priority, now we've gone away from that. The immigration system got so bogged down that they took 10, 20 years for people to bring a relative into the country.
We have gotten away from those because now any discussion about comprehensive immigration reform, even with respect to the dreamers, the republicans don't want to allow them to have citizenship status down the line. That's new. That's something that a lot of people don't pick up on. You guys should emphasize. It used to be that when we talked about comprehensive immigration reform, including republicans on a bipartisan basis, if we were going to do a path to a legalization program we were going to have a path to citizenship. It may take a while, but you were going to be given the opportunity.
All of these things are now combined, confused, nobody distinguishes between an asylum seeker or refugee and an economic migrant and a dreamer. Or dare I say, the criminal elements. There's all these people coming over to do us harm, take away our jobs. That is an incredible shift in State policy toward immigrants in this country. We're starting to look no different than Europe that is trying to find ways to keep those economic migrants and refugees from coming into their countries.
The day before yesterday I was over there with the American Federation of Teachers and a lot of different faith organization, Rabbis, Baptists, Catholics, Muslim clerics. We were there for that last Sunday. We're going to go tomorrow. We're coordinating it for New Mexico State Legislators. New Mexico wants to do it's part and they’re bringing doctors and state legislators and Native Americans. A friend of mine who's a state legislator out of Albuquerque, filed a complaint with the United Nations and she wants to come with all of these folks and read it there at the port of entry and then come and do a visit with our Annunciation House over here in El Paso.
What gives me hope is that at these events, we have run into people from Canada, elderly people, people from Florida, from New York, from Alaska. That is what’s heartening.
Once the new justice gets appointed, of the stripe of Roberts, I'm sorry here young people, but you are going to see some hard times in terms of national policies.
A veering to the right like we have never seen in this country and the way the white nationalist movement is going, and the racists in this country, starting with the President, are going, we may be be looking at past years in Italy, Germany, France and other places where people rose against the different people in this country. Whether your difference is color, whether your difference is your sexual orientation, whether your difference is your religion. I'm painting I know a very black dire scenario, but I'm a student of history, I like politics.
I'm a policy wonk and I know what people have gone through in world history and in this country and what we can expect, if we as people do not rise and assert ourselves.
Finally, your question about Beto and Cruz debating, I don't expect that Cruz is going to want to debate him on the immigration issue. If he does, he's just gonna stay to a very canned message. He files a bill himself to try to keep families from being separated so he can then in the campaign say, I don't support families being separated. Yes, but he supports the President block step and the President is separating families. So he should be held accountable regardless of what he says or what he does. That's my view on Mr. Cruz.