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 Attitude of the Texas Legislature
by Senator Rodriguez
April 30, 2019
The interview below was originally published July 11, 2018 in our Immigration issue.
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: I covered the presidential election in 2016, and interviewed someone who worked for your office.
Sen. Rodriguez: Yes, of course.
Tatti: I loved El Paso then...
Sen. Rodriguez: Move over here.
Tatti: I want to!
Sen. Rodriguez: Please do. This is the best city in the country.
Tatti: In this process we're seeking experts who live with immigration policy everyday.
Sen. Rodriguez: Who told you I was an expert? Who misinformed you?
Tatti: Well, we define expert differently at frank. Someone who crosses the border everyday to donate blood for $75 a week is an expert.
Sen. Rodriguez: That's a good way of looking at that, okay.
Tatti: So, that's what we're here to discuss, but to start, would you tell me where you grew up and how you ended up where you are now?
Sen. Rodriguez: I grew up in South Texas down in the Lower Rio Grande Valley. Have you been down there? South Padre Island, Brownsville, McAllen?
Tatti: Not yet.
Sen. Rodriguez: This is the very southern tip of the state of Texas there by the Gulf of Mexico, so I grew up down there.
During the most momentous period of many people's lives, Nixon is in office, Watergate happened while I was there, the Vietnam War was raging, we were on the streets and I got a lot of exposure coming from an agricultural region, migrant farm worker, I had culture shock being on the East Coast and the attitudes of people over there, you know the higher, more superior intellectually, thinking that they're better than you experience.
I had traveled all over the country already as a migrant farm workers so, it wasn't like it was my first time being out of my home. I'd been to California, to Idaho, to North Dakota, to Indiana, to Michigan, to Missouri.
Tatti: When did you decide to run for office?
Sen. Rodriguez: Not until 1992.
Tatti: What inspired that?
Sen. Rodriguez: Working with the first Chicana county judge that we elected in 1990, who invited me to be her legal advisor here at the courthouse and realizing that the work I was doing for her, liasoning with the county attorney's office and all the other elected officials, the sheriff, the district clerk, the County Clerk, you know the constables, the judges, I was handling all of that for her, I told her I could do a better job than the county attorneys doing, so I'm going to run for office.
Because I went through Watergate as a young person, I was very idealistic just like you guys, I felt like I could change the world; I still do as a matter of fact.
I was interested in politics and public policy, I wanted to run for office earlier, much earlier. But I became disillusioned with that whole Watergate episode like a lot of other young people did. And so even though I continued supporting other candidates, I kind of dropped out of the notion that I myself would run. I had always planned on doing some legal services work for farm workers, because I had been a farm worker and that's what I did, 10 years worth after I left DC. Like a lot of other young people I became disillusioned with government, got engaged more in community work, and it took me from 1974 until 1992, to get myself to run for office.
Tatti: Do you see similarities in the perception of public service and government now?
Sen. Rodriguez: There's no question. There's a lot of analogies we could make about Nixon's view of the presidency and how he used the presidency, and how Trump views the presidency and how he's using the presidency. No respect for the institution, no respect for the Constitution, engaging in policies that oppress people, that minimize and marginalize those who are different. We are going through another traumatic period in our nation's history as a result, which we went through back then because of Vietnam and Nixon.
Tatti: If we zoom out from the present to look at immigration with a wider lens, has policy changed drastically from president, to president, to president?
Sen. Rodriguez: That's a very good question. I supported President Obama but I was a critic of President Obama and joined chorus with those who said that he was the deporter in chief. Because more people were deported under Obama then George Bush or Clinton combined. There have been immigration policies that someone like me, who has been a supporter of immigrants all my life, disagreed with some of my Democratic presidents. But, neither Clinton nor Bush nor Obama separated families.
I know it's kind of kosher today to read in the paper, some media saying, well you know, separation of families takes place all the time. If a mother commits a crime, she has to go to jail and the child was separated from the mother, they give all kinds of examples, right?
What you see here is official government policy separating children from their mothers, and keeping them out of touch with one another for long periods of time, which even a mother who's incarcerated has an opportunity to be talking to her child to her children, in the regular criminal context. And the children with the relatives can go visit the mother at jail during visitation hours.
This is no comparison to what's happening right now. This is inhumane, there's no other way to say it, everybody's been saying it, but it's true. It's inhumane, it's cruel and it is a black mark on the history of this nation. It has gotten to the point where our president and people under him and those who support him, Governor Abbott you know, the elected officials here in Texas who support him and these policies, are all culpable in having committed, and are committing a crime against these children.
I'm not an expert in that but I've heard the expert testimony, because prior to the development of this zero-tolerance policy in the separation of families, immigrants come in, including those from Central America seeking asylum. They started coming in, in 2014 because of the increased violence in El Salvador, Guatemala and Honduras.
A lot of them are unaccompanied minors, but some of them were with their mothers or fathers. When they presented themselves at the border they were arrested and taken to these detention centers that we have had in Texas since 2014, over in Dilley; little community of Dilley, and Corn City. Those are kind of in Central Texas. I serve on the Senate Veterans and border Veteran Affairs and border security committee, and there was an attempt by the state to certify or license those two facilities; detention facilities. Barbed wire, their prisons with the children, there with their parents, not separated.
The state, because of a federal court judge's decision, decided that they needed to license those two facilities as child care facilities, quote-unquote, under state law. And there were lawsuits filed against that happening, because this is by no means, no stretch of the imagination, a child care facility. They're prisons, and run by the private prison industry; private companies. There was a bill introduced by the Republicans to have these facilities certified as child care facilities. And many of us opposed that. When we had the Senate committee hearing last year during the regular legislative session, we had the experts come in, the pediatricians, the psychologists, the therapists, the counselors, all of them saying, having them in that setting with their mothers is a lifechanging experience for these kids.
Their testimony was pretty compelling, very strong and as a result, even two of the Republican senators felt so changed by what they heard that they didn't join voting the bill out of the committee.
Then, after about two or three weeks, the powers that be persuaded them that they needed to vote for this bill, voted out of committee so they could come to the floor of the Senate and voted out of the Senate. And that's what happened. Long story short, that's what happened.
Tatti: Do you think that Texas has a responsibility politically, to be the leaders in the conversation about immigration?
Sen. Rodriguez: Absolutely, but we're not because of the Republicans controlling the legislature, and all of the levels of power. We don't have a single Democrat in approximately 28 or so state agencies, running the agencies. The Senate is 31 members where I work, 11 of us are Democrats. They have a clear majority, so they can pass literally anything they want. We used to have a long standing, over 60 year rule, called the two-thirds rule, that said in order to bring any bill to the floor of the Senate to debate, you had to get two-thirds of the Senate members to support it.
This lieutenant governor Dan Patrick did away with that rule, because when he became lieutenant governor us Democrats, under the two-thirds rule could block bills like Senate bill 4, the sanctuary cities bill for example, and we were blocking it, ever since I came into the Senate. So, he did away with the two-thirds, and now they could pass anything they wanted without us, without the Democrats, unless two of the Republicans came over with us, which under the Iron Fist of the lieutenant governor happened only one time, one session and then they lost their chairmanships.
He punished them and this last session not a single one of them crossed over to help us block the bathroom bill, the sanctuary cities bill, anti-immigrant legislation, bills that inserted religious liberty into all kinds of bills, Child Protective Services, foster care, other things, essentially putting a provision in those bills saying that if those people who provide those services have a sincerely held religious belief, that it's against their religion to provide services to someone, that they can not do so.
It's the worst that I have ever seen, even though if you study American history, we've got these periods where we have welcomed undocumented immigrants to come and pick our crops, to come and work on things, service sector construction and so, especially when there was that need for labor, and then when the economy is good, get rid of them, including US citizens. It happened in the 30s and 40s, that's the history of this country. I mean, we are supposed to be a country that is welcoming to immigrants and we have been, but there's also this aspect of it, that whenever we did not want the immigrants around, we use them as scapegoats, they're taking jobs, they're hurting the economy, they're all on welfare, they're committing the crimes.
Tatti: What's the reality of living in close proximity to the border?
Sen. Rodriguez: It's a safe city in the United States for its size, based on FBI statistics. We don't have the violence here that you hear about in Juarez or in Chihuahua or down in Matamoros, where I grew up Reynosa.
It's only after the United States stole the land from Mexico through the pretext of the Mexican War; US-Mexican war, that all of a sudden there was a separation from this natural resource. The river, the Rio Grande. We have long-standing historical ties, cultural ties, language ties, customs, familial ties, trade ties, like nowhere else in the world. Then you have people come in like Trump, and start putting money to put up walls between us? Start implementing policies that demonize immigrants, including some of our own family members.
Remember that this is for us, the Ellis Island of the Southwest. Immigration coming in from Europe and Asia mainly come through Ellis Island. But for us, a lot of people came through El Paso over a period of history. That's why we call it the Ellis Island of the Southwest, with migration patterns up to LA.
When you speak of immigration, you really have to appreciate the history of this nation with regard to immigration, and the policies, and the politics that have played a part in the development of our laws with respect to immigrants.
Look at the Chinese Exclusion Acts, when we allow Chinese to come in because we wanted them to build our railroads, including here in El Paso by the way, then when they weren't needed anymore, all of a sudden it's the Yellow Peril, get them out of here.