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.
by Veronica Escobar
October 15, 2019
Veronica Escobar is a two-term El Paso County Judge, the current Congresswoman representing TX16, and proud El Pasoan.
Rhetoric, from both politicians and the media, laid the groundwork for the immigration policy that we are seeing today. Congresswoman Escobar discusses how the simple act of listening to the stories of people who live at the border can begin to repair the immigration narrative.
This interview was conducted and condensed by frank news and originally ran on July 5, 2018.
EL PASO —
Tatti: As someone born and raised here in El Paso, as someone who raised your kids here, and is running for Congress here, what is your experience with immigration on day to day basis?
Veronica: I'll tell you, in the New York Times piece, my original draft was much longer. One of the points I really discussed in depth in my first draft was what we're seeing today, what we're witnessing on the U.S./Mexico border with the separation of children from their families and what has sort of become our moral rock bottom, was a long time coming. You get the sense of that in the piece, I think, but I really drilled down in my original draft on how border security has just been this club...used over and over and over. And some politicians, I think without knowing it, have helped dehumanize the border and dehumanize immigrants. That's what's brought us to this point. When there are huge swaths of the country, of Donald Trump's base, who are perfectly okay with what's going on. They have no compassion for migrants who are fleeing their country and fleeing violence and poverty.
I made the mistake the other day of reading the comments beneath a CNN article and I was stunned. I was absolutely stunned that my country and members of my country could have such little compassion. But the fact of the matter is, it's been decades in the making.
There was a point in time when people in our country were totally okay with a wall. When George Bush introduced the wall and asked Congress for funding, good Democrats voted for that wall and said, "We need border security before we can talk about immigration reform."
There will always be a way for them to up the ante and we're never going to get to comprehensive immigration reform until we have an absolute change in the White House, in the House of Representatives, and in the Senate.
We need to begin to tap into and reconnect to our compassion. Along the way, there's a huge task. We've got to rehumanize the border and rehumanize immigrants.
The one thing that gives me the most fear right now, is that the public will eventually become numb to the inhumanity that's happening at the hands of the Trump administration. Or, that the media and good journalists will move to something else, which inevitably will happen. When the focus and the spotlight is taken off of the horrific way that people are being treated right now, and have been, then we, again, are going to feel alone.
Tatti: One can only feel sad for so long.
Veronica: Right. Like, I've seen the horror. I don't wanna see it over and over again.
Tatti: Yeah, exactly. What’s the reality like? What is it to really live along this border?
Veronica: It's such a beautiful, complex, challenging, infuriating thing. It's beautiful because nowhere else do you get an international feel this way. You know what I mean? There are other parts along the U.S./Mexico border, but this is a massive metroplex. The connectivity is beautiful. The deep roots that go under and through the Rio Grande are beautiful. Familial roots. Economic roots. All of that.
But, the thing that's so complex is that there's so many different types of immigrants. There's those who can very easily come back and forth and have a visa and can attend the university; who live in Juarez and they make our lives richer and they make their peers experience richer. They sometimes have no problem. Their biggest problem is the wait times at the border.
Then, you have folks...like, I'm mentoring this young woman, who shall remain unnamed, but she's a high school graduate. She's waiting to enroll in one of the local colleges and she is a dreamer. Both her parents are undocumented. Her parents are afraid to go places together because of the fear that they will both be deported at the same time. I can't even imagine growing up like that... in fear, that when one of my parents leaves ... because not both of them are gonna leave at the same time... they may not come back. That we may not know where they are or what's happened. That they've been deported. Then, the grueling experience of living in two different countries and not being able to be reunited, then that happens.
She was also the victim of domestic abuse by her boyfriend who knew that she was undocumented and who used it over her. Used it as a weapon. And now, with a president who essentially has said, "We're not gonna allow asylees to claim domestic violence as one of the allowable methods for entry”, what does that say to young women like her? She's survived this horrific relationship, a near death experience, and you have a president who doesn't place a premium on saving her life. Everybody's experience is different, but living here and knowing people like that...And I'm a citizen! I'm a third generation El Pasoan. My family's been here for well over 100 years, so I had the good fortune of being born on the other side of that skinny little river.
All of these experiences really enrich our humanity and our compassion and it's part of what, I think, has made El Pasoans different. And when people who don't have those experiences, and they don't have someone they care about who's afraid that their parents will be deported, it gives them the excuse to be without that compassion. But having grown up here with those very diverse experiences all around me, has made me a better human being. I think it's made my kids better human beings.
Tatti: This conversation becomes very complicated when you begin to conflate Honduran refugees with Mexican economic migrants with Homeland security’s job to deter threats. There are all these different angles and we're just lumping them together.
Veronica: We are. And I'll tell you, I have my own concerns about my own side. Like, people who I'm politically aligned with. With the new calls for abolishing ICE, for example. I just wrote this long essay on my Facebook page, letting people know, in El Paso and on the border, we've been dealing with issues regarding ICE and Customs Border Protection and Border Patrol for a long time. Abolishing ICE doesn't get to the heart of so many other complex issues.
As an example, Border Patrol is now using this weird multiplier effect to document attacks against them. So, if you have five Border Patrol agents and there's three kids who threw two rocks ... Even if those rocks didn't hit any of those agents ... Border Patrol in south Texas is now taking the number of agents ... so, five agents, times the three kids, times the number of rocks. That's happening so they can help ratchet up the fear mongering of the border being unsafe. That's a huge issue. Abolishing ICE doesn't impact that.
As somebody who's grown up here and who has become intimately familiar with a lot of these issues, I get concerned when we try to distill things down to a very simplistic, superficial solution. The other side is already doing that. You know? And this is a huge mess. There are issues that are deeply entrenched in the culture of federal law enforcement that we have to get to.
I just feel that it's important for people to listen to border voices. And to listen to people who've been on the front lines and people who have lived through this, in their own communities, for a long time. Because only then will we really get to the root of the problem. And the root of the problem is, frankly, in terms of ICE...that the Obama administration tripled their budget so that they could quickly deport a lot of people. Many of us on the border were infuriated by that and we raised our voices. And even then, the rest of the country was mostly silent.
Tatti: Listening to border voices is so important. It seems to me that Texan politicians should be leading this conversation, and there feels like a lack of it. If you could prompt the highest elected officials in Texas to answer questions on immigration what would you ask them?
Veronica: One of the things I've been curious about for a long time is how do they define border security? Specifically. What does a secure border look like? Very specifically.
For many of them, they'll dance around it. They'll say, "Oh, we've got such a porous border." And what that tells me, is that they want a border that's completely sealed. And I think they need to be nailed on that. Or, it needs to be sealed to people they deem undesirable. So, tell me who's undesirable? It's mostly brown poor people. That's who's undesirable to them.
We need to drill down with them to expose, I think in many cases, what is policy rooted in bigotry. You're creating a bottleneck to trade and people and you're not even truly catching all the drugs. And then you look at our outdated drug policy. It's too complicated to solve the problem and it's too easy for them to feed in to the bigotry of their anti-immigrant base.