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
Climate Change and Migration
by Won Jang
December 23, 2019
Won Jang is a writer and researcher focusing on humanitarian affairs, UN sanctions and Korean politics. He worked on refugee issues for various organizations based in Egypt, Jordan and South Korea. He holds a Master of International Affairs degree from Columbia SIPA.
“…Gilgamesh sat with his chin on his knees till the sleep which flows over all mankind lapped over him. Then, at midnight, sleep left him; he got up and said to his friend, ‘Did you call me, or why did I wake? Did you touch me, or why am I terrified? Did not some god pass by, for my limbs are numb with fear? My friend, I saw a third dream and this dream was altogether frightful. The heavens roared and the earth roared again, daylight failed and darkness fell, lightnings flashed, fire blazed out, the clouds lowered, they rained down death. Then the brightness departed, the fire went out, and all was turned to ashes fallen about us. Let us go down from the mountain and talk this over, and consider what we should do.'”
-Epic of Gilgamesh-
Climate change and displacement, or climate change displacement, has become a buzz-phrase in the media as well as policy circles. According to the Internal Displacement Monitoring Centre, an average of 24 million people has been displaced by catastrophic weather disasters each year since 2008. Weather-related hazards caused 87.27% of all internal displacements associated with disasters globally from 2008 to 2018, whereas geophysical events such as earthquakes and tsunamis, which receive more attention, made up only 12.73%. The future looks even bleaker, as a World Bank report predicts that climate change could force 140 million people to move within their countries’ borders by 2050.
People are already being uprooted from their homes and forced to find better living conditions because of climate change. It is a reality that the world has to contend with. Then what do the numerous policy and legal frameworks say about the relationship between climate change and displacement, and how should they evolve to respond to the needs of millions who will be affected?
Do climate change refugees exist?
A cursory look at the UNHCR website is enough to find the agency’s position on the oft-cited term ‘climate change refugees’. It states in bold, black letters –
As summarized by Professor James Hathaway, an internationally-renown scholar in international refugee law, to be recognized as a refugee one must fulfill six criteria, in accordance with the 1951 Refugee Convention. They are:
1. the person has to be outside his or her country;
2. due to a genuine risk;
3. of the infliction of serious harm;
4. resulting from a failure of state protection;
5. which risk is causally connected to a protected form of civil or political status; and
6. the person must be in need of and deserving of protection.
So far, no one has ever successfully claimed refugee status due to climate change displacement from a government or national court. Internally displaced persons (IDPs) who stay within their country do not qualify and even when a person or group of persons have crossed borders, the required nexus to civil or political status ('race, religion, nationality, membership of a particular social group, or political opinion' per the 1951 Refugee Convention does not include climate change. Furthermore, it is often tricky to prove genuine risk, serious harm and/or failure of state protection for claimants who say they are refugees because climate change makes their homes uninhabitable.
Ioane Teitiota from Kiribati fought an uphill legal battle in New Zealand for two years to become the world’s first climate change refugee. He claimed that the was entitled to be recognized as a refugee on the basis of changes to his environment in Kiribati caused by sea-level-rise associated with climate change. However, the Immigration and Protection Tribunal ruled that the claim to persecution must be linked to one of the five civil or political grounds stipulated in the Refugee Convention, and his did not. Subsequently, he took his case to the High Court, Court of Appeal and eventually the highest court in New Zealand, the Supreme Court, which dismissed Teitiota’s appeal and upheld the decisions of the lower courts. In September 2015 he was deported back to his home country with his wife and children.
The Guardian
As Professor Jane McAdam, a leading expert on climate change and forced migration, points out, between 2000 and 2015 there were more than 20 cases in Australia and New Zealand where people from Tuvalu and Kiribati argued that they should receive refugee protection from climate change impacts, but all failed. In 2014, New Zealand’s Immigration and Deportation Tribunal court ruled that Sigeo Alesana from Tuvalu and his family should be granted legal residency in New Zealand on humanitarian grounds, in which climate change impact in Tuvalu was one of the factors.
However, Alesana is not a climate refugee per se, as the court considered other facts such as his strong ties to New Zealand and an elderly mother who needed medical care. Hence the tally for legal recognition of a climate refugee still stands at zero, as courts and judges are hesitant to “open the legal floodgates” and be the first to create a legal precedent. Meanwhile, climate change and legal experts have differing opinions on whether or not the definition of refugee in the Refugee Convention should be expanded to include involuntary cross-border movements induced by climate change.
Non-refugees and regional responses.
Dina Ionesco, the Head of the Migration, Environment and Climate Change (MECC) Division at the UN Migration Agency (IOM) recently wrote an article titled Let’s Talk About Climate Migrants, Not Climate Refugees. She says that reducing the issue of migration in the climate change to the status of “climate refugees” misses certain aspects of human mobility in climate change, and lays out 10 points to think about. In brief, they are:
Whether or not one agrees with all of her points, they provide a useful breakdown of the basic facts around climate migration and a foundation for further discussion.
As Ionesco mentions, most climate migration is internal and thus by nature cannot be considered under the Refugee Convention. More ‘progressive’ regional documents have appeared since the Refugee Convention, namely the 1984 Cartagena Declaration on Refugees and the 2009 Kampala Convention by the African Union. The Cartagena Declaration uses a definition of refugees wider than the one found in the Refugee Convention – along with the elements from the Refugee Convention, it recommends the additional definition of “persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.” The Kampala Convention explicitly mentions climate change and that its state parties are to “take measures to protect and assist persons who have been internally displaced due to natural or human made disasters, including climate change.”.
Despite the soaring, well-meaning rhetoric contained in these documents, they have their inherent limitations. The Cartagena Declaration is a non-binding statement that Latin American countries are not obligated to follow, although parts of the declaration have been incorporated in 14 countries. The Kampala Convention is a legal treaty but applies to only IDPs in Africa. A more recent document from 2018, the Global Compact on Refugees restrains itself by saying: “While not in themselves causes of refugee movements, climate, environmental degradation and natural disasters increasingly interact with the drivers of refugee movements.” Its migration counterpart, the Global Compact on Migration calls upon states to develop adaptation and resilience strategies to the adverse effects of climate change.
What’s next?
So, the question remains – what can be done to mitigate and resolve climate change displacement There are a number of legal and policy proposals on the table, some being implemented to various extents while others are only being paid lip service to.
A new treaty specifically on climate change displacement seems unlikely as Ionesco and other experts say. The two Compacts on migration and refugees, the final versions of which were criticized for just creating more discussions and not enough action, were during the negotiation process subject to several disagreements by states who were unwilling to sign even a non-binding document. One can only imagine the level of acrimony and discord if ever the opportunity to negotiate an international treaty on climate change displacement arose. Expanding the definition of ‘refugee’ to include climate change displacement, while noble in its aspirations, would mean the same thing in the eyes of governments who don’t want to take on more obligations when it comes to refugees.
Not to mention, many states do not even implement properly their Refugee Convention obligations, which they have signed on through ratification. Thus, the legal option must be ruled out for now.
More can be done by governments at the national policy level.
Implementing strategies that strengthen climate resilience, regulating greenhouse gas emissions by corporations, increasing the use of renewable sources of energy, using water resources more wisely and other policies can in the long-term contribute to mitigating climate change displacement. Academia can do its part by doing more multidisciplinary and rigorous research into the relationship between climate change and displacement. Governments can also take direct action to respond to climate change displacement that is ongoing. New Zealand’s plan to start an experimental visa for climate change-induced displaced persons was heralded as a positive step in this direction, but a spokesperson for Immigration New Zealand recently revealed that this idea had been more or less scrapped.
In the end, refugee policies, whether climate change-related or not, are primarily state-driven. Governments must step up to protect the rights, physical security and dignity of those displaced by climate change. They cannot afford to be simply reactive, as climate change is a phenomenon that already happening and is accelerating day by day. While not in the context of climate change displacement, throughout history there have been examples of countries that took a proactive attitude toward refugees such as when Canada received 7,000 Ugandan refugees in 1972 after Idi Amin forced them out. States and other actors such as international organizations and regional bodies need to take bold action to resolve one of the most pressing issues of our time and ensure that no one leaves their home, community or country because of climate change.