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
From Pew to Poll
by Matthew Soerens
April 1, 2020
This interview with Matthew Soerens, the US Director of Church Mobilization for World Relief, was conducted and condensed by frank news.
frank | Will you tell me about the work you do?
MS | I work for an organization called World Relief, a Christian humanitarian organization started in the 1940s. We work in about a dozen countries around the world. Since the 1970s, we’ve also been one of the organizations that partners with the US State Department to resettle refugees. We were founded, and still are a subsidiary of, the National Association of Evangelicals.
In the US context, we’ve particularly focused on serving refugees and other immigrants.
My role is focused on helping churches and other Christian institutions think through issues of immigration through a Christian theological perspective, that's also informed by an understanding of how immigration law and policy work. I am also the national coordinator for the Evangelical Immigration Table, which helps to lead with a bunch of larger national evangelical Christian entities, denominations and other networks.
How has your day to day work changed since Coronavirus?
I think the biggest thing that has changed is that it almost feels a bit tone deaf to reach out to a church and say, “Hey, you want to have a biblical conversation about immigration?” It doesn't relate back to the experience we're all living in the very immediate term. It seems a bit off to most people.
But, there are a lot of people who we would have categorized as vulnerable before this crisis hit, who are probably more vulnerable now. Either because of the economic dynamics or vulnerability to the virus itself. A lot of my work in the last two weeks has been trying to focus on how we call our constituencies of churches and individual Christians – as they take care of themselves and their families, which of course we want to encourage them to do – to not forget that there are people who are even more vulnerable in this context than most of us are. How do we focus there?
Are you looking at health conditions in detention centers holding detained immigrants?
Anyone who can't practice social distancing should be an area of concern. There are a number of those groups; those who sleep at homeless shelters, someone who is incarcerated. But where that most directly affects our work, is people who are in immigrant detention facilities, which look a lot like incarceration.
Most people there have not committed criminal offenses; it's people who have pending civil immigration proceedings in front of them, whether that's an asylum hearing or they've been living unlawfully in the country for 20 years and they're now facing deportation, which might be because they committed a crime and that brought them to the attention of ICE. Often, it's not related to any criminal activity at all. Those individuals are people we've been particularly concerned about, especially to the extent that some of them are older or have underlying health conditions.
What are you recommending detention centers do?
The most obvious thing to do would be to start with those who don't have criminal convictions. In a vast majority of cases there is no reason to think that there is a public safety threat. I'm not saying release them if there is a threat to public safety. But in the vast majority of cases, that's not the case.
It's people who only have civil violations. If they have a criminal violation, the most common charge is unlawful entry. It’s not a violent offense, it is related to their immigration status. Or those who got picked up for minor traffic violations, even a DUI – I'm not condoning driving under the influence of alcohol, but we wouldn't give someone the death penalty for that. And that’s what we are looking at if someone has an underlying health condition. I would argue that the Department of Homeland Security should be paroling those people out.
How do you get DHS to do that? What needs to happen?
They have the authority to do that immediately.
To be fair, I think they are doing so in some cases. Even in the last 24 hours, I've heard of people who've been detained for quite a long time being released. I'm hoping they are coming to that conclusion, or that some of the advocacy is having that effect. But I don't know yet if that's happening across the board, or if this is a more of a localized decision that's happening in a few places.
You also focus on the undocumented population. How do our current circumstances affect them?
That's certainly an area with a population of unique vulnerability. They're uniquely vulnerable before this happens, which means they're going to be uniquely vulnerable in the midst of this crisis. Undocumented immigrants are more likely to lack insurance, which might make them less likely to go get tested and get treatment. Where we've particularly seen undocumented immigrants affected is more in terms of economics because they tend to be disproportionately at the front lines of some of the industries that are most affected in the short term, like restaurants.
I pulled stats from the Pew Research Center that found that 10% of food preparation and serviceworkers are undocumented. In my neighborhood, I can tell you it's a lot higher than that. Maybe that's true at a national level, or maybe it's hard to get good data on people who don't like to answer surveys, like from employers who are violating the law by hiring them. But where I live most restaurants have at least kitchen staff who are mostly immigrants, and a significant share of them are undocumented. Those people are almost all out of work or down to minimal hours. When you are paid on an hourly basis, and you went from working 60 hours a week to working 10 hours a week, you suddenly don't know how to pay rent. I know people who are affected by that directly and it's happening all over the country.
Do you anticipate any federal action putting cash in undocumented workers hands?
Do I anticipate it? Honestly, no. Do I think it would be morally appropriate? Yes.
If somebody is getting paid under the table, I have no idea how, logistically, that could get sorted out. But for people who filed their taxes using an Individual Taxpayer Notification Number, which is this special number that the Internal Revenue Service created decades ago, whether it was originally its purpose or not, it is now basically how undocumented people file their taxes. This is something that most Americans do not know exists; people do not realize we have this alternate way to file your taxes if you are ineligible for a social security number. But we do have that system and there's four and half a million people who filed their taxes in the last year that we have data for, using those numbers.
There are probably 11 million undocumented immigrants in the country, many of which are children who probably do not work. So likely, the majority of undocumentted people working are filing their taxes with those ITINS. It would be very easy to give them the same sort of stimulus check that recently passed. I am expecting myself to receive that check. That's really nice. We'll use that, or share it with a family in need. But I know people who could use it a lot more right now. From an economic standpoint, if you want to keep money moving through the economy, you give those stimulus checks to people who are going to spend it the day they get it, instead of people who might save it, or think about their children’s college education for the future. And undocumented folks are usually in that first category.
I should make clear, some of them are also working 60 hours a week right now at grocery stores or in hospitals. They're also on the front lines of the people who are considered essential, and frankly, are at more risk than most other people. In the grocery store I shop at, there's no toilet paper and there's no canned foods, but somehow there is still produce, which means somebody is still picking produce in the fields in California. The vast majority of those people are immigrants, and the majority of those immigrants are undocumented.
Do you see the supply chain being affected at all?
At this point it doesn't seem to be affected. I don’t know agriculture work well enough, but I've seen people working and sometimes they are working closely together. It seems possible to me that could be a place where the disease starts to spread. It tends to be a younger workforce, which could mean that a lot of people get it and not ever have symptoms, which is a whole other problem for the spread. I certainly worry that that could happen and affect the workforce, then maybe Americans would appreciate how important those immigrant workers are.
But for the time being, they're still working and it’s not just undocumented immigrants, but also resettled refugees. A ton of those folks work in food processing. Not picking the crops but putting them in packages and refrigerated warehouses. Those are essential jobs. Those don't pause when a lot of other jobs pause.
Do you think the pandemic will be politicized to push border conversations?
Yeah, I mean, I would be naive having lived through the last several years to not presume that would be the case.
And how do you see that playing out?
Some of the narrative will be: this is a foreign disease and foreign people brought it and we have to watch out for foreigners.
It has already been part of the narrative with people calling this the “Chinese Virus.” Somebody asked me about that and my response was, well do we talk about the Zoom meetings we're all doing as Chinese? Zoom was founded by a Chinese immigrant. Do we talk about the doctor saving people's lives as that Chinese doctor?
We don't usually refer to people based on their places of origin. And if we're doing so only in response to the virus, that's a pretty good clue that we are not being very even handed. As far as we can tell this originated in China, but that doesn't have anything to do with many, many Chinese Americans or other Asian Americans who are being maligned right now as a result of those origins.
I would also say, there are decisions that have been made around, for example, shutting down refugee resettlement or closing borders, which I think might be prudent in terms of a public health response. I worry that pretext might be used to keep borders closed for longer than is medically necessary. And from people who have been trying to restrict refugee resettlement for a long time.
You occupy a pointedly contentious space between the evangelical church and immigration. A recent article in the New York Times connected evangelicals and the political response to Coronavirus.
I read that piece. It basically highlighted a few anecdotal cases of evangelicals who are anti-science and doing things like holding large church services in defiance of science-driven requests to practice social distancing. But the reality is the vast, vast majority of churches have cancelled their Sunday services or moved their services online. To be honest, this sort of piece – which I realize is perhaps all some New York Times readers know about evangelicals – is not that far from President Trump’s infamous claim that Mexican immigrants are bringing drugs and crime and are rapist… “and some,” he assumes, “are good people.” This piece had a similar statement, after highlighting several negative examples: “Not every pastor is behaving recklessly, of course,” but the author doesn’t bother to mention any such pastors by name, nor that they represent the vast majority of churches, nor that many prominent evangelicals like Rick Warren have called it “dumb” and “unbiblical” to continue to hold in-person gatherings.
Whether it’s a Republican presidential candidate talking about Mexican immigrants or a liberal opinion writer focused on evangelicals, it’s usually a bad idea to highlight the worst examples of any group of people without acknowledging how exceptional they are.
When it comes to media coverage of evangelical views on immigration, the real story is more nuanced than is typically assumed. The majority of white evangelicals were opposed to the family separation policy that the Trump administration put into place a few years ago, but the majority of white evangelicals also support a wall. Depending on which poll you look at, most white evangelicals are supportive of Dreamers getting legal status. Yet they're also the religious demographic most likely to say that immigrants present a threat to our customs and values. It's not quite as simple as evangelicals hate immigrants or love immigrants.
My job is to say, actually, I don't care what the polls say on this. If we're evangelicals, our views should be driven by the scriptures. So let's look at what the Bible says.
And the Bible, it turns out, is a very pro-immigrant book, with some nuance as well. There are passages about respecting governing authorities. I'm not condoning any violation of law or saying that doesn't matter. But we think immigration has actually been very good for the United States. It's been very good for the church in the United States. First or second generation immigrants are a very significant part of growth in evangelicalism in the United States. Biblically, we're commanded to welcome the stranger, to quote Jesus's words in Matthew 25, and to love our neighbors. And it's hard to read Jesus's parable of the good Samaritan and not conclude that your neighbor might be someone who is ethnically or even religiously different than you.
Do you find yourself in biblical debates with other evangelicals about immigration?
I would say what is far more common is debates that are not about the Bible at all. I'll come into a conversation with all these Bible verses and they'll say, but they broke the law, but they're criminals, but they're terrorists.
Then we can just point to the facts. Yes, some people committed crimes, but let's look at overall crime rates. Immigrants, whether lawfully present or not, commit crimes at lower rates than native born us citizens, and there is good data on that.
Evangelical churches have largely failed to disciple, which is a Christian word for teach, people in their congregations to think about this topic from a Christian theological perspective. We know that both anecdotally and from surveys where self-described evangelical Christians, say they've never heard about this topic in church. They get silence on the issue, and then they're watching cable news and reading things on the internet.
Right. Have you come to understand the driving motivation for white, American evangelicals, to be the loudest in the room in conservative politics and media?
To me it's a cyclical chicken or the egg problem. The problem is people haven't heard about this. They haven't heard a Christian perspective on immigration rooted in the Bible from their local churches. They haven't heard that perspective because their pastors are either uncomfortable, afraid, or feel ill equipped to address the issue. Part of that is, it's a complicated issue for anyone, very few people in this country actually understand US immigration law. But it's also fear.
If our struggling church, which is already facing some downward economic pressures, loses tithers then we can't sustain our ministry. So the easiest thing to do is just not address this at all. My challenge to those pastors, who I sympathize with very genuinely, is that this issue is too fundamental to the core of who Jesus calls us to be as his followers for us to ignore.
Our work has been effective amongst people who are deeply theologically grounded evangelical Christians. Where we've really not been sure how to engage is this category of nominal evangelicals, who don’t actually go to church. You're not going to reach them by getting pastors to talk about this topic, unless it's Christmas Eve or Easter Sunday, because they don't actually go to church except for on holidays.
People who self-identify in the polls as evangelical, but who aren’t actually affiliated with an evangelical church and don’t actually have distinctly evangelical theological beliefs, are the biggest challenge for us. I mean if you look at the most anti-immigrant voices among prominent evangelicals – and there aren't very many of them – generally don't have institutional affiliations to think about. The ones that represent institutions such as denominations are usually either totally silent on this topic or actually quite supportive. And part of that is they don't represent “white evangelicals.” They represent a whole constituency, many of whom are not white. In many denominations, a quarter of their congregations are immigrants or their children, who are interacting with immigration issues in real time.
USCIS [United States Citizenship and Immigration Services] is closed at the moment. There's a pause on asylum courts and hearings. Do you think that has a positive or negative effect upon reopening?
I don't know. I wake up at night thinking about that. There are political forces in the United States that have been very clear about trying to, for example, shut down refugee resettlements, and have largely done so. There have been efforts to not abide by the terms of the trafficking victims protection reauthorization act, which governs how our government deals with unaccompanied children apprehended at the border.
The government is taking the position that these things need to be put on hold right now for public health reasons. There's a good chance that some of these are reasonable decisions, given the very unique global public health crisis we’re facing. I wish I could trust it was solely out of public health concerns, and that our country will go back to abiding by what I believe is an appropriate law as soon as medically appropriate. Obviously we haven't even hit the peak of this crisis medically. But I hope that we resume processing entries into the refugee resettlement program as soon as would be appropriate from a science based perspective.
I'm not gonna say the US should never restrict travel. El Salvador has restricted US citizens from traveling to its country. And that makes a lot of sense. If I was El Salvador, I'd do the same thing right now. I've spent time in Central America and I know that they do not have the hospital infrastructure to deal with the disease on a scale such as it is hitting New York City right now, or China, or Italy.
So I think it may make sense in this very unique moment to restrict some travel and I think it would be fair for that to go both ways if there are legitimate concerns.