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.
On the History of Family Detention
by Peter Schey
August 17, 2020
This interview with Peter Schey, president of the Center of Human Rights and Constitutional Law, was conducted and condensed by franknews.
The Center of Human Rights and Constitutional Law is a nonprofit, legal services group based in Los Angeles, California. We focus on immigrants' rights, international human rights, and prisoners' rights. These are large class action cases that may impact several thousands to hundreds of thousands of people.
We focus on the rights of immigrants and refugees because we feel that those communities are among the most vulnerable and marginalized in the United States. Within that population, we tend to focus on immigrant children, both those who are accompanied and are unaccompanied with parents, who have been detained by the federal government.
I know the Flores Case is central to a lot of that work. Can you walk us through what the Flores case is and its importance?
In 1986, we brought the Flores case, to the federal court in Los Angeles in response to a policy adopted by the Reagan administration that, in effect, detained immigrant children in facilities with no medical assessments, no medical treatment, no education, no visitation, and no case management. There was no effort to detain children in safe and sanitary conditions. Children were held as bait to apprehend their parents.
The Flores case was litigated over the next 10 years, and in early 1997, we arrived at a nationwide settlement in what is commonly called the Flores Settlement.
Unless a minor is a flight risk or a danger, he or she has the right to be held in a non-secure, licensed facility. Children also have the right to bedding, blankets, to adequate temperature controls, drinkable water, edible food, et cetera.
A second part of the settlement is that it creates the right to release for detained children.
What does release mean? Where are they released to?
The settlement specifically provides a hierarchy of relatives that a child must be released to -- a child has a right to be released to any parent in the United States. If there's no parent, children have the right to be released to a grandparent, an uncle, an aunt, or a brother or sister. They also have a right to be released to a licensed group home licensed by a state for the care of dependent children.
There are only three reasons that a child may not be released. One, if the child is a significant flight risk. Two, if the child is determined to be a danger to herself or others. Or three, if the relatives to whom the child may be released, have been vetted and determined not able to provide a safe home for the child. For example, if they have an arrest warrant, or they have a serious criminal history. Other than those three circumstances, children have the right to be released to family members.
Traditionally, have administrations complied with the terms of Flores Settlement?
It covers all detained minors in the United States, whether accompanied or unaccompanied by parents. Various administrations complied with the settlement by promptly releasing any apprehended minor, generally within a day or two after processing their information.
But, in 2014, President Obama adopted the DACA program, and a couple of things happened.
The program allowed hundreds of thousands of young undocumented immigrants who had been brought here as children to surrender to the federal immigration authorities and obtain temporary work permits. Several hundred thousand young immigrants came forward and applied for DACA benefits. Opponents of President Obama and anti-immigrant organizations and elected officials were strongly opposed to the DACA program. They believed that it was an amnesty for undocumented people. Then, in the spring of 2014, there was a surge of immigrants apprehended at the southern border, including accompanied and unaccompanied children. These surges are not that uncommon and seem to occur every two or three years, especially in the springtime. President Obama's opponents initiated a public campaign blaming President Obama's DACA program for the surge. They basically argued that the DACA program was serving as a magnet to induce or encourage unaccompanied minors to enter the United States and parents to bring their children to the United States in hopes of winning DACA status. There were hundreds of newspaper articles and right-wing op-ed pieces that blamed President Obama's DACA program for this spring 2014 surge.
The two were, in fact, completely unrelated. None of these children that were coming in 2014 qualified for DACA. Immigrants are pretty well informed about these things back in their home country - they follow the news through immigrant networks, or their smugglers will provide information. Most immigrants who are planning on entering the United States understand the lay of the land and the policies before they make their entry. There really was no empirical connection between the DACA program and the surge.
Previous administrations had opted to release the families promptly after apprehension. The Obama administration decided to instead set up mass detention camps for accompanied children. They contracted private, for-profit corporations to operate large scale detention facilities in Texas. The cost was hundreds of millions of dollars, and those facilities could detain thousands of families.
How are they able to work within the parameters of the Flores Settlement at these detention centers?
When the Obama administration in 2014 responded to the surge there wasn't much they could do with regards to unaccompanied children - their rights were set by The Flores Settlement as well as by 2008 TVPRA.
We filed motions in the federal court that oversees compliance with The Flores Settlement in Los Angeles. We brought a motion to enforce the settlement, arguing that the lengthy detention of these accompanied children, with their parents, violated the release provisions of The Flores Agreement. The judge agreed with us and issued an order that required the government to come up with procedures to release accompanied children if a parent, designated a relative to whom they wished to have their child released. That is an important note - the Flores Settlement does not require the forced separation of children from their parents. It creates a right to be released that the parent is free to exercise or not exercise. Once we won that court order, the Obama administration figured out a way to come into compliance with the terms of the settlement. They had to figure out how to get kids released fairly promptly.
The way that they did that is through the asylum process. Almost all apprehended families are entitled to an interview that is called a credible fear interview - it's an interview to determine whether they appear to have a credible fear of returning to their home country because of persecution. It's a preliminary assessment of their right to receive asylum in the United States. The Obama administration accomplished these interviews fairly promptly. On average, within a week or two, if the parent has established a credible fear of persecution, the Obama administration would promptly release those parents and their children.
The Obama administration had over a 90% credible fear approval decisions. Therefore over 90% of children were released with their parents within about 20 days. That is how the Obama administration achieved compliance with the right of children to be promptly released. That way, they did not have to set up procedures to identify family members living in the United States, and they do not have to set up procedures to vet those relatives to make sure they could provide a safe home for any child released to them. So they achieved compliance with the settlement through the back door. But the bottom line is the result was that the vast majority of children were released reasonably promptly.
What happened after Trump was elected.
For the first year or two, there's really not much of a change. President Trump strongly opposes the settlement, and repeatedly publicly denounces the settlement. He says that he thinks children should not be released, that they should be detained, and that most of them should be deported. He urges Congress to enact legislation to override the settlement. He sought to terminate The Flores Settlement in federal court in 2018. And in 2019, his administration issued regulations in an effort to terminate the settlement. We blocked all of those efforts successfully.
But because of his restrictive asylum policies, the credible fear approval rate has now dropped from about 90% to about 10%. So the Obama approach of releasing the majority of children promptly no longer exists.
Is there any difference in the actions of officials at the border due to his rhetoric?
Border Patrol, ICE, and the Office of Refugee Resettlement, commonly called ORR, all take heed of what their boss thinks. So, they straddle the fence.
They are releasing unaccompanied children, but instead of doing it promptly within about twenty days, they're often detaining children for much longer.
So when we see the videos of kids in cages, that is due to them dragging their feet?
Yeah, absolutely. The fiasco on the border in 2019 actually was not the fault of the Border Patrol. It's complicated, but Border Patrol agents are supposed to turn over unaccompanied children to the ORR within 72 hours. They can only do that if the ORR has room. In 2019, when there were hundreds of children detained for weeks by the Border Patrol, which has no capacity to detain adults or children for more than a few days, ORR was simply not picking up children.
Why was the ORR not available to take the children?
ORR was not available to take custody of these children because they were at about 97% capacity. The reason they were at capacity was not because of surges, but, again, because they were straddling the fence due to the pressure they felt from the White House to not to release children at all. They couldn't do that because they would be in contempt of court, they'd be in clear violation of the settlement. So instead, they straddled the fence by creating vetting procedures for the relatives that were extremely challenging and took a long time. This way, they remained somewhat in compliance, while trying to appease the wishes of their boss, the president of the United States.
Because of those delays in releasing children, ORR reached 97% capacity in their facilities. If they had just released children in a couple of weeks, they would have been at 50% capacity. But because of the difficult process that they created, they were not moving children out of their custody quickly.
So when a surge of unaccompanied minors being apprehended at the border developed in April and May of 2019, Border Patrol would say to ORR, we have a hundred kids, come pick them up in 72 hours. ORR would just say, we're not going to pick them up because we were at capacity, sorry. That's what created that crisis.
More recently, the detention of accompanied children has increased substantially because the Trump administration has adopted far more restricted policies on who does and who does not qualify for political asylum. They've adopted a policy that states immigrants who are fleeing gang violence are not eligible for asylum. They have also issued a policy that domestic violence does not count as “credible fear.”
The government has also started to assign Border Patrol agents to conduct these interviews, as opposed to professional well-trained asylum officers. As a result, the approval rating for asylum went from over 90% down to about 10%. The mechanism that the Obama administration had used to comply with the settlement and to relatively promptly release accompanied children with their parents, that went out the window. Because now, instead of 90% of kids being relatively promptly released, now you only have 10% of children being promptly released. That creates a huge issue.
What is the legal justification for those changes?
They just made a policy decision. They just instructed their immigration judges and their asylum offices. Attorney General Jeff Sessions just issued opinions and DHS just issued opinions.
In March of this year, we brought an emergency motion to deal with the ongoing detention of accompanied and unaccompanied minors in light of COVID-19, and we won court orders in March, April, May, June, July, every month. We won court orders that basically now require that the government make additional efforts in terms of safe and sanitary conditions and that they reduce and eliminate some of the obstacles in the release of children.
How else has COVID changed things?
They can still apply for protection under the Torture Convention - which the United States is a party to. They do have to question people about whether they face torture, which is a quick interview conducted by Border Patrol. Very few immigrants are found to possess a credible fear that they are being tortured in their country. That has reduced the number of apprehended children because they are deported shortly after they reach the border.
Are there systematic changes that you want to see take place?
We will be urging both the Trump administration and the Biden camp to abolish family camps. We want to go back to what administrations did before the Obama administration- which was to release parents and children as promptly as possible. These people are not flight risks, and they are not a danger to national security.
If they were released with proper instructions as to the consequences of not showing up at their hearings, if they were treated fairly, they will appear for their hearings - their asylum hearings and their deportation hearings. That is a big change we would like to see. It is never going to happen under a Trump administration, maybe under a Biden administration. He was in the administration that began mass family detention in the first place, but hopefully, he has changed his thinking on that.