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
Migration is Going to Happen
by Diego Acosta
August 2, 2021
This interview with Diego Acosta, a Professor of European migration law at the University of Bristol, was conducted and condensed by franknews.
Diego | My area of expertise is immigration law in Europe and in South America. However, now I'm working more and more on other regions of the world, and I am interested mainly on regional free movement of people.
I am interested in the policy angle. I try to give, whenever it’s requested, my advice to governments or international organizations in Europe, in the U.S., in South America, the Caribbean, and in Africa. That's a little bit of what I do.
I want to talk to you about South America for a minute. I think, in many parts of the U.S., there’s an assumption that people leaving Venezuela are headed exclusively to the U.S. border. But actually, most migration is taking place within South America.
Venezuela is a very interesting case because Venezuela has always been a country of immigration. Venezuela was never, throughout its 200 years of existence, a country of emigration. There were very few Venezuelans abroad. That changed from 2015 onwards. Around 2015, there were an estimated 600,000 Venezuelans abroad. Today, the estimates are more or less 5.6 million Venezuelans abroad. In a period of six years, 5 million people have left Venezuela.
Eighty percent of the Venezuelans have been going to other countries in Latin America, mostly to Colombia, where there are 1.7 million. Peru has more than one million Venezuelans. Chile and Ecuador have more than 400,000 Venezuelas in their countries. Brazil has around 260,000 Venezuelans. They are also going to Argentina, Costa Rica, Panama, the Dominican Republic, and Mexico. The only two countries outside Latin America that have received a number of Venezuelans are the U.S. and Spain.
Parlee, Lorena M. [Busy street in Caracas, Venezuela], photograph, [1969..]; (https://texashistory.unt.edu/ark:/67531/metadc1633561/m1/1/?q=venezuela: accessed July 29, 2021), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Special Collections.
Parlee, Lorena M. [Mountains in Venezuela], photograph, [1969..]; (https://texashistory.unt.edu/ark:/67531/metadc1633666/m1/1/?q=venezuela: accessed July 29, 2021), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Special Collections.
Why the sudden immigration from Venezuela? How are those leaving being categorized within a legal framework – what ‘type’ of migration is happening?
So those are two very important questions.
First, why are they migrating? A combination of social, political, economic, and security reasons. The deterioration of the situation in Venezuela on different levels.
Second, legally speaking, Venezuelans have been categorized in many different ways. Some Venezuelans have been recognized as refugees. Brazil has granted around 50,000 Venezuelans refugee status. In theory, all Venezuelans could be recognized as refugees because Latin America has the Cartagena Declaration, which has been enshrined in the domestic asylum laws of 15 countries in the region.
A normal refugee is someone who leaves their country and is individually persecuted because of one of the five grounds laid out in the Geneva Convention on Refugees: race, religion, nationality, membership of a particular social group, or political opinion. The Cartagena Declaration widens the definition of a refugee. Any Venezuelan in one of the countries adopting the Cartagena Declaration can be recognized as a refugee.
Then, you have countries like Colombia, Peru, Chile, Paraguay, which have created special permits for Venezuelans. The problem with these permits is that they have been granted only for a limited period of time and there were always deadlines to apply for them. That means that pretty much half of the Venezuelans who are abroad in Latin America, are undocumented. The country where the most Venezuelans arrive, which is Colombia with 1.7 million, has that problem. They have adopted a temporary status based on humanitarian concerns for Venezuelans, but, nonetheless, 55% of the Venezuelans that are living in Colombia are undocumented. The Colombian government took quite a bold step this year. They said, "We're going to regularize everyone. We're going to give everyone what they call a temporary status, but it is valid for 10 years. And that permit will also be accessible to Venezuelans who enter into Colombia in the coming two years." Spain is also doing that. In Spain, Venezuelans are not recognized as refugees, but they are granted humanitarian protection.
The third category, which Brazil, Argentina, and Uruguay fall under, is residence permits under the regional framework on mobility, the Mercosur Residence Agreement. That is an agreement that allows people to move freely within the region and is quite similar to what we have in the EU. It allows you to get the residence permit and gives you the right to work, the right to healthcare, and the right to family reunion within the countries that have ratified that agreement. Nine countries out of twelve in South America have ratified that agreement. Venezuela has not ratified that agreement, so in theory, Venezuelans are not entitled to more generous treatment. Nonetheless, Argentina, Uruguay, and Brazil have decided to offer them these permits.
The fourth category is the Venezuelans who are, unfortunately, undocumented. And in that regard, some countries have launched regularization procedures to, as you say in the U.S., legalize, or as we say internationally, regularize, these individuals.
Why in the last five or six years has immigration within South America become more popular? Is it just because Venezuela has reached a crisis point that requires movement, or are there other encouraging elements?
There has always been immigration within South America, of South Americans going to other South American countries. There was always movement within the region. In the last few years, some countries have received an important number of migrants because their economies have been improving.
Chile has become an important immigration destination. Chile in the 1980s had 0.2% of its population foreign-born during the dictatorship. Now, roughly 8% of this population is foreign-born. The Mercosur Residence Agreement has been an important part of this since 2009. If you are Brazilian, for example, you have the right to reside in eight other countries in South America.
Can you define regional free mobility? What that means in South and Latin America, but also more broadly.
We could define regional free movement as laws that allow migrants coming from a particular group of countries in the region to obtain residence and equal treatment with nationals.
There are many, many examples of that. People usually think about the European Union because we have 27 member states. But that trend is happening all around the world. You have that in South America, you have that in the Caribbean. In the Caribbean, there are two regional organizations that allow for free movement. You have that in many sub-regions in Africa. You have that in the Gulf Countries – they have the Gulf Cooperation Council which allows the nationals of those six countries mobility. You have that in the post-Soviet states. This is a very normal trend and it is very important because it shows you how in order to manage migration, countries do not only erect borders, sometimes they simply get rid of borders or ease borders in order to manage that migration.
This pretty much only happening at a regional level, there are no examples of this happening between regions. This has also never happened in North America. There were some ideas of it at the beginning of NAFTA, but it never came to fruition. Asia is also a little bit behind on this trend.
Jimmy Carter - Caracas, Venezuela. Jimmy Carter's Presidential Photographs; White House Staff Photographers Collection. US NATIONAL ARCHIVES.
Do you think the trend is becoming accepted as what works in terms of managing migration? Or do you think it might be moving away from that? Brexit is the most obvious example.
I think both things are happening at the same time, and that's what happens with migration law. In any given year, in any given decade, you have both restrictive and nonrestrictive developments.
Just a few weeks ago Colombia, Peru, Bolivia, and Ecuador, after eight years of negotiation, adopted what they call the Andean Immigration Statute, which is another legal instrument giving free movement, interestingly enough, not only to nationals of these four countries but also to any permanent resident of any of these four countries. If you are a U.S. national and you have permanent residency in Ecuador, this instrument allows you to then also get residency in Colombia, Peru, or Bolivia, for example. And that is quite a bold step that has never happened before. Every year there are developments. I would say it is becoming kind of normal for countries to be involved in at least one bilateral or multilateral agreement, facilitating mobility.
That doesn't mean that the opposite isn't also true. There are trends of restriction that are happening at the same time. We'll see, obviously, what happens now in the aftermath of COVID. But so far, COVID has not stopped the trend.
Do you feel like these multilateral agreements are the right way to think about mobility? With an acknowledgment that people have always moved and will continue to move. Does migration work better this way for countries and for people?
Yeah. I would say two things.
That's a very important thing. And the statistics do not lie there. Around 3.3% of people in the world are migrants — that is not much. That means that almost 97% of the world doesn't move, they live in the country where they were born and they stay there. When you open borders, what happens? One might think that when you ease mobility through the borders, many more people move. That is not the case. Take the European Union as an example. 3.3% of EU citizens reside in different member states of the European Union, despite the fact that we all have that right to do so.
You might think it's because these are rich countries. Well, that is not the case. The minimum salary in Romania is completely different from the minimum salary in Denmark. So why aren't there more Romanians in Denmark? The answer to that is because the decision to migrate is the result of many different variables that play a role. It is not just related to economics or to salary.
Regional free movement agreements can also help a lot when it comes to climate change concerns. In 2017, there was Hurricane Maria in the Caribbean. That hurricane basically destroyed the island state of Dominica.
What Dominicans did was to move to Antigua, but they didn't move as environmental migrants or environmental refugees. They moved as regional citizens because they had the right to enter. That made mobility much easier, and funnily enough, that means that the moment the situation in Dominica improves, you are much more willing to go back because you know that if it goes wrong again, you can move back to Antigua.
And this is something that has happened in the U.S. Many sociologists in the U.S. tell us that the moment you militarize the border, it becomes harder to cross the border. Nonetheless, people continue crossing the border. However, now, once they cross the border, they don't want to engage in back and forth as they did before. It is much more expensive and more dangerous to cross the border. And therefore, what you do is you remain put.
It’s so narcissistic to assume everybody's trying to move here. People like where they're from and want to live where their families are.
When you go to border areas anywhere in the world, the border is the result of, many times, serendipity or certain historical circumstances that put the border in one particular place. In the case of Africa where borders were delineated, even more randomly than in other places, that's certainly the case. I think regional free movement agreements are a good solution to many of these challenges.
In the journal I originally read your work in, the Columbia Journal of Transnational Law, I found the language interesting. The attempt to bridge the gap between ideal scenarios and the reality of the world we live in. I find here, immigration conversions are hyper simplistic. Do you find language can help, in a real way?
Absolutely. I think media plays a role there.
The UK has 5 million British nationals abroad who are migrants themselves. Many times when we think of migration, we think only about one category of people. We think about Latin American or Asian or African people as migrants. We always think about people who are poor and desperately moving. That does not help to have an informed debate on a complex issue.
I think personal stories can help. Many migrants simply move because they fall in love or because they find a job or because they go to study or because they want to experience something different. But obviously, in the political discourse, we focus on the examples that are more extreme and that makes it difficult.
I don’t want to downplay the complexity of movement and international cooperation. Of course, there are difficult issues. But there are moments where I feel like, what, the United States can’t absorb 100,000 people? A football stadium full of people? That’s absurd.
I mean you go to a place like Silicon Valley and 50% of the people working there and creating the wealth of the region are foreigners. That is why that place is what it is – because you have people willing to go to that place and, at the end of the day, create wealth for a different country from the one they were born in.