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
It's Time to Make Demands
by Edgar Franks
August 10, 2021
This interview with Edgar Franks, the political director for Familias Unidas Para Justicia, an independent farmworker union based in Washington, was conducted and condensed by franknews.
Edgar | I come from a family of migrant farmworkers. I was originally born in Texas. My family is from Mexico. Eventually, when I was young, my mom settled here in Washington state, working in the fields. I grew up and went to school here. I started getting involved in farmworker organizing at a relatively young age. I was maybe 14 when I started organizing marches and things like that with other high school students and community members.
I got more serious about organizing in 2012 when I joined an organization called Community to Community Development here in Bellingham, Washington. Their executive director, Rosalinda Guillen, was mentoring me around broader issues on farmworker organizing, the food system, and a more in-depth understanding of the political nature of farmworkers and why we are where we are right now. In 2013, there was a strike here in Burlington. We were called to support the strike of the 500 workers, mostly indigenous Mexicans, Triqui, and Mixteco people. Little by little, I got more and more involved as the organizing developed.
Eventually, there was a boycott called, and my job was to help and support the boycott and amplify it. We finally won recognition and got a vote and we won the vote and then negotiated a union contract. Then, in 2019 I was formally asked to join the union as the political director.
Edgar Frank
frank | How's it going?
Good, I think. There's never a day off, we are always learning, and communicating with our lawyers and counsel trying to figure out and solve problems, not only for the union but also for the farmworker community as a whole. I think we offer a unique perspective. We are a relatively young union.
That is helpful so that there's not a disconnect between the leadership and the base of members. Everything we do is informed by what's going on with the base, because, I mean, if someone in leadership makes a bad decision, it affects them also.
It’s difficult to talk about migration in the US without addressing labor. Where do you see yourself now in the context of the other moments of labor and immigration policy in the U.S.?
Yeah, I mean, we always try to tie those two things together. Farm work is very tied to migration and immigration. We have had a big expansion of the H2A program here in Washington state — many of our workers are H2A workers.
Can you detail what the H2A visa program is?
Yes. It's a federal visa program. Basically, farmers, or growers, can apply for this visa and say there are not enough U.S. workers to fulfill some area of work. With those visas, they can bring in some amount of workers over.
For one, families migrate back and forth for many, many years, working at some of the same farms over and over. They go for one year, there's work, then they head back home and then migrate back the next season. If suddenly a grower tells them that there is no more work, that H2A worker and their family is displaced and it's harder for them to find work.
H2A workers also get paid more, so there are workers that have been here for like 20 years and are still making minimum wage while H2A workers make close to $17.
What is the minimum wage in Washington?
Here the minimum wage is $13.69. That causes a rift in the farmworker community.
Additionally. H2A workers are tied to one employer. If they don't like their work, they can't just go out to another farm.
If the employer decides that the worker is not fast enough or something like that, they can be fired for any reason and deported within a day. We see over and over how farmers use visa status as a disciplinary measure.
And here in Washington, over the last 10 years, the visa program has expanded like 300%. We are almost at 30,000 visas this year. We see it as very hurtful and problematic, especially if we're trying to build power in farmworker communities and organizing and unionizing. It's a good thing that our union was formed, but we are one of the only unions that has been recognized and formed in the last 30 years.
Injustices have existed in agriculture for generations. I think people have this mindset that everything is good because the UFW and Cesar Chavez fixed everything, but a lot of their gains have actually been rolled back and are continuing to be rolled back right now. So, what do we do now?
Edgar Frank
Union participation now is much lower than it was then too. Do you see that changing at all?
I think workers want to be in unions more. I think getting started is one of the big issues. We hear about the unions, but people don't know how to start the whole process. In my experience, people want to be part of what we do, but it is difficult to sustain a big campaign to unionize, especially if you're working under the current labor laws for farmworkers.
Boycotting and striking and things like that is difficult because a lot of people get paid under the table. If they're not working, then they will not make a day's wage and they can get arbitrarily fired. There's no mechanism to protect you.
Can you talk about how legal status affects the labor movement?
Migration status should be one of the priorities of the labor movement because of the changing face of labor overall in the United States. Many of the industries that are not unionized are places where there's a heavy immigrant presence — hotels, the service industry, and agriculture. These are industries with a lot of power, but some of the workers are some of the poorest.
Sometimes labor does not want to organize these groups because they don't understand the community. A lot of unions are predominantly white and they don't know how to even begin to organize those other industries that are heavily represented by immigrants. We think that if there's a strong labor movement they need to really focus and put resources and staffing into immigrant industries as well. It needs to be a sustained fight. We have seen that employers will do anything to stop this organizing. A few years ago, 200 workers in Mississippi were rounded up and detained.
That could have been a perfect opportunity for work for a union to go in and put their foot down and say we'll fight to get these workers out of detention and fight for a collective bargaining agreement.
Sometimes there is anti-immigrant sentiment coming from some labor, you know, “they are taking our jobs and blah, blah, blah.” That's unfortunate, but I think that is where unions like ours can educate people.
It’s also a problem, not every politician wants to solve, because we're addicted to cheap labor. We're so reliant on cheap labor.
Right. I think we have to do a better job of building a strong enough base to really demand these things. Historically, nothing has changed without having a strong movement pushing for it. If politicians or legislators don't see a strong movement demanding things from them, then they'll just ignore the issues.
And we are still living history. Chavez and the UFW did not fix everything. Joe Biden has a bust of Chavez in his office, but what does that really mean? If farmworkers are still dying of COVID and getting exposed to COVID at a higher rate than anybody else, and inhaling wildfire smoke and working in pesticides, making like $10,000 a year still, does that symbolism do anything? I am skeptical.
There's a big disconnect, again, between who our leaders are at a national level and what the base wants. A lot of organizations are nonprofits and don't come from an organizing background, or don't have that firsthand experience of working in the fields but have access to legislators and money, and political parties. We have seen how the political environment has been really watered down.
If we really want to change things, then we need to take a step back and reevaluate where the farmworker movement is right now. At least here in Washington, we're seeing some sort of movement developing, however, we need more support to get to the level where we want to see it.
How many farmworkers are in your area right now? And how many of them are part of a union?
Well, our union represents around 500 workers. Our county is a big agricultural county. There's gotta be at least over 10,000 workers here, easy. Our union is relatively small, but I think the message and what we're talking about resonates with a big majority of the farmworker community around the state. We see that when we go to work and people invite us into their homes for meetings.
Edgar Frank
Are your current members able to influence others to join?
I think this does play a big part. They are able to talk about the union contract. A lot of people will say that I've been fired for XYZ, and our members can say that we have a union so that rarely happens. Or if the company does act out of line, there's a grievance and arbitration process. We can address that issue on the spot.
We spend a lot of time just explaining people's basic rights about representation and what they can do at their workplace to protect themselves. I mean, it's a slow process, but it's also the most effective. We are willing to spend that time with workers so that they'll be sympathetic to the union and maybe organize when the conditions are right.
What is your union's stance on the Farm Workforce Modernization Act?
We are opposing the Farm Workforce Modernization Act. We think everything that growers have wanted in the past is in this bill, which will make it feel like a permanent second-class status for farmworkers. This modernization act is not what workers want. You talked about E-Verify — E-Verify will be mandatory under this bill. If you ask any worker about E-Verify, they are going to say that they don’t want it, especially if it is mandatory.
What are the concerns with E-Verify? That the information is incorrect?
Well, that's one of them. But we have seen it used to send a chill down the spine of farmworkers who are trying to organize.
It is no secret how much agriculture depends on undocumented labor. So, if there are workers that are trying to organize or who the company thinks are troublesome, the farm will start threatening the use of E-Verify to check their documents and their legal status. So the idea is, they hire you without this verification process, and then as soon as you do anything that they might not like they wheel out the verification process.
Is there anything in place to help workers find a path to legal status?
Not in a way that makes sense. It is very cumbersome, you have to prove that you worked over a hundred days in agriculture. If you're injured, you are disqualified from the program.
Are most people working more than a hundred days?
Yeah. But to prove it is complicated. A lot of people get paid under the table.
So there's no documentation.
Right and, on top of that, being a farmer is a dangerous job, so if people get injured and can't work a hundred days, those people get disqualified.
Do you think there’s a program like that would make sense?
In 1986, there was an amnesty bill that passed under the Reagan administration — you know, a big conservative icon.
The narrative around immigration has really shifted since then. It used to be about how the U.S. needs these workers to help our economy, and all of a sudden the narrative has shifted to how immigrants are criminals and should deport them.
Especially with what we have dealt with during COVID, we deserve amnesty. That is what we want. Not a 10-year wait process, a permit, an expanded two-way, a wages freeze, or mandatory e-verify. Reading this Act, it is just like this is not ideal. And people will say that this is the best we can do right now based on who we have in leadership. Well, maybe that is because we are not fighting hard enough. It is really frustrating that we're willing to just cave in.