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
Lies, Damned Lies, and Statistics
by Aaron Reichlin-Melnick
August 16, 2021
This interview with Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, was conducted and condensed by franknews.
Aaron | I work on issues of humanitarian protection, immigration court issues, the intersection of law and policy, and, by and large, keep an eye on border numbers and get a sense of what's happening there — what policies are in effect and how they are playing out across the border.
frank | An important thing to do. I'm interested in understanding how you analyze these numbers because they can get confusing to a layman's eye.
Yeah, I mean the Mark Twain quote, "There are three kinds of lies: lies, damned lies, and statistics," always comes to mind whenever we are talking about this.
So yes, figuring out how to interpret the data, how to understand it, and how to pull out a narrative from it that's connected to reality is all important, difficult work.
To start, a lot of what is consuming headlines is that there is a surge of people showing up and being apprehended at the border.
The headlines about the highest number of border encounters in 20 years as a result of a different group of people, single adults. So, despite this number being extremely high, actually, the total number is lower. Can you clarify what is happening, numerically, and what that means, more broadly?
Yes. Right now, there are really several different phenomena going on at the border all at the same time. A majority of the media attention has been focused on families, and unaccompanied children coming to the border. I would say that a lot of that focus is because, in many ways, these are the groups that seem the most sympathetic. Anything to do with children is of course deeply concerning. We want to make sure that children are being treated well, and families with children are being treated well. But, in fact, only one-third of those showing up at the border have been children and adults.
Two-thirds of those encountered at the border since last year have been single adults who are crossing the border repeatedly. In almost all of these cases, they are arrested by border patrol and expelled back to Mexico under a policy known as Title 42. Importantly, this trend — high numbers of single adults coming to the border, crossing unsuccessfully, being sent back to Mexico, and repeating the process over and over again — began last year in May of 2020, right after the pandemic hit.
Almost as soon as lockdowns lifted across Mexico and Central America, the number of single adults coming to the border began to spike. By September of last year, we were already seeing the highest number of single adults encountered at the border in 15 years. That number has only kept rising.
When you look at immigrant families or unaccompanied children, the numbers are much lower. The number of unaccompanied children is indeed unprecedented — there's a record number of unaccompanied children who arrived to the border in recent months. However, unaccompanied children remain only about 10% of the overall number of people coming to the border. These are not huge numbers of children. It peaked in March with 18,000 children. 18,000 children in comparison to the 180,000 people who came that month, gives you some sense of perspective.
Similarly, when we look at families, the number of families coming now has been consistently lower than the number of families that came in 2019. Up until last month, less than a third of the families had been let in to the United States than were let into the United States in 2019. Right now, those numbers are going up. July numbers of families are higher than they had been since the rest of the year, for reasons that are not entirely clear, but even then it is still a lower number of families that came in May 2019. So, it's not unprecedented. It is still a challenge in order to treat people in a humanitarian way, and there are still serious concerns about how people are being processed and treated, but for families, the numbers are not unprecedented.
However, for single adults, that is where we are seeing numbers that we have not seen in 15 to 20 years.
Why has that number of single adults crossing become so high?
In order to answer that, I need to go back and talk about Title 42. So, before the pandemic hit, if a single adult migrant who was crossing the border and seeking asylum was apprehended by the border patrol, they would be taken into custody and be given a so-called credible fear interview. They would be allowed to seek asylum if they pass that interview. If they did not pass the interview, they would be deported. Those who are not seeking asylum, people who are simply seeking a better life, would be apprehended, issued a rapid deportation order under something known as the expedited removal process, and then promptly deported back to their home countries. If they are from Mexico that could be done within 24 to 48 hours. If they were from Honduras and Guatemala or El Salvador, usually it would take several days. If they were from further countries, say from Haiti, they might be held in ICE for detention for weeks.
If those who were deported got caught crossing the border again, they would be subject to felony, illegal re-entry charges, and could potentially serve prison time for reentering.
However, just as COVID was sweeping across the nation, the Trump administration instituted something that has become known as Title 42, which is the public health code says that the head of the Center for Disease Control can “suspend the introduction” of individuals who are coming to the border from a place where there may be an infectious disease.
Importantly, Title 42 does not say that once somebody is in the country, you can deport them to their home country, but that is what the Trump administration took from that law. Now, this is a law that's over a century old, all historical evidence suggests that this law referred to stopping ships and planes and other forms of transit from landing in the United States. For example, a steamship coming from a location where there was a typhus outbreak, could potentially be forced to sit offshore and wait until it had been quarantined. That is what the public health goal was intended to do. But, Stephen Miller and Mike Pence and Chad Wolf, the DHS secretary, went to the head of the CDC and told them to sign an order suspending the introduction of undocumented immigrants at the Southern Border. Thanks to reporting from ProPublica, we know that the CDC scientists resisted it. They believe the measure to be xenophobic and unnecessary, but, at the end of the day, the director of the CDC at the time, Robert Redfield, signed off on this order on March 20th.
The Department of Homeland security is carrying out Title 42 through the border patrol. Under this policy, any migrant who's apprehended at the Southern border, rather than having an order of deportation issued against them, or being allowed to express a fear of return and have that credible fear interview, gets rapidly expelled.
The expulsion is quite literally forcible deportation. A border patrol officer will take somebody, say a Mexican national, who entered the United States between ports of entry, march them to the nearest port of entry to Mexico, and then shove them across the border and say, “Walk that direction.” If they are from a place where Border Patrol can’t do that, such as Haiti, they would put them on a plane and deport them; except you don't get an order of deportation, you just get expelled, which is not actually a thing. It was just something they invented last year.
The government of Mexico, a few days after Title 42 went in place, said that they would accept and allow the United States to send back not only Mexicans to Mexico, but also Hondurans, Guatemalans, and Salvadorians.
So why did this lead to more single adults coming? Well, there are a couple of reasons.
First, this pandemic itself set off push factors from Mexico and Central America. The economic devastation caused by the Coronavirus pandemic and lockdowns as well as a series of hurricanes that hit in the summer of 2020 and devastated large portions of Central America, set off a small refugee crisis.
The second point is this: whereas before, when you got caught crossing the borders and could potentially be subject to criminal prosecution if you tried again, now, due to Title 42, you were just sent back to Mexico, potentially within the hour, with no deportation order against you.
Many people were taking that opportunity to try again.
That increases the number of apprehensions in border encounters, which creates a situation where you see a headline that says “one million apprehensions at the border.” People may incorrectly think that means that one million migrants have crossed the border, but that's actually not the case. In fact “one million apprehensions” actually refers to only about 600,000 people because the rate of recidivism is about 40%. And, again, this is 600,000 people who are mostly being caught and sent back to their home countries, or to Mexico.
Now, it is true that the number of families that are being allowed into the U.S. has gone up. That is not because the Biden administration has explicitly said that they want more families to come in. It is because Mexico has said that they will not take back non-Mexican families with children under the age of seven. President Biden himself has even said that if he could expel all of these families, he would, but the administration cannot. Additionally, a judge ruled that it is illegal to expel children under Title 42, and the Biden administration officially changed the policy to reflect that.
I want to clarify something. When you say unprecedented, what do you mean? Unprecedented doesn’t necessarily mean crisis.
I think it's very important to note that the arrival of children and families seeking asylum is not itself a crisis. The U.S. has laws that allow people to come here in order to seek protection. Seeking asylum is legal. Since 2008 and the Trafficking Victims Protection Reauthorization Act, Congress has explicitly allowed unaccompanied children who are encountered in the United States to be given heightened protections, including a right to go in front of the immigration judge to see whether they should be deported or given protection in the United States. The arrival of undocumented immigrants who are seeking our help is not a crisis in and of itself. Fundamentally, this is something that is legal and allowed and built into the system.
The extent to which this causes issues is because of resource constraints. The United States has not invested in the resource capacity to process the number of people that are coming in, in a safe, humane, and effective manner. Immigration court backlogs are at 1.3 million. The asylum office has a backlog of hundreds of thousands as well. And as a result, people’s cases can take years to resolve. And at the same time, there are humanitarian concerns when children arrive because we want to make sure that children are treated safely and humanely. The issue is that you need to hold children first for a brief period of time to make sure that they are released to a safe sponsor, who can care for them and is not going to exploit those children.
The Biden administration struggled immensely in the first couple of months to make sure that there were enough physical beds for children to go to, to get them out of terrible conditions at the border.
Again, the arrival of children and families is not the crisis. The United States has absorbed waves of refugees in the past, and we have done perfectly fine. In fact, those refugees have often enriched their communities and helped rebuild struggling towns. The concern comes down to what happens to them, how they're treated, and how well the government responds to it.
This is something the Biden administration is currently struggling with, it is something that the Obama administration struggled with, and it's something that the Trump administration actively tried to stop.
The Biden administration views the crisis as our response to these families and children and whether or not we have systems in place that can properly process them in a safe manner, especially during a time of COVID. It is a subtle distinction, but I think a really important one.
The differentiation between the Biden administration from the Trump administration makes sense. Is there a clear difference between the Biden administration and the Obama administration on immigration?
The Biden administration has kept President Trump's Title 42 policy in place. Since Biden took office, tens of thousands of families and hundreds of thousands of others have been expelled back to Mexico or to their own countries.
The Biden administration has been clear that they will resume deporting families who arrive at the border. That said, every time that they ratchet up the deterrent policies at the border, it comes with statements that effectively say, “We don't want to do this, but we think it's necessary, and we are working to rebuild the system.” Now, rebuilding the asylum system is going to take a while, so the Biden administration is effectively saying, just give us a year or two to fix this. Of course, people who are desperate can't wait a year or two. For those individuals, the Biden administration is letting them down just as much as the Obama administration did, and just as much as the Trump administration.
There are some clear differences. The Biden administration is working on major changes to the asylum system in the form of new regulations that could reshape this system, but at the same time the Biden administration has kept up a lot of the cruel policies of his predecessors, both Obama and Trump. So there is some development, but it is not the level of progress we would have hoped to see seven months after Biden took office.
Has the administration clarified why they are maintaining Title 42?
The Biden administration has repeatedly said that they believe Title 42 is justified because of public health concerns. I would note that not a single CDC scientist has ever appeared on the record and defended Title 42. They have issued press releases, regulations, and official government documents saying that title 42 is necessary, but they have not once come out and publicly defended it.
Now, of course there are concerns about COVID at the border. The issue is one of scale, however. Right now, in south Texas, nearly every migrant is getting a COVID test in the shelters.
Now 8.3% might seem like a lot, but that's just of the migrants being released, which works out to about 150 to 200 positive cases a day across the entire border. That's nothing. Texas alone had 12,000 positive cases over the weekend. Florida is seeing 33,000 cases a day. Are 200 migrants testing positive a deep threat to the United States’ COVID spread? Of course not. It is a drop in the bucket compared to the COVID spread that is made worse by anti maskers and vaccine deniers and local governments that have refused to take proactive steps to reduce spread.