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
What Borders Do
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.
There’s a note in here that points to a decade-long decrease in immigration, during the post 9/11 Bush White House. That was a circumstantial response to both more militarization at the border and a lessened economic incentive. Is that period of time considered a positive time?
That's a great question. I'm sure there are many who did view it as a positive.
The reality is that migration into the United States across the Southern border has been going on for a century. There have been periods of high levels of migration and periods of low levels of migration that are often driven either by push factors in people's home countries or the availability of work in the United States. I think people have this sense that the border is still very porous, but in the last 20 years, there has been a series of tightening measures across the border to make it increasingly difficult for people to cross. And, in some ways, this has actually led to more undocumented immigrants in the United States.
In the 1980s through the early 2000s migration from Mexico was circular. People would come to the United States, work for a few years or a season, and then leave because they didn't intend to stay and be Americans. They thought of themselves as Mexicans who wanted to come here for a few years, make some money, then retire at home – until the border effectively shut. When the border became far harder to cross, people just stayed. They were already here and they realized that if they left, they would never be able to come back. The dream of settling in their home country really went away. So, we get a situation where the number of undocumented immigrants in the United States peaked in the mid-2000s at around 11 million and then stabilized or fell over the next decade. But right now, for the first time in a decade, partially due to the coronavirus pandemic, we are seeing large numbers of Mexicans coming to the border again.
How do you navigate the political responses to the border right now?
I think this goes back to my point earlier about whether or not you see migrant families and children as inherently the crisis. There are certainly a large number of people in this country who treat the arrival of migrant families and children as a crisis to the very fabric of this country, and there are people that stoke xenophobia. You see people like Tucker Carlson push “the Great Replacement” theory — the idea that liberals want to replace white Americans with people of color and immigrants.
There are some people who believe that we must have perfect control over the border and that if we don’t have borders we are not a nation. You must have perfect control over the borders. Those are ridiculously silly comments to make because the United States has never had a border that was perfectly secure in United States history.
For the first century of the country, our borders were largely open. The first federal immigration laws were not until the 1880s, and it wasn't until 1924 that you needed a visa to come to the United States.
So your question was, how do I navigate that factually?
Well, I just continue to believe the facts matter. I work for an organization that aligns with my personal beliefs that immigrants are a good thing, that we should treat people well, that migrants are not inherently a threat. I will be very open about my beliefs about that. I don't view migrants inherently as a problem, but for those who do inherently view migrants as the problem, the facts largely are irrelevant. It's about stoking fear and division because in their view, even if Jesus himself showed up at the border without a visa, they'd turn him away. Never mind that seeking asylum is legal, these people view that as a loophole.
I interviewed a sociologist on migration who noted to me that in their research the one place they saw movement on opinion was when you asked about immigration through the lens of American values. People like to project what they think of themselves onto those values.
That's right. You've seen polling on this question really shift in favor of immigration in recent years. Even at the height of the arrival of families two years ago, half of the American citizens said that we should accept Central American refugees.
The amount of people who want to decrease the level of immigration is hovering at about a third of the country would like to decrease immigration. Twenty years ago, post 9/11, over 50% of the country wanted to reduce the level of immigration.
Even to the extent that President Trump galvanized anti-immigrant sentiment, the pro-immigrant voices came out more strongly in favor of immigrants. That is not going away. We are seeing continued support for immigration even under the Biden administration. Even though the GOP has made being anti-immigrant so much an integral part of its base, there are still many who believe in the Reaganite view of immigration and in America as a beacon of freedom.
Can you definitively say that deterrence does not work?
I can definitively say that deterrence doesn't work as a long-term strategy. I think there is some evidence that deterrence can work in the short term. You can temporarily halt some individual's desires to migrate through deterrence, but deterrence can't entirely stop anything. Sometimes, it actually just causes there to be a built-up demand where we suddenly see influxes and extraordinary migration events, as opposed to a steady flow.
So we see these cycles over and over again. With a crackdown on immigration, the deterrents get lifted for whatever reason, and the pendulum of migration swings in the other direction. We have had this since 2013.
It arguably set off an even greater number of people to come to the border than before. In 2019, the Trump administration tried other deterrent policies; whether those would have worked in the long-term, we are never going to know because the pandemic hit, and literally, all of those policies were swept aside in favor of Title 42, which has been an abject failure. Hundreds of thousands of people have been expelled back to Mexico and many others have suffered as a result of the policy, and yet, we still have high numbers of migrants.
Those who support former president Trump's deterrent policies, like the “Remain in Mexico” policy, like to point to about a five-month period of low numbers in late 2019 and early 2020 — over the winter — as proof that President Trump solved the border. But that was a five-month period, and once Title 42 was put into place, we immediately saw numbers start rising again.
The idea that you can deter your way out of this is false. We have tried that for decades and it has never worked.
And in many cases, the end result of deterrence is death. In the 1990s, the Commissioner of the Immigration and Naturalization Service, Doris Meissner, under the Clinton administration, came up with a strategy known as “Prevention through Deterrence”, which was effectively about pushing people into dangerous locations. They literally built walls in the safe places to cross on the border. The idea was if they made the border more dangerous to cross, fewer people would cross. But, the end result was at least 8,000 people died crossing the border in the last 22 years. The true death toll is likely much higher, that is just the official death toll because many bodies will never be found. That policy was a failure. People still kept coming because, for many people, the risk is worth it.
You wrote that the government should view the arrival of high numbers of asylum seekers as a humanitarian protection management challenge, not a security challenge. Is there ever a time when the opposite would be true? When would that not be the case?
Over the last 40 to 50 years, the United States has grappled with the issue of undocumented immigrants. It is important to note that undocumented immigration didn't really become politically salient until the 60s and 70s with the end of the Bracero Program, Operation Wetback, and the backlash against the growing Mexican population in the United States. This racist fear of people coming into the country was whipped up.
However, studies have consistently shown that undocumented immigrants commit crimes at lower rates than native-born citizens. The evidence really shows that there are not really any major security challenges to migration. There are management challenges, there are logistical challenges, and there are policy challenges, of course. But, when we talk about security challenges, that would imply in many ways that there are higher than average numbers of people coming to the border with the intent of causing security issues. There's just no evidence of that.
A far cry from, “Mr. Gorbachev tear down this wall.”
The walls didn't work. The Berlin Wall did not work. It caused an enormous amount of harm to those countries. And at the end of the day, it didn't end up solving anything and people still were able to cross it. It ended up causing significantly more harm than good to the people of East Germany and West Germany because of what a symbol it was. Should we ever complete all 2000 plus miles of all across the US border, I think that would be a similar symbol of failure in many ways. It would represent both a failure to have a system put in place to process people safely and a failure to build up capacity in other countries so that people didn't feel the need to make that desperate journey.
Does it frustrate you that the debate around immigration is so circular?
I will say I am optimistic. I think the last four years have shown us that there is enduring support for immigrants in this country, despite the overblown rhetoric and the so full-throated, white replacement theory rhetoric coming out of Fox News.
The support for immigrants among Americans has just grown over the last few years. I am optimistic that going forward we will be able to move to a more humane and safe and efficient way to process people at the border, and that we can fix the broken immigration system that has been letting so many people down for so long.
The birth rate in this country is falling. The American economy is increasingly dependent on immigrant workers. I think that is something that we have come to embrace. After a few years, I've seen a fundamental shift that this country is more welcoming.
I think the younger generation in particular is very pro-immigrant and very welcoming. That is really important because a lot of anti-immigrant sentiment is not policy-based its feelings. It is based on the sense that those who are different from you are going to take away what's yours. I think that the younger generation doesn't have as much of that reflexive fear as older generations. I don't want to fall on any sort of stereotypes here, but it does seem that Gen Z is a more inclusive generation, especially in terms of differences in sexuality, race, and identity.
And I think that goes along with this general sense that America is becoming a more accepting nation. We've often said we are a nation of immigrants, but we are also a nation that has cracked down hard on immigrants, instituted forced assimilation policies that explicitly discriminated on the basis of race, and done other things that belied our sense of a nuisance. When the phrase, “the melting pot,” was first invented, it referred to white immigrants. In the period of low immigration from 1924 to 1965, how this sense of America as a nation of immigrants, really meant American is a nation of white immigrants — Italians, Irish, and Jewish people. After 1965, and after The Immigration and Nationality Act of 1965, which white nationalists hate because it essentially led to the browning of America by increasing immigration from non-white nations, we are seeing more people accept that America is a nation of non-immigrants as well — of Mexicans, Chinese, Koreans, Taiwanese, Sudanese. I think we are seeing an important shift to where we are accepting not only immigrants who are white, not just immigrants who are European, but immigrants of all races, creeds, and nationalities. I think that's why I'm positive about the future, it really does seem as if the country is shifting on this. Unfortunately, we are going through a very bumpy patch in the middle where the white nationalists are rich and powerful and, in some places, in charge. Whether or not we can weather that storm is something that concerns me, of course. No progress is guaranteed. There is always backsliding, but I am optimistic about the future.