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
The Canary in the Coal Mine
by Jennifer Podkul
August 23, 2021
This interview with Jennifer Podkul, Vice President for Policy and Advocacy at Kids in Need of Defense (KIND), was conducted and condensed by franknews,
Jennifer | In my role, I work on adjusting policies and advocating for policies to better protect children on the move. That includes children at every stage of their journey. What are the reasons they feel like they have to leave their home in the first place? What happens to them en route? And how can countries provide better reception for children and adjudicate their claims for protection in a fair way, and make sure that we'll never send any child back to danger? We are always considering the best interests of the child.
frank | In those first stages of movement, what do you advocate for? In terms of route to the US, and the root issues in home countries?
The ultimate goal is we want children to be able to stay in their homes. We want them to be safe. We never want children to feel like they have to flee or travel on their own in the first place. So how can countries like the United States assist and address root causes? We advocate for how U.S. foreign policy and foreign aid can be better fitted to make sure that we're addressing that. We are really focused on gender issues, supporting civil society, and strengthening child protection systems in those countries so that a child doesn’t feel like they have to leave because of violence in the home and that there is no one to protect them. That's the ultimate goal.
If a child feels like they need to leave, we believe it's their human right to be able to migrate and go to a place where they may have a support system. Once they are on route, how do we make sure they are safe? We are talking about, sometimes very, very young children traveling on their own — other times they will travel in groups of other children or with people from their community. So, what is it that governments of transit, for example, Mexico, do to make sure these children are safe? What can Mexico do to make sure the children passing through are safe, can ask for protection at the border, and will not be subject to detention? We really want to think holistically, rather than just thinking about the destination country. We want countries to have systems in place so that they can talk to a child and figure out who is in their country of origin, who is in the destination country, and which would be the best and safest place for this child?
And then we look at the receiving country, we look at what we are doing to ensure that children have the ability to ask for protection – and then make sure that that system is safe. A lot of what we do is ensure children have an attorney to help them through the court process.
So there's no guarantee for an attorney for an underage child?
No.
In the United States, any immigrant is welcome to bring a lawyer with them to court, but the government does not give immigrants lawyers.
Which is so crazy. Now there's some funding from the government that helps support organizations like KIND, but that only covers some of the funding groups like KIND need, and as a result, we are not able to represent every child in need of an attorney. Right now, over half of the kids in deportation proceedings still don't have representation.
How do you get connected with the kids?
When children are first encountered at the border, they're held in government custody until they can be reunified with a sponsor. We work in some of those shelters, and often that is how we get connected to a child.
Sometimes we are on a list that the adult relatives and sponsors of the child get, which basically tells the sponsor that these are the groups that will help you get a lawyer. But again, we can do that for some cases, but not all. We might not have the capacity, so it's not a guarantee. Some families can afford a private attorney, a very small number, but the burden is on the kid and the sponsor to figure it out.
What guarantees are there for children at the border? I know the Flores settlement is the main protection, but that pertains only to conditions at the shelters correct?
The legal framework is mostly found in a 2008 trafficking law. The law creates a framework on how kids' cases would proceed. The idea is that a child has a right to ask for protection and they have a right to have the opportunity to talk to a judge. Whereas adults can be subject to expedited removal, where if they don't make the right claim for asylum, a border agent could just turn the adult around and send them back, unaccompanied children should immediately be referred to the shelter system and given an opportunity to talk to a judge before they're ordered deported. This allows a trained official to screen the kid and ensure that they are safe, that they're not being trafficked, and that they wouldn't be returned to persecution.
Once the child goes to one of the shelters run by the Department of Health and Human Services Office of Refugee Resettlement, the protections kick in. A social worker will screen them. An attorney will screen them.
So there are procedural protections for kids, but it is the same standard of proof that is required by adults. The protections for kids are focused on procedure, and other than that, they are really treated like little adults in our immigration system.
One more logistical question. When the children provide a list of relatives in the shelter for reunification, where do those names come from?
Oftentimes the kids will come with a name or a phone number. Or when the child is in the shelter, they will meet with a caseworker. The caseworker will ask if their mom is in the country of origin, and if so, they will try to get mom on the phone. The mom might say, “My sister lives in Virginia. Here's her phone number. She may be able to be willing to take care of the child.”
And the idea of connecting them with a known adult is that it gets them out of the shelters and into a home, which is good. But, it's also at the expense of the sponsors. The government is not paying for their care or anything like that. And it is a really long process to get through the court system, often up to several years so it is important they are in a safe, healthy environment during that time.
Migration on a large scale is always weaponized in politics, but kids specifically seem to be the center of campaigns. What actually changes between administrations?
Yeah. It's interesting because kids are more visible than other migrants. I think that goes to your point that they are often a lightning rod. You cannot just send a five-year-old who comes to the border and asks for protection to a bus station and say good luck and here is the date of your court hearing. They have to hold the kids until a safe adult can be found, and times when there are greater numbers, there are backups. It's very visible because the government has a duty to provide care and custody until they can unify them.
And often, if you look at the migration trends, especially starting in 2014, the first large numbers of kids are the canary in the coal mine. First vulnerable children come, and then the families follow. It has really been an indication of migration trends and problems in the country of origin.
A lot of people say to us, “Your job should be really easy. Everybody cares about kids. Doesn't everybody want to help?” Well, I agree. It should be really easy, but because the border and the immigration system have become so politicized, people aren't always as sympathetic.
Yeah. Or it gets kind of twisted. The Republican rhetoric is that safety measures for children encourage coyotes and human trafficking. How valid is that argument?
Well, I would say, talk to a kid about why they left.
They left because people were leaving body parts at their door. Not because they heard of some complex legal system that gives them the opportunity to go outside for an hour a day. If you are worried about the child with a smuggler, but you're not worried about the kid dying in their country of origin, that doesn't seem very authentic to me.
I think that sort of rhetoric stems from a refusal to take a look at the root causes of migration, which requires long-term investment and serious thinking about long-term issues.
What policy changes would you push for this administration to make?
The previous administration closed the border to everybody, including the children. So we saw thousands of kids waiting in Northern Mexico to be able to ask for protection. The Biden administration decided to allow children to seek protection, which is part of why we've seen large numbers at the border. There had been an artificial buildup over the past year. I think that was the harder choice. We have been struggling with the numbers, but I think it was absolutely the right thing to do, morally, and ethically.
What needs to happen now, though, is that there needs to be a more efficient and fair way of adjudicating these cases. Right now children are languishing in detention in these custody settings because they don't have enough case managers. The unifications need to be sped up so that the kids can get out of government custody and into homes. Additionally, they cannot make a kid wait four or five years for the decision on the case. That is not fair. These kids need resolution about where they are going to have to live. Making sure that we have dedicated judges and adjudicators for kids’ cases, who know how to interview kids, who know how to listen to a kid's story, and who can do it in an efficient way, is going to make the process better for everyone.
How do those changes happen, legislatively?
ORR already has a system in which they have funding to support counsel. However, you need an infusion of more funding for counsel, which currently could be done with the reconciliation process or through the regular appropriations process. ORR can always spend more money on attorneys than what they get. They only dedicate a tiny amount of their overall budget towards that. This will save the government money in the long run because the court cases will move along more efficiently.
In terms of creating these specialized dockets and adjudicators and having appropriate training for them, that could just be done by this Administration. That does not require an executive order. That's just the administrative management of the executive branches that deal with adjudications of kids' cases. That could be done tomorrow. They could just reorganize and move cases onto a separate docket. That is a relatively light lift that could have a lot of return, both for government efficiency as well as for migrants.
Why isn’t that happening?
I think the very high numbers of migrants have been very distracting for everybody. It's really just all hands on deck. How do we receive them? How do we make sure that you keep them in a safe place? How do we get them reunified? I think there is absolutely a conversation, especially on the part of advocacy groups, about how to make the courts more efficient for kids' cases. They have done some tinkering already, which is encouraging to see. But I think keeping the pressure on them about larger changes is really important.
Is there anything else that you feel is important to add when we're looking at policy or advocacy in this arena?
Obviously, children have unique concerns and vulnerabilities. I also think that these considerations should be the start of the conversations for other vulnerable populations as well. Right now, we're seeing terrible things happen to parents who are asking for asylum or to families who are asking for protection. How do we think about the commitments we're making to unaccompanied kids and how can that bring along and ensure protections for other equally vulnerable populations?