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
Making Migration Criminal
by Jennifer Chacon
August 24, 2021
This interview with Jennifer Chacon, professor at Berkeley Law, was conducted and condensed by franknews.
Jennifer | My focus is on migration, really law at the intersection of constitutional law, administrative law, criminal law, criminal procedure, and immigration law. A lot of my work has focused on issues of immigration and criminal law enforcement and the way they intersect.
I decided on this field of study in law school. In the summer before my second year of law school, I went to Guatemala and was doing work around criminal procedure in Guatemala. I really started to think about how criminal law is this site for repression, and often racialized repression. I came back to the US for my second year of law school and was studying and working in the immigration clinic when president Clinton signed really harsh and repressive immigration and criminal laws — The 1994 Crime Bill, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and the Antiterrorism and Effective Death Penalty Acts of 1996. I watched how those directly intersected in the lives of clients in the Yale immigration clinic, and that is really when I was like, “Oh, this is what I'm interested in.” That became the focus of my work. And from the time I was a law student, up until now, that's been the path I've followed.
So much happened policy-wise in the 90s. Can you talk about what the policies were and how they shaped the way the U.S. thinks about criminalizing immigration?
We saw a series of immigration laws that increasingly criminalized migration prior to the nineties. Probably the most notable is the 1986 Immigration Reform and Control Act, which was the great compromise signed by President Reagan. The idea was that U.S. law would provide a path to citizenship for a pretty large number of people who were present in the country without authorization (ultimately about 3 million), but, at the same time, would try to proactively address the problem of unauthorized migration. The primary tool for this was the criminalization of the hiring of unauthorized workers.
Theoretically, that criminal sanction applies to employers, but in reality, employers are seldom penalized for hiring unauthorized workers. What actually happens is that workers’ lack of work authorization becomes a point of vulnerability that employers now can leverage. Employers continued to recruit from Mexico for workers throughout the 1990s and to use contractors and other means to finesse their own legal paperwork requirements. So you continue to have people who are coming to the United States because jobs were available and they're being recruited for these jobs. But employers can also use the threat of immigration enforcement against these workers to exploit them. And since the government largely declined to enforce the law against employers, it was as if the workers’ work had been criminalized.
In the 1980s and 1990s, this really amplified the rhetoric that links migration to crime, and this is where the 1996 laws come from.
Interestingly, the 1996 laws are in response to the terrorist attack on the Oklahoma City Federal building, which was attacked by white nationalists. Congress's response was to decrease procedural protections for people on death row, to make it increasingly difficult to challenge criminal convictions, and to simultaneously crackdown on immigration and increase the range of conduct that would subject individuals to removal. There was no fit between these “solutions” and the problems that gave rise to the Oklahoma City bombing, but that didn’t matter to Congress.
The remaining portion of the Alfred P. Murrah Federal Building in downtown Oklahoma City falls in a cloud of dust as it was demolished by explosives more than a month after a deadly car-bomb attack April 19, 1995. A memorial to the bombing’s victims now sits on the former site of the federal building, and a nearby building that was damaged in the bombing houses an interactive museum.
Under the 1996 immigration laws, whether a person was undocumented, a lawful permanent resident, or here on a non-immigrant visa, if that person engaged (or had already engaged) in a broad range of criminalized conduct, that conduct made them removable. Among other things, that law did that by expanding a category of crimes called “aggravated felonies.” Aggravated felonies sound bad when you hear it, but in fact, the aggravated felonies definition spans pages of the Immigration and Nationality Act. It encompasses a broad range of conduct, including a lot of conduct that's not aggravated and a lot of conduct that's not a felony. And the law was retroactive, applying deportation consequences to past conduct and convictions.
The consequence for an aggravated felony is mandatory removal, which means it doesn't matter how long you've been here, if you have family members here, if you served in the U.S. military, or if you have a job here. None of those factors matter at all once the government establishes a conviction for an aggravated felony. You are subject to mandatory removal and mandatory detention through your immigration proceedings. That helps to account for this huge increase in the detention system in that period. Additionally, you lose the ability to return to the United States, ever.
NBC 5/KXAS Television News Collection (AR0776), University of North Texas Special Collections
This expansion in “aggravated felonies” is just one piece of a really aggressive expansion of the range of conduct that will subject people to very severe immigration consequences. And remember that this is in response to a white nationalist attack that had nothing to do with immigration. We see repeated themes of scapegoating immigrants here. We see that with COVID. We look for scapegoats and look to punish people who actually are not responsible for the ills of the moment.
How did migration and criminalization get tied together so easily? What were the feelings of the public and how did they get weaponized in this era?
I'll start with a longer story, which is that there's a long history in the United States of treating people coming to the United States as lawbreakers, or as racialized others who are likely or have the propensity to commit crime. We see this in the late 19th century, even before the Chinese Exclusion Act.
US Archives. Chinese Exclusion Act case file for Jay Poy.
The Page Act of 1875 criminalized the immigration of Chinese women and, in many ways, treated immigrating Chinese women as immediately suspect for the crime of prostitution. These exclusions were broadened with the Chinese Exclusion Act. And in upholding the Chinese Exclusion Act, the Supreme Court gave legal legitimacy to the idea that some group of people could not assimilate to U.S. ways. The Supreme Court’s analysis in evaluating those laws reifies racial categories. The courts and Congress say, “These people are inherently not like us.”
You can also see, very early on in our history, the way that racialized fear becomes embedded in the criminal law; we target a problem that we associate with some group, and then we target that group for prosecution.
Alina Das has written about this. We see the evolution of laws that target opium and opium use. It's very clearly aimed at a particular segment of the population. It's not all drug use and not all kinds of drug use, but particular people using particular kinds of drugs — very specifically focusing on Chinese immigrants.
We see this again in the early 20th century with other drug crimes, and notably with the crime of unauthorized migration. In the 1920s, Congress wanted to control immigration from a number of places. They put quotes on who could migrate from Europe, favoring Northern Europe over Southern Europe. They didn't put a quota on Mexican or Western hemispheric migration, in part because of labor needs. But in order to control that flow of workers, they criminalized unauthorized entry. Kelly Lytle Hernandez has written about the fact that you see the first federal prison in the west, built in El Paso to accommodate these flows of Mexican workers who are being prosecuted for unauthorized migration. The federal prison system is really amplified in order to make room for people who are newly criminalized by this crime of migration.
If you look at the legislative record, it's very clear that the legislatures who are drafting and supporting, and passing this law are racist. When the law was reauthorized in the 1950s, you see the persistence of this racism. This too reinforces the association between Mexican migration and crime. Because now we have criminalized the act of migrating to work, and the only people who are going to be criminalized for this crime are this group. It reinforces that specious linkage between Mexican migration and crime.
And looking again at the 1986 immigration law signed by President Reagan, as we discussed the employment of unauthorized workers is criminalized, but it is the workers themselves who become the focal point of this notion of criminality. Leo Chavez has written about this hysterical media coverage about Mexican migrants crossing the Southern border. There is this sense that there's an uncontrolled wave of migration that is inherently criminal. That is the rising rhetoric of the 1980s.
And the 1986 law failed to dry up the jobs magnet. In fact, large numbers of people are still migrating from Mexico, in part because of the devastation of the Mexican economy due to NAFTA. That's driving more people to look for work. All of this is happening at once.
US Archives. Photograph of President William J. Clinton and Vice President Albert Gore Watching the Results of the North American Free Trade Agreement (NAFTA) Vote in the Private Residence at the White House.
So the flow has already been criminalized, practically as well as rhetorically and in the popular imagination. And then you have an increase in people who are trying to come and the responses are racialized panic, right. And, unsurprisingly, the tool is criminal law, linked with immigration law. What else was happening in the 1990s? The Crime Bill. The rhetoric around super predators. We are primed to think hysterically about crime and to think about crime in a heavily racialized way.
If we think about the mid-1960s as a period of the Civil Rights Act and the Immigration Nationality Act of 1965 as a high watermark of efforts to achieve equality, the mid-1990s as the opposite of that. There was an effort to use tools of crime and immigration control to do very racialized work. The 1994 Crime Bill, the Antiterrorism and Effective Death Penalty Act of 1996, and the Illegal Immigration Reform and Immigrant Responsibility Act. All of these laws did similar work.
It's so circular. From NAFTA to migration to search for work to the criminalization of undocumented labor – at some point, there fails to be any logic.
And we could throw the Central American component in there too, where we see U.S. interventions that drive instability. Rather than say, “Oh, people are coming to the U.S. we've been strongly involved in creating instability in these countries”, the response, instead, is always one of complete surprise.
You can even see that in the past few days with Afghanistan.
Absolutely.
We've spoken to a couple of different people, both academics and people unionizing immigrant farmworkers, who have spoken to this idea that there isn’t political will around figuring out how to enforce immigration law, particularly in the labor sector, because people are so addicted to this cheap food system. Is that the case? And if so, is this the area that our immigration reform should hinge upon?
You've already put your finger on the heart of the political problem, which is that this system works for a lot of people. It works well for the largest growers. It works well for meatpacking industry execs. It works well for consumers, who get cheaper meat and produce as a consequence of this labor force. The people it doesn’t work for are the workers who are systematically kept out of the political system — the undocumented workers and low-wage workers in situations of precarity.
For the most part, people with political power don't bear the brunt of the harm and feel no urgency. At various points in time, there is some momentum that seems to be driven by concerns about an industry that might not actually have access to a stable and reliable workforce. That is a potential lever. We have also seen attempts to link agricultural work reform with the DREAM Act.
But even that...I mean, at this point there's wild and widespread national support for a path for citizenship for childhood arrivals. DACA recipients are the low-hanging fruit of immigration reform. Yet, we have no movement. Given the politics of Washington, and the over-representation of conservative voting blocks, the fact that you have widespread popular support for an immigration form measure does not mean that you get any action.
We have seen this play out year after year. I marched in 2006. We were on the cusp of a major immigration breakthrough in September of 2001. You can see the way in which the momentum was lost for that. There has been talk almost every year since about getting something through, and even popular bills get stymied. The way forward might not be to focus on agricultural workers or childhood arrivals, but instead to try to bundle immigration with other things that people care about. Currently, some people are thinking about immigration as part of the budget reconciliation process, which is filibuster-proof.
It is disheartening, considering that widespread support, and considering the fact that Democrats have control over Congress.
Right. What's going on? But our Congress is structured in a way that is not actually representative of the population, and Senate rules amplify the skew.
What do you see affecting rhetoric and immigration reform momentum now?
I feel like in many ways the election of Donald Trump was a fulfillment of the vision that was given legislative form in the mid-1990s. We think about the mid-1990s as the time that Democrats had power, but, in many ways, it was a time that was much more continuous with Reagan than it was a break from Reagan.
US Archives.
When Donald Trump rode down the elevator and talked about Mexicans and crime, the public had already naturalized that linkage in their own mind. Of course, this rhetoric found fertile ground, given the way the law had been operating in the 20 years since 1996. By the time he rides the elevator, treating migration as crime and treating the border as a disordered area in need of a solution is the norm. That rhetoric came out of the Obama administration as well. The “unsecured border”, the notion of border cities as a chaotic, ungovernable space, when we know that our border cities are some of the safest cities in the country.
Trump really was speaking to an audience that was ready to hear that message, because that has always been the message that our laws have been creating. Nonwhite immigrants are vilified and blamed for everything. We see that right now with COVID. Greg Abbott and Ted Cruz and Sean Hannity are blaming the surge of COVID on migrants. There is zero evidence of that. But, again, this falls into fertile territory because this is the story we've always told about migration. It is the one that has been given operation through the way that our laws are structures.
The scapegoats once again. Do you have any recommendations for what to advocate for at a local or state level to offset whatever does or does not happen at a federal level?
I think we need to recognize the political situation that we're in. If we had passed something like the Dream Act that was proposed in 2009, all of those people would be citizens and voters now. That would have changed some political dynamics. So yes, any legislation should be widely inclusive, but on the other hand, given the politics of the moment, we need to think about a long-term strategy that moves us toward bringing more people into the political system over time.
We may need to start thinking about how we can do this one chunk at a time, while recognizing the dangers, and resisting the impulse to throw those excluded from the law’s protection under the bus. Regardless, I would encourage people to push their senators for whatever those senators might move on, even if it’s not perfect.
And then there's this non-elected official piece, which I think is super important. A lot of positive change has been spurred by small grassroots, local work — whether that is stopping individual removals through public campaigns or advocating for protection within local jurisdictions or working to increase access to education and healthcare and housing and safe workplaces for all residents.
Even while the federal piece is hard to move, there is space at the local level and sometimes at the state level. People have been making effective use of the space to create more inclusive communities. Those leavers remain open and we shouldn't forget about them. That was one mistake of many advocates during the Obama administration that shouldn’t be repeated. There was a tendency to shift perhaps too much focus to the federal government, once there was a Democrat in the White House. In fact, the state and the local remain vital and, in some ways, perhaps the only moveable piece.