EPA accepts civil rights complaint by Tribes, environmental justice groups against State Water Board

The Run4Salmon prayer journey by the Winnemem Wintu Tribe, one of the complainants in the civil rights complaint against the State Water Res...

The Run4Salmon prayer journey by the Winnemem Wintu Tribe, one of the complainants in the civil rights complaint against the State Water Resources Control Board, concluded on Aug. 5 with this closing ceremony at Muir Beach. Photo by Dan Bacher. | 




By Dan Bacher | 

Washington, D.C. — On August 8, the U.S. Environmental Protection Agency (EPA) issued a decision accepting for investigation a historic civil rights complaint against the State Water Resources Control Board filed by a coalition of Tribes and environmental justice organizations.

The administrative complaint, filed against the Water Board on December 16, 2022, alleges discriminatory mismanagement of water quality in the San Francisco Bay/Sacramento-San Joaquin Delta watershed.

“The complaint alleges that the Board discriminated on the basis of race, color and national origin, in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(d) et seq., and EPA’s nondiscrimination regulation, at 40 C.F.R. Part 7,” wrote Anhthu Hoang, Acting Director, Office of External Civil Rights Compliance.

“Specifically, the complaint alleges that the Board’s failure to update Bay-Delta water quality standards discriminates against members of Native Tribes and Black, Asian and Latino persons residing in and around the San Francisco Bay/Sacramento-San Joaquin Delta watershed, particularly the South Stockton community. Furthermore, the complaint alleges that the Board has intentionally excluded local Native Tribes and Black, Asian and Latino residents from participation in the policymaking process associated with the Bay-Delta Plan,” Hoang wrote.

The Shingle Springs Band of Miwok Indians, Winnemem Wintu Tribe, Little Manila Rising, Restore the Delta, and Save California Salmon, represented by the Stanford Environmental Law Clinic, filed the complaint.  

The complaint was accepted at a critical time for anglers, Tribes and environmental justice communities in the San Francisco Bay-Delta watershed. Recreational and commercial salmon fishing is closed on the ocean in California and most of Oregon this year, due to the collapse of fall-run Chinook salmon on the Sacramento and Klamath River watersheds, spurred by poor water and fishery management by the state and federal governments. Recreational salmon fishing is closed in the Sacramento and Klamath River watersheds and tribal fishing for salmon is severely restricted on the Sacramento and Klamath rivers.  

The entire Bay Delta ecosystem is in an unprecedented state of crisis. The Delta smelt, once the most abundant fish species in the Delta, has become virtually extinct in the wild, while winter-run and spring-run Chinook salmon populations have declined dramatically. Thousands of fish, including hundreds of white sturgeon, perished in a red tide algae bloom in San Francisco Bay last year, while another algae bloom is underway at this time with dead fish already being observed. 

“In particular, the complaint alleges that the out-of-date water quality standards – last updated in the mid-1990s — have allowed a proliferation of harmful algal blooms, collapse of native fish species, and loss of native riparian vegetation,” according to a press statement from the Tribes and groups. 

“All of this results in particularly severe impacts for Bay-Delta tribes by impairing their practice of culture, ceremony, religion, and subsistence, which are intimately tied to the waterways. And for communities of color, especially in and around the South Stockton area, who are exposed to the annual toxic algal blooms and alienated from the stagnant and unhealthy waterways flowing near their communities,” they stated.

Stephanie Safdi, a supervising attorney and lecturer with the Stanford Environmental Law Clinic, praised the decision.

“Tribes and communities of color have been systematically excluded from water rights by state-sponsored genocide, broken treaty promises, and discriminatory laws and policies,” she argued. “Although the State Water Board has acknowledged this history and promised repair, it is instead carrying this discrimination into the present by granting favored access to water rights holders in policymaking processes and letting outdated water quality standards languish. We applaud the EPA for opening this investigation and look forward to reforms that create real equity in both decision-making processes and outcomes.”

Representatives of the Tribes and environmental justice groups also responded to the acceptance of the complaint by the EPA.

“Environmental Racism is not a thing of the past in California, and it deeply impacts all aspects of life for California's Native American communities,” said Kasil Willie (Paiute/Pomo/Wailaki/Wintu), Staff Attorney for Save California Salmon. “This decision is a major step towards repairing the years of harm to Tribes, communities of color, and environmental justice communities caused by the State Water Board's neglect of its responsibilities to protect our water.”

‘We are cognizant of how rare it is for the EPA to find it has jurisdiction and accept discrimination cases and we are grateful the agency has done so here. We hope that the investigation into the matter will resolve some of the inequities caused by California's water policies and management in the Bay Delta and throughout California,” she stated.

“It’s pretty bad when California Indians have to file a complaint with the Federal Government so that the State doesn’t violate our civil rights,” said Gary Mulcahy, Government Liaison, Winnemem Wintu Tribe.

“Our ancestral homelands span Sacramento, El Dorado, Amador, Sutter, Yolo, Placer, and Yuba counties,” said Malissa Tayaba, Vice Chair, Shingle Springs Band of Miwok Indians. “Since the beginning of time, we have taken care of the land, the rivers, the streams, the plants, animals, and our traditional resources.”

“The Sacramento Bay-Delta is the heart of my tribal community and holds vital resources that have sustained the many indigenous communities that are touched by its influence. Poor water quality now affects the plant and animal resources of the Delta region as well as the Tribe’s cultural practices, and ability to carry on our cultural traditions,” Tayaba stated. 

Artie Valencia, Community Organizer for Restore the Delta, noted that recreational users and fishermen for recreational users and fishermen who depend on the fish here are “particularly affected by harmful algal blooms.”

“A friend who got rashes from water skiing in the Delta this past summer will never go into the waterways again after learning about the Delta’s harmful algal blooms. I see Stockton residents, mostly immigrants and people of color, fishing in Stockton waterways often for sustenance. For fishermen, the fish that once thrived in the Delta become fewer and fewer in number every year,” he concluded. 

In addition, a number of Tribes, community groups, environmental organizations and policymakers have weighed in in support of the Title VI complaint. These include the Buena Vista Rancheria Band of Me-Wuk Indians, San Francisco Baykeeper, Golden State Salmon Association, Defenders of Wildlife, the Stockton Chapter of the NAACP, the Catholic Charities Diocese of Stockton, and others. 

Jackie Carpenter, water board spokesperson, told Rachel Becker of CalMatters that the agency will cooperate fully and “believes U.S. EPA will ultimately conclude the board has acted appropriately.”

“The State Water Board deeply values its partnership with tribes to protect and preserve California’s water resources. The board’s highest water quality planning priority has been restoring native fish species in the Delta watershed that many tribes rely upon,” Carpenter said in an emailed statement: calmatters.org/… 

The Water Board has 30 days to respond to the decision and the EPA has 180 days to investigate the allegations in the complaint and make preliminary findings. The complainants and the State Water Board will also have an opportunity to enter informal dispute resolution, according to the complainants.

The complaint is being investigated at a time when the Newsom administration has come under fire by Tribes, fishing organizations and environmental groups for promoting water policies that they say will make the current Bay-Delta ecosystem collapse even worse. These policies include the voluntary agreements between irrigators and the Newsom administration, the Delta Tunnel that would Sacramento River water before flowing through the Delta and the Sites Reservoir project proposed on the west side of the Sacramento Valley.

The Tribes and groups note that this is the first Title VI complaint to be filed with the EPA against the Water Board and the first time the EPA has accepted a complaint alleging discrimination in the management of water against a California state or regional agency. 

Background: Civil Rights Act – Title VI

The Title VI complaint traces the current discrimination facing Native tribes and communities of color in the Bay-Delta back to the beginnings of California statehood. Congress adopted Title VI of the Civil Rights Act of 1964 to prohibit discrimination based on race, color, or national origin under any program or activity receiving Federal funding. 

Under longstanding federal regulations, Title VI’s prohibitions prevent agencies like the State Water Board that receive federal funds from both intentionally discriminating and adopting policies or practices that create outsized harms for protected groups, including Native tribes and persons of color. By accepting the complaint for investigation, EPA has determined that the alleged discrimination would violate Title VI and the EPA’s civil rights regulations and that it meets other conditions for EPA to exercise jurisdiction. 

DOCUMENTS

TITLE VI COMPLAINT AND PETITION FOR RULEMAKING FOR PROMULGATION OF BAY- DELTA WATER QUALITY STANDARDS 12/16/22 (Complaint)

EPA ACCEPTANCE OF ADMINISTRATIVE COMPLAINT File No. 01RNO-23-R9 (Response) letter to the California State Water Resources Control Board 8/8/23


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