Civil Rights Complaint Seeks US EPA Oversight of CA State Water Board:  Bay-Delta ecological crisis harms California Tribes and Delta EJ communities

For Immediate Release: 12/16/2022

Contact: Brian Smith, 415-320-9384
WASHINGTON, D.C./SAN FRANCISCO – Today, the Shingle Springs Band of Miwok Indians, Winnemem Wintu Tribe, Little Manila Rising, Restore the Delta, and Save California Salmon filed a Title VI (Civil Rights) Complaint and a Petition for Rulemaking with the US Environmental Protection Agency. The coalition is represented by the Stanford Environmental Law Clinic.
The complaint and petition seek relief for California Tribal nations and disadvantaged Delta communities. In May 2022, this same coalition of groups petitioned the State Water Resources Control Board to update water quality standards for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (the “Bay-Delta”) to improve instream flows to save fish species and address harmful algal blooms (HABs) that plague their communities. The State Board refused to act on these requests.
The actions taken today urge the US EPA to: 

1. Initiate a Title VI (Civil Rights) investigation into the State Water Board’s discriminatory water management policies and practices in the Bay-Delta, and

2. Initiate a rulemaking to adopt federal Clean Water Act-compliant, water quality standards for the Bay-Delta, including designating tribal beneficial uses and adopting flow-based, temperature, and HABs criteria that protect beneficial uses and tribal reserved rights.

“The State Water Board is required by law to review water quality standards every three years. But the Board has not done so for the Bay-Delta in over a decade, and it has not made updates since the nineties,” explains Stanford Environmental Law Clinic student attorney Raul Quintana.
“The Board is failing to uphold both the Clean Water Act and federal civil rights law,” adds Stanford Environmental Law Clinic student attorney Mark Raftrey. “It is allowing the Bay-Delta to descend into an ecological crisis that harms Native tribes and disadvantaged communities the most. The EPA has the authority to correct these violations, and we call on it to do so here.”
Statements by the Parties:

Malissa Tayaba, Vice Chair, Shingle Springs Band of Miwok Indians
Our ancestral homelands span Sacramento, El Dorado, Amador, Sutter, Yolo, Placer, and Yuba counties. 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.

Gary Mulcahy, Government Liaison, Winnemem Wintu Tribe
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.

Dillon Delvo, Executive Director, Little Manila
As long as the state upholds historic water rights, that we all know to be racist and unfair, we will continue to have first- and second-class California communities.

Artie Valencia, Community Organizer, Restore the Delta
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.

Morning Star Gali, Ajumawi band of the Pit River Tribe in Northeastern California, Save California Salmon
The State Water Board, which is tasked with protecting our water, has neglected its responsibilities to Tribes, communities of color, and environmental justice communities for too long. Moving forward with protecting California’s clean water and designating Tribal Beneficial Uses would greatly help our salmon relatives who are vital to the culture, traditions, and health of my Tribe, along with the millions of Californians in cities that rely on the Delta watershed for their drinking water.
For well over a decade, the California State Water Resources Control Board has failed to uphold its statutory duty to review water quality standards in the Bay-Delta and ensure compliance with the federal Clean Water Act’s objectives. Inadequate standards have allowed Bay-Delta waterways to descend into ecological crisis, with the resulting environmental burdens falling most heavily on Native tribes and other communities of color.  
The waterways of the Bay-Delta are plagued by dangerously low flows, native fish die-offs, high water temperatures and encroaching salinity, and overgrowths of toxic algae or cyanobacteria known as harmful algal blooms (“HABs”). The State Water Board could restore the estuary by providing for water from the surrounding mountains to flow unimpeded into and through Bay-Delta waterways, but instead it allows more than half of that water to be diverted or exported elsewhere every year.
The ecological crisis in the Bay-Delta, like California’s water rights regime, is rooted in white supremacy. Ignoring millennia of tribal use and stewardship, the State accorded rights to non-Natives to divert water from its natural course under the doctrine of prior appropriation, based on the colonial mantra of “first in time, first in right.” At the same time, California law barred people of color from owning land, and accompanying water rights, well into the 20th century. The result was a system that favors the diversion and export of Bay-Delta waters for use in far flung locales over ecological health and human welfare in the Bay-Delta itself.
The impacts of these failures have fallen disproportionately on Native tribes and communities of color. For instance, the Shingle Springs Band of Miwok Indians cannot perform cultural, religious, and subsistence practices in the Bay-Delta’s HABs-contaminated waters, nor can it access riparian resources essential to tribal identity. The collapse of the Delta’s native fisheries impairs Winnemem Wintu’s ability to exercise its religion and way of life, which depend on the once bountiful presence of Chinook salmon in the Delta’s headwaters. Communities of color in South Stockton, where Little Manila Rising is based, cannot use and enjoy the longest river in the state because of HABs and chronically low flows. The health risks of HABs-related air pollution add to the environmental burdens already borne by these communities.
The State Water Board’s violations of laws intended to restore the integrity of the waterways perpetuate this history of dispossession and environmental racism. The Clean Water Act requires the Board to review water quality standards every three years through a public process. It requires that water quality criteria protect beneficial uses of water bodies and tribal reserved rights. And it requires that standards to be grounded in sound scientific rationale.  The Board last initiated comprehensive review of Bay-Delta water quality standards in the late 2000s. It has delayed review while the State engages in private negotiations over export allowances with powerful water rights claimants (Voluntary Agreements) which excluded tribes and communities of color that would be impacted by resulting standards from the decision-making process. Outdated water quality standards – last updated in 1995 – fail to protect beneficial uses in Bay-Delta waterways or account for tribes’ reserved rights and interests.
A coalition of Stockton, California environmental, social, and economic justice groups have sent the EPA a letter urging it to act on the complaint and the petition.

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