By Dan Bacher

On August 8, the U.S. Environmental Protection Agency, or EPA, issued a decision accepting for investigation a historic civil rights complaint against the State Water Resources Control Board filed by a coalition of regional tribes and environmental justice groups.

The administrative complaint, filed against the Water Board in December, alleges discriminatory mismanagement of water quality in the California Delta.

“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,” wrote Anhthu Hoang, Acting Director for 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,” Hoang went on, “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.”

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

The complaint was accepted at a critical time. 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, which critics say was spurred by poor water and fishery management by the state and federal governments. 

Conservationists have been warning that 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“In particular, the complaint alleges that the out-of-date water quality standards – last updated in the mid-1990s — have allowed a proliferation of harmful algal blooms, collapse of native fish species, and loss of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,” the tribes and their allied groups wrote in a statement. “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.”

Stephanie Safdi, a supervising attorney and lecturer with the Stanford Environmental Law Clinic, praised the EPA’s 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,” Safdi contended. “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 for the tribes and environmental justice groups also applauded the complaint being accepted.

“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,” suggested Kasil Willie, an attorney working for the groups. “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.”

Malissa Tayaba, Vice Chair of Shingle Springs Band of Miwok Indians, echoed that concern. “Our ancestral homelands span Sacramento, El Dorado, Amador, Sutter, Yolo, Placer, and Yuba counties,” she pointed out. “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.” 

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 claim will make the current Delta ecosystem even more degraded. These policies include the voluntary agreements between irrigators and the Newsom administration, as well as the governor’s proposed Delta Tunnel project and the plan for Sites Reservoir.

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.