California tribes seek federal oversight of Bay-Delta

A gangway leads to floating docks surronded by water.

By Hayley SmithStaff Writer

Dec. 17, 2022 5 AM PT

A coalition of California tribes and environmental justice groups filed a civil rights complaint Friday against the State Water Resources Control Board, charging it with discriminatory water management practices that it says have led to the ecological decline of the Sacramento-San Joaquin River Delta.

Members of the Shingle Springs Band of Miwok Indians, the Winnemem Wintu Tribe, Little Manila Rising, Restore the Delta and Save California Salmon are calling for U.S. Environmental Protection Agency oversight of the state water board, including an investigation into its alleged failure to review and update water quality standards in compliance with the Clean Water Act.

The Title VI civil rights complaint comes about seven months after the same coalition petitioned the board to review and update its water quality plan for the delta and San Francisco Bay — a petition the groups said went largely ignored. They charged the board with giving preferential treatment to large agricultural interests and said the delta’s deterioration can be linked to the state’s historical legacy of racism and oppression of Native people.

“The Board is failing to uphold both the Clean Water Act and federal civil rights laws,” said a statement from Mark Raftrey, a student attorney at the Stanford Environmental Law Clinic, which is representing the coalition. “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.”

The state water board on Friday said it had received the complaint and was evaluating it, but declined to comment.

The Sacramento-San Joaquin River Delta, which flows into San Francisco Bay, is a major water source for much of California, supplying drinking water for almost 27 million people and feeding the state’s hulking agriculture industry. But it is also a delicate ecosystem that is home to hundreds of plants and animals, many of which are suffering under ecological stress, including warming waters, increasing salinity, dangerously low flows, native fish die-offs and the proliferation of harmful algal blooms.

The complaint says the state water board could restore the estuary by releasing more water from the surrounding mountains into the area, but instead it “prevents more than half of that water from reaching the San Francisco Bay every year.”

“It’s had a huge impact on tribes,” said Malissa Tayaba, vice chair of the Shingle Springs Band of Miwok Indians. “It’s been really, really hard for us because of the quality of the water. ... Every part of our culture is embedded in the watershed, and so everything that we need and traditionally use comes from there.”

The coalition submitted its initial 169-page petition to the state water board in May, and demanded that the agency review and update the water quality plan for the delta, among other requests. In June, the state water board responded with a denial of the petition, stating that work to update the Bay-Delta Plan was already underway and was a high priority.

“Foundational aspects of your request are part of the State Water Board’s quasi-legislative action to update the Bay-Delta Plan,” the board wrote in its decision. In light of that ongoing effort, “the State Water Board denies the Petition.”

However, the board went on to say that the denial “does not foreclose further meaningful consideration of the important issues that the petitioners raise,” and that it would like to meet with representatives of the groups to further discuss the inclusion of tribal beneficial uses in its plans.

The coalition called the response lacking, and said updating the Bay-Delta Plan did not seem to be a high priority for the board given how much time had gone by since the previous update. The Clean Water Act requires the state water board to review water quality standards every three years through a public process, but the board has not completed a comprehensive review of the Bay-Delta in more than a decade, the groups said. Its last major update was in 1995.

Failure to meet those requirements, the groups said, is a violation of Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color or national origin in any program that receives federal funds.

“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,” Gary Mulcahy, government liaison for the Winnemem Wintu Tribe, said in a statement.

Use of Title VI in environmental matters is relatively rare. The U.S. Department of Justice last year opened its first-ever environmental Title VI probe, investigating the Alabama Department of Public Health for wastewater issues affecting predominantly Black residents in Lowndes County. In September, the EPA launched a Title VI investigation into whether Louisiana regulators discriminated against Black residents by failing to control air pollution in an area dubbed “cancer alley.”

Members of the coalition in California said the state water board’s actions in the Bay-Delta fail to acknowledge the area’s history of tribal use and stewardship and continue to disproportionately affect Native tribes and communities of color. California’s water rights were largely established under a “first in time, first in rights” system at a time when state law barred people of color from owning land and accompanying water rights.

Some of the oldest rights date to the 1800s, when white settlers could stake their claims by nailing a notice to a tree. Pre-1914 water rights are generally considered the most senior.

“The current water rights systems put us last, basically, and we didn’t get to have a say in any of it,” Tayaba said. “And so as they divert our water, part of our culture is dying without us having a say.”

This year, state officials announced a $2.6-billion deal with the federal government and major water suppliers that they said would help bolster the delta’s declining ecosystem and pave the way for larger “voluntary agreements” that would ensure substantial flows. Environmental groups condemned the plan as a set of backroom deals that will not provide enough water for the health of the watershed.

“All the voluntary agreements are coming in with less flow than what has been indicated as needed by the board, so instead of following the Clean Water Act, finishing the Bay-Delta plans and doing the implementation, we’re waiting for a hocus-pocus voluntary agreement where the public has not been allowed at the table fully,” said Barbara Barrigan-Parrilla, executive director of Restore the Delta.

In the meantime, tribes and other communities continue to lose vital access to the delta. The Shingle Springs Band of Miwok Indians, for example, said harmful algal blooms have prevented them from performing cultural and religious practices in the waters. The Winnemem Wintu said the collapse of native fisheries have impaired their ability to exercise traditions centered on winter-run Chinook salmon, which are now at risk of extinction.

“I’m really sad, on one hand, that we have to do this,” Barrigan-Parrilla said of the complaint. “And yet I’m really happy, because nothing is changing in California water, and I think we’re pushing for meaningful change.”

In addition to an investigation, the complaint asks that the EPA withhold federal permits and approvals for major water export projects until the board achieves compliance with Title VI and the Clean Water Act. It also asks the EPA to designate tribal beneficial uses for the Bay-Delta waterways or to direct the board to do so, among other requests for relief.

Times staff writer Ian James contributed to this report.