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EPA probes racism complaints against California water board

The Environmental Protection Agency has begun an investigation into whether California’s top water agency has discriminated against Native tribes and people of color, carrying out a civil rights probe that could force changes in how the state manages water.

The EPA’s civil rights office announced it has accepted a complaint filed by tribes and environmental justice groups, who accuse the State Water Resources Control Board of discriminatory practices and mismanagement contributing to the ecological deterioration of the Sacramento-San Joaquin River Delta.

The tribes and environmental groups argue that out-of-date water quality standards in the Delta have led to collapsing fish populations and worsening toxic algae blooms, harming tribes whose traditions are tied to the rivers and leaving residents in South Stockton and other areas with stagnant waterways often choked with algae.

“The board needs to protect these waterways and prevent harmful algal blooms and prevent loss of native fish species,” said Stephanie Safdi, an attorney with Stanford University’s Environmental Law Clinic who represents the groups and tribes. “The discrimination that the board has been causing to tribes and communities of color has been going on for years because they haven’t done what the law requires, which is to go in and update water quality standards.”

The activists and Indigenous leaders, who filed their complaint with the EPA in December, have demanded that the state review and update the water quality plan for the Delta and San Francisco Bay.

They say the water quality standards for the watershed were adopted in 1995 and the Bay-Delta plan was last updated in 2006, but that a review is supposed to be done every three years. They argue the outdated standards, in addition to harming fish populations and the ecosystem, are disproportionately affecting tribes and Asian, Black and Latino residents in the Bay-Delta region.

“Certain communities that are directly entangled with these waterways and dependent on them, for health and for culture, are going to be more impacted by that degradation,” Safdi said. She said that includes tribal members whose traditions revolve around the rivers, and who have witnessed major declines in the salmon that they consider sacred.

“We see the EPA’s decision to open an investigation as a real vindication that the rights of these tribes and communities matter,” Safdi said.

The complaint was filed by the Winnemem Wintu Tribe, Shingle Springs Band of Miwok Indians, and the groups Little Manila Rising, Restore the Delta and Save California Salmon. They alleged the state agency has violated Title VI of the Civil Rights Act, which prohibits discrimination in programs that receive federal financial assistance.

In a letter to the State Water Board this week, Anhthu Hoang of the EPA’s Office of External Civil Rights Compliance said the federal agency will investigate the allegations, including claims that the board’s failure to update water quality standards violates the law and that the board has excluded tribes and Black, Asian and Latino residents “from participation in the policymaking process” for the Bay-Delta plan.

The State Water Board, which has not yet had an opportunity to formally respond, will provide information to the EPA “to demonstrate that the board has complied with all civil rights laws,” said Ailene Voisin, a spokesperson for the board. “The State Water Board will cooperate fully with the investigation and believes U.S. EPA will ultimately conclude the board has acted appropriately.”

Environmental activists and Indigenous leaders have objected to efforts by Gov. Gavin Newsom’s administration to negotiate “voluntary agreements” with major water suppliers that state officials say are intended to ensure flows for the health of the ecosystem.

The groups that sought the EPA investigation say they have been excluded from critical discussions while excessive water diversions to supply agriculture and cities take a worsening toll on the Delta’s ecosystem. They say the water management system has its roots in California’s history of violence against Native people, the taking of land from tribes, and racism that shaped how the water rights system developed more than a century ago.

In their complaint, the tribes and environmental groups said the ecological crisis in the Bay-Delta is “rooted in white supremacy” because the rights of tribes were ignored when the water rights system was established, and because people of color were prevented from securing water rights well into the early 20th century. They said the state’s “violations of laws intended to restore the integrity of the waterways perpetuate this history of dispossession and environmental racism.”

Lawyers for the groups said they hope for reforms that will address long-standing inequities.

“Although the State Water Board has acknowledged this history and promised repair, it is instead carrying this discrimination into the present,” Safdi said. “Business as usual can’t continue. We need to change the way that we’re managing for the health of these ecosystems, and for the communities that depend on them.”

The lawyers said this is the first time the EPA has accepted such a complaint to investigate allegations of discrimination by a California water agency. Stanford law students have been working on the case as part of the legal team.

The EPA’s preliminary findings in the investigation are due within 180 days, but it’s unclear how long the entire probe could take. The process also allows for suspending an investigation if the sides agree to try to resolve the dispute through negotiations.

“We think our work is really set to reset the conversation to bring about true equity in California water management,” said Barbara Barrigan-Parrilla, executive director at Restore the Delta. She said it’s about “making sure that those who have been harmed the most have an equal voice at the table.”

Barrigan-Parrilla said the state’s efforts to negotiate agreements with agencies out of the public eye “is truly a continuation of racism and discrimination and exclusion built into the water rights system.”

Members of the Shingle Springs Band of Miwok Indians say poor water quality in the Delta now hinders their ability to carry out their cultural and spiritual practices, including ceremonies held in the water.

“When harmful algal blooms are present, they can’t do that,” Safdi said. “It directly interrupts their practice of culture and religion.”

Activists and Native leaders also point to declines in the population of endangered winter-run Chinook salmon, as well as other salmon that sustain fisheries.

This year, the salmon fishing season was shut down along the California coast for the second time in history.

Salmon populations have suffered during recent years of severe drought, and climate change is adding to the strains by causing warmer waters and intensifying bouts of extreme dryness. Environmentalists have blamed state policies for declines in salmon populations, saying the existing flow requirements are inadequate and that the state should prioritize flows to protect fish.

“If salmon populations are low, then tribes also suffer,” said Kasil Willie, staff attorney for the nonprofit Save California Salmon.

“If things continue in the same manner, that population of salmon could become extinct within our lifetime,” Willie said. “And so something definitely needs to change.”

The groups said in the complaint that the State Water Board has “failed to adequately consult with Native tribes in the decision-making process” of water management in the Delta.

State water officials have said they are committed to working with tribes and have taken various steps to address historical inequities, such as adopting a racial equity plan.

“The State Water Board deeply values its partnership with tribes to protect and preserve California’s water resources,” said Jackie Carpenter, a spokesperson for the board. She said a top priority is “restoring native fish species in the Delta watershed, which are central to the lifeways of many tribes.”

Carpenter said the board has focused on “efforts to recognize, designate and protect beneficial uses of water associated with tribal cultural practices and tribal subsistence fishing.”

At a meeting in June, members of the State Water Board heard input from the public on adding tribal water uses to the Bay-Delta plan, which the agency’s staff is considering while drafting an upcoming report.

Lawyers for tribes said that effort by the board is promising.

“We’re hopeful that the signals that we got from the board coming out of it will come to fruition,” Safdi said, and the board will support adding tribal water uses to the Bay-Delta plan.

The problem, she said, is that an update of the plan has been delayed for many years.

“So that promise is empty so long as that update continues to sit,” Safdi said. “The board has to make those commitments real.”

Other tribes and groups have signed on to support the EPA complaint, among them Buena Vista Rancheria Band of Me-Wuk Indians, Defenders of Wildlife and the Stockton chapter of the NAACP.

The environmental groups and tribes have raised concerns that state officials are moving forward with plans for large infrastructure projects, including a proposed water tunnel in the Delta and plans to build Sites Reservoir in a valley north of Sacramento. They have demanded the state put a hold on those projects until the Bay-Delta plan has been updated to ensure flow requirements that will adequately protect the ecosystem.

“The state is doing this backwards. It needs to make sure that water quality standards are updated,” Safdi said. “And then we can start talking about infrastructure. Not the other way around.”

This story originally appeared on LA Times

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