California tribes seek federal oversight of Bay-Delta

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

Members of the Shingle Springs Band of Miwok Indians, Winnemem Wintu Tribe, Little Manila Rising, Restore the Delta and Save California Salmon are calling for US Environmental Protection Agency oversight of the state water agency, including an investigation into their alleged failure to review and update the Water quality standards in accordance 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 was largely supported was ignored. They accused the board of giving preferential treatment to large agricultural interests and said the delta’s deterioration could be linked to the state’s historical legacy of racism and indigenous oppression.

“The Board of Directors fails to comply with both the Clean Water Act and federal civil rights laws,” said a statement from Mark Raftrey, a student attorney at Stanford Environmental Law Clinic who represents the coalition. “It is allowing the Bay Delta to face an ecological crisis that is hurting indigenous tribes and disadvantaged communities the most. The EPA has the authority to correct these violations and we urge them to do so here.”

The state water agency said Friday it had received the complaint and is evaluating it, but declined to comment.

The Sacramento-San Joaquin River Delta, which empties into San Francisco Bay, is a vital source of water for much of California, providing drinking water for nearly 27 million people and supporting the state’s massive agricultural industry. But it’s also a fragile ecosystem that’s home to hundreds of plants and animals, many suffering from ecological stresses including warming waters, increasing salinity, dangerously low currents, the death of native fish and the spread of harmful algal blooms.

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

“It had a tremendous impact on tribes,” said Malissa Tayaba, vice chair of the Shingle Springs Band of Miwok Indians. “Due to the water quality, it was really, really difficult for us. … Every part of our culture is embedded in the watershed, and so everything we need and use traditionally comes from there.”

The coalition filed its first 169-page petition with the state water agency in May, demanding, among other things, that the agency review and update the water quality plan for the delta. In June, the state water agency denied the petition, saying that work to update the Bay Delta plan was underway and a high priority.

“Basic aspects of your application form 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 these ongoing efforts, “the state water board denies the petition.”

However, the board added that the rejection “does not preclude further meaningful consideration of the important issues raised by the petitioners” and that it would like to meet with representatives from the groups to further discuss the inclusion of tribal benefits in its plans.

The coalition called the response lacking and said updating the Bay Delta plan does not appear to be a high priority for the board because a long time has passed since the last update. The Clean Water Act requires the state water agency to review water quality standards every three years through a public process, but the agency has not completed a comprehensive review of the Bay Delta in more than a decade, the groups said. The last major update was in 1995.

Failure to meet these requirements, the groups say, 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 funding.

“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 Winnem Wintu tribe, said in a statement.

The use of Title VI in environmental matters is relatively rare. The US Department of Justice opened its last year first-ever environmental probe under Title VI, Alabama Department of Health investigation into sewage issues affecting predominantly black residents in Lowndes County. In September, the EPA launched a Title VI investigation into whether regulators in Louisiana discriminated against black residents by failing to control air pollution in an area dubbed “Cancer Alley.”

Coalition members in California said the actions of the state water agency in the Bay Delta do not recognize the history of tribal use and stewardship in the area and continue to disproportionately affect Native tribes and communities of color. California’s water rights were established largely on a first-in-time, first-in-rights basis at a time when state law prohibited people of color from owning land and associated water rights.

Some of the oldest rights date back to the 18th century, when white settlers could assert their claims by nailing a note to a tree. Water rights prior to 1914 are generally considered the oldest.

“The current water rights systems basically put us last place and we couldn’t have a say in anything,” Tayaba said. “And as they divert our water, part of our culture is dying without us having a say.”

That year, state officials announced a $2.6 billion deal with the federal government and major water utilities that they said would help bolster the delta’s shrinking ecosystem and pave the way for larger “voluntary deals.” to level, which would ensure significant water flows. Environmental groups condemned the plan as a series of backroom deals that would not provide enough water for the watershed to be healthy.

“All voluntary agreements are coming with less flow than the Board has indicated as required, so instead of following the Clean Water Act to finalize the Bay Delta plans and implementing them, we’re waiting for a hocus-pocus voluntary agreement where the The public was not fully admitted to the table,” said Barbara Barrigan-Parrilla, executive director of Restore the Delta.

Meanwhile, 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 conducting cultural and religious practices in the waters. The Winnemem Wintu said the collapse in local fisheries has impacted their ability to practice traditions centered on the winter-raised Chinook salmon, now an endangered species.

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

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

Times staffer Ian James contributed to this report.

https://www.latimes.com/california/story/2022-12-17/california-tribes-seek-federal-oversight-of-bay-delta California tribes seek federal oversight of Bay-Delta

Alley Einstein

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