EPA launches civil rights probe over Calif. water fight

By E.A. Crunden | 08/11/2023 01:49 PM EDT

The Biden administration will investigate whether the state’s water board has discriminated against Native American tribes and communities of color.

People fish in the Sacramento-San Joaquin River Delta.

People fish in the Sacramento-San Joaquin River Delta's Elk Slough near Courtland, Calif., on March 24, 2020. EPA announced it will look into concerns with California's water department over accusations of discrimination. Rich Pedroncelli/AP Photo

EPA is probing California’s water department over accusations of discrimination against Native tribes and people of color, launching a significant environmental justice investigation that could affect how the state oversees water.

The agency’s civil rights office announced the move this week, saying it would look into a complaint alleging that the California State Water Resources Control Board has failed to protect the water quality of the San Francisco Bay and the Sacramento-San Joaquin River Delta. In a letter to SWRCB Executive Director Eileen Sobeck, Biden administration officials said they would launch a preliminary review over “discrimination based on race, color, and national origin.”

While the agency emphasized its role as “a neutral fact finder,” EPA also underscored a commitment to protecting the groups that brought the complaint.


“EPA’s regulation prohibits applicants, recipients, and other persons from intimidating, threatening, coercing, or engaging in other discriminatory conduct against anyone because they have either taken action or participated in an action to secure rights protected by the civil rights requirements that we enforce,” the letter asserted.

The complaint is the first to be filed under Title VI of the Civil Rights Act with EPA against SWRCB and also marks the first time the agency has taken on a probe into California’s oversight of water issues. The groups behind the allegations include: the Shingle Springs Band of Miwok Indians, the Winnemem Wintu Tribe, Little Manila Rising, Restore the Delta and Save California Salmon.

Stephanie Safdi, a supervising attorney and lecturer with the Stanford Environmental Law Clinic, which is representing the organizations, applauded EPA’s decision to take on the complaint.

“Tribes and communities of color have been systematically excluded from water rights by state-sponsored genocide, broken treaty promises, and discriminatory laws and policies,” said Safdi. “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.”

The groups brought their allegations at the end of last December, arguing that California has failed to update its water quality standards in the Bay Delta region, and that in doing so, the state has failed communities of color, while also excluding them from the decisionmaking process.

Those standards were last updated in the mid-1990s, and communities have grown frustrated with a lack of urgency around bringing them up to date. The Bay Delta is suffering from low flows and encroaching salinity, along with other persistent problems that have come with both contamination and climate impacts.

One particular qualm centers on the proliferation of algae blooms, which can be deeply toxic to fish and other wildlife, while also posing hazards for people. For Native tribes, the issue has been especially severe, with members saying they are unable to participate in cultural activities and ceremonies, in addition to losing access to key sources of subsistence due to the blooms. Species like endangered winter-run Chinook salmon, for example, are in increasing decline along with the area’s broader health.

Residents in the community of South Stockton have also pointed out the extent to which the algae has harmed waterways and created an unhealthy atmosphere. Stockton is located on the San Joaquin River in California’s Central Valley, and the area of South Stockton has suffered from years of disinvestment.

Artie Valencia, a community organizer with Restore the Delta, said in a statement that the presence of algae blooms has led to nearby communities experiencing rashes and suffering from a declining fish population.

“I see Stockton residents, mostly immigrants and people of color, fishing in Stockton waterways often for sustenance,” said Valencia. “For fishermen, the fish that once thrived in the delta become fewer and fewer in number every year.”

The community groups want to see their estuary restored, through mechanisms including allowing water to flow unimpeded into and through waterways. California officials, however, have consistently prevented more than half of the water that would otherwise have flowed from reaching the San Francisco Bay on an annual basis.

California’s water board is required to review water quality standards every three years via a public process laid out under the Clean Water Act. But the board last initiated a comprehensive review more than a decade ago, sparking rage and the subsequent complaint to EPA.

Under Title VI, recipients of congressional funding are barred from engaging in discriminatory practices on the basis of race, color or national origin. In their complaint, the groups argued that the state’s actions have spurred an ecological crisis “rooted in white supremacy” and ignoring “millennia of tribal use and stewardship” by diverting water.

The ramifications of the watershed’s problems are notable. That area spans around 20 percent of California and provides water for nearly 27 million people. Gov. Gavin Newsom (D) has worked to negotiate “voluntary agreements” with water suppliers to help address the ecosystem’s well-being, but the communities that brought the complaint say they have been barred from those conversations and shut out of the process. They are also concerned about controversial infrastructure projects, including plans for a water tunnel and reservoir, both of which could further affect the flows into the Bay Delta area.

The board has 30 days to respond to EPA’s letter, with the agency expected to release its findings within six months if a resolution between the sides is not reached beforehand.

Via email, SWRCB said that it has not yet had the chance to respond but “will cooperate fully with the investigation” and remains confident that EPA will determine the board has acted appropriately. In a follow-up comment, SWRCB said it has been committed to restoring native fish species in the delta watershed and ensuring the area’s health.

“As we face increasing climate impacts, harmful algal blooms are an escalating threat to public and environmental health,” the board said, adding that community groups and tribes have been among the parties consulted in its moves to protect water and address problems like algae blooms.

EPA has increasingly flexed its muscle on environmental justice issues, with the Biden administration often offering a commitment to rectifying historic pollution problems in low-income communities of color. But the agency has at times run into hurdles. Most recently, regulators abruptly closed a probe into two Louisiana state departments over complaints that Black residents of a region dubbed “Cancer Alley” had faced enduring discrimination. That retreat shocked and upset advocates, who cheered the probe when it was first announced.

Groups targeting California’s water board, however, are still optimistic that their pleas will find favor as EPA moves forward with its investigation.

“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,” said Kasil Willie, a staff attorney for Save California Salmon, in a statement. “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.”