As climate change makes water scarcity a perpetual reality in California, the health, culture, and wellbeing of vulnerable Californians and the survival of native species hinge on the State’s stewardship of water resources.  To meet this crisis, the State needs the power to manage all water use in California.  Yet, in the midst of the historic 2014-2015 drought, a subset of water users – those whose claimed water rights predate implementation of the state’s initial water legislation in 1914 – sued to exempt their water use from the State’s control.  A trial court agreed, and the decision is now on appeal.  If upheld, this decision would have dire consequences for the State’s ability to respond to the crisis in the Sacramento-San Joaquin Delta, the largest estuary on the west coast of North and South America.

Last week, the Environmental Law Clinic filed an amicus brief on behalf of the Winnemem Wintu Tribe, Shingle Springs Band of Miwok Indians, Little Manila Rising, and Restore the Delta to support the State’s appeal of this decision.  This coalition‘s amicus brief argues that exempting these pre-1914 water rights from State regulation and enforcement is wrong on three counts.  First, the historical context of these water rights – rooted in systematic and state-sponsored discrimination, exclusion, and violence against Indigenous peoples and communities of color – calls their legitimacy into question.  Second, California water law places limits on all water rights to fulfill the State’s role as steward of the state’s water resources, much of which it holds in trust for public benefit.  And third, if the State cannot manage and restructure water rights holistically, already degraded watersheds will be driven deeper into crisis – heaping additional harms on tribes, communities of color, and other vulnerable Californians who bear disproportionate health and economic burdens from existing environmental injustices.

The urgency of reforming the water rights system is clear in the imperiled Delta.  Spanning 75,000 square miles and encompassing nearly half the state’s surface water, the Delta is a vital source of sustenance, cultural resources, spirituality, and wellbeing for the coalition members and similarly situated communities.  The inextricable link between these communities and the unique Delta ecosystem is illustrated by the Winnemem Wintu’s relationship with the “Nur,” or Chinook salmon.  While Nur once flourished in Delta waterways, excessive diversion of Delta waters – largely to feed agricultural and other uses outside the Delta – has driven the salmon and other native fish to the brink of extinction.  In the words of the Tribe’s Chief, Caleen Sisk:  “We used to be 20,000 people along the river and we’re dwindling out like the salmon.  We only have 126 members of the Tribe left and so if the salmon are going extinct, we can only guess that so will we.”

Historical context for California water rights

Conflicts over the right to divert water from California’s imperiled waterways cannot be understood apart from the historical context that gave rise to current water rights claims, including genocidal policies and discriminatory laws which systematically excluded Indigenous Peoples and communities of color from water rights.  California’s unique hybrid water rights regime – which blends appropriative water rights common to western states with riparian rights from the more water-rich east – was developed during the Gold Rush, as the nascent State sponsored a program of genocide to clear the land, and its watersheds, of California’s Indigenous Peoples.  The appropriative water rights doctrine adopted by the miners – which accorded rights to water through the mantra of “first in time, first in right” – erased the usage and stewardship of the water by native Californians.  Duplicitous treaty negotiations furthered this dispossession.  In 1851-1852, the federal government compelled California tribes to sign treaties ceding their ancestral lands in exchange for reservations and the benefits that flow from them, including rights to reserved water.  However, after the California Legislature and business interests lobbied against the treaties, Congress refused to ratify them and kept the treaties under an injunction of secrecy for over 50 years.  Although the Tribes’ lands were never lawfully ceded, the State acted as if they were and opened them up for settlement.  This duplicity enabled non-native settlers to assert land claims on Indigenous lands, thus giving them access to water rights tied to land ownership and water use.

Likewise, racist laws and policies adopted by the State effectively barred Asian immigrants, Black Californians, and other communities of color from water rights.  As one of many examples, California’s Alien Land Law prevented people ineligible for U.S. citizenship – which included Asian immigrants – from owning or leasing property in the state from 1913 to 1952. This law was primarily targeted at preventing Japanese immigrants from owning and operating farmland and benefitting from the state’s bourgeoning agricultural industry, and its effects extended to other Asian immigrants.  Deprived of the ability to own property, Asian immigrants were effectively barred from participating in the water rights system, as property ownership is a prerequisite for acquiring water rights.

The ongoing legacy of this water rights system in the Delta

Today, the impacts of this exclusion from the water rights system for Indigenous Peoples and communities of color are compounded by the degraded condition of California waterways, caused in significant part by large-scale diversion of water to serve agricultural and industrial interests.  In South Stockton – home to Little Manila Rising and its constituents – polluted waterways, many of which have been largely or entirely drained of fresh water, are more of a detriment to local communities than an asset.  As one example, in warm months when the waterways could be a place for recreation and a vehicle for economic development, noxious algal blooms instead take over the surface of stagnant water and block safe access.  These hazardous algal blooms pose severe health risks to people and animals, including respiratory harms to humans when toxins from the blooms become airborne.  Pollution from these aerosolizing algal blooms adds to the already severe air pollution that Stockton communities endure as a result of discriminatory urban policies, which have pushed communities of color into close contact with a constellation of heavy transportation infrastructure and industrial polluters.  Indeed, residents of South Stockton suffer from some of the highest rates of asthma in the state.

The degraded condition of Delta waters also exacerbates alienation and displacement from ancestral waterways that tribes have endured since colonial times.  After the Shingle Springs Band of Miwok Indians was rendered homeless by State-sponsored policies and practices that expelled them from their ancestral lands, the federal government provided the Tribe landlocked trust land located about 50 miles from its ancestral villages along the Sacramento River and its tributaries.  In recent years, the Tribe has invested heavily in restoring its connection to Delta waters and the traditional ecological knowledge that the Tribe developed by stewarding riparian resources for thousands of years.  Yet the proliferation of hazardous algal blooms in locations significant to the Tribe has blocked them from accessing the water and its cultural resources.  For example, tribal leaders took a group of young boys on a trip to Stone Lakes National Wildlife Refuge to teach them to fish as their ancestors did, but they were repelled when they saw the entire surface of the lake covered with noxious algal blooms.  As long as the hazardous algal blooms infest these waters, the Tribe’s alienation from their cultural and spiritual practices persists.

To address the ecological crisis in the Delta and to begin to repair the injustices that shape present-day California water rights, the State must be empowered to govern all water use.  Fortunately, the State already has such authority under the ancient public trust doctrine, the California Constitution, and the Water Code.  Now, the question is whether courts will restrict the State’s exercise of that authority, to the benefit of a narrow group of water rights holders and to the detriment of the general public – particularly vulnerable Californians – and fragile riparian ecosystems.  The coalition’s amicus brief, written by ELC students Alison Cooney and Sydney Speizman with supervision from ELC Supervising Attorney Stephanie Safdi, is a first step in reframing the conversation to ensure that decisionmakers are listening to the voices of the Indigenous Peoples and other communities of color who are most affected by the water crisis.

May 24, 2022 Update

On May 24, 2022, the Stanford Environmental Law Clinic submitted a Petition for Rulemaking to the State Water Resources Control Board to Review and Revise Bay-Delta Water Quality Standards.  The Petition was brought on behalf of Little Manila Rising, Restore the Delta, Save California Salmon, Shingle Springs Band of Miwok Indians, and Winnemem Wintu Tribe.

The Clinic respectfully requested that the State Water Resources Control Board: (1) immediately undertake and timely complete review of water quality standards in the Water Quality Control Plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (“Bay-Delta Plan”); (2) engage in meaningful government-to-government consultation with affected tribes and center opportunities for meaning public participation by other impacted Delta communities in the Bay-Delta Plan review and revision process; (3) revise beneficial uses in the Bay-Delta Plan to incorporate tribal beneficial uses and non-tribal subsistence fishing beneficial uses; (4) issue new and revised water quality standards adequate to protect the full range of beneficial uses and public trust interests; and (5) initiate a rulemaking to regulate all recognized rights to use of Bay-Delta water – including pre-1914 appropriative rights – and limit water diversions and exports to levels consistent with the revised water quality standards.

See highlights from ELC student Sydney Speizman speaking at the press conference here and coverage from the L.A. Times here.

August 22, 2022 Update

On June 24, 2022, the State Water Resources Control Board issued its Decision Denying the Clinic’s Petition for Rulemaking to Review and Revise Bay-Delta Water Quality Standards, prompting the Stanford Environmental Law Clinic to submit a Request for Reconsideration to the Board on behalf of our clients this week.

The Board’s decision to deny the Petition for Rulemaking failed to address multiple violations raised in the Petition, such as the Board’s ongoing violation of its statutory obligations to review the Bay-Delta Plan every three years pursuant to the federal Clean Water Act and California’s Porter-Cologne Act and the Board’s failure to conduct formal government-to-government consultation with affected tribes as required under Assembly Bill 52.  Significantly, the Board did not dispute that its mismanagement of the Delta waters is resulting in disparate impacts to Indigenous Peoples, communities of color, and other vulnerable groups in violation of federal and state civil rights laws.  The Decision did not indicate whether the Board would take any actions to redress these ongoing harms, as required under the law.

Addressing these statutory violations is necessary to protect the health and safety of both Delta waterways and the disadvantaged communities that depend on them.  Failing to address these statutory violations has led to drastic reductions to flow levels that have resulted in ecological and community impacts.  For example, multiple native fish species, upon which Indigenous Peoples and other local communities rely for social, cultural, economic, and religious practices and sustenance, are now on the verge of extinction.  Mismanagement of the Bay-Delta waters has also led to the emergence and spread of harmful algal blooms throughout the Delta waterways, disproportionately impacting low-income communities of color.  Thus, addressing the statutory violations is crucial to safeguard the health of vulnerable Californians living in the Delta and ensure the cultural and spiritual survival of Indigenous Peoples.

Further, failure to adopt sufficiently protective water quality standards cements a discriminatory system of water rights that was founded on the dispossession of Indigenous Peoples and exclusion of communities of color in favor of large-scale agricultural interests.  The Board must therefore address the issues raised in the Petition in order to fulfill its commitments to anti-racism, equity, and repair of centuries of oppression and marginalization of Indigenous Peoples and communities of color.

As part of the Request for Reconsideration, the Clinic respectfully requested that the State Water Resources Control Board: (1) comprehensively update and implement the Bay-Delta water quality standards and suspend approvals for new water permits or water infrastructure projects until the standards have been updated; (2) issue formal notice of opportunity for government-to-government consultation on the Bay-Delta Plan update to affected tribes; and (3) initiate a rulemaking to regulate and restructure Bay-Delta water rights to preserve instream flow and public trust resources and prevent ongoing harms to Indigenous Peoples, communities of color, and other vulnerable groups.

Read more in The Guardian.

September 27, 2022 Update

On September 21, 2022, the State Water Resources Control Board denied the Clinic’s Request for Reconsideration of the Board’s June 2022 Decision Denying the Clinic’s Petition for Rulemaking to Review and Revise Bay-Delta Water Quality Standards.

Instead of meaningfully responding to the arguments in the Request for Reconsideration, the Board denied the Request on the same grounds stated in its June 2022 Decision. Consequently, the Board failed to take accountability for the multiple violations reiterated in the Request for Reconsideration.  This includes the Board’s ongoing violation of its statutory duty to review the Bay-Delta Plan every three years pursuant to the federal Clean Water Act and California’s Porter-Cologne Act and its failure to conduct formal government-to-government consultation with affected tribes as required under Assembly Bill 52 and the Board’s own Tribal Consultation Policy.  The Board also failed to provide any support for its contention that the Board’s management of the Bay-Delta Plan has not resulted in adverse disparate impacts on Indigenous Peoples, communities of color, and other protected and marginalized groups.

The Board must act to comply with its statutory duties under the law in order to protect the public and beneficial uses in the Bay-Delta and remedy the adverse disparate impacts on historically marginalized communities.  Without further action from the Board, the Denial of the Request for Reconsideration will result in further environmental and health harms on Indigenous Peoples and communities of color.