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Groups Defend Needed Regulations for the Delta: 19th century “water rights” should not trump drought management

For Immediate Release: 3/11/22

Matt Holmes, Little Manila Rising, 415-254-3546, [email protected]

Gary Mulcahy, Winnemem Wintu Tribe, 916-214-8493, [email protected]

Malissa Tayaba, Shingle Springs Band of Miwok Indians,916-468-2730, [email protected]

Barbara Barrigan-Parrilla, Restore the Delta, 209-479-2053, [email protected]

SACRAMENTO, Calif. – On Thursday 3/10/22, a coalition of California Indian Tribes and Delta community groups (represented by the Stanford Environmental Law Clinic) filed an amicus brief in state appellate court defending the State Water Resources Control Board’s power to protect the California Bay-Delta by regulating and enforcing against excessive diversions of water, which harm the Delta watershed and the communities that depend on it. The Winnemem Wintu Tribe, Shingle Springs Band of Miwok Indians, Little Manila Rising, and Restore the Delta are parties to the brief.

The amicus brief was submitted in the “California Water Curtailment Cases.” The cases arose in 2015, the fourth year of drought, when the State Water Board issued curtailment orders to senior water right holders in the Sacramento-San Joaquin River and Delta watersheds. The trial court issued a decision in February 2018, now under appeal, that narrowly interprets Water Board authority in the state water code to regulate senior and riparian water right holders only if they divert water not yet appropriated. That interpretation would severely limit the Board’s authority to regulate such rights during droughts. The irrigation districts argued that senior and riparian rights are beyond the reach of the Board’s authority to regulate. 

The amicus brief places State Water Board authority in a larger historical and policy context, which shows that many senior and riparian water rights were obtained through violence, dispossession, and discrimination. If exempted from Board regulation, unfettered exercise of these rights will continue to harm the same Indigenous Peoples and communities of color who were unjustly excluded from water rights. Fortunately, as the brief shows, the Water Board has both the authority and the duty to regulate all water rights to protect the public trust and control unreasonable uses of water. This authority is necessary to manage droughts fairly and equitably, now and in the future, especially when native fish species are dying off and communities who depend on a healthy estuary are being harmed.

The amici curiae who are parties to the brief all have a direct interest in protecting the public trust resources of the Delta. 

The Winnemem Wintu Tribe, for instance, describes their “deep interest in preventing the continued over-appropriation of Delta resources and restoring the health of the waterways” to allow salmon to return to the headwaters. Winnemem Wintu identity, culture, and spirituality center on the imperiled Nur, or Chinook Salmon. 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.”  

The Shingle Springs Band of Miwok Indians note, “Delta waterways – including the Sacramento River, American River, Feather River, Bear River, and Cosumnes River and their watersheds – are the lifeblood of the Tribe. The Tribe has stewarded and utilized resources from the Delta for sustenance, medicine, transportation, shelter, clothing, and ceremony, among other cultural and subsistence uses, since time immemorial.”

Little Manila Rising, a Delta community group, explains, “As a community entangled with the Delta, addressing the economic, social, and health conditions for South Stockton residents means addressing the condition of the water. A deep-water shipping channel off the San Joaquin River cuts through the city, dividing North from South Stockton. Various sloughs and waterways weave through South Stockton neighborhoods on their way to the San Joaquin River, largely dewatered by the diversion and export of large quantities of water to serve agricultural and other interests outside of the Delta. Thousands of unhoused residents camp in or by these dewatered sloughs, bathing, cooking, and fishing in noxious water and using it for sanitation. Stagnant water in these sloughs hosts hazardous algal blooms for much of the year, turning both water and air toxic with cyanobacteria. What remain of Delta fish species, poisoned by mercury and nitrates and driven to near extinction by low freshwater flows and high water temperatures, are themselves a hazard to local residents who fish for subsistence.”

Restore the Delta adds, “Many of Restore the Delta’s 60,000 members live in or near the Delta and have a strong personal interest in ensuring healthy freshwater flows to support a thriving ecosystem, safe recreation, safe and sustainable drinking water, and a clean environment.”

The amicus brief concludes with a sense of urgency as to why the Board’s authority and duty to manage the Delta’s public trust resources is of significant importance.

“As drought conditions worsen with climate change, massive diversions of Delta water by senior appropriators will become increasingly untenable and incompatible with a living Delta. The Board’s authority to determine the reasonableness of uses in this context, to adjudicate and enforce limits on water rights claims, and to limit diversions to what is reasonable and consistent with the public trust will take on even greater importance. Amici urge the Court avoid hobbling the Board in its exercise of these well-established and vital regulatory and enforcement powers.”

“As the strain on California’s precious water resources continues to grow, everyone across the state will have to make sacrifices. Pre-1914 appropriative and riparian rights cannot be allowed to exist above regulation and enforcement while Indigenous Peoples and communities of color in the Delta bear the costs of excessive water appropriation.”