2020 ANTHONY A. LAPHAM FELLOWSHIP WATER JUSTICE TOOLKIT A GUIDE TO ADDRESS ENVIRONMENTAL INEQUITIES IN FRONTLINE COMMUNITIES

2020 ANTHONY A. LAPHAM FELLOWSHIP WATER JUSTICE TOOLKIT A GUIDE TO ADDRESS ENVIRONMENTAL INEQUITIES IN FRONTLINE COMMUNITIES TABLE OF CONTENTS

EXECUTIVE SUMMARY 1

INTRODUCTION 5 Why We Need a Toolkit 6 About American Rivers 8

BACKGROUND 9 The Environmental Justice Movement in the United States 10 The Importance of Rivers to Communities 13 Federal Laws and Policies 15

1: CLEAN & SAFE WATER GUIDE 19 Purpose 20 Federal Laws And Policies Related to Clean and Safe Water 23 How Do I Know if My Water is Polluted 26 Recommendations 1. Citizen Suits 31 2. Stormwater Permitting 34 3. EPA’s Residual Designation Authority 39 4. Re-Designation Process 40 Resources 41

2: EQUITABLE FLOOD RISK MANAGEMENT GUIDE 43 Purpose 44 Background 46 Emergency Steps 48 Recommendations 1. Understanding Flood Maps and Insurance 49 2. Integrating Equity and Justice Into Hazard Mitigation Plans 52 3. Encourage Floodplain Management Training 56 Resources 58 3: TITLE VI ENVIRONMENTAL JUSTICE COMPLAINTS & COMPLIANCE GUIDE 59 Introduction 60 Community Benefits Agreements 62 Title VI. A Reactive Approach 66 Guidelines on Filing an Environmental Justice Administrative Complaint 68 Challenges Associated with Title VI Complaints and Compliance 71

4: LOCAL LAND USE PLANNING & ZONING GUIDE 75 Purpose 76 Background 78 Recommendations 1. Bolster Public Participation 80 2. Encourage “Cumulative Impacts” Language 82 3. Encourage Equitable Zoning Policies 84 4. Participation in Zoning Hearings 87

5: PUBLIC PARTICIPATION GUIDE 91 Purpose 92 Recommendations 1. Public Comment 93 2. Legislative Advocacy 98 3. Equitable Community Meetings and Hearings 103

6: COMMUNITY SCIENCE GUIDE 107 Purpose 108 Steps to Create Your Community Science Project 112

ACKNOWLEDGMENTS 124

EXECUTIVE SUMMARY

Low-income communities and communities impacts can include exposure to pollutants of color disproportionately bear the negative such as lead, PFAS, industrial waste, and environmental impacts stemming from more and result in health impacts such as the inequitable systems rooted in this lead poisoning, asthma, and other illnesses. country. While our country is considered To address these inequities, communities to be a leader in environmental regulations can use legal, planning and policy tools to and safety, we are faced with inequitable advance environmental justice. American accessibility and enjoyment of our natural Rivers has developed a set of six legal and environment including water and rivers. policy guides to advance environmental Unfortunately, these inequities are not rare. justice efforts in frontline communities.

The need to address water-related We hope this resource serves to support environmental inequities in our country is communities in their efforts to address their heightened by the threat of climate change. water-related injustices. These guides are Safe and accessible clean water is threatened not meant to be exhaustive, but rather, a with increased droughts, severe storms, and curated set of important legal and advocacy increased flooding. These impacts exacerbate tools. We hope this provides a helpful place threats to lower income communities and to start. communities of color, impacting them more frequently and severely than higher wealth or predominantly white communities. These

BRONX RIVER, NEW YORK / CHARLES R. BERENGUER, JR.

WATER JUSTICE TOOLKIT 1 THE GUIDES The purpose of providing the following legal guides is to support communities in their efforts to implement long-term sustainable change. With time and the right resources, everyone can learn how to utilize environmental laws and policies to advocate for and address environmental justice concerns. The following guides are meant to serve as a resource for local communities and organizations to either start or supplement their environmental justice efforts.

1: CLEAN & SAFE WATER GUIDE 2: EQUITABLE FLOOD RISK 3: TITLE VI ENVIRONMENTAL MANAGEMENT GUIDE JUSTICE COMPLAINTS & This guide encompasses COMPLIANCE GUIDE recommendations on how This guide encompasses communities can engage with recommendations on how to This guide is intended to be used federal law and policy to address participate in decision-making as a resource to understand the environmental injustices and secure to mitigate flooding impacts. The background and purpose of Title VI clean water. The guide discusses negative impacts of flooding have and how communities can effectively the Clean Water Act and the Safe consistently and disproportionately use this tool to voice environmental Drinking Water Act, as well as burdened lower-income communities justice concerns. Title VI is a federal resources on water quality and and communities of color. This guide law that falls within the Civil Rights compliance. is intended to bolster community Act of 1965. Under Title VI, a engagement in water governance in complaint can be filed when either This guide includes: order to influence flooding related the federal government or recipient • Guidance on filing citizen suits policies. of federal funding intentionally under the Clean Water Act and discriminates on the basis of race, the Safe Drinking Water Act This guide includes: color, or national origin. • Guidance on stormwater • Information on how floodplain management, permitting, and designations are made This guide includes: green infrastructure • Background on hazard mitigation • Process used for filing an • Guidance on use of the Residual planning and recommendations environmental justice complaint Designation Authority under the on how to participate in the with a federal, state, or local Clean Water Act hazard mitigation planning and agency • Information on how to re- processes • Recommendations on how local designate a source of water in • Information on training entities and state agencies can order to require higher water guides provided by the Federal comply with Title VI quality standards Emergency Management Agency • Resources on water quality data

2 Executive Summary 4: LOCAL LAND USE PLANNING 5: PUBLIC PARTICIPATION 6: COMMUNITY SCIENCE GUIDE & ZONING GUIDE GUIDE Environmental justice advocates Environmental justice is rooted in Public participation is the have used community science to local planning and the opportunity, foundation of democracy and the bring forward environmental justice or lack thereof, for communities heart of environmental justice. This lawsuits. This guide is designed to to participate in decisions that will fundamental concept of participation encourage individuals in their roles impact their surroundings. Local is that the public interests are as community scientists and to planning can address exposure to represented when people participate promote the practice of community- pathogens associated with wastewater meaningfully in a process they based science as a catalyst for treatment plants, hazardous waste understand. Sustainable and long- environmental justice. incinerators, solid waste landfills, term solutions are created by and disposal sites. These polluting engaging with communities. This guide includes: entities can have a significant impact • Background on community on community and environmental This guide includes: science and information on how health, including waterways. • Information and guidance on science can support legal or public comment policy-based claims This guide includes: • Recommendations on how to • Recommendations on how to • Recommendations on how to participate in legislative advocacy create a community science bolster community participation • Policies to encourage equitable project in decision-making processes community meetings and • Examples and case studies of • Examples of equitable hearings successful community science zoning policies that include projects the consideration of diverse • Resources to support ongoing communities community science projects • Recommendations on how to participate in local zoning and board meetings

WATER JUSTICE TOOLKIT 3 4 UPPERWATER FLINTJUSTICE RIVER TOOLKIT WORKING GROUP INTRODUCTION

WATER JUSTICE TOOLKIT 5 WHY WE NEED A TOOLKIT

According to the U.S. Environmental injustices that exist despite sweeping water Protection Agency (EPA), environmental policies that were created to address issues justice is “the fair treatment and meaningful concerning access to and quality of water in involvement of all people—regardless of their the United States (US). race, color, national origin or income—with respect to the development, implementation, Addressing climate change and water and enforcement of environmental laws, inequities is a human rights and justice regulations, and policies.” issue. The environmental burdens faced by communities of color and low-income Environmental justice and water justice, communities in the U.S. and around the in particular, are important issues for river world are being intensified by the impacts of conservation. Access to clean water and climate change. Those who are most affected healthy rivers is critical for the health of by flooding, drought, extreme temperatures all communities everywhere. Yet there is and storms have the fewest resources a long history of Black and Indigenous to adapt due to a legacy of community communities and other communities of disinvestment in basic infrastructure such as color (BIPOC communities) systematically stormwater management. PRIOR PAGE: being denied such basic necessities. Cases INTRENCHMENT CREEK, such as Flint, Michigan with rampant lead in While environmental justice is fundamental ATLANTA, GEORGIA / JOHNOTHAN KELSO drinking water and the Navajo Nation where to developing equitable water and 15% of the people do not have running water climate responses, for the average citizen, ABOVE: INTRENCHMENT CREEK, ATLANTA, GEORGIA in their homes exemplify the types of water environmental law is a vast and intimidating

6 Introduction field. Seasoned attorneys can spend their American Rivers developed this toolkit entire careers learning to navigate and apply to provide legal resources to support, U.S. environmental laws and policies. Given encourage, and engage communities this, how can communities that are most experiencing environmental injustice in impacted by environmental injustice use efforts to ensure healthy communities, existing laws and policy to address their rivers, and clean water. need for access to nature, clean water and a healthy environment?

MOVING FROM THE PAGE TO ACTION WHO THIS GUIDE IS FOR

Environmental justice starts and ends • Community organizers with the community and it is our hope that • Concerned residents and individuals this Water Justice Toolkit will provide a • Neighborhood organizations helpful resource to ongoing efforts to ensure clean water and healthy rivers for all. The • Students and educators toolkit was created to provide guidance to • Established environmental nonprofits community leaders on how to apply laws and policies to address harms in their communities and watersheds.

CASE STUDIES COMMUNITIES IN ACTION ANYTOWN, USA

Throughout this document are examples from across the country of nonprofits and neighborhood organizations taking legal action to address water injustices. Look for sidebars like this one for water justice success stories and lessons learned.

For more inspiration from community partners, see: www.americanrivers.org/category/environmental-justice/

WACCAMAW RIVER FLOODING CONWAY, SOUTH CAROLINA / ROBBIE BISCHOFF

WATER JUSTICE TOOLKIT 7 ABOUT AMERICAN RIVERS

American Rivers’ mission to protect wild Every day we fight to improve the quality rivers, restore damaged rivers, and conserve of life for all communities and ensure a clean water for people and nature has never legacy of healthy, free-flowing rivers that been more relevant and urgent. We were contribute to strong, sustainable economies. founded in 1973 to save America’s last wild We have staff and field offices located rivers from the insatiable designs of dam across the country and are advancing builders and permanently protect free- pragmatic solutions to support sustainable flowing rivers through the federal Wild communities, communicating river values; and Scenic Rivers Act. Today, our efforts building a diverse nationwide constituency also include the restoration of damaged for river conservation and advocating for rivers through dam removal, protection of sound policies and practices that promote urban rivers, and clean water through green long-term river health. infrastructure and advocacy to improve the laws and policies that protect rivers and American Rivers is dedicated to supporting clean water. environmental justice on a national, regional, and local level. Our latest strategic We believe a future of clean water and plan places an increased focus on Diversity, healthy rivers everywhere, for everyone, is Equity, and Inclusion (DEI), both internally essential. For nearly 50 years, American within American Rivers, and externally Rivers has improved the health of our rivers in our projects and goals. This toolkit and communities. But too many rivers furthers our initiatives by offering guides are still dammed and diverted, polluted to environmental justice-focused legal and mismanaged. River degradation and advocacy connected to rivers and climate its downstream effects hit lower-income change. Our intent is to build on existing communities, Indigenous communities, and American Rivers work by providing an communities of color the hardest. And now environmental justice lens and a set of tools climate change poses the greatest challenge to utilize when addressing environmental of all. Extreme droughts and floods threaten inequities related to rivers. the vitality—and in some cases, the very survival—of rivers and the communities that LOWER AMERICAN RIVER, CALIFORNIA / BOB WICK depend on them.

8 Introduction BACKGROUND

WATER JUSTICE TOOLKIT 9 THE ENVIRONMENTAL JUSTICE MOVEMENT IN THE UNITED STATES

The environmental justice movement was However, it was successful in catalyzing the inspired by the Civil Rights movement environmental justice movement. and was started by individuals, primarily people of color, who sought to address Following the Warren County PCB the inequity of environmental protections landfill protest, the United States General in their communities. In 1968, for the Accounting Office (GAO) conducted a study1 first time, African Americans mobilized a that “galvanized the environmental justice national broad-based group to oppose what movement and provided empirical support they considered environmental injustices. for the claims for environmental racism.”2 Led by Rev. Dr. Martin Luther King Jr., The study determined that three out of garbage workers advocated and led a strike four hazardous waste landfills examined for better working conditions and pay in were located in communities where African Memphis, Tennessee. Environmental justice Americans made up at least twenty-six became widespread in the 1980s with its percent of the population, and whose family noted birthplace being Warren County, incomes were below the poverty level. In North Carolina where a polychlorinated 1991, the First National People of Color PRIOR PAGE: MISSISSIPPI RIVER, biphenyl (PCB) landfill was to be built. A Environmental Leadership Summit was held MISSISSIPPI / LEW non-violent sit-in protest against the landfill in Washington, D.C. During this conference, WILSON took place and over 500 civil rights activists persons of color developed and adopted the FIRST AMBROSE and environmentalists were arrested. 17 Principles of Environmental Justice3 as a EPISCOPAL CHURCH RAIN Ultimately, the protest was unsuccessful in comprehensive platform for a national and GARDEN, RALEIGH, NORTH CAROLINA / PETER RAABE halting the construction of the PCB landfill. international movement of all people.

10 Background Eventually, pressure from grassroots groups, for Agency policy makers to consider in academicians, and environmental justice advancing environmental justice. activists prompted the Environmental Protection Agency (EPA) to take several Environmental injustice persists today in positive steps in addressing the equity the United States. These are experienced question. The agency established an through heightened exposure to pollution Internal Working Group on Environmental and corresponding health risks, limited Equity, which issued a two-volume final access to adequate environmental services, report in June, 1992 and created an and loss of land and resource rights. Office of Environmental Equity and an Environmental Equity cluster. These injustices extend to water as well. Access to clean water is a human right, During Bill Clinton’s presidency, yet even in the United States low-income environmental justice became a government communities and communities of color priority. In February, 1994, Executive lack access to this basic necessity.4 Low- Order 12898, Federal Actions to Address income communities and communities of Environmental Justice in Minority color are disproportionately burdened by Populations and Low-Income Populations, water hazards rooted in discriminatory was signed into order. This order focused governance, land-use planning and housing federal attention on the environmental and policies. human health conditions of minority and low-income populations with the goal of Water-related inequities, or water achieving environmental protection for all injustices, range from lack of clean drinking communities. This Order also established water, prevalence of polluted waterways, an Interagency Working Group on systematic targeting and concentration Environmental Justice and directed federal of noxious facilities such as sewage water agencies to develop strategies on how to treatment plants, higher exposure to identify and address the disproportionately fish contamination and disproportionate adverse human health and environmental exposure to lead contamination in drinking effects of programs, policies and activities on water. It is these persistent water injustices minority and low-income populations. that still require public engagement and systematic reform. Under the Obama Administration, environmental justice continued to be a priority. The EPA established environmental justice as an agency-wide priority and the White House held a forum on environmental justice which aimed to ensure all Americans have strong federal protection from environmental and health hazards. In December 2011, the EPA released EJ Legal Tools which identifies key legal authorities

WATER JUSTICE TOOLKIT 11 GLOSSARY

CLIMATE CHANGE: MEANINGFUL INVOLVEMENT: Climate change is a long-term change in Potentially affected populations have an the average weather patterns that have appropriate opportunity to participate come to define Earth’s local, regional in decisions about a proposed activity and global climates. These changes that will affect their environment and/ have a broad range of observed effects5 or health; the public contribution can that include rising sea levels, shrinking influence the regulatory Agency’s mountain glaciers, ice melting, flooding decision; the concerns of all participants and changes in flora and fauna. involved will be considered in the decision-making process; and the rule FAIR TREATMENT: writers and decision makers seek out No group of people should bear and facilitate the involvement of those a disproportionate burden of potentially affected.7 environmental harms and risks, including those resulting from the MITIGATION: negative environmental consequences of Mitigation is the effort to reduce loss of industrial, governmental and commercial life and property by lessening the impact operations or programs and policies.6 of disasters. For mitigation to occur, we need to take action to reduce human and LOW-INCOME COMMUNITIES: financial consequences in the future. Low-income communities are census tracts with median household incomes RESILIENCE: at or below 80 percent of the statewide The ability to anticipate, prepare for, and median income or with median household respond to hazardous events, trends, incomes at or below the threshold or disturbances related to climate, for designated as low-income by a state or example floods and drought. Improving federal entity. climate resilience involves assessing how climate change will create new or alter MARGINALIZED COMMUNITIES: current climate-related risks and taking Socially and economically excluded steps to better cope with these risks. groups of people due to age, race, physical or mental disabilities, economic VULNERABILITY: status, religion, language, access The propensity or predisposition to be to education, or who live in isolated adversely affected. or depressed areas. Marginalized communities are often denied involvement in mainstream economic, political, cultural or social activities.

12 Background THE IMPORTANCE OF RIVERS TO COMMUNITIES

Rivers are our main source of clean One of the most important functions of our drinking water, and their economic value, rivers is providing clean drinking water to environmental value, and even aesthetic or communities. Humans need water, and two spiritual value touches all people. Across thirds comes from rivers and streams. The many cultures, rivers symbolize life and health of river ecosystems directly affects the health. Rivers play a number of roles quality of water we drink. Forests and rivers to ensure livability, prosperity, and the act as filters, constantly purifying the water assurance of a healthy environment. Rivers so before it reaches our tap it requires less support agriculture, industry, transportation, chemical treatment and expensive filtration recreation, and provide habitat for to make the water clean enough to drink. wildlife. Rivers are closely connected to communities as activities such as jogging, Free flowing rivers also provide flood walking, sporting, and attending festivals protection. A free flowing river that are frequently organized along river banks. occasionally floods its banks nourishes Rivers are also a place for communities to floodplain habitat important for the fish, boat, and participate in other leisure natural environment. A free flowing river activities. is connected to floodplains and wetlands that mitigate flood damages, providing a ROGUE RIVER, OREGON / “relief valve” for floodwaters, serving as OARS

WATER JUSTICE TOOLKIT 13 nature’s sponges and protecting downstream Water Quantity communities. Climate change alters where and when water is available across the nation For instance, Rivers are more than a natural feature of our in the Southeast it is projected that we will environment. They are a way of connecting have the same amount of rainfall but it will people to their water supply, a way of come in more intense storms resulting in protecting communities from flooding, pulses of water in rivers with potentially and a way to escape and enjoy nature. longer periods of potential drought. The Rivers are essential to communities, and all droughts will result in lower water levels in communities should have access to clean and rivers and diminished water supplies for the healthy rivers communities that rely on them.

THE IMPACTS OF CLIMATE CHANGE Water Quality The impacts of climate change are more More frequent and more powerful storms than just warming. Climate change impacts will increase polluted runoff from urban human life and the negative impacts of and agricultural areas, picking up pollutants climate change can lead to negative health, from the landscape and carrying them to social and economic consequences. nearby waterways.

Water sources, in particular, face a Extreme Storms great threat as temperatures rise and The frequency and severity of storms will precipitation patterns shift. More frequent increase. Atmospheric capacity to hold and intense storms will impact our rivers moisture increases exponentially with and will continue to damage infrastructure, temperature, leading to greater capacity for ecosystems, and social systems that provide heavy precipitation events and floods. essential benefits to communities. Lower- income and other frontline communities may have limited resources to prepare for and cope with extreme weather and climate-related events. Decisions related to land-use planning, flood protection, water infrastructure and other facets of community life will have a profound impact on a community’s vulnerability in a warming world.

Climate change has a profound impact on rivers, which in turn, has a profound impact on communities. Here are some ways in which climate change impacts our rivers:

14 Background FEDERAL LAWS & POLICIES

How can environmental laws and policies help protect you and your community?

Environmental laws, though complex, serve communities with opportunities to influence an important role in protecting human the decision-making process. health and the environment. Through research and effort, anyone can learn how Environmental laws in the United States are to utilize environmental laws to advocate robust and should provide relief to those for and address community health concerns who are suffering. The following laws are and exposure to environmental risks and mentioned throughout the toolkit as sources harms. Environmental laws provide many for addressing environmental injustices. opportunities to review, comment and This list is not comprehensive and does engage in the decision-making processes not outline specific provisions within each for proposed projects. Laws create avenues law but rather, provides a basic overview of for communities to advocate for equitable what the law does. The guides within this and just outcomes. Tools such as the Clean toolkit will take a deeper dive into these Water Act, Title VI of the Civil Rights Act, environmental laws. regulatory comment requirements, access to information through the Freedom of Information Act (FOIA), public SAN JOAQUIN RIVER / hearings, and legal action in court provide LIGHTHAWK

WATER JUSTICE TOOLKIT 15 FEDERAL LAWS & POLICIES

CLEAN WATER ACT (CWA) DRINKING WATER STATE REVOLVING CWA regulates pollution discharge into the LOAN FUND (DWSRF) waters of the United States and regulates The DWSRF was established by quality standards for surface waters. amendments to the SDWA. The DWSRF Major provisions of the CWA include is a financial assistance program to help pollution control programs such as setting water systems and states to achieve the wastewater standards for industry. EPA has health protection objectives of the SDWA already developed national water quality and creates a powerful partnership between criteria recommendations for pollutants in EPA and the states. surface waters. EMERGENCY PLANNING AND CLEAN WATER STATE REVOLVING COMMUNITY RIGHT TO KNOW ACT FUND (CWSRF) (EPCRA) The CWSRF program is a federal-state The EPCRA was created to help partnership that provides communities a communities plan for chemical permanent, independent source of low-cost emergencies. To implement EPCRA, financing for a wide range of water quality Congress requires each state to appoint a infrastructure projects. The CWSRF was State Emergency Response Commission created by the 1987 amendments to the (SERC). The SERCs are required to divide CWA as a financial assistance program for a their states into Emergency Planning wide range of water infrastructure projects. Districts and to name a Local Emergency Planning Committee (LEPC) for each CIVIL RIGHTS ACT OF 1964 (CRA) district. The LEPC must develop an The Civil Rights Act of 1964 outlaws emergency response plan for the district. discrimination on the basis of race, color, It also requires industry to report on the religion, sex, or national origin. Title VI of storage, use and releases of hazardous the CRA prohibits discrimination on the substances to federal, state and local basis of race, color, and national origin in governments. EPCRA requires state and programs and activities receiving financial local governments, and Indian tribes to use funding. On the occasion where a federally this information to prepare for and protect funded program does discriminate on the their communities from potential risks. above-named basis, one can file a Title VI complaint with the appropriate government agency.

16 Background EXECUTIVE ORDER 12898: affects the environment. Agencies are FEDERAL ACTIONS TO ADDRESS required to consider environmental justice ENVIRONMENTAL JUSTICE IN impacts under NEPA. MINORITY POPULATIONS AND LOW- INCOME POPULATIONS THE NATIONAL FLOOD INSURANCE EO 12898 was issued in 1994 to focus PROGRAM (NFIP) federal attention on the environmental The National Flood Insurance Program is and human health effects of federal actions implemented through FEMA and aims to on minority and low-income populations reduce the impact of flooding on private with the goal of achieving environmental and public structures. NFIP provides protection for all communities. The EO affordable insurance to property owners, directs federal agencies to identify and renters and businesses and encourages address the disproportionately high and communities to adopt and enforce adverse human health of environmental floodplain management regulations. effects of their actions on minority and low- income populations to the greatest extent ROBERT T. STAFFORD DISASTER possible. RELIEF AND EMERGENCY ASSISTANCE ACT (STAFFORD ACT) FREEDOM OF INFORMATION ACT The Stafford Act provides for federal (FOIA) natural disaster assistance for state and FOIA ensures that the public has access to local governments. States are required information in the federal government’s to have State Hazard Mitigation Plans as files. A member of the public can file a a condition of receiving non-emergency written request for information from the Stafford Act assistance and FEMA federal government. The government mitigation grants. must respond within ten days saying how and when it will provide access to the SAFE DRINKING WATER ACT (SDWA) documents. Many states have similar public The SDWA protects public drinking water access statutes. supplies throughout the nation. Under the SDWA, the EPA sets standards for drinking NATIONAL ENVIRONMENTAL POLICY water quality and implements various ACT (NEPA) technical and financial programs to ensure NEPA established a broad national drinking water safety. framework for protecting our environment and communities impacted by federal agency action. NEPA’s basic policy is to assure that government agencies consider the environment prior to undertaking any major federal action that significantly

WATER JUSTICE TOOLKIT 17 18 UPPERWATER FLINTJUSTICE RIVER TOOLKIT WORKING GROUP CLEAN AND SAFE 1 WATER GUIDE

WATER JUSTICE TOOLKIT 19 PURPOSE

Life depends on water. It regulates body unequal management of disaster funds, the temperature, protects organs and tissues, government neglect of community water carries nutrients and oxygen to cells, helps management and inequitable application of dissolves minerals and nutrients to make the law and public resources. This neglect them accessible to your body, and so much of adequate water management in frontline more.8 Water not only serves a person’s communities means they are more at risk physical health, but its sources also serve to the impacts of climate change on water as places for recreation, relaxation, and resources. The increased risk of drought and worship. Despite water being an essential flood by all communities are magnified in requirement for life, certain populations frontline communities. within the U.S. face inadequate water supplies, poor water quality, and exposure The intent of this Guide is to provide to pollution as a result of crumbling water an overview of federal laws and policies infrastructure. It may seem self-evident that related to water quality that facilitate every person should have access to clean public participation and advocacy. The water, yet our reality is far from that. Studies guide explains the meaning behind specific have found that lower income communities portions of the laws and how to utilize them and communities of color across the United including: States are disproportionately impacted by • Citizen suits under the CWA and SDWA, polluted waters. • Stormwater management and green infrastructure, Conserving clean water and ensuring • Residual designation authority (RDA), environmental justice are not two separate and goals, but can only be achieved together. • Re-designation of water bodies. The United States has strong water laws including the Clean Water Act (CWA) and The Guide also contains funding PRIOR PAGE: the Safe Drinking Water Act (SDWA), opportunities related to water and a list BOUNDARY WATERS CANOE AREA yet the benefits of these laws are often of organizations that can support ongoing WILDERNESS, MINNESOTA felt unequally. Clean water related public efforts related to water pollution. / NATE PTACEK health risks in frontline communities are FLINT RIVER, GEORGIA / compounded by poor disaster management, HANNAH PALMER

20 Clean and & Safe Water Guide HOW MIGHT READERS USE THIS lower-income communities due to a history GUIDE? of racially discriminatory policies and This guide can be useful to you if you need enforcement. Water injustices are all too legal guidance on how to utilize water common. policies to ensure clean water in your neighborhood. This guide is designed to Examples include: answer basic questions regarding federal • Community flooding as a result of poor water policies and identify areas where stormwater management as a result of community engagement is possible and legacies of discrimination in land-use effective. This guide is not intended to planning and housing development; provide a detailed or comprehensive analysis • Exposure to lead contamination in of all water policies, but is structured to help drinking water; communities identify how water policies can • Cumulative water-related risks (lead help address injustices and environmental contamination, exposure to polluted inequities. waterways, etc) and impacts to low- income communities and communities WHAT ARE THE BIGGEST OBSTACLES of color; FACING CLEAN AND SAFE WATER? • Community voices and water needs Generally, water pollution is discussed in the that have been excluded from the context of pollution spills, drinking water development of water management contamination, and poor quality. Often policy; FLINT RIVER, GEORGIA / HANNAH PALMER overlooked is that water pollution is more • Exposure to contaminated fish. likely to occur in communities of color and

SHIFTING DEFINITIONS: WATERS OF THE UNITED STATES

The Waters of the United States’ definition Currently, the Waters of the United has changed a number of times due States9 includes: to changes mandated by presidential • The territorial seas, and waters administrations and litigation. In 2018, which are currently used, or the Trump administration scaled back the were used in the past, or may be definition of Waters of the United States. susceptible to use in interstate or While wetlands generally fall under this foreign commerce, including waters definition, there has been conflicting which are subject to the ebb and flow interpretation on whether “adjacent of the tide; wetlands” fall under this definition. • Tributaries; Definition of “adjacent wetland” has • Lakes and ponds, and impoundments fluctuated in scope based on regulatory of jurisdictional waters; and interpretation. • Adjacent wetlands

WATER JUSTICE TOOLKIT 21 GLOSSARY

CITIZEN SUITS: Citizen suits NATIONAL WATER QUALITY RESIDUAL DESIGNATION are lawsuits that are brought STANDARDS: Provisions of state, AUTHORITY: An authority created by individuals or nonprofit territorial, authorized tribal or for the EPA to require NPDES groups under the provisions of federal law approved by EPA that permits for other stormwater environmental laws. describe the desired condition of a discharges on a case-by-case basis water body and the means by which when: DESIGNATED USES: Water quality that condition will be protected or • the discharges contribute to standards require states, territories, achieved. a violation of water quality and authorized tribes to specify standards; goals and expectations for how each NON-POINT SOURCE POLLUTION: • are a significant contributor of body is used. Typical designated Any source of water pollution that pollutant to a protected water; uses include: does not meet the legal definition • or controls are needed for the • Protection and propagation of of point source. Non-point source discharge based on watershed dish shellfish and wildlife; pollution generally results from allocations that are part • Recreation; stormwater runoff, precipitation, of TMDLs that address the • Public drinking water supply; atmospheric deposition, drainage, pollutant of concern. and seepage, or hydrologic modification. • Agricultural, industrial, TOTAL MAXIMUM DAILY LOAD navigational, and other MS4 PERMIT: A MS4 is a municipal (TMDL): A TMDL is the calculation purposes. separate storm sewer system that of the maximum amount of pollutant often discharges untreated water allowed to enter a water body so NATIONAL POLLUTANT DISCHARGE into local bodies of water. MS4s that the water body will meet and ELIMINATION SYSTEM (NPDES): can be a system that is owned by a continue to meet water quality The CWA prohibits anybody from state, city, or town, that discharges standards for that particular discharging “pollutants” from a runoff into waters of the United pollutant. A TMDL determines a “point source” into a “Waters of States; designed to collect or convey pollutant reduction target and the United States” unless they stormwater; not a combined sewer; allocates load reductions necessary have a NPDES permit. The permit or not a part of a sewage treatment to the source of the pollutant. will contain limits in what you can plant. discharge, monitoring and reporting TRIENNIAL REVIEW : States are requirements, and other provisions POINT SOURCE POLLUTION: Any required under the CWA to conduct to ensure that the discharge does discernible, confined and discrete a comprehensive review of all water not hurt water quality or human discharge of pollution, including quality standards and designated health. but not limited to any pipe, ditch, uses at least once every three years. channel, tunnel, conduit, well, NATIONAL WATER QUALITY discrete fissure, container, rolling CRITERIA: A criteria developed by stock, concentrated animal feeding the EPA for ambient water quality operation, or vessel or other floating that accurately reflects the latest craft, from which pollutants are or scientific knowledge on the impacts may be discharged. of pollutants on human health.

22 UPPERWATER FLINTJUSTICE RIVER TOOLKIT WORKING GROUP FEDERAL LAWS AND POLICIES RELATED TO CLEAN & SAFE WATER

Water laws in the United States tend to fall decision making process and designation under a “federalism” statutory framework, determinations, which may demand more meaning responsibilities are shared between protective uses and standards. They can the federal and state government. Often, also argue for more protective water quality the federal government will delegate its criteria based on cumulative exposure and authority to states to set and enforce limits. other health factors.

The United States has two broad laws that Under the SDWA, the EPA establishes address clean and safe water, the Clean drinking water standards for public water Water Act (CWA) and the Safe Drinking systems, with maximum contaminant levels Water Act (SDWA). These laws can be or treatment methods based on impacts complicated and technical and cover many to human health. As a part of this process, different topics. Therefore, it is important EPA is supposed to consider health threats to consider and define what water related to groups that are likely to be at greater risk challenges are impacting your community than the general population. Community when determining which aspects of these residents can provide EPA with information laws most apply to your community and about the health effects of contaminated what standards they set. drinking water in their communities, especially considering such factors as Under the CWA, states, or the EPA in some existing health problems and cumulative instances, issue water quality standards for exposure to toxic materials such as those rivers, lakes, and other surface waters. Those present in aging drinking water supply standards identify the “designated uses” systems, such as lead. for which those waters will be protected, and the levels of water quality for various This guide highlights a few major provisions pollutants and other water conditions in each law that can support communities necessary to protect those uses (water in their environmental justice efforts. quality criteria). Community residents can The following section outlines the major provide information on the actual uses provisions of each act and citations to those of water bodies in their communities (ie. sections for reference.

RACCOON RIVER, IOWA / swimming, fishing, recreating) during the GARRETT HALL

WATER JUSTICE TOOLKIT 23 CLEAN WATER ACT Section 303 Total Maximum Daily Load (TMDL) authorizes EPA to assist states, National Pollutant Discharge Elimination territories and authorized tribes in listing System (NPDES) Permit Program: The impaired waters and developing TMDLs for NPDES permit program addresses water these water bodies. A TMDL establishes the pollution by regulating point sources that maximum amount of a pollutant allowed in discharge pollutants into “waters of the a water body and serves as the starting point United States.” This regulation is enforced or planning tool for restoring water quality. through the issue of permits. Under section 303, subsection (d) includes information on the impaired waters list. Section 319 seeks to control pollution 303(d) authorizes the EPA to assist states, by non-point sources (NPS). This section territories, and tribes in listing impaired requires states to develop reports that waters and developing TMDLs for listed identify water bodies impaired by NPS water bodies. pollution and the categories of NPS contributing to this problem. States also Residual Designation Authority (RDA): adopt a NPS management program, which The EPA can use its RDA to require NPDES details the states strategy for addressing permits for other stormwater discharges NPS pollution. or category of discharges under certain circumstances. Section 401: A federal agency may not issue a permit or license to conduct any activity SAFE DRINKING WATER ACT that may result in any discharge into waters of the United States unless a Section 401 Section 1412 instructs the EPA on how water quality certification is issued, verifying to select contaminants for regulation and compliance with water quality requirements, specifies how and when the EPA must or certification is waived. States may create establish regulations once a contaminant more stringent standards than the federal has been selected. standards. Section 1413 authorizes states and Indian Section 404 establishes a program to tribes to assume primary oversight and regulate the discharge of dredged or fill enforcement responsibility for public material into waters of the United States. drinking water systems when EPA determines that statutory criteria are met. State Revolving Funds allows the EPA to provide grants to states to establish loan Section 1443 authorizes Congress to funds. These state funds then provide low appropriate $100 million annually for EPA interest loans to municipalities, businesses, to make grants to states to cover the public or non-profit organizations for water water system supervision program (PWSS). quality projects. Most loans are used for the construction, repair, or expansion of Section 1452 establishes a state revolving municipal sewage treatment plants, but fund to help systems finance improvements money can also be used for NPS projects. needed to comply with SDWA regulations.

24 Clean and & Safe Water Guide ADDITIONAL CHALLENGES: WATER AFFORDABILITY

While not addressed in this guide, a This guide does not provide direct major challenge to clean water access recommendations to address water is the affordability of drinking water and affordability; however, communities wastewater services. can use recommendations from the public participation guide to address Water affordability is a growing problem affordability through public participation. in the United States with researchers estimating that within the coming To learn more about water affordability, years, approximately 33% of the U.S. see the following resources: population will have water bills that are not affordable. According to the US Water • “The Invisible Crisis: Water Alliance, there is no national, enforceable Unaffordability in the United States,” affordability standard for waters in the US Water Alliance, May 2016. United States. • “Measuring and Addressing Water and Waste Water Affordability in the United States,” Boston University Institute for Sustainable Energy, June 2020.

Section 1459A directs EPA to establish The EPA can also seek emergency relief if a grant program to assist disadvantaged a court finds an “imminent and substantial communities and also small communities engenderment” at a particular facility. that are unable to finance projects needed to Under the Safe Drinking Water Act, the EPA comply with SDWA. may deny federal financial assistance to any project which may contaminate the recharge To administer the Clean Water Act and the zone of certain “sole source aquifers.” Safe Drinking Water Act the federal and state government work together to ensure While local governments source 95% of compliance with the laws. Under the CWA, water infrastructure funding, the federal the EPA can issue compliance orders, government has substantial power when suspend or revoke permits, assess penalties, it comes to regulating our waters. The bring lawsuits to address violations of federal government oversees broader the statute, regulations, permits, or other environmental laws and determines which requirements governing discharge of entities, localities, and utilities receive pollutants into water. federal funding.

IPSWICH RIVER, MASSACHUSETTS / IPSWICH RIVER WATERSHED ASSOCIATION

WATER JUSTICE TOOLKIT 25 HOW DO I KNOW IF MY WATER IS POLLUTED?

BASELINE ASSESSMENT FOR WATER to identify specific areas that require POLLUTION improvement, or attention. In addition to Prior to working on solutions to address tools made available by the government, it water inequities and pollution in your is also important to consider community community, it is beneficial to understand science and your own data and findings. what problems are present. When pollutants Since communities are most familiar with are present in water, there may or may not their surrounding environment, local be obvious or visible changes to how the knowledge is critical. water looks or smells. Often pollutants can go unnoticed for years. Water pollution As you work through assessing water occurs when harmful substances, often related problems in your community, chemicals or microorganisms, contaminate consider reaching out to your local public a stream, river, lake aquifer, or infiltrates utility, department of watershed or the drinking water pipes. This contamination environment, and other local government can degrade water quality and render water officials such as council members to identify toxic to humans and the environment. Water sources of pollution or areas that need water pollution can have many sources including quality improvements. farms, urban centers, and industrial sites and can be present in different types of water EXAMPLES OF THREATS TO sources such as groundwater and surface DRINKING WATER water. Given this wide range, it is important PFAS to consider where your drinking and Per- and polyfluoroalkyl substances (PFAS) recreational water comes from and whether are a group of human-made chemicals that it may have been exposed to any sources of includes PFOA, PFOS, GenX, and many pollutants. other chemicals. PFAS chemicals are more common than you may think. They are often There are a number of tools communities used in furniture, adhesives, food packaging, can use to understand pollution levels, heat resistant non-stick wear, and more. toxicity, and contamination in both There is now evidence that exposure to drinking water and surrounding waterways. PFAS can lead to adverse human health This section will provide information on effects. PFAS exposure and consumption databases and resources that communities OHIO RIVER, OHIO / can result in low infant birth weights, effects ORSANCO can utilize to establish a baseline assessment

26 Clean and & Safe Water Guide on the immune system, cancer, and thyroid INSPECTION AND REPORTING hormone disruption. This is particularly REQUIREMENTS important since these chemicals are very Often polluting entities operate under persistent in the environment and in the permits that limit discharges or allow them human body—meaning they do not break only when certain water treatment has been down and can accumulate over time. PFAS undertaken. Most environmental permits can be found in drinking water and living grant the state or federal agency that issues organisms such as fish and animals. them the authority to enter the permitted According to the EPA, drinking water can be facility to inspect whether the operation a source of exposure in communities where is being conducted in compliance with these chemicals have contaminated water the permit’s requirements. This usually supplies. Such contamination is typically includes the authority to take water samples localized and associated with a specific for inspection and analysis. In addition to facility. providing information about whether the permitted facility may be non-compliant or Lead in violation of health and safety standards, The EPA and Centers for Disease Control inspection results can form the basis of and Prevention (CDC) agree that there is no government or community enforcement known safe level of lead in a child’s blood. actions. Lead can enter into drinking water when plumbing materials that contain lead corrode Polluting entities may also be required (ex. Lead pipes). Lead, much like PFAS, is to provide data on their discharges or persistent and can bioaccumulate in the monitoring activities. Usually these body over time. Lead exposure is especially entities are required to maintain records dangerous for young children. Even low and monitor water quality, and in some levels of lead in the blood of children can circumstances report that information result in behavioral and learning problems, regularly to the permitting agency. For lower IQ and hyperactivity, slowed growth, example, if a local watershed department hearing problems and anemia. In adults, is granted a wastewater discharge permit lead exposure can result in cardiovascular under the CWA by the State with authority effects, decreased kidney function, and delegated by EPA within their permit, there reproductive problems. may be a requirement to provide monitoring data and discharges quarterly. For more information on lead and what you can do if you think your water is In addition to monitoring requirements set contaminated visit EPA’s website: “Basic forth by permits, facilities with permits may Information about Lead in Drinking Water” be required to report information that will This site provides information on learning help the government protect public health. where your water comes from, including This usually includes reporting major spills information on: and accidental releases of chemicals. • Consumer Confidence Reports (CCR), • Ways to have your water tested for lead, This type of information is particularly • How to reduce lead in drinking water, important for communities because it • Regulations for lead. provides information on where pollution

WATER JUSTICE TOOLKIT 27 WATER POLLUTANTS COMMUNITIES MAY FACE

One of the greatest threats to human can include nitrogen, bleach, pesticides, health is drinking water contamination. metals, toxins produced by bacteria, and Water pollutants can take on many forms human or animal drugs and can include physical, chemical, biological, or radiological pollution.10 BIOLOGICAL: Pollutants that are organisms in water. These are also PHYSICAL: Pollutants that primarily referred to as microbes or microbiological impact the physical appearance or other contaminants. This can include bacteria, physical properties of water. This can viruses, protozoan, and parasites. include sediment or organic material suspended in the water of lakes, rivers, RADIOLOGICAL: Pollutants that are and streams from soil erosion chemical elements with an unbalanced number of protons and neutrons resulting CHEMICAL: Pollutants that are elements in unstable atoms that can emit ionizing or compounds. These contaminants may radiation. This can include cesium, be naturally occurring or man-made. This plutonium and uranium.

is occurring and how often releases are water system. All public water systems must happening. This information can help notify their customers when they violate communities better understand how applicable requirements or find unregulated individual members may be exposed to contaminants in the drinking water. Notice harmful substances and support claims must be given to customers within 24 hours that pollution is having an impact on if there is potential for serious adverse health their community. This information is effects from short-term exposure. also important for local government agencies, such as fire departments, and The SDWA also requires EPA to determine community planning departments in order the level of contaminants in drinking water to incorporate these polluting facilities at which no adverse health effects are likely and their emissions into their emergency- to occur within an adequate margin of response plans and help communities to safety. These non-enforceable health goals, advocate for better emergency response based solely on possible health risks are plans. called maximum contaminant level goals (MCLGs). For most contaminants, EPA sets Specifically related to clean and safe drinking an enforceable regulation called a maximum water, the Clean Water Act requires states contaminant level (MCL). to report to the EPA every two years about the state of water quality within their state, Government entities often focus on and the progress being made to meet water compliance by individual permit-holders. quality goals. Under the Safe Drinking Water Communities can and should advocate for Act, community water systems must mail an agencies to take a broader, more holistic annual report to their customers outlining view of pollution and consider cumulative FLINT RIVER, GEORGIA / the level of contaminants in the drinking impacts of the numerous polluting sources STACY FUNDERBURKE

28 Clean and & Safe Water Guide that contribute to health impacts in their Freedom of Information law that applies community. to state agency records. Prior to filing a FOIA request, see if the information you are FINDING DATA AND INFORMATION seeking is already public. If it is not already public, identify the correct agency for your ECHO: Water Pollution Search request. There are over 100 agencies, and The EPA’s Enforcement and Compliance each is responsible for handling its own History Online (ECHO) website (www.echo. FOIA requests. After filing a request, an epa.gov) allows community members to agency will determine what can be disclosed search facilities with permits to assess their and provide the requested information in a compliance with environmental regulations. timely manner based on complexity of the request and any backlog of requests. ECHO can be used to: • Search for facilities The FOIA website (www.foia.gov) provides • Investigate pollution sources information on how to submit a FOIA • Search EPA enforcement cases request. • Examine and create maps of enforcement actions EJSCREEN: Environmental Justice • Analyze trends in compliance and Screening and Mapping Tool enforcement data EJSCREEN (www.epa.gov/ejscreen) is Within ECHO, the Pollution Search Loading an environmental justice mapping and Tool is a web-based tool that generally screening tool that provides EPA with a calculates and reports facility pollutant nationally consistent dataset for combining discharges in pounds per year. The Tool environmental and demographic indicators. prioritizes discharges based on total mass and toxicity to help identify discharges This tool helps users identify geographic that may have the greatest impact on the areas with: environment or human health. • Federally defined “minority” and/or low-income populations The ECHO QuickStart Guide provides • Potential environmental quality issues information on how to use ECHO and • A combination of environmental and undergo an analysis. demographic indicators that is greater than usual. Freedom of Information Act (FOIA) FOIA provides the public the right to EJScreen can be used to support: request access to records from any federal • Educational programs agency. It is known as the law that keeps • Grant writing citizens in the know about their government. • Community awareness efforts FOIA is particularly useful for accessing environmental records. This EPA user guide provides support on navigating and using EJScreen as a tool. It is important to note that there is a federal FOIA statute, but each state also has its own

WATER JUSTICE TOOLKIT 29 COMMUNITY CASE STUDY: WORKING WITH RESIDENTS TO ENSURE SAFE DRINKING WATER PETOSKY, MI

When a municipality issues an advisory on to learn the acronyms and the contaminants and elevated lead levels in drinking water, residents what they can do. We translate and communicate are alarmed and looking for answers. Is my what the data is actually saying.” water undrinkable? Do I need a filter? Do I buy bottled water? When it comes to drinking water, says Smith, “zero amount of lead is safe.” Freshwater Future Freshwater Future partners community groups remains engaged until all lead service lines are to make sure residents understand the advisory. replaced or tests prove that the water is safe. Volunteers train neighbors on how to flush their “The residents tell us how they would like to water and install filters. Freshwater Future has move forward, and we support them every step even provided grants to pay volunteer stipends, of the way,” she says. “Whether that is through share educational materials, and complete water strategy for taking actions or funding to support testing for lead and other metals. their initiatives.” Freshwater Future offers a great example of how to follow the lead of the And once the results come in, Freshwater community. Future is there to help analyze the data and communicate to communities and to the Health Learn more at: www.freshwaterfuture.org Department. Alexis Smith, Community Program and Technical Associate explains, “If you’ve ever seen a water analysis, you can imagine how overwhelmed these residents must feel. Environmental chemistry is not my background, WATER TESTING / FRESHWATER FUTURE so even for me, it was a learning curve. You have

30 Clean and & Safe Water Guide RECOMMENDATION 1 CITIZEN SUITS

Environmental laws are only effective requirements, and other provisions to ensure to the extent they are enforced. The that the discharge does not hurt water government included provisions in the CWA quality or human health. and the SDWA to allow individuals the ability to bring lawsuits against polluters, The CWA “citizen suit” provision is as acknowledging that individuals play a critical follows (CWA, Section 505(a)). role in identifying polluters and holding (a) Authorization; Jurisdiction: Except as them accountable. These provisions are provided in subsection (b) of this section and called “citizen suits.” section 1319(g)(6) of this title, any citizen may commence a civil action on his own Citizen suit provisions are a bedrock of behalf: several environmental laws. The intent • Against any person (including (i) of these provisions is to supplement the United States, and (ii) any other government action. However, because governmental instrumentality or agency government agencies may also use to the extent permitted by the eleventh their discretion to choose not to bring amendment to the Constitution) who enforcement action when there has been a is alleged to be in violation of (A) an violation, citizen suits play an important role affluent standard or limitation under when the government cannot or will not act. this chapter or (B) an order issued by the Administrator or State with respect to There are two situations in which citizens are such a standard or limitation or authorized to bring a lawsuit to enforce the • Against the Administrator where there CWA. is alleged failure of the Administrator • If there are ongoing violations of a to perform any act or duty under this NPDES permit and no enforcement chapter which is not discretionary within action has been taken by the state or the Administrator. federal agency in charge of the permit, or • If the EPA is not performing mandatory The SDWA “citizen suit” provision is as (non-discretionary) duties. follows (42 U.S.C. § 300j-8) Similar to the CWA, SDWA allows citizens to Citizen suits under the CWA are most file a civil action (civil suit) on their behalf: commonly filed when there is a violation of a • Against any person (including (A) NPDES permit. The CWA prohibits anybody the United States, and (B) any other from discharging “pollutants” through a governmental instrumentality or agency “point source” into a “waters of the United to the extent permitted by the eleventh States” unless they have a NPDES permit. amendment to the Constitution) who The permit will contain limits on what you is alleged to be in violation of any can discharge, monitoring and reporting requirement prescribed by or under this subchapter;

WATER JUSTICE TOOLKIT 31 • Against the Administrator where there WHAT IS AN “INJURY?” is alleged a failure of the Administrator While the word “injury” may sound like to perform any act or duty under this some physical harm needs to occur, the legal subchapter which is not discretionary definition does not require a physical injury. with the Administrator; or Simply put, injury includes an impact, which • For the collection of a penalty by may be biological (falling sick) to physical the United States Government (and (broken arm). Injury can also be a financial associated costs and interest) against impact on an individual (ie. losing money, any Federal Agency that fails, by the property, etc.). date that is 18 months after the effective date of a final order to pay a penalty WHERE CAN A CITIZEN SUIT BE assessed by the Administrator under FILED? section 300h-8(b) of this title, to pay the A citizen suit must be filed in the judicial penalty. district in which the violation occurred and a copy of its complaint or suit must also be In addition, SDWA allows citizens to file a sent to the U.S. EPA Administrator and the civil action against the EPA Administrator U.S. Attorney General. for an alleged failure to perform any non- discretionary act or duty. Citizen suit To begin a citizen suit, a number of factors opportunities under the SDWA are broader must be satisfied in order to properly file suit than the CWA. There needs to simply be a in court. Here are a few things to consider: violation of a SDWA requirement in order for a citizen or a community group to bring Check for other claims against the suit. violator. The entity or person that you plan on suing may already be criminally charged WHO CAN I SUE? or sued in civil action by the EPA or state A citizen suit may be brought against any agency. If the government has already person or entity, including the United States, started legal action against the violator to for causing injury. In addition to suing enforce the CWA or SDWA, a private citizen parties for causing injuries, suits may be cannot sue independently. The best way to brought against the Administrator of the find out if there is an ongoing lawsuit is to relevant government agencies for failing to check the ECHO database and inquire with perform any duty required under the CWA your local environmental protection agency. or SDWA. Standing. A commonly litigated and DO I NEED AN ATTORNEY? controversial part of filing a citizen suit is Citizen suits are complicated and will determining whether the plaintiff (person require legal assistance. However, some bringing the suit) has something called law firms may be able to support citizen standing. Standing is required in order to suits in a pro-bono or low-cost capacity. At prove that the plaintiff bringing the lawsuit the end of this guide, you will find a list of has the proper grounds to do so. If an organizations that contribute legal services organization is bringing suit, it is required to to environmental justice issues. show standing of the individual members. To

32 Clean and & Safe Water Guide establish standing three requirements must Next steps: be met: • After filing a notice of intent, a violator • The plaintiff must have suffered an has 60 days to comply with the permit “injury in fact,” meaning the injury is or whatever regulation or law they are of a legally protected interest which is violating. This grace period allows for (a) concrete and particularized and (b) the violator to remedy any violations actual or imminent. that are specifically stated in the Notice • There must be a causal connection of Intent filed by the plaintiff. between the injury and the conduct • If the 60-day grace period has passed brought before the court. and the violator is not compliant, any • It must be likely, rather than speculative citizen can file a suit against the violator that a favorable decision by the court will and the regulatory agency that failed to redress the injury. require the violators requirement with the CWA or SDWA, and the regulatory Notice. Prior to a lawsuit, a citizen must agency if they did not perform any duty give a 60-day notice of their intent to sue to required by law. the alleged violator, the EPA, and the local designated enforcement agency. The local The court may enter a final judgment and designated enforcement agency is likely your require the violator to comply with all laws, state environmental protection agency (ex: regulations, and permits. The court may also Maryland Department of the Environment). assess penalties upwards $55,000 under the CWA and SDWA per day, per violation. The The purpose of a 60-day notice is to warn the amount of civil penalty is dependent on a violator and other governing agencies that number of factors including how serious the they are being sued and give them a period violation was, the economic gain from the of time to address the problem. The notice violation, if there were previous violations, if should identify the entity being accused (the efforts to comply were shown, and more. entity being sued) and what they are doing to break the law.

Following the consideration of these preliminary steps and considerations, a community or private citizen may file a citizen suit if it is deemed appropriate.

WATER JUSTICE TOOLKIT 33 RECOMMENDATION 2 STORMWATER PERMITTING

HOW CAN THIS SECTION BE USEFUL? stems from the language of the Clean Water Act, which distinguishes pollution into Stormwater pollution is a common cause two categories: point source pollution and of sewage overflows, basement sewage nonpoint source pollution. As mentioned backups, increased local flooding, among in the glossary, a point source is a discrete other water quality problems. This section conveyance of water, such as a pipe or can be used as guidance to (1) better channel. A non-point source is any other understand stormwater and how it fits into sources of water pollution where stormwater EPA’s responsibilities to protect our nation’s runs off surfaces such as roads, fields, waters and (2) how to improve water rooftops, etc. quality in your community through green infrastructure. Though there are a number HOW IS STORMWATER MANAGED? of origins for stormwater, this guide focuses specifically on MS4s. Stormwater is managed through municipal separate storm sewer systems, or “MS4s.” WHAT IS STORMWATER? These are a collective “system” of publicly owned storm drains, gutters, roadside Stormwater runoff is simply rain or melting ditches, grassy swales, sediment ponds, and snow that flows over the ground. However, other similar features that are connected to in urban or developed areas, stormwater collect and move stormwater through and runs over pavement and parking lots, out of the community. While these piped picking up pollutants before flowing into systems are created to manage stormwater, nearby rivers and streams. Sometimes this sometimes they overflow, which results stormwater can infiltrate and flood sewage in community floods. In some cases, pipes, cause basement floods and sewage stormwater is collected within the same spills. Sewer overflows carry harmful pipes as sewage, causing sewage flooding. pathogens that can end up in drinking or For point source discharges, the Clean Water recreational water causing health risks. In Act established the The National Pollutant more natural areas like forests and wetlands, Discharge Elimination System (NPDES). stormwater soaks into the ground, filtering pollutants and keeping it from causing Under the NPDES program, factories, flooding. sewage treatment plants, and other point sources must obtain a permit from the state Like other sources of water pollution, and U.S. EPA before they can discharge stormwater falls under the prohibitions their waste of effluents into any body of and requirements of the Clean Water Act. water. Prior to discharge, the point source However, distinguishing between types must use the latest technologies available of stormwater and whether it is regulated to treat its effluents and reduce the level or not, can be confusing. This confusion of pollutants. However, stormwater did

34 Clean and & Safe Water Guide not fall under the Clean Water Act at the Operators of these pollutant sources may time, as it was considered a non-point be required to obtain NPDES permits source. Following a number of court cases before they can discharge stormwater. and updated science, Congress passed the This permitting mechanism is designed to Water Quality Act which amended the Clean prevent stormwater runoff from washing Water Act to include provisions in section harmful pollutants into local surface waters. 402(p) that specifically address stormwater Combined sewer overflows (CSOs) contain discharges. Congress clarified, in the statute, untreated or partially treated human and that stormwater discharges from municipal industrial waste, toxic materials and debris storm sewers are “point sources” and require as well as stormwater. EPA regulates CSOs the same level of pollution control that point through the National Pollutant Discharge sources require. As a result of this legislation Elimination System (NPDES) permitting change, a permit system was created for program. It provides guidance on how stormwater, referred to as MS4 permits. communities with CSOs can achieve compliance. MS4 permits have a specific standard that “must reduce the discharge of pollutants For more information on CSO’s visit the to the maximum extent possible,” which is EPA’s CSO guidance, which covers long-term commonly known as the “MEP standard.” control plans, long-term planning with water To comply with the MEP standard, MS4 quality standards reviews, CSO guidance for permits require permittees to determine and monitoring and modeling, and more. implement “best management practices” (BMPs) (see below for different kinds of MS4 PERMIT COMPLIANCE BMPs) to reduce the quantity of pollutants entering into and/or discharging from the MS4s are required to comply with the MEP MS4. standard, meaning they are only allowed to pollute up to a certain limitation. In order to The U.S. EPA oversees the NPDES program, successfully stay under the limits of allowed and uses it to regulate stormwater discharges pollutant discharge, mechanisms and from three potential sources: municipal infrastructure need to be in place to ensure storm sewer systems (MS4s), construction compliance. activities, and industrial activities. There are two different types of MS4 Industrial activities include 11 categories. permits, referred to as Phase 1 and Phase Major activities include hazardous waste 2 permits. The phases refer to the order treatment, storage, and disposal facilities; they were implemented under the CWA heavy manufacturing; coal and mineral amendment referred to in the previous mining; and more. section. Phase 1 MS4 permits are stormwater permits for cities with populations over Construction: Generally, NPDES stormwater 100,000 people, while Phase 2 permits are program requires permits for discharges for cities with populations under 100,000. from construction activities that disturb one These smaller communities often obtain or more acres. their permit coverage through a collective state-wide permit program.

WATER JUSTICE TOOLKIT 35 The basic requirements for a Phase 1 MS4 There are many different ways communities permit include a definition or standard can engage in the MS4 permit process. for how to meet MEP requirement, a Many Phase 2 programs often utilize local stormwater management plan (SWMP), community groups to help them comply a manual of stormwater management with their MCM’s. One growing trend practices that can be used to achieve the in MS4 permits is the inclusion of green plan and MEP standard, as well as maps and stormwater infrastructure as requirement in reporting requirements and schedules. Phase a stormwater management plan and/or list 2 communities have a lighter permit burden, different green stormwater infrastructure and these permits must contain programs practices as options in a stormwater to achieve six minimum control measures management manual. On a city or county (MCM’s). scale, green infrastructure is a patchwork 1. Public Education and Outreach of natural areas that provide habitat, flood 2. Public Participation and Involvement protection, clean air, and clean water. At the 3. Illicit Discharge Detection and neighborhood scale, green infrastructure Elimination mimics nature to soak up and store water. 4. Construction Site Runoff Control Anywhere from small to large scale areas, 5. Post-Construction Runoff Control green infrastructure can be incorporated to MILWAUKEE 6. Pollution Prevention and Good reduce stormwater pollution and help meet METROPOLITAN SEWERAGE DISTRICT Housekeeping MS4 NPDES compliance. HEADQUARTERS GREEN ROOF, MILWAUKEE, WI / MMSD

FUNDING GREEN INFRASTRUCTURE PROJECTS

Incorporating green infrastructure Visit EPA’s Green Infrastructure into your community can vary in cost, Funding Opportunities page for more depending on the desired project type. information. While green roof can have more up- front costs, community rain gardens are Individual states may also have funding or relatively inexpensive. However, if a city grants available for green infrastructure is installing green infrastructure BMPs projects. Each state differs, so it will of any type, they are cost competitive be helpful to check in with your state’s with traditional stormwater management environmental or public works agency. practices like storm drains and basins. Green infrastructure projects are also a To support green infrastructure great opportunity to partner with local development, there are a number of environmental non-profits who may federal funding opportunities that already be spearheading stormwater may be available to your community. management projects.

36 Clean and & Safe Water Guide WHAT ARE GREEN INFRASTRUCTURE Planter boxes BEST MANAGEMENT PRACTICES These are urban rain gardens that absorb (BMPS)? runoff from sidewalks, parking lots, and streets. These are ideal for urban areas. Green infrastructure and best management practices can include both small- and large- Bioswales scale projects. There are a variety of options These are vegetated or mulched channels to fit individual community needs and that provide treatment and retention as they below are a number of green infrastructure move stormwater from one place to another. practices that can be used: Vegetated swales slow, infiltrate, and filter stormwater flows. Downspout disconnection This practice reroutes rooftop drainage pipes Permeable pavements from draining rainwater into the stormwater This mechanism infiltrates, treats and stores sewer to draining it into rain barrels or rainwater where it falls. It is particularly permeable surfaces. cost effective where land value is high, and flooding or icing is a problem. Rainwater harvesting This system collects and stores rainfall for Green parking and green roofs later uses. This structure creates permeable surfaces that can absorb and filter runoff. These are Rain gardens also cost effective and appropriate for urban These gardens are shallow basins that collect areas. and absorb runoff from rooftops, sidewalks, and streets. They are a versatile feature that Land conservation comes in many different sizes and can be Water quality and flooding impacts of used in a variety of applications­—from front urban stormwater can also be addressed by yards to main streets. They can be installed protecting open spaces and sensitive natural on almost any unpaved surface or built to areas within or adjacent to cities. Natural RAIN GARDEN, LANSING, MICHIGAN / PATRICIA replace paved surfaces. areas that can be a focus include riparian PENNELL areas, wetlands, and steep hillsides.

WATER JUSTICE TOOLKIT 37 COMMUNITY CASE STUDY: STORMWATER FLOODING AND DISPLACEMENT IN SOUTH ATLANTA NEIGHBORHOODS ATLANTA, GA

In 2012, a 25-year storm delivering 3.5 inches highways, and large scale developments. “In of rain in just four hours flooded South Atlanta’s fact, this development is a major reason why Peoplestown and Mechanicsville streets and we see significant flooding in communities like filled basements and backyards with toilet paper Peoplestown when we have big rain storms. and sewage. Community members in these When it rains, the pipes can’t hold all that historic neighborhoods organized to demand that rainwater and it has to go somewhere. And the city address flooding and combined sewer unfortunately, too often that means in our homes spills in their neighborhood. The Mayor promised and in our roadways.” a plan within 30 days for addressing the problem. First on the list is their campaign to advocate for Fast forward to 2020, the community was still a stronger stormwater ordinance from the City flooding, and many residents still felt fear each that works for everyone and to hold developers time it rained, so community leaders officially accountable for building practices that contribute launched the Intrenchment Creek Community to downstream flooding. Atlanta is an MS4 and Stewardship Council (ICCSC). Some of the as part of the City’s permit, they have prioritized members had been advocates for equitable and green infrastructure to address stormwater sustainable development in the area for over flooding. Long term, ICCSC’s goal is to advocate thirty years, while others were newer residents, for stormwater management, craft collaboration, alarmed by the intersection of gentrification and and advocate for policy change that creates an environmental justice. equitable neighborhood in this rapidly changing heart of Atlanta. Jason Dozier, co-chair of the ICCSC connects chronic flooding to the displacement of people Learn more at: www.intrenchmentatl.org of color in exchange for wide parking lots,

FLOODING AND COMBINED SEWER SPILL, ATLANTA, GEORGIA / BEN SIAN

38 Clean and & Safe Water Guide RECOMMENDATION 3 EPA’S RESIDUAL DESIGNATION AUTHORITY

In addition to traditional stormwater of addressing stormwater discharges from permitting for MS4s, industrial pollution, unregulated sites. and construction, the EPA can use its “residual designation” authority (RDA) RDAs are complicated and to advocate for under 40 CFR 122.26(a)(9)(i)(C) and the federal government to use their RDA is (D) to require NPDES permits for other a big task. We recommend that if an RDA is stormwater discharges or category of a route you or your community would like discharges on a case by case basis when it to take, to seek counsel or assistance from a determines that: local non-profit chapter or organization. • The discharge contributes to a violation of water quality standards For example, Vermont’s Environmental • Is a significant contributor of pollutant Court required the Vermont Department to federally protected surface waters, or of the Environment and Conservation to • Controls are needed for the discharge exercise their RDA in association with a based on waste load allocations that series of stormwater-related TMDLs. The are part of TMDLs that address the resulting RDA permit, which extended pollutant(s) of concern. stormwater permitting to more than 450 existing discharges, required different levels RDAs are a unique way to regulate of action for three categories of existing stormwater discharge that is not addressed stormwater discharges. by existing permitting. Generally, RDAs are successful when existing permitting is not American Rivers and partner Natural enough, and there is an already impaired Resources Defense Council recently won waterway that is at risk. Ultimately, if a lawsuit requiring USEPA to be proactive the EPA Administrator or state authority in developing RDA permits in areas where determines that a stormwater discharge — stormwater pollution is not being adequately even from an existing unregulated source—is addressed. contributing to the impairment of a water body, the discharger may be required to Some states are currently developing new obtain a permit and comply with current RDA programs for specific water bodies. stormwater regulations. So this tool is slowly becoming a more accessible option for some. For the purposes RDAs can be an effective tool that helps of this toolkit, the examples show how RDAs rectify inequity resulting from non- were successful in these particular scenarios municipal and non-regulated sources and to provide guidance on whether your beyond a municipality’s jurisdiction. community can use this authority to Petitioners who have used RDAs state that implement permitting requirements. the municipal sector has been unfairly bearing the burden of responsibility and cost

WATER JUSTICE TOOLKIT 39 RECOMMENDATION 4 RE-DESIGNATION PROCESS

WHY WOULD I RE-DESIGNATE A the designation process to have appropriate BODY OF WATER AND WHAT DOES water criteria for the waters in their state. THAT MEAN? For example, if a water source near your Re-designation is an opportunity to change home is currently designated as industrial, the status of a water body so that it is the quality criteria for that water will be required to meet a higher standard of water low. If children also swim and recreate in quality. Let’s say there are known pollutants this body of water, they would be exposed in your local river and it is dangerous for to industrial pollution. During the re- your children to swim in it, but the company designation process, this water body should polluting the river is operating within the be designated as recreational, creating a requirements of the law. Here the problem more stringent water quality criteria that is is with the “standard” for the river being set safe for recreation. too low. In order for the permittee to be held to a higher water quality standard to support WHAT ARE WATER QUALITY swimming, the water body would need to STANDARDS? have recreation added as a “designated use.” WQS are provisions of state, territorial, authorized tribal or federal law approved by Water bodies in the United States are given the EPA that describe the desired condition a “designated use,”and based on the water of a water body and the means by which bodies’ “designated use,” water quality that condition will be protected or achieved. standards (WQS) are implemented. The Water bodies can have different standards WQS regulation requires states to specify based on their uses. For example, water can goals and expectations for how each body of be used for recreation, scenic enjoyment, water is used. Typical designations include: fishing, and drinking water. To protect • Protection and propagation of fish, human health and aquatic life in these shellfish, and wildlife; waters, states establish WQS and form a • Recreation; legal basis for controlling pollutants entering • Public drinking water supply; water of the United States. • Agricultural, industrial, navigational and other purposes. “States must adopt those water quality criteria that protect the designated uses. Such criteria must be based on sound WHY IS DESIGNATION IMPORTANT? scientific rationale and must contain Determining a designated use for a body sufficient parameters of constituents to of water is particularly important because protect the designated use. For waters the use determines the criteria to protect with multiple designation, the criteria the water body. Water quality criteria can shall support the most sensitive use.” be numerical or narrative. It is important (40 CFR 131.11) for communities to involve themselves in

40 Clean and & Safe Water Guide RESOURCES

ORGANIZATIONAL SUPPORT GRANT AND FUNDING SUPPORT The CWA and SDWA are technical and Grants can be helpful in addressing complicated laws. They often require expertise environmental issues in your community. If and technical support to pursue claims that fall you are looking to apply for a grant, it will under these statutes. In order to support your be important to understand what grants are ongoing efforts, below is a list of organizations available both in your geography and by issue. that may support your ongoing efforts for Below you will find a description of grants environmental justice in relation to clean and available for clean water-related work. safe water. 319 Grant Program for States and National Organizations Territories • American Rivers The 1987 amendments to the CWA established • Center for Biological Diversity the Section 319 non-point source management • Earthjustice program. Under Section 319, states, territories • NAACP and tribes receive grant money that can support • National Wildlife Federation technical assistance, financial assistance, • Natural Resources Defense Council education, training, technology transfer, • River Network demonstration projects and monitoring to • Sierra Club assess the success of specific non-point source • Southern Environmental Law Center implementation projects. This funding can • Water Keepers Alliance support implementation of green infrastructure • River Network Equitable Infrastructure and other projects to address stormwater Toolkit pollution. • Local Organizations For more information on the 319 grant program, • Riverkeepers, Coastkeepers visit EPA’s website: 319 Grant: Reports and • Watershed Alliances Project Summaries • Chesapeake Legal Alliance (Bay focused) • Great Lakes Environmental Law Center Information on how to apply for the 319 program can be found here: Applying for and Administering CWA Section 319 Grants: A Guide for State Nonpoint Source Agencies

WATER JUSTICE TOOLKIT 41 RESOURCES

Clean Water State Revolving Fund Drinking Water State Revolving Loan Fund (CWSRF) (DWSRF) This program is a federal-state partnership This program is a financial assistance program that provides communities low-cost financing to help water systems and states to achieve for a wide range of water quality infrastructure the health protection objectives of the SDWA. projects. Through this program states have the DWSRF has provided assistance for improving flexibility to fund a range of projects that address drinking water treatment, fixing leaky or old their highest priority water quality needs. Loans pipes, improving water supply, replacing or are eligible to construct municipal wastewater constructing finished water storage tanks, and facilities, control nonpoint sources of pollution, other infrastructure projects needed to protect build decentralized wastewater treatment public health. DWSRF can also be used to protect systems, construct green infrastructure projects, source waters including land acquisition to protect estuaries, and fund other water quality protect source waters, including rivers. projects. For information on DWSRF, visit EPA’s website: For more information on CWSRF, visit EPA’s How the Drinking Water State Revolving Fund website: Works Learn about the Clean Water State Revolving Fund (CWSRF) To apply for the DWSRF, contact your local state agency: To apply for the CWSRF, contact the CWSRF State DWSRF website and contact(s) program in your state for information on how to apply: Contact Us About the Clean Water State Revolving Fund (CWSRF)

42 Clean and & Safe Water Guide EQUITABLE FLOOD 2RISK MANAGEMENT GUIDE

WATER JUSTICE TOOLKIT 43 PURPOSE

Floods are a natural and necessary part of people on properties that were flood prone.14 a healthy river. During floods, water flows Federal flood risk reduction programs are over the flat areas next to rivers—known designed to help populations that are more as floodplains. Floodplains are biodiversity socially and economically vulnerable, but hotspots that help improve water quality studies have found that the administration of by capturing pollutants, and allow flood these programs systematically under-serve water to soak into the ground, recharging communities of color, which is perpetuating groundwater supplies. Undeveloped racist planning decisions of the past.15 floodplains can safely convey floodwaters, but when floodplains are developed11 for These disparities are heightened by the residential, urban, or industrial uses, impacts of climate change. Climate change flooding12 can bring myriad problems has shifted rainfall patterns, making heavy including but not limited to loss of life, rain more frequent in many parts of the damage to property and infrastructure, country. The Intergovernmental Panel on community displacement, waterborne Climate Change (IPCC) has noted that it diseases, and contaminated water supplies. is increasingly clear that climate change has influenced several of the water related The impacts of floods are unevenly variables that contribute to floods, such as distributed across people and places. The rainfall and snowmelt. It is becoming clear, disproportionality of these impacts is with climate change impacts compounding, associated with a number of socioeconomic that the need to address flooding related factors which include: poverty, social class, inequities is crucial. race, ethnicity, culture, physical activity and disability, language competency, This guide focuses on riverine flooding social networks and social capital, gender, and actions that communities can take to household composition, home ownership, engage in flood risk management in their and age. locality. This guide provides information on understanding flood risk and the process Communities of color are disproportionately for mapping floodplains, how communities PRIOR PAGE: ALTON, ILLINOIS / exposed to flood-related damages. This is can contribute to flood mitigation and ANDREW DOBSON due to economic factors, like the affordability adaptation planning, and resources by the

ABOVE: of land in less hazardous areas, and racially Federal Emergency Management Agency MISSISSIPPI RIVER, discriminatory policies, like redlining13 (FEMA) to be trained as a floodplain ILLINOIS / OLIVIA DOROTHY that deliberately placed Black and Brown manager.

44 Equitable Flood Risk Management Guide GLOSSARY

BASE FLOOD: The flood that has a FLOODPLAIN MANAGEMENT: The RESILIENCE: is the ability of one-percent chance of being equaled administration and implementation individuals, communities, institutions, or exceeded in any given year (often of federal and state laws, and and governments to adapt to referred to as the 100-year flood) local ordinances related to the changing conditions and prepare management of flood-prone areas. for, withstand, and recover from DISASTER RISK: probability that a The individuals who perform these disruptions, such as hazard events household, community, business, activities are known as floodplain like flooding. or entity will be unable to resist, managers. manage, or recover from the losses RISK REDUCTION: reflects an sustained from a hazard without HAZARD EVENT: a phenomenon with objective to achieve reductions in loss external assistance potential to cause harm of life, of property, and/or natural resources by identifying and reducing FLOOD: A flood is the temporary NATIONAL FLOOD INSURANCE hazards and vulnerabilities. overflow of water over land that PROGRAM (NFIP): the NFIP is a is normally dry. Floods can occur federal program managed by the SPECIAL FLOOD HAZARD AREA on rivers and streams that receive Federal Emergency Management (SFHA): The area designated on a enough rainfall and/or precipitation Agency and is delivered to the public Flood Insurance Rate Map that will be to cause water to overtop the by a network of approximately 60 inundated during a base flood (also channel’s banks and spill onto insurance companies and the NFIP referred to as the 100-year flood, or the neighboring floodplain; along Direct, that makes flood insurance one-percent annual chance flood) and coasts as a result of severe storms, available to cover the cost of flood is subject to regulation under the excessive tides, or tsunamis; or damages to homes, business, and National Flood Insurance Program when urban drainage systems are property. and where mandatory flood insurance overwhelmed or a dam or levee fails. purchase requirements apply. Floods vary in size, magnitude and REDLINING: In the United States frequency so the standard flood used and Canada, redlining is the for floodplain management purposes discriminatory and unethical practice is the base flood. of systematic denial of providing services, particularly financial FLOOD HAZARD MITIGATION: All services, to residents of certain actions that can be taken to reduce neighborhoods or communities property damage and the threat to life associated with a certain racial or and public health from flooding. ethnic group. The denial of services can be accomplished directly (e.g., FLOODPLAIN: The land area prohibiting the granting of loans to inundated during a flood. Because a certain racial group) or indirectly floods vary in size, magnitude and (e.g., imposing higher interest rates frequency, the area of land inundated for the borrowers from a certain during any particular flood will vary. racial group).16

WATER JUSTICE TOOLKIT 45 BACKGROUND

HISTORY OF INEQUITY IN FLOOD Housing policies have contributed to who RISK MANAGEMENT lives in flood-prone areas. A study by Redfin Floodplains have always been attractive in 202117 found that formerly redlined places for communities to settle. Their flat neighborhoods have a larger share of homes fertile land supports abundant crops, and endangered by flooding than neighborhoods the proximity to rivers make them obvious that were not redlined in the 1930’s. sites for centers of commerce. However, development in floodplains comes with Redlining was a discriminatory lending the inherent risk of flooding that can cause practice put in place following the Great significant, and occasionally catastrophic Depression that determined where damage to property and ways of life. investment in housing would take place and where it would not. The federal government Federal flood risk management policies assigned color coded grades to residential and practices in the U.S. have resulted in neighborhoods to indicate where it was inequitable outcomes for communities of “safe” for mortgage lending. Red coded areas color. For example, the first major levee were deemed the most hazardous to provide systems constructed on the Mississippi mortgages to due to a variety of factors that River were built by the poorly paid labor of included the presence of Black communities African American sharecroppers, convicted and flood hazards. The impacts of redlining criminals and immigrant laborers. In the are felt today, as less money was invested 1900’s, to combat the economic fallout of in these areas for decades to come. Today, the Great Depression, construction of major 58.1% of households in neighborhoods once flood control dams in the West displaced deemed undesirable for mortgage lending Indigenous communities from their are nonwhite. ancestral lands. RELEVANT FLOODPLAIN The Flood Control Act of 1936 established a MANAGEMENT POLICIES benefit-cost analysis requirement for federal Until the 1960’s the U.S. primarily relied flood control projects which has ended up on structural flood control strategies like prioritizing investments in communities levees and dams. However, these approaches that have existing wealth and resources over continued to encourage development in communities with less wealth and resources. floodplains and disaster relief expenses TUSCON, ARIZONA / CITY continued to rise. 18 In response to the OF TUSCON

46 Equitable Flood Risk Management Guide SACRAMENTO’S FORMERLY REDLINED NEIGHBORHOODS FACE HIGH FLOOD RISK

While FEMA provides significant support to improve community planning and development to reduce hazard risks, communities must have local government capacity and matching funds to gain access to these resources.

FEMA coordinates the federal government’s role in preparing for, preventing, mitigating the effects of, responding to, and recovering from all domestic disasters whether natural or man-made. The Robert T. Stafford Disaster Relief and Emergency Assistance Act created a system by which a presidential disaster declaration triggers the release of financial and sometimes direct assistance through FEMA. The intention of this law was to encourage states and localities to develop comprehensive disaster preparedness plans, prepare for better intergovernmental coordination in the face of a disaster, encourage the use of insurance coverage, Source: Redfin analysis of First Street Foundation flood risk data and HOLC redlining maps. Background map copyright OpenStreetMap contributors. and provide federal assistance programs for losses due to a disaster. continued failure of flood control infrastructure, the federal government began Under the Stafford Act, state, local, tribal, a shift towards “flood risk reduction.” This and territorial governments are required approach focuses on regulating floodplains to develop hazard mitigation plans as a to reduce unwise development in hazardous condition for receiving certain types of non- areas. The capstone of this approach is the emergency disaster assistance. These plans National Flood Insurance Program (NFIP). are a blueprint for the actions a community or state will take to reduce disaster risk The NFIP, which is managed by the Federal and increase resilience. Hazard mitigation Emergency Management Administration plans and implementation of the NFIP (FEMA) provides flood insurance to are undertaken by floodplain managers or property owners, renters and businesses emergency managers at the municipal level in communities that agree to adopt and of government. Smaller or under-resourced enforce minimum floodplain management communities may be challenged to support regulations. FEMA develops flood insurance adequately trained staff dedicated to rate maps that identify areas of flood risk reducing flood risk for their community. and can be used to help guide community development plans.

WATER JUSTICE TOOLKIT 47 However, it is important to also recognize Today, floodplain management and reducing that even in communities that meet the flood risk to communities is considered investment thresholds for federal assistance, a shared responsibility of individuals studies show that predominantly Black and local, state and federal governments. neighborhoods within those communities Resources to make communities more still receive lower levels of assistance than resilient to floods are unequally distributed predominantly White neighborhoods.19 so it is imperative that community members understand how they can engage in flood mitigation processes.

EMERGENCY STEPS

WHAT IS A FLOOD WARNING? Coastal Flood Watch issued when moderate to major coastal flooding is possible. There are different types of floods Such flooding would potentially pose a serious risk to life and property. and related warnings. See the chart Coastal Flood Warning issued when moderate to major coastal flooding is occurring to distinguish between various or imminent. This flooding will pose a serious risk to life and alerts provided by the National property. Weather Service. Coastal Flood Advisory issued when minor or nuisance coastal flooding is occurring or imminent.

Flash Flood Watch issued when conditions are favorable for flash flooding. It does not mean that flash flooding will occur, but it is possible.

Flash Flood Warning issued when flash flooding is imminent or occurring.

Flood Watch issued when conditions are favorable for flooding. It does not mean flooding will occur, but it is possible.

Flood Warning issued when flooding is imminent or occurring.

River Flood Watch issued when river flooding is possible at one or more forecast points along a river.

River Flood Warning issued when river flooding is occurring or imminent at one or more forecast points along a river.

IF YOU ARE UNDER A FLOOD • Do not walk, swim or drive through Depending on the type of flooding WARNING, FIND SAFE flood waters. Turn Around, Don’t • Evacuate if told to do so. SHELTER RIGHT AWAY Drown! • Move to higher ground or a higher • Just six inches of moving water floor. can knock you down, and one foot • Stay where you are. of moving water can sweep your vehicle away. Visit Floods | Ready.gov to learn • Stay off of bridges over fast-moving more about how to prepare, react, and water. recover from floods.

48 Equitable Flood Risk Management Guide NOTE RECOMMENDATION 1: In 2021, FEMA is expected to begin to transition to Risk Rating 2.0, a risk rating UNDERSTANDING FLOOD methodology that will incorporate additional MAPS AND THE NATIONAL flooding variables beyond Flood Insurance FLOOD INSURANCE PROGRAM Rate Maps into flood insurance rates. More information about Risk Rating 2.0: Equity in Action is available at FEMA.gov.

It is important that all communities WHERE CAN I FIND MY understand their flood risk, and how to COMMUNITY’S FLOOD MAP AND engage in the process used to identify and FLOOD RISK STUDY? map flood risk, to ensure that maps reflect FEMA’s Flood Map Service Center website is the flooding that community members see the official public source for all flood hazard on the ground. information produced for the National Flood Insurance Program. By visiting the Map WHAT ARE FLOOD INSURANCE RATE Service Center you can view historic, final MAPS (FIRMS)? and preliminary regulatory flood hazard products including Flood Insurance Map Flood Insurance Rate Maps (FIRMs), Rates (FIRM), Flood Insurance Study (FIS) show a community’s risk of flooding as reports, and FIRM Databases as well as non- determined by FEMA. Specifically, flood regulatory products, including Flood Risk maps show a community’s flood zones, Maps, Flood Risk Reports, and Flood Risk floodplain boundaries, and base flood Database. elevation. Floodplain managers use them to enforce floodplain management regulations, HOW DO I READ A FLOOD MAP? planners use them to inform community Flood maps depict flood zones, the development decisions, and insurance geographic areas that FEMA has defined companies and banks use them to determine according to varying levels of flood risk. who is required to purchase flood insurance These zones are depicted on a community’s for their home. Flood Insurance Rate Map (FIRM). Each zone reflects the severity or type of flooding Using flood maps has a number of benefits. in the area. You and your community can understand whether your neighborhood is at risk when • Moderate to low risk areas are a hazardous event occurs, whether there is designated as B, C, or X on FIRMs. a requirement for flood insurance in your Residents in these areas are currently neighborhood, or simply recognizing that eligible for lower flood insurance rates, the risks listed by FEMA’s mapping tools (even though one in three claims occurs are inaccurate do not portray the events that in a low to moderate risk area.) have happened in your community. • High risk areas which are designated as A or V on FIRMs. Property owners

WATER JUSTICE TOOLKIT 49 in these zones with a federally backed flood insurance premiums, or to opt out of mortgage are required to have flood purchasing flood insurance. insurance. HOW CAN I PARTICIPATE IN THE FEMA offers a tutorial on how to read a PROCESS OF CREATING OR REVISING FIRM. A FLOOD MAP? There are numerous opportunities for HOW ARE FLOOD MAPS CREATED community officials and the public to engage AND REVISED? in the process of creating or revising a flood FEMA partners with states, tribes, and map. Risk Map project lifecycle includes the communities through the Risk Mapping, following steps: Assessment, and Planning (Risk MAP) program to identify flood hazards and risks Project Planning and incorporate accurate data into FIRMs. • Selecting the Project Area: Reviewing a FIRMs must be periodically updated watershed to determine if there is a need because flood hazards are dynamic and may for a new or updated FIRM change over time due to alterations in flow • Discovery Process: Collecting current and drainage patterns caused by land use, and historic flood-related data surface erosion, natural forces, or climate change. Updates to FIRMs may result from Mapping and Data FEMA-funded flood risk studies, or when • Data and Product Development: FEMA the community makes scientific technical and mapping partners prepare the data, data that reflects changes available to FEMA. maps and flood risk products • Flood Risk Review Meeting (optional): WHAT IF MY FLOOD ZONE early feedback on products by DESIGNATION IS INCORRECT? community officials and communication Though FEMA attempts to use the most to the public about potential changes. accurate information available, sometimes there may be inaccuracies in flood Resilience Meeting maps. FEMA established administrative FEMA, state and local leaders discuss procedures to change the designation for community flood risk and identify ways to properties that are inaccurately zoned on reduce flood risk. FEMA’s flood maps. If a property owner thinks their property has been inadvertently PRELIMINARY FIRM ISSUANCE mapped as part of the Special Flood Hazard Area, they may submit a request for a Distribution of preliminary Maps and Letter of Map Change (LOMC) which is an Data: Preliminary FIRM and FIS report are official revision/amendment to an effective delivered to community officials and posted FEMA’s Flood Map Service Center Flood Map. Property owners may request on for a LOMC online via the Online Letter of review and comment. Map Change tool. If a LOMC is granted, the Consultation Coordination Officer Meeting property owner may be eligible for lower and Public Open House: FEMA holds meetings to present the preliminary FIRMs

50 Equitable Flood Risk Management Guide and FIS reports to community officials, and • List of state floodplain managers the general public. • State Floodplain Management Associations 90-Day Appeal Period: Communities or the public can submit data to revise the FIRM if Tips for best results: they believe it is scientifically or technically • Identify your local floodplain manager incorrect. Information on the appeals • Identify correct process/ product process can be found here. • Answer all questions on forms • Use data checklists provided with the RISK ASSESSMENT forms • Submit data all at once Flood Risk Products Risk MAP provides local officials with IF I’M NOT IN A FEMA DESIGNATED flood risk assessment products to better HIGH RISK AREA, AM I SAFE FROM understand the community’s flood risk and FLOODS? mitigation options. Not necessarily, especially since local stormwater related flooding is rarely Effective FIRM and FIS Report Issuance mapped. Flooding is a dynamic, ever After resolving all appeals, FEMA sends changing natural process that is affected community officials a Letter of Final by the decisions that we and our neighbors Determination six months before the new in our watershed make. One in three NFIP FIRM and FIS report becomes effective. claims occurs outside of the special flood hazard area. Flood risk in the United States Planning for Mitigation Action is far greater than government estimates FEMA, partners, and local officials identify show. Flood mapping tools like Flood Factor mitigation opportunities that work for their are intended to complement FEMA’s FIRMs community. and provide additional data and resources for homeowners to better understand their HOW DO I FIND OUT WHO MY flood risk. COMMUNITY’S FLOODPLAIN MANAGER IS? TAKEAWAYS An individual’s first step in engaging in a • Everyone should have flood insurance. flood mapping process is to contact the local • Everyone has some level of flood risk. floodplain manager. Every community that It’s important to understand your risk so participates in the National Flood Insurance you can prepare for the inevitable, and Program has a designated floodplain take steps to mitigate your risk. manager who ensures the community • Individuals can band together to have is implementing floodplain regulations, their voices heard20 if FEMA or local helps prepare and revise flood maps, and officials aren’t listening to them. Many helps residents obtain information on flood-prone communities are making flood hazards, floodplain map data, flood their voices heard to address flood insurance, and proper construction in the preparedness and equity. floodplain. • Visit your community’s website • List of certified floodplain managers

WATER JUSTICE TOOLKIT 51 RECOMMENDATION 2: INTEGRATING EQUITY AND JUSTICE INTO HAZARD MITIGATION PLANS

WHY DO WE ADDRESS EQUITY AND WHAT ARE HAZARD MITIGATION JUSTICE IN HAZARD MITIGATION PLANS? PLANS? Hazard mitigation planning is the process Natural disasters can be hard on anyone used by state, local, and tribal leaders to and result in the loss of life, infrastructure understand risks from natural hazards and damages, economic impact, social develop long-term strategies to reduce the consequences, and environmental impacts of disasters on people, property, degradation. But they can be particularly and the environment. Hazard mitigation devastating on low-income communities planning goes hand in hand with community and communities of color. Low-income resilience. Resilience is the ability of communities often don’t have the local individuals, communities, institutions, resources for enough hazard mitigation and governments to adapt to changing staff. Individuals with fewer resources and conditions and prepare for, withstand, and who lack a social safety net have a harder recover from disruptions, such as hazard time evacuating during a flood or replacing events like flooding. Planning encourages damaged goods. Many residents may have the development of long-term mitigation nowhere to go, and they have a harder time strategies. By going through a planning getting back on their feet. They may also process, communities think about their have more challenges with the process of potential risk and develop mitigation actions applying for disaster assistance, for example, before a disaster has occurred. Development if they don’t have access to technology which of a well thought out plan makes it easier to makes them more likely to miss deadlines recover from hazardous events. for paperwork. WHO DEVELOPS HAZARD MITIGATION It is critical that these communities be PLANS? involved throughout the hazard mitigation The Stafford Act requires State, tribal, and planning process to ensure their distinct local governments to develop and adopt voices are heard and their issues addressed FEMA-approved hazard mitigation plans in the plan. Incorporating equity and justice in order to receive certain types of non- fosters a fair and balanced approach to emergency disaster assistance. Jurisdictions help all community members as it relates must update their hazard mitigation plans to pre- and post-disaster planning and will and re-submit them for FEMA approval result in a much more resilient community. every five years to maintain eligibility. Furthermore, having a clear understanding Current plans can be accessed by contacting of how and where at-risk groups might the emergency management agency or office be during a disaster will help you allocate within your state, local or tribal government. resources efficiently before, during, and after FEMA maintains a list of State Hazard an emergency. Mitigation Officers and Regional Tribal Liaisons.

52 Equitable Flood Risk Management Guide COMMUNITY CASE STUDY: DIVERSE STEERING COMMITTEES PORTLAND, OR

The Portland Bureau of Emergency process. With a more diverse steering Management established a steering committee, there also comes a diverse committee which included members from range of expertise such as engineers, diverse backgrounds, including under- long-time residents, and community served communities such as communities leaders. of color, renters, and immigrants. The steering committee was to modify the To learn more, visit: process and structure of projects and www.portlandoregon.gov/pbem/ engage community groups in the planning

What is the process for creating a state States, tribes and local communities will or local Hazard Mitigation Plan and usually create a team or working group of opportunities for public input? partners and stakeholder groups that work together to inform and create a hazard FEMA has developed a significant number mitigation plan. Having representation on of resources to help jurisdictions with the this team is critical in order for a vulnerable development of both state and local hazard community to have their voice heard. mitigation plans. • State Mitigation Plan Review Guidance FEMA has an Office of Disability Integration • Tribal Mitigation Planning Handbook and Coordination that provides resources on • Local Mitigation Planning Handbook how to integrate individuals with disabilities and others with access and functional needs FEMA encourages mitigation planners to into hazard mitigation planning. However, use a collaborative process that involves a the agency does not yet have resources cross-section of agencies and stakeholders specifically dedicated to communities of with at minimum, a knowledge of: color or low-income populations. • Emergency management; • Economic development; WHERE CAN I FIND MY STATE AND • Land use and development; LOCAL HAZARD MITIGATION PLAN • Housing; (HMP)? • Health and social services; FEMA tracks the status of hazard mitigation • Infrastructure; and plans from all 50 states, the District of • Natural and cultural resources. Columbia, and five territories, as well as over 25,100 local governments and 240 tribal FEMA allows state and local communities governments. Current plans can generally the flexibility to develop their own process be found on the websites of state, tribal, and for developing a local hazard mitigation local emergency management agencies. plan and encourages the use of community- driven planning processes that brings

WATER JUSTICE TOOLKIT 53 COMMUNITY CASE STUDY: INCLUSIVE OUTREACH & PUBLIC ENGAGEMENT SEATTLE, WA

The City of Seattle created an Inclusive Census data in order to identify diverse Outreach and Public Engagement communities within the city limits Guide that strives for multiculturalism, and seek to create partnerships with with equal access and respect for all existing organizations that can invite groups and creating conditions for and encourage their constituents to understanding. One of their goals for participate. their hazard mitigation plan, specifically, is to partner with diverse organizations Read the full guide at www.seattle.gov. and agencies. The City will use current

together local officials, stakeholders and the strong, comprehensive planning grant sub- public. Because of this flexibility it is critical applications. for stakeholders and the general public who are interested in the development of state WHAT SHOULD PLANNERS CONSIDER and local hazard mitigation plans to identify WHILE DEVELOPING A HAZARD the individuals leading the plan development MITIGATION PLAN? process, build relationships with them, and While developing long-term hazard if possible, gain a seat on the planning team. mitigation strategy, it is important to understand the likelihood of future events, Stakeholders and the public should urge including changing future conditions. state and local planners to design a robust Communities that plan for future public engagement process that may include development and a changing climate outreach at public events like festivals and are more likely to recover from severe fairs, mail or online surveys, announcements events and can preserve their community in the newspaper, create a project website, for years to come. FEMA’s mitigation solicit information over social media and planning policies state that State and Tribal hold open house events. governments must consider future climate and weather patterns when assessing the HOW ARE HAZARD MITIGATION probability of future hazard events. PLANS FUNDED? FEMA’s Hazard Mitigation Assistance See “Land Use Solutions for Colorado” by grant program (HMA) provides some Planning for Hazards for an example. limited planning grants to communities looking to develop or update their hazard mitigation plans. The purpose of this job aid is to provide considerations for the GREEN INFRASTRUCTURE, development of a planning grant scope of SEATTLE, WASHINGTON / MARCELA GARA, work with the ultimate goal of encouraging RESOURCE MEDIA

54 Equitable Flood Risk Management Guide HOW DO I CREATE AN EQUITABLE AND JUST HAZARD MITIGATION PLAN? There is a growing list of equitable planning resources available that communities and hazard mitigation officers can use to inform their plan. These include: • NAACP’s “Equity in Building Resilience in Adaptation Planning.” • NAACP’s “Our Communities, Our Power: Advancing Resistance and Resilience in Climate Change Adaptation Action Toolkit.”

RESOURCES TO DEVELOP EQUITABLE HMPS: • Social Vulnerability Index for the United States • Arc GIS online search for demographic data • FEMA Mitigation Planning • Planning For An Emergency: Strategies For Identifying And Engaging At-Risk Groups

WATER JUSTICE TOOLKIT 55 RECOMMENDATION 3: ENCOURAGE FLOODPLAIN MANAGEMENT TRAINING

Assistance programs need to be Grants. A need-based state floodplain established to provide higher levels of management assistance program would help planning support for communities that these communities compete with wealthier are more socially and/or economically and more politically connected communities disadvantaged. for access to resources.

Some communities have more resources Information about floodplains, flooding, than others. Pre-disaster resilience planning and development options needs to be more and project funding sources always require accessible to the public. some type of community investment, like municipal staff to apply for grants, direct When it comes to floodplains, residents see match, upfront costs for development places to build memories with families and concepts, access to various experts, a tax- loved ones, elected officials see land that base for loan repayments, etc. The state can be developed to collect property taxes, should provide tiered assistance programs environmentalists see critical habitat for fish to help communities get access to more and wildlife, farmers see rich soil capable of planning and development resources. producing abundant crops, insurance agents Assistance levels should be based on see public safety threats from flooding, and census block data and communities with so on. Understanding these various demands populations that meet multiple census on floodplains is essential for a community thresholds should be eligible for higher to make the best decisions to maximize levels of planning assistance. community resiliency in the face of climate change. HOW WILL THIS HELP COMMUNITIES OF COLOR? Information about flooding as a safety Communities like Centreville, Cairo and hazard and as an essential ecosystem Rockford Illinois have large populations of function needs to be more readily available people of color and low-income households. to the general public via public education Cairo and Centreville also have a declining institutions. Insurance agents and municipal tax base that cannot support full-time staff, the primary trusted sources of municipal staff, let alone support staff flood-related information, also need to be with the various floodplain management given more robust continuing education certifications. These factors limit their ability opportunities to ensure accurate information to apply for existing grant programs for about flood risks and floodplain benefits is watershed planning and green infrastructure making it into communities. including FEMA’s Building Resilient Infrastructure and Communities (BRIC) Grants, EPA Revolving Loan Programs; and EPA Section 319 Non-point Source Pollution

56 Equitable Flood Risk Management Guide HOW WILL THIS HELP FRONTLINE municipal staff, they are available to the COMMUNITIES FACING FLOOD general public. Most classes are offered RISKS? for free. A few require a nominal fee if the interested individual does not meet certain In Centreville, community members requirements. can clearly see the impacts of historic floodplain development patterns as their The full catalog of classes is available at: homes and yards are flooded with storm- www.firstrespondertraining.gov/frts/ and wastewater. Many residents have already relocated from another area of RECOMMENDED CLASSES the Metro East that was bought out due • E0273: Managing Floodplain to frequent flooding, only to continue Development through the National to face the same problems at their new Flood Insurance Program homes. Determined not to “make the same • IS-393.B: Introduction to Hazard mistake twice” community members are Mitigation trying to get access to more effective and • IS-1101.B: Basic Agent Tutorial sustainable alternatives. Many hazard mitigation educational opportunities are targeted at elected officials and engineering professionals. More information needs to be developed for the general public, including pre-K-12 curriculum, FEMA courses for the general public, and mandatory professional development for city staff and insurance agents. This will ensure communities have base-line information about floodplain functions that is required to lead the decision-making processes.

Community leaders should enroll in floodplain management classes to learn more about hazard mitigation options for their neighborhoods and communities.

FEMA’s Emergency Management Institute offers many free classes on emergency management topics like flood risk reduction and floodplain management. While classes are designed for public officials and

WATER JUSTICE TOOLKIT 57 RESOURCES

• Floodsmart.gov

• Video: “Protecting Your Home and Property from Flood Damage” FEMA guide for mitigation ideas to reduce flood loss

• FEMA: Protecting Your Property From Flooding

• FEMA: Flood Map Search by address

• FEMA: Flood Map Service Center

• “Find Your Home’s Flood Risk,” Flood Factor mapping resource

• EPA: EJScreen: Environmental Justice Screening and Mapping Tool

• EPA: College/Underserved Community Partnership Program (CUPP)

58 Equitable Flood Risk Management Guide TITLE VI ENVIRONMENTAL 3 JUSTICE COMPLAINTS & COMPLIANCE GUIDE

WATER JUSTICE TOOLKIT 59 INTRODUCTION

Communities of color and low-income to note at the outset that Title VI requires communities often have less meaningful resources, time, and political capital to involvement with respect to the pursue effectively. Community Benefit development, implementation, and Agreements and other forms of resolutions enforcement of environmental laws, and compromise can be beneficial and less regulations, and policies when it comes burdensome as an alternative or addition to to land-use decisions that affect their filing Title VI complaints. The key difference communities.21 Research22 suggests that between Title VI complaints and CBAs is companies tend to place facilities that that Title VI is a formal federal retroactive can negatively impact human health in process, meaning that filing occurs after communities of color and low-income an inequity or a form of discrimination communities because these communities has already taken place. A CBA is done often lack the political influence and proactively prior to development to ensure resources necessary to fight siting decisions. compatible and equitable uses and benefits When it is found that communities are for both the developer and the community. not treated fairly, Title VI and Community Benefits Agreements can serve as a remedy The Environmental Justice Complaint and to mitigate or even prevent discriminatory Compliance Guide is intended to be used practices.23 as a resource to understand mechanisms to file complaints and reach resolution when Discrimination may take on many forms. faced with environmental harms. This guide Discrimination can range from a governing focuses on Community Benefit Agreements body permitting construction of a new (CBAs) and Title VI Complaints. polluting entity in an already heavily polluted neighborhood to failing to address Our intent is that this guide provides a a lack of water infrastructure in lower- general understanding of Title VI and CBAs income communities and communities of and information about where opportunities color. Ultimately, if a project or a decision exist to file such complaints and enter into intentionally and disparately negatively such agreements. We also hope this guide impacts a protected community, there is a provides you with information to pass along basis for a Title VI complaint. Meanwhile, to local government leaders on how to CBAs can be used more broadly to establish successfully comply with Title VI. partnerships between community groups and developers to secure better outcomes for communities. CBAs are mutually beneficial and can help create long-lasting relationships between a number of entities in a given region.

While Title VI is the main focus of this guide PRIOR PAGE: FLINT RIVER, GEORGIA / and can be a useful tool, it is important FINDING THE FLINT

60 Title IV Complaints & Compliance GLOSSARY

CONTRACTOR: can be considered intentional RETALIATION: A person or company that discrimination and shown in two No recipient can intentionally take undertakes a contract to provide ways: adverse actions against a person a service. In the context of Title 1. Directly, by pointing to a policy who exercises their rights under VI complaints, contractors may be or decision that expressly Title VI. This sort of intentional recipients of federal funding. singles out individuals by race, discrimination is called retaliation. or Retaliation involves three elements: COMMUNITY BENEFITS 2. Indirectly, by providing 1. An individual engaged in AGREEMENT (CBA): circumstantial evidence that protected activity of which the A CBA is an agreement signed a discriminatory motive was recipient was aware; by a community benefit group likelier than not responsible for 2. The recipient took a significantly and a developer, identifying the the alleged mistreatment. adverse action against the community benefits a developer individual; and agrees to deliver, in return for EXECUTIVE ORDER 12898: 3. There is evidence to show community support of the project. The purpose of this executive action the protected activity was the CBA’s can ensure that measurable, is to focus federal attention on the cause of the recipient’s adverse local benefits will be given to a environmental and human health action. community. They are enforceable, effects of federal actions on minority legally-binding contracts for all and low-income populations with SUBRECIPIENT: parties that stipulate community the goal of achieving environmental A subrecipient is a non-federal entity benefits and are the direct result of protection for all communities. that receives a subaward from a substantial community input. pass-through entity (the recipient) to FEDERAL FINANCIAL ASSISTANCE: carry out part of a federal program DISPARATE IMPACT: Assistance in the form of any grant, but does not include an individual When practices of a policy adversely loan, or contract (other than a that is a beneficiary of such a affect one group of people of a contract of insurance or guarantee). program. protected characteristic more than another, even though the policy RECIPIENT: may not single out a particular A “recipient” receives Federal protected group. Disparate impact financial assistance and/or operates can be considered unintentional a “program or activity.” A recipient discrimination, where the policy may be a public (ex. a State or has a disproportionate impact on a municipal agency) or a private protected group. entity. A federal agency cannot be considered a “recipient” under DISPARATE TREATMENT: Title VI. There can be more than When a person or groups of people one recipient (state, local). It is can show that they were treated important to know the “recipient” of differently than others who do federal funds when filing a Title VI not share the same protected complaint. characteristics. Disparate treatment

WATER JUSTICE TOOLKIT 61 COMMUNITY BENEFITS AGREEMENTS

This guide discusses Title VI in detail, but, that stem from development, urbanization, in addition to considering Title VI, it is and planning. CBA’s are a useful tool beneficial to also consider CBAs. This section when a developer or government entity will discuss some general information on is planning a new development that will CBAs and then outline background and impact a neighborhood. A CBA is a way for recommendations on Title VI. the community to negotiate benefits that are priorities for the existing residents such as As a preliminary step, it is crucial for parks, recreation centers, equitable housing, communities to understand the implications and jobs. While there are compromises of filing a Title VI complaint. Filing a throughout the negotiation process and Title VI complaint is a difficult process no CBA would be considered perfect, and requires a high burden of proof for the benefits of CBAs are many for the success. Due to its complexities, it is in community. Primarily for the developer, a a community’s best interest to seek legal CBA minimizes risk of litigation because support when filing a Title VI complaint. CBA’s are based on collaboration and mutual Because Title VI complaints are often time benefit. consuming and have historically resulted in limited success, there are alternatives to WHY ARE CBAS AN EFFECTIVE address environmental inequities based on OPTION FOR COMMUNITIES? placement and development. CBAs have the benefit of instilling a value COMMUNITY BENEFIT AGREEMENTS— driven approach when developing in areas THE PROACTIVE APPROACH within or near communities. According the Department of Energy,24 the following values CBA’s are a relatively recent approach to should be promoted when CBAs are used: COLUMBIA RIVER, WASHINGTON / addressing and resolving many inequities SHUTTERSTOCK

62 Title IV Complaints & Compliance Inclusiveness and goals. However, the process of The purpose of a CBA is to ensure negotiating a CBA can encourage alliances community issues are heard, represented and bring together groups, resources, and and addressed. Public participation is critical ideas. CBAs can also promote the recognition to develop an equitable and thoughtful CBA. of the intersectionality of different groups. While developing an engagement plan for a For example, a project can have an impact CBA, ensure historically-underrepresented on workers, jobs, housing, the environment, communities have a seat at the table. and health. Groups from various sectors can develop an intentional agreement that Enforceability addresses the intersectionality and issues CBAs require written commitments. The amongst one another. promises developers make in a CBA are enforceable. Importantly, enforceability is Efficiency a two-way street: communities also must Similar to coalition building, CBAs honor their commitments. encourage a cooperative relationship between potentially adversarial parties. This Transparency facilitates the development process because CBAs provide a bottom-up approach CBAs establish agreements ahead of time where community groups, developers, that reduce delays and conflict. government officials, and the general public can monitor a development. Agreements are Clarity of Outcomes made directly by communities and public CBAs are intended to provide entities with participation allows an open conversation. clarity and agreement on the on the benefits received by the community. Through the Coalition-Building agreement, there are clear requirements for Coalition building can be tricky, especially metrics, reporting, and outcome goals. when different community groups and organizations have conflicting perspectives

In addition to providing a value-driven approach, CBAs can be beneficial to both the community and developers.

Developer Benefits Community Benefits

The project is supported by community members Clear incentives through the CBA. This can with public testimony and written statements. include hiring commitments, living wages, and other benefits. There is a reduced risk for future pushback since Educational partnership between developers, community groups are united behind a CBA. communities, and local residents. Developers have an opportunity to get state and Creates support for local, small businesses. local subsidies and approvals

WATER JUSTICE TOOLKIT 63 COMMUNITY CASE STUDY: NEGOTIATING A HISTORIC MITIGATION AGREEMENT THAT BENEFITS CHARLESTON COMMUNITIES CHARLESTON, SC

In 2005, Lowcountry Alliance for Model to take a unified and comprehensive approach Communities (LAMC) organized as a collective to combat the myriad of social, economic, and to deal with social issues—violent crime and environmental issues their constituents were drugs—in low wealth communities across facing daily. Charleston. Years later, when they learned about the multi-billion dollar terminal expansion the Historically, Black and low wealth residents were South Carolina State Ports Authority (SCSPA) forced to live near industrial zones with very was planning adjacent to seven predominantly serious implications for health and well-being. African‐American, low‐income neighborhoods, Throughout the environmental review process they were already organized and asking critical for the Port Terminal, LAMC representatives questions about the project’s impact on their were able to demonstrate that their communities community. bore a disproportionate share of the region’s air, water, and land-based pollution. The Corps of LAMC focused on the provision in NEPA that Engineers conducted an environmental justice allows for mitigation for local impacts. They assessment and determined that the LAMC learned that the State Ports Authority was communities did meet the criteria set for an setting aside millions of dollars for a bird environment justice population. sanctuary, an oyster restoration project, and preservation of historical sites, but only The $4 million Community Mitigation Plan was a promising the community ten jobs. result of the City of North Charleston and LAMC partnering to ensure that the SCSPA’s expansion “It was a slap in the face,” said Omar Muhammad, enhances the community of which it is a part Executive Director of LAMC. It was also a major by building capacity of local organizations and motivator. The community began to look at funding initiatives in affordable housing, job the environmental impact documents with a training, education, environmental research, and technical team familiar with NEPA. Neighborhood youth development. presidents and community leaders representing www.lamcnc.org LOWCOUNTRY ALLIANCE seven of the most economically distressed Learn more at: FOR MODEL COMMUNITIES neighborhoods in North Charleston decided (LAMC)

64 Title IV Complaints & Compliance WHO ARE THE PLAYERS IN A CBA Communities: AND HOW DO YOU START ONE? • Research and understand development proposals in your region and identify Generally, the key players in a CBA are the any that can have a significant impact or developers, community groups, and local benefits to the neighborhoods in which and state governments. they will be located • Organize coalitions and recruit One of the more difficult parts of the CBA stakeholders process can be consensus or coalition • Hold public meetings with assistance of building between multiple community leaders. organizations. In order to provide concrete • Actively engage the developer with prioritized asks, it will be important community objectives, via open dialogue to streamline the needs from multiple and transparency. organizations across various sectors. State and Local Governments: The Community Tool Box, a service of • Inform community coalitions of the Center for Community Health and proposed developments Development at the University of Kansas is • Encourage developers to enter good- a helpful resource for consensus or coalition faith negotiations with responsible building, including how to: coalitions • Set up meetings, • Inform developers of the benefits they • Organize and define membership, can achieve through CBAs • Include diverse participants, • Respect the negotiating process and • Create a foundation for a successful honor community coalition agreements coalition, and more. For more information on CBAs visit: The U.S. Department of Energy outlines the Partnership for Working Families’ following strategies for each key player: Community Benefits 101

Developers: While CBAs are an effective method for • Identify stakeholders and build public influencing development that has not trust. Stakeholders should represent yet happened, your community may face a diverse group of community-based existing development that has a disparate organizations and individuals impact on the community’s health. In • Engage community representatives and this case, a Title VI complaint is worth coalitions considering. The following section provides • Initiate project briefings with key state background on Title VI complaints and the and local government officials process through which to file one. • Train company representatives about community outreach • Educate stakeholders about the technical aspects of the development

WATER JUSTICE TOOLKIT 65 TITLE VI. A REACTIVE APPROACH

The purpose of Title VI is simple: to ensure HISTORY that public funds are not spent in a way that Title VI is a federal law that falls within the encourages or results in discrimination. A Civil Rights Act of 1965. Though agencies Title VI complaint is a formal administrative enacted Title VI regulations in the 1970s, the complaint filed by those impacted by first administrative complaint was not filed discrimination to begin an investigation with an Agency until 1993. on an entity receiving federal financial assistance. In the environmental justice context, Title VI works in conjunction with an Executive A Title VI complaint is often filed when Order issued by President Bill Clinton. On either the federal government or a recipient February 11, 1994, Executive Order 12898 of federal government funds intentionally was issued to direct Federal agencies to discriminates on the basis of race, color, or incorporate achieving environmental justice national origin. There are many instances into their mission. Agencies were required in which a Title VI complaint can be filed, to do this by identifying and addressing, as however, the basis of any complaint will appropriate, disproportionately high adverse be intentional discrimination on the basis human health or environmental effects of of race, color, or national origin by the its activities on minority and low-income federal government or a recipient of federal populations. Executive Order 12898 also funding. Title VI protects all persons in created the Interagency Working Group on the United States regardless of citizenship Environmental Justice (IWG). The IWG status. Title VI works in two parts, the first provides guidance to Federal agencies, based being the administrative complaint process on criteria, to identify disproportionately which allows aggrieved individuals to file high and adverse human health or complaints, and the second being federal environmental effects on minority and low- IPSWICH RIVER, MASSACHUSETTS compliance, which requires all government income populations. In 2011, the IWG also / IPSWICH RIVER entities to comply with Title VI guidelines. established a Title VI Committee to address WATERSHED ASSOCIATION

66 Title IV Complaints & Compliance the intersection of agencies’ environmental WHO IS RESPONSIBLE FOR justice efforts with their Title VI enforcement ADMINISTERING TITLE VI? and compliance responsibilities. Generally, the Environmental Protection Agency (EPA) Office of Civil Rights (OCR) is While Title VI of the Civil Rights Act and the division responsible for processing most Executive Order 12898 complement one Title VI environmental justice complaints. another, there are key differences. While However, there are other agencies that Title VI is a prohibition on discrimination by have a robust Title VI program and may law, the Executive Order is a directive order also receive complaints. These agencies that may not hold the force of law. Further, may include the Department of Justice, while Title VI can be enforced in courts, Department of Transportation, and the an executive order cannot. If enforced Federal Highway Administration. vigorously, Title VI can be a powerful tool for agencies to address environmental Because Title VI is a federal law, all levels justice and remediate existing inequities and of government must comply with it. This discrimination. means that states and local governments should also have Title VI programs and Title VI is unique from violations of specific policies in place to mitigate discriminatory environmental laws. Environmental laws practices. Title VI complaints can be filed at can be used to address non-compliance and a local level, where many states and localities procedural requirements that are required have a form or process for discriminatory by the law. Title VI addresses and focuses complaints, or a national level, where on the discriminatory impact of permitting agencies have specific requirements. decisions made by local agencies. Violations Generally, Title VI complaints should be of specific environmental laws are distinct filed with the agency that is engaged with from whether the permitting agencies’ misconduct. The recommendations listed decisions to grant permits to operators below are based on the Title VI compliance have a discriminatory impact on affected policies of the Environmental Protection communities. This subtle, but important, Agency’s Office of Civil Rights. These distinction allows Title VI to be applied more recommendations should be generally broadly to address various environmental applicable to other agencies and state inequities, and specifically hones in on and local governments, however, minor discriminatory intent and environmental differences in procedure may exist. justice.

WATER JUSTICE TOOLKIT 67 GUIDELINES ON FILING AN ENVIRONMENTAL JUSTICE ADMINISTRATIVE COMPLAINT

Filing a Title VI complaint is simpler than governments. If you are discriminated one may think. If the proper procedures against and the discriminating entity is a are followed, and all relevant information government entity, a complaint can be filed is provided, filing a Title VI complaint is with one or multiple levels of government. straightforward. However, while the filing may seem simple, creating an effective HOW DO I FILE A COMPLAINT? complaint is a larger task. This part of the Prior to sending a complaint, the guide discusses (1) how to file a complaint complainant must send a written notice to and (2) how to write an effective complaint. the funding agency alleging that a recipient of agency financial assistance has acted WHO CAN FILE A COMPLAINT? or has a discriminatory policy against a Any person who believes they have protected class. An authorized representative experienced discrimination based on race, such as an attorney or representative from color, national origin, or sex can file a an organization may file the notice on behalf complaint. Each federal agency that provides of the complainant. federal financial assistance is responsible for investigating complaints of discrimination Next, a signed, written complaint should be on the basis of race, color, sex, or national filed with the appropriate Federal agency, origin in the use of its funds. If you believe within 180 days of the date of the alleged that you or others protected by Title VI discrimination. In order to write a complete have been discriminated against, you may complaint, you must meet two elements to file a complaint with the Federal, State, or make a case: local agency that provides or receives funds • The activity must be federally funded, for the program or practice engaging in and misconduct or discriminatory practices. It is • You must fall within a protected class important to note that different jurisdictions of Title VI (i.e. race, color, or national may have different procedural requirements origin discrimination). or standards. Be sure to check with the governing agency in which the complaint It is important to note that there is no right will be filed to ensure proper procedure is to appeal a decision made by an agency followed and that the specific discriminatory investigation, therefore, putting your best standard is met. case forward in an initial complaint is crucial. It is important to note that Title VI is not limited to only the federal government, but also applicable to state and local

68 Title IV Complaints & Compliance WHAT DOES A COMPLAINT REQUIRE? The complaint must allege and adequately While requirements for a complaint may describe a discriminatory act that, if true, vary across local, state, and federal agencies, would constitute a violation of the agency’s most processes require that your complaint Title VI non-discrimination policies. For have at least the following: example, an allegation that a decision has • Your name, address, and telephone been made to place a wastewater treatment number. facility in a location that disproportionately • Your complaint MUST be signed. If you impacts a community of color may constitute are filing on behalf of another person, a discriminatory act. The complaint must include your name, address, telephone also indicate that a recipient of the agency’s number, and your relation to that financial assistance was responsible for the person. alleged discriminatory act. • The name and address of the agency, institution, or department you believe For more information on effective complaint discriminated against you. writing, see the resources below: • How, why, and when you believe you • “Writing A Complaint Letter,” from New were discriminated against. Include Hampshire Department of Justice, as much background information • “Filing a Complaint,” from The as possible about the alleged acts Community Tool Box, the Center for of discrimination. Include names Community Health and Development of individuals whom you allege at the University of Kansas. ctb.ku.edu/ discriminated against you, if you know en/table-of-contents/advocacy/direct- them. action/file-complaint/main • The names of any persons, if known, that the investigating agency could contact For more information on how to write an for additional information to support or effective complaint see Recommendation clarify your allegations. 2. Legislative Advocacy in the Public Participation Guide. Title VI Complaints are HOW DO I WRITE AN EFFECTIVE not the only form of complaints that can be COMPLAINT? used to address environmental inequities. It is important that when a complaint There are opportunities to register is filed, it is concise and provides the local concerns with your local and state best evidence to support an individual governments as well. or community’s case. For an agency to accept a complaint, the complainant must Filing alone will not stop discriminatory submit a written and signed complaint. practices. Once a complaint has been filed

WATER JUSTICE TOOLKIT 69 WILL FILING A TITLE VI COMPLAINT STOP DISCRIMINATORY PRACTICES?

within the required timeframe, there is a appropriate federal agency (if filed to the process through which resolution can be wrong agency). secured. The regulations require OCR or the appropriate filing agency to acknowledge If the complaint is accepted, within 180 days receipt of the complaint within five days. of the start of the complaint investigation The agency then must immediately initiate process OCR must notify the complainant complaint processing procedures and within and recipient agency of the agency’s findings twenty days review the complaint or file and recommendations for voluntary an acceptance, rejection, or referral to the compliance.

The options for handling the complaint are as follows:25

Accept If a complaint is timely filed, contains sufficient information to support a claim under Title VI, and concerns matters under the stated Agency, the Civil Rights Office of the Agency will send to the complainant, the respondent agency, and the Division Office a written notice that it has accepted the complaint for investigation. Preliminary Review If it is unclear whether the complaint allegations are sufficient to support a claim under Title VI, then the Civil Rights Office of the Agency may (1) dismiss or (2) engage in a preliminary review to acquire additional information from the complainant and/or respondent before deciding whether to accept, dismiss, or refer the complaint. Procedural Dismissal If a complaint is not timely filed, is not in writing and signed, or features other procedural/ practical defects, then the Office of Civil Rights of the Agency will send the complainant, respondent, and Division Office a written notice that it is dismissing the complaint Referral/Dismissal If the complaint is procedurally sufficient but the Agency (1) lacks jurisdiction over the subject matter or (2) lacks jurisdiction over the respondent entity, then the Office of Civil Rights of the Agency will dismiss the complaint or refer it to another agency that does have jurisdiction.

70 Title IV Complaints & Compliance CHALLENGES ASSOCIATED WITH TITLE VI COMPLAINTS AND COMPLIANCE

Frontline communities have historically communities across the United States utilized Title VI through two avenues: that had filed Title VI complaints. The • Directly suing recipients of federal funds EPA failed to provide a timely response in federal and state courts under Title to the complaints within their 180-day VI, and requirement, a pattern that is commonly • Filing Title VI administrative complaints seen by the EPA’s Office of Civil Rights with the EPA and other agencies. (OCR). The court referred to the decades- long delays as “agency action unlawfully To date, both avenues have yielded limited withheld.” This decision was pivotal to success in the courts and at the agency level, the environmental justice movement. It however, there has been recent reform to has created a clear path forward for future push Title VI responses and cases. environmental discrimination complaints by affirming that releasing findings within More recently, some much-needed attention 180 days of accepting a complaint is the legal was finally given to Title VI. In 2005, requirement and agencies can no longer skirt Rosemere Neighborhood Association v. U.S. that deadline. EPA, the court held that EPA’s failure to process a Title VI complaint in accordance Even following litigation and court decisions, with the 180-day timeline was found to be Title VI remains to have inherent flaws. unlawful pursuant to the Administrative The process of filing a complaint is often Procedure Act (APA).26 EPA settled the overlooked, but don’t underestimate the Rosemere case by agreeing to respond to all importance a complaint can hold. future Title VI complaints from plaintiffs within the regulatory time frames and to RECOMMENDATIONS FOR LOCAL produce, on a quarterly basis, an inventory TITLE VI COMPLIANCE of all Title VI complaints submitted to the Though Title VI is a federal law, it still agency and a report on the status of each requires state and local compliance. While complaint. citizens are armed with the ability to file complaints and litigate in the face of In 2015, the United States District Court intentional discrimination, governments for the Northern District of California, the are tasked with ensuring compliance and case Californians for Renewable Energy developing preventative policies to avoid et. al. v. the United States Environmental acting in a discriminatory manner. Protection Agency found that the EPA was in gross violation of its Title VI procedures. In addition to Federal compliance, State The case was brought by four different and local governments are also required to

WATER JUSTICE TOOLKIT 71 comply with Title VI of the Civil Rights Act This portion of the guide is meant for so long as they facilitate a federal program. A communities to share with local leaders state administering agency is an entity that and decision makers. is directly granted federal funds to prioritize and allocate amongst various programs, This resource provides examples for what policies, and initiatives. A state or local local and state governments should consider government is required to comply with Title to bolster inclusive decision making VI if they are “recipients” of federal financial and consider environmental justice in assistance. The Department of Justice’s conjunction with public participation and Office of Civil Rights (OCR) provides community involvement. The following technical assistance to state administering list is not meant to be exhaustive and we agencies and staff on the importance of encourage local governments to work with Title VI, with an emphasis on improving communities in developing their own, monitoring procedures to ensure the robust Title VI compliance guidelines. These compliance of subrecipients, those who then guidelines were developed by the Tennessee 27 administer the state administering agencies Administrative Office of the Courts in order policies and initiatives. The following to comply with Title VI. Other states may subsections include recommendations have more exhaustive or comprehensive for state and localities to implement or plans for Title VI compliance. achieve Title VI compliance and prevent discriminatory policies. DEVELOP A PUBLIC PARTICIPATION PLAN It is important for government entities to It is important to note that many states engage the public to make them aware of have Title VI guidelines for their State projects or services and to provide input in Departments of Transportation. State decision-making processes through: Departments of Transportation Title VI • Public meetings/ Hearings in centralized compliance programs follow guidelines set locations; forth by the Federal Transit Administration. • Advertisement with local media The recommendations below are meant resources and newspapers serving for state and local agencies that may not communities of color; have, or have a weak, Title VI program. • Direct mailings; While these are specific to the Department • Public service announcements; of Transportation, these principles can be • Website, radio and television. applied to other agencies.

DIVERSE REPRESENTATION ON PLANNING BOARDS AND COMMISSIONS The inclusion of communities of color and lower income communities on planning

72 Title IV Complaints & Compliance EXAMPLES OF TITLE VI boards and commissions is critical in EVALUATE CURRENT PRACTICES establishing an equal access planning PLANS system. Subrecipients cannot “deny a person SANDAG, “Guide to Developing a Title VI the opportunity to participate as a member Plan for FTA Subrecipients,” May, 2017. of a planning, advisory, or similar body which is an integral part of the program.” U.S. Department of Transportation, Federal Highway Administration, Office of HAVE A WRITTEN TITLE VI Civil Rights, “State Title VI Implementation COMPLAINT PROCESS AND Plans: A collection of commendable COMPLAINT LOG procedures and practices,” April, 2019. Localities should create a written Title VI complaint process and create a complaint Title VI. Plan Template log to track any instances of discrimination. For recommendations on what the process and log should include, visit the Tennessee Administrative Office of the Courts website In order to successfully implement and for more information. comply with Title VI, current practices to address nondiscrimination in federally HAVE A “LIMITED ENGLISH funded programs must be evaluated by local PROFICIENCY” PLAN entities. This will allow for programs, entities Executive Order 13166 requires Federal and government officials to change existing agencies to examine the services they practices that are non-compliant and revise provide, identify any needs for services for plans to ensure public participation and those with limited English proficiency (LEP), meaningful involvement. and develop and implement a system to provide those services so LEP persons can When evaluating current practices, the have meaningful access to their services. evaluator should: LEP persons are persons who do not speak • Identify actions already being taken and English as their primary language, and existing tools that can be used to provide who have a limited ability to read, speak, meaningful access; write or understand English. In order to • Inventory existing materials that have take reasonable steps to ensure access to been translated into other languages; programs and activities by LEP persons, the • Develop staff awareness; and community must determine: • Prepare a response plan. Evaluations • Number or proportion of LEP persons in can be done by local EJ committees the community; established by local or state governments • Frequency of contact with the program or by an ethics committee designated by or activity; the locality or state. • Nature and importance of the program or activity and • Resources to ensure LEP persons can access the program.

WATER JUSTICE TOOLKIT 73 74 UPPERWATER FLINTJUSTICE RIVER TOOLKIT WORKING GROUP LOCAL LAND USE PLANNING & ZONING 4 GUIDE

WATER JUSTICE TOOLKIT 75 PURPOSE

Land use planning is not much different are an appropriate use of the state’s police from the type of planning we do in our power because they protect the health everyday lives. We map out the things we and safety of the community. This case, want, when we want them, and how to rooted in constitutional principle, became execute a plan to obtain them. Similarly, a means of exclusionary zoning, or the land use planning decides where things illegal practice of excluding low-income and will be located, when things will be Black and Brown residents under the guise developed, and how it will be executed. Our of zoning classifications. Zoning has led to everyday planning is often easy because regulations that benefit White and higher we are generally the sole decision-makers wealth populations and leave out low wealth of our own lives. However, things get communities and communities of color. more complicated as more players and perspectives are involved. This is partially To learn more about the history of why land use planning can become so segregation, zoning, and public health, see: complex—there are wide-ranging opinions How Planning and Zoning Contribute to and interests to be considered. Inequitable Development, Neighborhood Health, and Environmental Injustice. A major barrier communities color and lower-income communities face is access Since the early 1900s, discriminatory to and participation in governmental zoning and permitting laws have designated decision making processes. Zoning and housing for people of color in neighborhoods land use policies have been used to codify with a high concentration of environmental segregation28 and justify allocation of hazards. This systemic racism has created a different resources and protections to higher density of low-income communities different zoned areas. The initial purpose for of color residing near environmental hazards zoning in the 19th was to decrease the spread and an economic inability to escape their of infectious diseases by separating land uses discriminatory placement. Now, people in order to limit human exposure to toxic of color “comprise 56% of the population chemicals and biological agents.29 living in neighborhoods” with facilities registered under the Emergency Planning PRIOR PAGE & ABOVE: In a landmark United States Supreme Court and Community Right-to-Know Act’s Toxic WACCAMAW RIVER, case of Ambler Realty Co v. Village of Euclid, Release Inventory, “compared to 30% SOUTH CAROLINA / MAC 30 STONE the court found that zoning ordinances elsewhere.”

76 Land Use & Zoning Guide Land use impacts can include exposure to Grassroots community activists are often hazardous waste incinerators, petrochemical catalysts for action, bringing environmental refineries, lead smelters, solid waste landfills, justice problems to the attention of local and disposal sites. Land use impacts can also governments. By raising important issues be linked to lead in home drinking water and working with government, community pipes, pesticides in fields, and storm water groups can be a critical force in identifying overflows with toxic contaminants. The problems and developing new, more mere permitting of polluting facilities can effective solutions to environmental justice lead to long-term exposure of surrounding concerns. communities. It is not only inequitable for communities of color and lower- income communities to bear the burden of exposure, but it is also an ongoing public health concern that requires local and state governments to act.

There are several ways communities can influence and address environmental justice concerns related to zoning and land-use planning. This section of the toolkit provides avenues for engagement and participation to further environmental justice advocacy. This guide is created to provide a set of resources for local community members and leaders to use to address land use- related environmental injustices in their communities in the face of climate change.

Recommendations include: • Bolster public participation; • Encourage “cumulative impacts,“ language in zoning policies; • Encourage equitable zoning policies; and • Encourage participation in zoning hearings.

While this guide can be utilized in several different ways, it should be primarily used to address and encourage community participation and encourage a comprehensive look at land use planning to promote environmental justice.

WATER JUSTICE TOOLKIT 77 BACKGROUND UNDERSTANDING WHAT’S WHAT

Planning generally provides a and projected), housing, infrastructure, comprehensive plan on how to utilize education, recreation, and transportation. a physical environment. Land use may also be considered a planning process, LAND USE AND ENVIRONMENTAL where the physical, social, and economic JUSTICE aspects of a community are examined and Zoning and land use planning are tools considered. Land use and planning consider that can help protect communities transportation, housing, recreation, open from pollution. Zoning has significant spaces, cultural resources, community implications for shaping the environment services, population and economic of a community because it defines where development. sources of pollution and other potentially noxious uses can legally be sited. Zoning is a tool used to regulate what types of development can happen in Environmental justice is heavily rooted in different areas of a community. Examples zoning, land use, and local decision making. of zoning categories include industrial, Zoning and land use planning have been residential (single-family, multi-family), and described by some scholars as not only a commercial. Zoning can be used to advance “root enabling cause of disproportionate and protect the community’s public health, burdens [and] environmental injustice” but safety, and general welfare. Essentially, also “the most fundamental and potentially zoning is a tool to implement land use most powerful of the legal weapons deployed planning. Local governments use zoning in the cause of racism.”31 Municipalities are to protect the value of property, prevent at the forefront of most land use issues that the establishment of nuisances, ensure eventually lead to environmental injustices. compatibility between adjacent uses of land, and protect natural resources. While used Locally unwanted land uses (LULUs) were historically as a tool to implement systemic the foundation for the environmental justice racism, zoning is ultimately a planning movement. Following the protest of the control tool for the government to regulate government’s decision to place a PCB landfill the physical development of land based on in a mostly African American community its usage, purpose and geology. in Warren County, North Carolina, the U.S. General Accounting Office (GAO) undertook A comprehensive plan is an attempt to an investigation and found that hazardous establish guidelines for the future growth waste landfills were located in communities of a community. A comprehensive plan is where African Americans were a majority of designed to be adopted into law and consists the population. of the following elements: land use (both existing and future), demographics (existing Zoning is often extremely political. There is significant evidence showing that not only

78 Land Use & Zoning Guide are people of color or low-income residents The decision makers for a zoning or land- likely to live close to polluting industries use plan typically involve the municipalities’ with the resulting unequal distribution local zoning staff, the planning commission, of environmental exposures, but also and the Board of Zoning Adjustment (BZA), that local zoning has sometimes created and county council. these disparities and that local decision- makers were often fully aware of the likely • Municipal Staff: Generally, the first ones outcomes.32 to look over a proposed zoning plan and ensure it is compliant with all laws and Further, people of color or low-income ordinances residents also face the vulnerabilities • Planning Commission: Entity conducts associated with land use and zoning. These public hearings, takes evidence, creates vulnerabilities can include, but are not a record of the proceedings, and then limited to, exposure to contaminants from makes recommendations for approval, wastewater, increased property flooding, approval with modification, or denial of toxic exposure from fishing and waste runoff the application from water treatment facilities. • Governing Body: An entity such as a city council or county commission HOW IS ZONING RELATED TO WATER that is the final decision maker on all POLLUTION? zoning applications, unless the state Land use and water resources are undeniably has delegated this authority to another linked. The type of land use and the intensity entity. of the use will have a strong influence on the • Board of Zoning Adjustment (BZA): quality and quantity of water resources.33 Some jurisdictions create a BZA to: (1) The potential negative impacts on our hear and act upon variance applications; water and natural resources increase as and (2) hear appeals to rezoning denials the intensity of land use increases. More where the basis for appeal is an alleged intensively developed areas have a greater irregularity in the governing body’s level of impervious surfaces, including roads, application of the ordinance. parking lots, sidewalks, rooftops, etc. than low-intensity areas.34 Advocacy related to zoning and planning is conducted on a local level and there is Impervious surfaces prevent natural strength in numbers. A great place to start infiltration of water and increase storm considering options for zoning changes is water runoff. As the intensity of land use to follow and join existing advocacy groups increases, infiltration, and the ability to that are addressing similar issues. Typically, recharge groundwater decreases. Lack zoning-related proposals occur in town of infiltration can lead to severe urban halls or even local community meetings flooding, ultimately harming properties (e.g.. HOA). This is a great place to test the that are in flood-prone zones. Also land use waters, determine if other members of your decisions often result in the reduction and community feel the same way, and build fragmentation of open space, thus reducing your coalition. water filtration, infiltration and collection. WHO ARE THE DECISION MAKERS?

WATER JUSTICE TOOLKIT 79 RECOMMENDATION 1 BOLSTER PUBLIC PARTICIPATION

Meaningful involvement and participation of communities of color and low-income EXAMPLES OF PUBLIC communities in the decision-making process PARTICIPATION STATUTES are critical to ensure fair and equitable use Public participation and collaboration can of land. Direct community participation in enhance a local government’s effectiveness, local decision-making reflects a fundamental expand its range of options, improve the principle of American democracy.35 quality of its decisions, and enlist the Community participation in today’s land problem-solving capacities of the general use decision making can counter well- public and organizations outside local resourced,private interests otherwise favored government.38 Knowledge and talent by the process. Clear public participation are widely dispersed in society and all processes can empower communities of benefit when those skills and abilities are color and low-income communities to directed towards a common goal. It is counter the prevailing power imbalance that encouraged to have public agencies and has been embedded in community planning municipal authorities collaborate with for centuries.36 the general public and state, regional and local government agencies, tribes, According to Audrey G. McFarlane, a law nonprofit organizations, businesses, and professor from the University of Baltimore, other nongovernmental stakeholders to “meaningful participation” requires: accomplish public work and deliver public • local government inclusion of services more effectively and efficiently. community participants in the development decision-making process States have taken varied approaches when early so as to allow them to state the adopting statutes to encourage or require goals of development in the first place; effective community participation in • “enforcement mechanisms” for failing to local land use planning. Two examples of follow its procedures; and bolstering community participation through • that local governments not wait to state enacted legislation39 are in Maine and devolve decision-making power to Arizona. communities when development projects arise—they should “allow community Maine: “In order to ensure citizen participation participation and education in the in the development of local growth management business of community decision making programs, municipalities may adopt local growth management programs only after soliciting on real decisions regularly.”37

80 Land Use & Zoning Guide and considering a broad range of public review and comment. The intent of this subsection is to provide for the broad dissemination of proposals and alternatives, opportunity for written comments, open discussions, information dissemination and consideration of and response to public comments.”40

Arizona: The Public participation procedures shall provide for the broad dissemination of proposals and alternatives for the local comprehensive plan or such part or other amendments in order to ensure multi-directional flow of information among participants in advance of and during participation of plans. Examples of measures contained in such procedures may include, but shall not be limited to: • Surveys and interviews of the local governments’ residents and business owners, operators and employees; • Communications programs and information services, such as public workshops, training, focus groups, newsletters a speaker’s bureau, radio and television broadcasts and use of computer accessible information networks; • Opportunity for written comment on drafts of the plan or such part or other amendment; • Appointment of a person to serve as a citizen participation coordinator for the planning process; • The creation of advisory task forces.

WATER JUSTICE TOOLKIT 81 RECOMMENDATION 2 ENCOURAGE “CUMULATIVE IMPACTS” LANGUAGE

WHAT ARE CUMULATIVE IMPACTS? shown how the cumulative effects of social The National Environmental Policy Act’s and environmental stressors can work in implementing regulations define cumulative combination to produce health disparities.41 impacts as: “the impact on the environment which results from the incremental impact Cumulative impacts include “successive of the action when added to other past, additions.” These successive additions, in present, or reasonably foreseeable future the context of environmental justice, means actions regardless of what agency or person additional sources of pollution. This can undertakes such other actions. Cumulative also be used to describe an individual’s impacts can result from individuals minor integrated exposure to pollutants. but collectively significant actions taking place over a period of time.” (40 CFR Cumulative impacts are related to 1508.7) aggregate risk. The aggregate risk is the risk from all routes of exposure to a Cumulative impacts result when the effects single substance. This in turn, defines of a land use decision are compounded “population vulnerability” which includes by previous land use decisions and their the consideration of social and economic negative impacts on a community. It is factors such as lack of access to healthcare, the combination of these effects, and any food and diet accessibility, pollution levels resulting environmental degradation, that and more. should be the focus of cumulative impact analysis. The concept of cumulative impacts WHEN IS A CUMULATIVE IMPACT considers all disturbances since cumulative ANALYSIS REQUIRED AND WHEN impacts result in the compounding of the COULD THEY BE USEFUL? effects of all actions over time. Cumulative impact analyses are most commonly used by federal and state Cumulative impact analysis may be thought governments when an entity is following the of as a comparison of the past, present, and National Environmental Policy Act (NEPA) reasonably foreseeable health or condition process. NEPA requires that the permitting of a specific resource. Cumulative impact agency to either develop an environmental analyses are important because they assessment (EA) or an environmental consider whether a permit for an entity impact statement (EIS) and consider has a larger impact due to existing factors cumulative impacts within them. However, rather than simply ensuring compliance cumulative impacts should not be limited with individual standards. Research has only to large scale projects requiring NEPA

82 Land Use & Zoning Guide COMMUNITY CASE STUDY: A CUMULATIVE IMPACTS ORDINANCE NEWARK, NJ

The City of Newark is subject to a concentrated Through this ordinance, the City of Newark seeks amount of environmental pollution due to its to: dense transit network including a major airport • Protect the health of all residents, and seaport, industrial uses, and waste and regardless of race, culture, or income, from sewer treatment facilities. The city is home to the exposure to pollution linked to adverse largest trash incinerator in the Northeast and the health effects including the cumulative 2nd largest port in the nation with 7,000 trucks impacts that may be worsened as an making an estimated 10,000 trips daily. unintended byproduct of new development or redevelopment, and to ensure the The Environmental Justice & Cumulative Impacts enforcement of laws, regulations and Ordinance directs the Newark Environmental policies in a manner consistent with the Commission to establish a baseline for principles of Environmental Justice. environmental conditions and seeks to address • Take appropriate action to avoid, minimize the problems that have led to unhealthy, and mitigate pollution from all sources with concentrated levels of pollution in the region’s Newark’s jurisdiction through partnerships, poorest communities. innovation and enforcement. • Encourage proposals for development or The Ordinance’s Policy Statement is: redevelopment that contribute positively The goal of the Environmental Justice & to Newark’s environmental, economic, Cumulative Impacts Ordinance is to advance and social health, or at minimum, that do Environmental Justice, good stewardship, and not contribute net new pollution to the sustainable economic development in furtherance environmental or adversely impact public of the priorities outlined in the Newark health. Sustainability Action Plan and the Newark Master Plan.

analysis. Cumulative impact assessments by neighborhoods consistent mostly with can also be used locally when a zoning board communities of color or low-income decides on providing permits to a new entity, populations. On a local level, a cumulative property owner, or land-use developer. impact analysis should be considered for any major projects or changes to the locality. Currently, not many local ordinances take into consideration the cumulative impacts of land use plans and permitting. Current environmental and local policy focuses narrowly on pollutants and their sources and should be broadened to consider the cumulative impact of PASSAIC RIVER, NEW exposures and vulnerabilities encountered JERSEY / PEDRO MENDES

WATER JUSTICE TOOLKIT 83 RECOMMENDATION 3 ENCOURAGE EQUITABLE ZONING POLICIES

The Natural Resources Defense Council Like state governments, municipalities can (NRDC) published a study42 ofn various establish broad policies and programs with zoning policies that cities across the United the purpose of furthering environmental States have implemented. The study outlines justice, with a particular focus on land use various strategies and policy directives that policies. mitigate environmental injustices through the use of zoning. The strategies NRDC In 2020, New Jersey passed legislation identified include: bans, general EJ policies, that aims to limit new pollution sources reviews, proactive planning, targeting in neighborhoods already facing existing land uses, and public health codes disproportionate impacts.43 NJ S232 and policies. (20R) requires the state Department of Environmental Protection to deny permits STRATEGY 1: BANS ON UNWANTED for power plants, incinerators, landfills, large LAND USES recycling facilities and sewage treatment One of the most direct ways to mitigate plants in certain communities of color and negative impacts on environmental justice lower-income neighborhoods if the project communities is to institute an outright may pose a risk to human or environmental prohibition or ban on specific land uses or health in conjunction with threats those industries deemed harmful to public health communities already face.44 and the environment. A municipality’s existing zoning code may be amended to STRATEGY 3: REVIEWS identify those uses it deems incompatible Environmental reviews can be a powerful within a particular zone or pass a stand- way for municipalities to regulate alone prohibition of particular uses it deems development in their jurisdictions. Most undesirable. municipalities already have a process in place to review proposals for new The vast majority of the policies under developments or expansion projects through the category of bans focus on the process, their planning and zoning boards. The storage, or transport of fossil fuels which policies in this category add another layer of ultimately contribute to climate change. review focused specifically on the impact of The past two decades have seen the development proposals on environmental marked expansion of domestic fossil fuel justice communities. infrastructure due to increased natural gas fracking as well as processing of heavier, STRATEGY 4: PROACTIVE PLANNING dirtier forms of crude oil and increased Planning is a way that cities and other exports of coal and petroleum coke. localities can envision future development and proactively work towards that vision. STRATEGY 2: GENERAL This may include a comprehensive plan, ENVIRONMENTAL JUSTICE POLICIES overlay zones, and/or green zones that

84 Land Use & Zoning Guide CONNECTION TO WATER AND RIVERS A WATER CRISIS LINKED TO FIREFIGHTING FOAM NEWBURGH, NY

Recently, PFOA and PFAS have been gaining In one national example,47 these chemicals national attention. The EPA states, “PFOS were found at unsafe levels in a reservoir for and PFOA are extremely persistent in Newburgh, New York, a city 70 miles north of the environment and resistant to typical New York City with a population of mostly Black environmental degradation processes. As or Latino residents. The source was determined a result, they are widely distributed across to be firefighting foam from Stewart National the higher trophic levels and are found in Guard Base which seeped into groundwater. soil, air, and groundwater at sites across the United States. The toxicity, mobility, The city declared a state of emergency in 2016 and bioaccumulation potential of PFOS and and the base was designated a Superfund site PFOA pose potential adverse effects for the that year. This crisis led to New York state ban of environment and human health.” PFOS in firefighting foam. Learn more at: www.newburghcleanwaterproject.org

explicitly aim to address environmental to protect residents from various pollutants justice. This approach to environmental that pose a risk to public health. justice focuses on future development is a way that cities can guide their growth, In addition to public health codes, it is also institute new standards, target investment, beneficial to know whether a Health Impact to attract beneficial developments. Assessment (HIA) is considered when making zoning decisions.45 STRATEGY 5: TARGETING EXISTING LAND USES An HIA is a tool that can help communities, Municipalities seeking to address existing decision makers, and practitioners make land use that disproportionately impacts choices that improve public health through EJ communities do have a few mechanisms community design. An HIA is a process that through targeted mitigation efforts like the helps evaluate the potential health effects of implementation of buffer zones, the phasing a plan, project, or policy before it is built or out of noxious land uses that no longer implemented. HIA’s can provide practical conform to the existing code, or mitigation of recommendations to increase positive health hazards through code enforcement. effects and minimize negative health effects.

STRATEGY 6: PUBLIC HEALTH CODES A study out of Baltimore, Maryland46 found AND POLICIES that zoning changes can have a significant Cities have a special role to play in the impact on population health. The study protection of public health and safety. One found that HIA’s are an important platform of the ways cities oversee public health is for applying social determinants of health, through the adoption of codes that enforce or factors outside of genes and biology that nuisance protections over things like noise, affect population health and well-being. odor, dust, and light. Municipalities may choose to adopt and enforce health codes

WATER JUSTICE TOOLKIT 85 EPA’S BROWNFIELD AND SUPERFUND PROGRAMS

BROWNFIELDS SUPERFUND While explicit recommendations related to EPA’s Superfund program is responsible brownfields are not mentioned in this guide, it for cleaning up some of the nation’s most may be helpful to understand brownfields in the contaminated land and responding to context of zoning and land use. A brownfield environmental emergencies, oil spills, and is a property, the expansion, redevelopment, natural disasters. Superfund sites commonly or reuse of which may be complicated by the include contaminated sites that exist as a presence or potential presence of a hazardous result of hazardous waste being dumped or substance, pollutant, or contaminant. improperly managed. These sites include manufacturing facilities, processing plants, The EPA has a Brownfields Program which landfills and mining sites. provides grants and technical assistance to communities, states, tribes, and others to The government passed the Comprehensive assess, safely clean up and sustainably reuse Environmental Response, Compensation and contaminated properties. Liability Act (CERCLA), or informally known as Superfund, which allows the government For information on the Brownfields Program, to clean up contaminated sites and compels visit EPA’s website: www.epa.gov/ responsible parties to either perform clean-ups brownfields/overview-epas-brownfields- or reimburse the government for cleanup. program Superfund’s goals are to: If you have questions on whether a property • Protect human health and the environment is environmentally contaminated, a site by cleaning up contaminated sites assessment may be needed. View EPA’s • Make responsible parties pay for cleanup Assessing Brownfield Sites Fact Sheet to work learn more. • Involve communities in the Superfund process; and Brownfields Success Story • Return Superfund sites to productive use Clean Water Funds Brownfield Redevelopment, Yorklyn, Delaware, Helpful links: February 2019. • EPA Superfund community involvement • EPA Community Involvement Toolkit • EPA Superfund Data and Reports

Superfund Case Study Historic Preservation and Mixed-Use Superfund Redevelopment: The Plainwell Paper Mill In Plainwell, Michigan, August 2014.

86 Land Use & Zoning Guide RECOMMENDATION 4 PARTICIPATION IN ZONING HEARINGS

Successful and equitable participation in zoning hearings is dependent on how entities prepare and engage in meetings, and how community members effectively participate in the decision-making process.

This section provides recommendations for WHY ENGAGE IN HEARINGS? community members and individuals on Public hearings provide a specific how to effectively prepare and participate in opportunity for citizens to be heard on a zoning hearing. zoning matters that may affect their interests. WHAT IS A ZONING HEARING? A zoning hearing is a meeting convened The primary purpose of a public hearing is to by a governing body often called a zoning gather facts and information from members board. The meetings focus on various zoning of the public about the proposed changes. matters including permit requests, zoning Community members are invited to provide amendments, and more. their personal perspectives, knowledge and data that may inform the proposed changes. WHEN DOES A ZONING HEARING HAPPEN AND WHO IS INVITED? General Hearing Procedure Zoning hearings happen when there are A zoning hearing board conducts a hearing proposed changes to zoning in an area. For in order to determine if it should uphold or example, after a developer files for a permit, overrule a local government’s decision.48 there may be a zoning hearing to either Though zoning hearings will vary across approve or deny the permit, and the public localities and ordinances, the following has an opportunity to comment. In a zoning general procedures can be considered hearing, there will be a zoning board, the to understand how a zoning hearing is decision making entity; the permittee, the conducted: person or entity applying for a permit; and concerned citizens who may be impacted by • A meeting will begin with a chairperson any proposed changes in the zoning. announcing the subject of the public hearing, as advertised through public It is essential that required notices of public notice. hearings be published and distributed as • The public hearing procedures are specified in the zoning ordinance and the summarized for all present by the state enabling legislation. chairperson. • The staff of the zoning board is then asked to present the substance of the

WATER JUSTICE TOOLKIT 87 application and any staff reports and It is important to check in with your zoning to answer technical questions of the office to understand the rules of a hearing, hearing body how long participants may have to speak, • Individuals wishing to speak in and when during the zoning hearing support of the subject of the hearing participants can make comments. shall be recognized by the chairperson beginning with the applicant(s) or their Meeting Agenda representative. Every zoning board will likely have a hearing • The hearing body must permit agenda that will list what items will be comments from all interested or affected discussed and whether public comments individuals and organizations, and are allowed. Meeting agendas may be found consideration is given to all comments or online on your local zoning board website suggestions made. or found in a municipal building. To find • The chairperson, may, with reasonable a zoning hearing agenda you can try to limits, upon request, allow cross- use Google and search: “[municipality or examination or rebuttal. All comments county name] + zoning board/ planning/ should be addressed to the hearing zoning hearing.” If you are unable to find through the chairperson and not the hearing agenda, it should also be located directed to any other individual. outside of the zoning hearing board room • The chairperson will upon their motion one hour prior to a hearing. or the motion of any member, announce the close of the public hearing or When Can I Speak? announce the continuation of the public Your opportunity to speak will depend on hearing to another specified time and whether your item of concern is on the listed date if the house is late or additional agenda or not. Generally, if your item is NOT pertinent information must be obtained. listed on the agenda then the zoning board will set an allocated time for non-agenda COMMUNITY PREPARATION FOR A community discussion. If your agenda item ZONING HEARING IS listed, there will be a specific time within Prior to engaging in a zoning hearing, the item agenda time for public discussion. it is important to prepare or outline During public discussion of the agenda item, statements that have an effective, concise, either a group or a designated spokesperson and clear goal. Each zoning board will on behalf of the group may present have its own set of particular rules on how information. and when to participate, however, these recommendations can work generally. What Should I Talk About? Providing effective comments during your For example, the City of Fort Collins, allocated time for discussion is important. Colorado assigns a Neighborhood Each person wanting to speak may only have Development Review Liaison to assist two or three minutes, making this short citizens who are preparing substantial amount of time incredibly important. At presentations. the beginning of your statement, voice your opinion clearly and to the extent possible

88 Land Use & Zoning Guide back it up with facts, data on impacts, and an educational background in the specific tangible outcomes. If data is available to topic, or it may be a person who developed support your claim, try and explain it in a a professional experience by working in the clear and concise manner. field for many years. Experts can be found through local universities. Speaking Guidelines • At the beginning of any public comment For local hearings, such as zoning, district period, the Chair will announce how council, and planning board hearings, there long each person may speak (typically is strength in numbers. Hearings associated three minutes) with land use decisions are often overlooked. • Begin speaking by stating your name, If there are numbers of communities and and whether you oppose or support the individuals who are present and voicing their item on the agenda concerns, it can be impactful. When there • Be prepared with copies of your written is an opportunity for public input, try to comments for the board to consider. mobilize as many people as possible to speak to the issue by sharing stories, data, and If possible, try to find an expert to testify concerns. on the issue. For example, if there are issues regarding water quality, find a water With the COVID-19 crisis, public comment, hydrologist to testify on the water quality testimony, and letters of concern are of the community. Experts can come in increasingly accepted in electronic form. many forms, it may be a person who has

WATER JUSTICE TOOLKIT 89 90 UPPERWATER FLINTJUSTICE RIVER TOOLKIT WORKING GROUP PUBLIC 5 PARTICIPATION GUIDE

WATER JUSTICE TOOLKIT 91 PURPOSE

The foundation of the United States is rooted Public participation has multiple benefits in democracy. In building this country, that make it worth the investment of the founders were attempting to create a government, community groups, and system where the government can respond organizations who work for the common to people’s needs and where people have the good. Engaging the public, as decisions are opportunity to express those needs. Public made, leads to informed decision-making participation can be called many things such and stronger solutions to problems. Public as public engagement, public involvement, participation is also important because it community-based decision-making, and adheres to democratic principles, it creates neighborhood-based decision-making. more substantive decisions and outcomes, Whatever you may call public participation, and it helps identify problems that can and it is rooted in the involvement of people in should be solved as well as relevant solutions solving a problem and structuring a process to solve for them. for them to be a part of the solution. The purpose of this guide is to provide Environmental justice is, in part, based guidance to communities who want to on the idea that, in a democracy, when engage in decision-making in and about everyone has an opportunity to participate their communities. Public participation meaningfully in a process whose procedures takes persistence and success may mean a and substance they understand, decisions compromise or “moving an inch.” Often, will be informed by this input and in the policy world, small incremental PRIOR PAGE: COMMUNITY MEETING therefore any negative impacts should changes are what will get you to the final COLLEGE PARK, GEORGIA / not disproportionately burden any one goal. Success comes in different forms, but MIKE YOUNG community. engagement is crucial for even the smallest ABOVE: BOUNDARY change to occur. WATERS, MINNESOTA / JOE BRANDMEIER

92 Public Participation Guide RECOMMENDATION 1 PUBLIC COMMENT

Providing public comment is an important way to have people’s voices heard on Rulemaking/Regulations: regulations and proposals that may have a Clean Water Act (CWA): Public notice significant impact on their lives. Comments and an opportunity for public comment is provide decision-makers with information required before a state, EPA, or the U.S. to help them make better decisions, Army Corp of Engineers issues a permit for improve policies or a proposed project a new source of water pollution or a renewed and can provide perspectives that the or revised permit for an existing pollution government may not have contemplated. source. Not only are comments a useful tool for government agencies, but they are also often WHAT ARE REGULATIONS? a requirement for policy-making efforts Regulations are rules created by agencies, with proposed rules and regulations often commissions, and departments in the requiring a public participation period where federal and state governments’ executive communities can engage in the drafting branch based on authority granted to it process. This guide provides information on by Congress. Regulations are written by regulations, comment opportunities, and executive agencies to enforce statutes passed how to write effective comments. by Congress. They have the force of law and provide detailed instructions on how Public comment can take on many forms. agencies intend to enforce laws. Simply put, Often they are required on proposed rules rules carry out or explain law or policy.49 intended to carry out or provide detail on an existing law. Comments may also be Statutes v. Regulations required when the government takes on a Statute: A written law passed by the major new federal action. Here are some legislature examples of instances when the law requires Regulations: Agency written rules to public engagement: implement statutes

Major Federal Action: HOW ARE REGULATIONS CONNECTED National Environmental Policy Act (NEPA): TO ENVIRONMENTAL JUSTICE? Environmental justice, as defined by the When an environmental impact statement Environmental Protection Agency (EPA), (EIS) is prepared and before an agency is the fair treatment and meaningful reaches a final decision on a “major federal involvement of all people regardless of action,” public notice is required at several race, color, national origin, or income with stages, including the initial “scoping” of respect to the development, implementation issues to be addressed in the EIS, issuance and enforcement of environmental laws, of the draft EIS, and when the final EIS is regulations and policies. The public’s issued. contribution can influence the regulatory

WATER JUSTICE TOOLKIT 93 agency’s decision. Community concerns WHAT OPPORTUNITIES EXIST FOR can be considered in the decision-making ENGAGEMENT? process and decision makers will seek out The government has many steps when and facilitate the involvement of those creating regulations. So which rules are even potentially affected by their actions. open to public comment? Below you will find a list of opportunities when you can usually WHAT IS THE RULEMAKING provide comment. Keep in mind that these PROCESS? are based on federal recommendations. The Federal rulemaking process begins States may have different procedures and with Congress passing a law that requires opportunities for public comment.51 regulations.50 Following the passage of a law, Executive agencies are tasked with Preliminary rule-making: This comment developing and implementing regulations opportunity includes advance notices for the law. The Agency will release a public of proposed rule-making, petitions for notice for rulemaking and seek stakeholder rulemaking, and notices for inquiry, input to develop a “proposed rule.” The where no rules have yet been proposed agency then publishes the proposed rule but comments are invited on the agency’s in the Federal Register which opens a intent to add, remove, or change a rule or “notice and comment” period for the public. regulation. During this time, the public may submit letters, studies, and other documents for New Regulation or Rule Proposal: This consideration in the rulemaking process. comment opportunity exists when an The Agency will then review public comment agency plans to establish a new regulation and incorporate them into the final rule. or rule. This opportunity also includes the justification and analysis behind the In accordance with the Administrative regulation proposal. Procedure Act, agencies are legally required to respond to every unique, fact-based Proposed Changes to Existing Rules: comment. These responses are published, An agency wants to update one of their along with the final rule or action, in existing rules. This can be a result of new the Federal Register. If the agency does information, research or technology. not respond to such a comment or does respond, but does so in a way that may be Agency Information Collection Activities: considered “arbitrary and capricious,” or a Federal agencies are required to publish decision made on unreasonable grounds, a notice in the Federal Register each time the commenter has cause to take the agency they intend to collect information, or extend to court for violating procedural law. This an existing collection of information to is often done by a special interest group, or ensure that information collection methods advocacy group such as American Rivers. are sound. The notices solicit comment on proposed information collection actions and requirements.

94 Public Participation Guide WHEN CAN THE PUBLIC ENGAGE weekday and includes all proposed rules IN THIS PROCESS AND WHY IS IT open for public comment. IMPORTANT? Federal law requires government agencies Considerations while writing your to allow at least 30 days after publication comment: There are a number of things to for the public to submit “written data, consider while developing your comment. views, or arguments” regarding a proposed Comments are most effective when they rule. In some cases the statute authorizing provide information relevant to analyzing a rule requires a longer comment period. the rule or issue and its effects. The most Agencies are not generally required to hold valuable public comments are unique, fact- a public hearing or meeting on a proposed based, and succinct. The agency will have rule, although a statute might specifically to sort through many identical letters and require an agency to do so. They may also expressions of personal opinion, so making decide to hold public meetings if they your letter stand out is important. Note that receive a substantial amount of criticism or the following information is on the federal opposition from the public. commenting process. Your states will likely have similarly structured rule-making HOW DO I WRITE A COMMENT? processes. To find your state’s regulatory Now that you have some general information process you can try doing a simple Google on the regulatory comment process,, it is search of “your state and regulations’’ or time to draft your comment. Below are “your state and register” (Ex. Maryland suggestions and guidelines to consider while Regulations or Maryland Register). While drafting your comment. you are drafting your comments, consider the following recommendations:52 Know what you are commenting on: The first and most basic step in the process • Accuracy: Identify which regulation or is understanding what exactly you are proposal you are commenting on and commenting on. What is it that you are ensure that comments are addressed trying to influence? Though this may seem to to the appropriate Agency head, not be a simple task, understanding the rule or just the Agency. Ensure that comments proposal may be complicated and requires address the appropriate and relevant thorough research. There are resources to proposed regulation. find out about public comment opportunities • Make the strongest possible points including: newspapers, magazines, other referencing the law, facts, processes, and media outlets, and government publications. people. Advocacy organizations also share notice • Suggest specific language when possible of opportunities on their websites as and appropriate including the exact well. However, the most complete way of language from the proposed regulation finding information on proposed rules and or NEPA proposal that you may agree or opportunities for comment is by searching disagree with. the Federal Register (www.regulations. • Use specific examples to illustrate gov). The Federal Register is published every concerns.

WATER JUSTICE TOOLKIT 95 • State what you support as well as what YOUR COMMENT SHOULD INCLUDE you disagree with. • Provide supplemental information if 1. Introduction/ Summary available. Explain why you are interested in the regulation or proposal, highlight any PREPARING A COMMENT credentials or experience that may While preparing your comment, consider distinguish your comment from others, the following steps to get your thoughts and whether you are commenting on organized. There may be a lot of concerns your own behalf, on the behalf of another that you and your community would like organization, or are endorsing or joining to raise, however, it is important to stay on with another comment or commenter. topic, be concise, and formulate an effective and clear statement. 2. Background Clearly identify the issues within the 1. Define your objectives: What do you want regulatory action on which you are to achieve through your comment? Are you commenting, and list your recommendation trying to stop or delay a regulation that may upfront. If you are commenting on a be harmful to your community? Are you particular word or phrase, or if you are supporting a regulation that furthers water responding to specific questions or requests conservation? Are you interested in pointing for data, state this clearly and provide out factual errors or bad data for a proposed the relevant page number, column, and regulation? Are there scientific studies or paragraph citation from the federal register reports that can be cited? document.

2. Write your comment in a way that 3. Analysis best supports your objectives. Use clear Lay out a detailed argument and evidence to organization, formatting, and language. Use support your recommendations. subject headings throughout your comment • If you have more than one major to draw attention to key points. concern, open your comment with a summary section like “Major Concerns” From these steps, you will create the main or “General Comments” and outline point that you are trying to get across. After them before you go into detail. establishing the main idea, it is time to • Use headings and sub-headings to structure the comment. separate your points. Highlight headings with spacing, color, capital letters, bold, How to structure your comment: At the top italic, or underlined texts to differentiate of your comment, identify the document you between topics and details. are commenting on by its docket number, • For specific concerns, order your subject heading, federal register date, and comments page-by-page to make page number.53 it easier for the reviewer to locate the places in the document you are referencing • Avoid dense blocks of texts

96 Public Participation Guide gov/help to see instructions on finding 4. Conclusion regulations. Recap your main argument and list your recommendations again. www.regulations.gov/help provides information under the “Submit a Comment” Comments should also include citations for tab that explains what you can comment on, all information and research you relied on. when you can comment, how to comment, Remember to follow good writing practices: and more. It is important to read through use topic sentences, keep each sentence these instructions to effectively comment on under fifty words, and use active voice. relevant rules. Further, phrase comments as statements, not questions, and always use respectful Following up on your comment: If you want language. to increase the likelihood that your comment is addressed, you may want to follow up after For templates on comment letters visit: you’ve submitted it. Some follow-up options • publiccommentproject.org/comment- include meeting with relevant agency templates contacts to communicate your concerns, • cdn.ymaws.com/www.aaoe.net/ sharing your comment letter with the press resource/resmgr/government_ or as an op-ed.54 documents/Tips_for_Writing_an_ Effectiv.pdf • moenvironment.org/wp-content/ uploads/2019/12/Comment-Letter- Template-for-Proposed-Rules.pdf

Here is an interactive guide on how to read the Federal Register: www.foreffectivegov. org/node/3456

Here are instructions on how to track a regulation: www.foreffectivegov.org/ node/3454

You will need to locate the rule on www. regulations.gov and then search for rules comments, and documents by entering keywords, browse rules and agency actions by topic, and view rules grouped by comment period. The government provides instructions on how to use www. regulations.gov and how to find specific documents that may be of interest to your community. You can visit www.regulations.

WATER JUSTICE TOOLKIT 97 RECOMMENDATION 2 LEGISLATIVE ADVOCACY

Laws play an important role in environmental justice. Laws can increase Advocacy can include advancing more funding for water monitoring or require use stringent water standards, increasing of trees and plants to manage stormwater. accessibility to water supply, or ensuring Whatever the legislation or policy may be, water affordability. there are likely groups that have worked hard to either support or oppose its passage Legislative advocacy can be a direct means or adoption. Legislative advocacy’s success to achieving your communities’ goals. On is often a result of organized and mobilized the ground, legislative advocacy is voicing efforts. your opinion, organizing a focused effort that pushes one particular policy or goal WHAT IS LEGISLATIVE ADVOCACY? forward to either be written into law or into Legislative advocacy is working with policy a local policy. You might think, legislative makers to gain support for your cause advocacy is difficult and what are the or initiative, for the needs of a specific chances of success? The truth is, it is hard population, for an organization, or for and success is limited, but even gaining specific services. There are a number of ways publicity and providing testimony in front of policymakers may support a specific cause. the legislature brings light to your goals and So what do you advocate for?55 concerns. This sets up a platform to consider your issue moving forward. • You can advocate for a bill that would provide money to work on an issue you Remember, YOU, the residents of the care about. community, are the experts on the issues • You can advocate for a bill that supports your community faces. Be prepared to a cause that you care about or that educate legislators and other decision- would legitimize an issue that you or makers, have one pagers ready with a your community are facing. clear statement of the issues and clear • You can advocate for a bill that will recommendations. Proactive suggestions are create regulations that benefit your valued and taken more seriously than a mere target population or advance a cause support/oppose position. that you or your community believe in. • You can advocate for decisions that RESEARCH AND EVALUATE are not laws. For example, local LEGISLATIVE OPPORTUNITIES ordinances make regulations that There are a number of considerations prior promote particular health, social or to advocating for legislation or a policy, environmental agendas. including: How might this policy benefit

98 Public Participation Guide my community? How might it impact the Some resources for information on state economy? Is there similar legislation consensus building are: that exists? What opposition may there be • www.epa.gov/international- towards the policy? Who might support cooperation/public-participation- my policy? Have other states or governing guide-tools-consensus-building-and- bodies passed a similar bill that can be used agreement-seeking as an example? • www.ctdatahaven.org/sites/ ctdatahaven/files/HEA%20 To better understand how to influence Consensus%20Building%20Steps%20 decision-makers, take a look at the power CBI.pdf structure of your legislative branch. It will • www.beyondintractability.org/essay/ be helpful to know what party is in the consensus_building majority? Who is your majority leader? Who are the committee leaders? Finding a Sponsor Once you have built a network through For more information on power structures, developing partnerships and connecting to see the following resource: www.ncsl.org/ coalitions, you will need to gather support legislators-staff/legislators/legislative- of local representatives. They are the leaders/leadership-positions-roles-and- decision-makers after all! Passing a law responsibilities.aspx requires a sponsor, who is a representative in government who can bring forth your www.ncsl.org/research/about-state- proposed policy or bill. Here’s what you can legislatures/the-selection-of-committee- do to find a sponsor or representative for chairs.aspx your bill: • Get to know your local representative, Capacity Building the issues they care about, and their After considering these questions, it is voting history important to think about who might support • Contact them through emails, letter, your initiative. Many times, non-profits, phone calls, and town halls including environmental and civil justice • Invite representatives to town halls, organizations, may be pushing similar education sessions and community policies or legislative proposals. The best meetings way to advocate for a cause is to build • Organize one-on-one meetings with momentum by creating partnerships and them to present your issues and invite through coalition building. their support for addressing your issues through legislation or to voice your An important skill set at this stage is opinion on proposed legislation. consensus building. Like many public participation efforts having strength in HOW DO I APPROACH numbers is crucial and consensus building POLICYMAKERS? can help build a powerful constituency On a local, state and even national level, advocating for your community’s proposal. policy makers can be your neighbors, a local business owner, or a nearby professional.

WATER JUSTICE TOOLKIT 99 Policy makers are public servants and as can mention that particular legislation such should be approachable and accessible. or investment will reduce flooding in the You are encouraged to meet regularly with target neighborhoods by 50%. your elected representatives to develop • Express gratitude. If they have relationships that will be useful when your supported something that has helped community is facing issues. your community in the past thank them, and thank them/their staff after the It is also important to remember that meeting policymakers have limited time and may • If you are asked a question that you have busy schedules, so if you do plan to don’t know the answer to, it is perfectly meet with your representative you will want okay to say that you don’t know and to make your time worthwhile. Below are you’ll get back to them after. Be mindful a few recommendations on approaching that sometimes as a community member policymakers: you know more about the issue than the • Approach policymakers personally. It policymaker. will be important to introduce yourself • Consider developing a one page and your community members and document that summarizes your issue, share stories about your issues in order the facts and your ask that you can leave to develop personal and memorable behind at the end of the meeting. This relationships with the representative document will provide the staff and and their staff. representative the ability to refer back to • Do your research ahead of time to know your issues more easily and, ideally, take who your representatives are, what they action. care about and what committees they sit on (where they have influence). Typically, meetings with legislators are brief, • While it is possible to have one on one if you are able to meet them at all. Your meetings with policy makers, it is easier meetings likely be with their staff, who are and more effective to have a meeting often more involved with the subject matter with a representative or their staff if and have the capacity to hear out individual you have an organization or a number concerns. of organizations who have a unified agenda. LETTERS OF SUPPORT OR • Approach policymakers with a clear OPPOSITION goal: When you meet with staff or a Let’s say your community supports or representative, it should be very clear opposes a piece of legislation that is being what exactly you are asking for. Is it proposed. What can you do? A popular and a new bill that includes language for powerful tool to express your opinion on something that has been an issue in legislation is through a letter of support or your community? Funding for a new opposition. In a way, letters of support or project? Funding to mitigate an ongoing opposition serve a similar purpose to the problem? It is also recommended to commenting process. articulate what the intended impact of the policy would be. For example, you

100 Public Participation Guide Letters have a number of benefits. They alerts, you can look at the government guide can explain to a policy maker how an here: www.regulations.gov/help issue affects you, express support or opposition for a law or policy, demonstrate that constituents are concerned about a particular issue, request a meeting to discuss a matter of concern; and ask for help or support.56

WHEN DO I WRITE A LETTER? Letters are sent to policymakers every day. The best time to send a letter is whenever you or your community have a concern. Letters can be especially effective when policymakers are planning to vote on a particular piece of legislation that will have an impact on your community. Another time letters are effective are right before an election, during budget hearings, and immediately before and after a decision- maker has done something you either approve or disapprove of. Remember, letters do not always have to be in opposition to something. It is important to send letters of support so policymakers know their decisions are making a positive impact and considering the needs of their constituents.

HOW DO I WRITE A LETTER? You can find information on how to write an effective letter here: • ctb.ku.edu/en/table-of-contents/ advocacy/direct-action/letters-to- elected-officials/main • www.usa.gov/elected-officials

After you have submitted a comment through the online portal at regulations.gov, you can sign up to receive email alerts about any newly posted documents related to that regulation. This can include publication of the final rule and agency responses to substantive comments. To sign up for email

WATER JUSTICE TOOLKIT 101 COMMUNITY CASE STUDY: ORGANIZING FOR WATER SECURITY DURING COVID-19 TOLEDO COMMUNITY WATER COUNCIL TOLEDO, OH

Through robust public participation, the Toledo “Utilities are run by engineers; often they don’t Community Water Council provides oversight think about the social impact of these shutoffs and community support to the city of Toledo. on people working check to check,” says Alexis The Council’s collective knowledge and insight Smith, Community Program and Technical have been key to developing the city’s water bill Associate for Freshwater Future. “When we assistance program. organize to find solutions, our goal is—turn the water on, keep the water on.” Reliable access to water is becoming more expensive, and during COVID, water Members of the Toledo Community Water Council disconnection can have a devastating public organized to respond to rising water rates and health impact. For years, Freshwater Future has the inequity and harm that results when city been working with the Toledo Community Water governments and utilities are not proactive and Council to address water issues throughout the transparent. Freshwater Future has helped City. individual residents request assessments to identify water leaks driving up their water bills For residents experiencing water shutoffs due to and file a Freedom of Information Act (FOIA) nonpayment or leaks, this work has become even request to understand why water rates continue more urgent during the pandemic. to increase. They also helped the municipalitiy identify funding for full lead service line replacement in order to lower the cost burden on residents.

Learn more at www.freshwaterfuture.org

(PRE-COVID) COMMUNITY MEETING TOLEDO, OHIO / FRESHWATER FUTURE

102 Public Participation Guide RECOMMENDATION 3 HOW TO CREATE EQUITABLE COMMUNITY MEETINGS AND HEARINGS

Inclusive representation is important for provide co-sponsors the resources they need equitable policy making. When a proposed and should share all planning roles. The plan or policy will impact a community, roles include: decision making, development it is important that all members of the of the agenda, establishment of clear goals, community have an opportunity to be leadership, and outreach. heard. Listening to and considering a diverse set of opinions often helps facilitate While preparing for a meeting, a number of implementation processes for projects things should be considered: because people have been heard and • Decision makers should educate ideally the policy makers have incorporated the community to allow equitable feedback and concerns into revised participation and provide a means to proposals. Having good representation and influence decision making inclusive meetings create a better sense of • Regionalize materials to ensure cultural community, uphold principles of democracy, sensitivity and relevance and ultimately, create better outcomes. • Provide a facilitator who is sensitive and trained in environmental justice The National Environmental Justice concerns Advisory Council (NEJAC), a federal advisory committee, created a model plan to bolster PARTICIPANTS public participation to ensure that decisions NEJAC has found the following communities affecting human health and the environment should be involved in environmental justice embrace environmental justice. This plan issues and decisions: community and was released in February 2000 and has been neighborhood groups, community service used to encourage community inclusion organizations, educational institutions and and involvement. NEJAC has listed four academia, environmental organizations, critical elements for public participation. government agencies (federal, state, county, These elements are to be considered by local, and tribal), industry and business, the decision-making entity and include medical community, non-governmental preparation, participants, logistics, and organizations, religious communities, mechanics. and spiritual communities. It is also important to identify the key stakeholders, PREPARATION including educational institutions, affected Community partnerships, co-sponsorships communities, decision makers and agencies and co-planning relationships are essential accountable for environmental justice issues. to successful community meetings. To ensure a successful meeting, agencies should LOGISTICS

WATER JUSTICE TOOLKIT 103 When holding a meeting for a decision that on feedback and amendments to the will impact communities, it is important to proposal. consider three things: where, when and how. • The community and government should share leadership and presentation Where assignments • The meetings should be accessible for all who wish to attend MECHANICS • The entity holding the meeting should Incorporating ways to facilitate and consider public transportation, continue meaningful conversations are childcare, and access for persons with incredibly important in the public meeting disabilities space. It is important to: maintain clear • The meeting must be held in an goals be referring to the agenda, however, adequate facility where size and not be bound by them; incorporate cross conditions should be considered cultural exchanges in the presentation • Technology should be utilized to of information and the meeting agenda; allow more effective communication. provide a professional facilitator who is One may consider options such as sensitive to, and trained in environmental teleconferences, translation, equipment, justice issues; provide a timeline that and other factors. describes how the meeting fits into the • The venue should encourage overall agenda of the issue at hand; participation for an affected community coordinate follow-up by developing an action plan and determining who is the When contact person who will expedite the work • The time of day and year of the meeting products from that meeting and; distribute should accommodate the needs of minutes and a list of action items to facilitate affected communities follow up. • Generally, evening and weekend meetings can accommodate working Government agencies and decision people and careful scheduling can makers should follow the Environmental avoid conflicts with other community, Justice Public Participation Checklist for religious or cultural events. Government Agencies to ensure compliance with legal requirements, bolster community How engagement, and establish decision- • An atmosphere of equal participation making processes that are meaningful, should be created. comprehensive and inclusive. • Avoid discussions that include “panels” or “head table” The checklist can be found here: portal. • Depending on the issue, a series of ct.gov/-/media/DEEP/climatechange/ meetings may be warranted. . The GC3/GC3-2020-agendas-and-minutes/ first meeting could be reserved for Draft-public-participation-documents/ community planning and education GC3_Public_Participation_Checklist.pdf while subsequent meetings could focus

104 Public Participation Guide WATER JUSTICE TOOLKIT 105 106 UPPERWATER FLINTJUSTICE RIVER TOOLKIT WORKING GROUP COMMUNITY SCIENCE 6 GUIDE

WATER JUSTICE TOOLKIT 107 PURPOSE

Often, the lack of accessible data Environmental justice advocates have used hinders a community’s ability to address community science to develop EJ claims environmental inequities. Information is and document concerns.59 Not only can a powerful tool and influences decisions community science promote social justice, made at zoning hearings, town halls, and but it can also change the view from being other public forums. Given that frontline one where marginalized communities communities are expected to experience are largely recipients of science to where the impacts change first, they can often community members have a role where they see changes to their environment before are partners in the generation of data and others. It is, therefore, important to gather use of science.60 data on these environmental changes and patterns of environmental harms that Historically, community science has been frontline communities face as climate change referred to as “citizen science.” If you or exacerbates existing inequities.57 other community members would like to do further research on community The benefits of community science are many. science, it may be helpful to use the search Community science has the potential to term “citizen science” in order to get a increase equity and democracy in science comprehensive list of resources. through inclusion of previously missing groups and by changing social norms, We use the term “community science” as an practices, and implicit bias to be more intentionally inclusive term. A volunteer’s democratic. Community science has the participation is invaluable regardless of potential to democratize science by making their birth country, how they came to the scientific process participatory and the United States, or their citizenship PRIOR PAGE: FLINT RIVER, GEORGIA / inclusive of many stakeholders in knowledge status. Simply being a citizen is not a NOEL MAYESKE generation, dissemination, and decision prerequisite to participating in the science ABOVE: making. Community science also supports community, protecting your community, or TUCKASEGEE RIVER, scientific literacy and provides a path to having accessibility to a clean and healthy NORTH CAROLINA / MANDI 58 CARRINGER engagement in local issues. environment.

108 Community Science Guide WHY IS COMMUNITY SCIENCE USEFUL?61 Benefits for Science Benefits for Society Benefits for Participants • Inspires new research • Generates and communicates socially • Allows contributions to scientific topics by inviting new ideas, relevant research topics discoveries questions, methods and • Allows co-creation of transparent • Improves understanding of science societal knowledge research • Increases understanding of complex • Creates large datasets • Allows society to take on responsibility problems (spatially and temporally) for research • Facilitates participation in political that can be adapted to • Introduced participants to new decision-making through scientific various uses perspectives contributions • Allows diverse evaluation • Develops opportunities for societal • Contributes ideas and suggestions capacities including photos, transformation for alternatives scans, and videos • Promotes better transfer of research • Promotes better environment and a • Promotes public evaluation results in practice through early better society of research involvement • Community storytelling and • Strengthens civil society and government placekeeping agencies

There is a common misconception that environmental justice. This guide provides only highly trained scientists can conduct information about community science, and engage in scientific research; however, enhance participation and influence, and anyone can play an important role in support environmental justice in your compiling valuable data and providing community. first-hand knowledge of critical issues. Community science makes it possible for HOW MIGHT READERS USE THIS everyday people to be trained to advance GUIDE? scientific knowledge. Some communities You may be a concerned community member may be engaging in data collection without and wanting to start a community science knowing it. Data doesn’t necessarily have project. This manual shares a series of steps to be numbers or science experiments, but to follow. You may also be a community something as simple as story-telling and member wanting to join an existing gathering valued information from those community science project. This manual around you. Community science can be is designed to help you find an existing documenting illnesses your community community science program or create your may be facing or recording how many times own. For those who are currently engaged homes in your neighborhood have flooded in a community science project, this guide over the past year. includes recommendations and ideas for how to continue engaging in this important This guide is designed to encourage work. individuals in their roles as community scientists and to promote the practice of community-based science as a catalyst for

WATER JUSTICE TOOLKIT 109 GLOSSARY63

CIVIC SCIENCE: INFORMATION COLLECTION: QUALITY ASSURANCE Civic science emphasizes The gathering and analysis of PROTECTION PLAN (“QAPP”): public participation, enhancing information that is already publicly A formal document that describes representation of marginalized available. how a project will achieve its voices, and democratization of the information quality requirements. scientific process. This sector of INFORMATION USE: research and expertise highlights The ways in which information that QUALITY STANDARDS: Standards how science and public input are is collected or generated during a that serve to establish a level of intertwined. community science project can be quality that information must meet used. before it can be used in a court COMMUNITY-BASED proceeding or in an agency action. PARTICIPATORY RESEARCH: JURISDICTION: The legal authority A collaborative approach to to make legal decisions or research that equitably involves all judgments. It could be a local, state, partners in the research process or federal administrative agency, and recognizes the strengths that legislative body, or court. each brings. CBPR begins with a research topic of importance to NATIVE KNOWLEDGE162: the community with the aim of A knowing or understanding of combining knowledge and action for the world, including traditional social change. ecological, and social knowledge of the environment derived from DECISION MAKER: multiple generations of indigenous A person or entity with jurisdiction people’s interactions, observations, to make legal decisions or and experiences with their judgments. ecological systems. This knowledge is accumulated over successive ENVIRONMENTAL PROTECTION generations and is expressed AGENCY (EPA): through oral traditions, ceremonies, The federal agency created by stories, dances, songs, art, and Congress to protect human other means within a cultural health, natural resources, and the context. environment from pollution, to set limits for the emission of pollutants, POLLUTANT SOURCE: and to enforce those limits. Most An industrial facility, agricultural states have their own state-created facility, landfill, sewage treatment agency empowered to do the same plant, coal mine, etc. within that state.

110 Community Science Guide WHAT IS COMMUNITY SCIENCE? CASE STUDIES AND APPLICATIONS Community science is any grassroots effort It may be challenging to visualize how where ordinary community members, to start a community science project of sometimes in collaboration with professional your own. These case studies provide scientists, organizations, and government examples of situations where communities agencies, collect, generate, and distribute or individuals used community science to information either for educational purposes further their community goals and promote or to address community-centered environmental justice. environmental issues. This is simply science by non-scientists. Examples on the following pages demonstrate how every situation is different Some community science is initiated by and a wide range of opportunities exist for institutional scientists giving community applying community science. The EPA, members the opportunity to observe. community organizations, and local and Community science projects are also state governments support many types of increasingly launched by government community science projects. The examples agencies. However, community science can in the Guide exemplify successful research also be conducted by independent individual and collaborations with government committed volunteers. agencies focused primarily on water quality.

WATER PROJECT 1 CHESAPEAKE BAY MONITORING COOPERATIVE ANNAPOLIS, MD

Volunteers from many local organizations collect The groups came together to monitor the water quality data to improve the health of water water quality of the Chesapeake Bay in order bodies. One of these local organizations is the to address concerns around agricultural and Chesapeake Monitoring Cooperative. nutrient pollution. The project, so far, has laid the groundwork for a watershed-wide monitoring The Chesapeake Monitoring Cooperative is program by creating methods manuals and supported by four partner organizations: quality assurance project plans, taking inventory • The Alliance for the Chesapeake Bay, of existing monitoring programs throughout the • Izaak Walton League of America, watershed, and developing a tiered framework • Dickinson College’s Alliance for Aquatic for determining data use. The EPA provides Resource Monitoring, and grants that support the organizations and their • University of Maryland Center for collaborative monitoring effort. Environmental Science. Learn more at: www.chesapeakemonitoringcoop.org

WATER JUSTICE TOOLKIT 111 STEPS TO CREATE YOUR COMMUNITY SCIENCE PROJECT

Now that you and your community have a facility, landfill), monitoring pollution general idea of what community science is levels in rivers (general pollution levels), or and the different scenarios you may use it monitoring water quality in your homes due in, it’s time to create a project! Though this to concern of water contamination. Along may seem challenging, remember, there with considering your environmental issue, are many resources available. The steps it’s important to consider what this data will outlined below are from the Harvard Law be used for. School’s Emmett Environmental Law and Policy Clinic’s Manual for Citizen Scientists There are three main uses identified by the Starting or Participating in Data Collection Environmental Protection Agency (EPA) for and Environmental Monitoring Projects. community science projects.64

The purpose of these steps is to provide Increasing Public Understanding a general outline of what community These types of projects are created to members can do to either create a project engage communities in environmental or join existing initiatives. While this list monitoring and participation. Common is not comprehensive and engagement in objectives include educating citizens about community science varies between regions, their environments, scientific processes, and states, and localities, this list will give you a STEM (science, technology, engineering, good starting place. and mathematics) activities. These projects result in more qualitative, or descriptive 1. IDENTIFY THE GOAL OF YOUR outcomes, such as presence or absence of PROJECT pollutants or species. These kinds of projects As with any project, setting goals is crucial. are generally more loosely monitored. The most important step in starting a community-based science project is Scientific Studies and Research developing the main goal or outcome Projects in this category are aimed at you would like to see with the results providing data useful for research, feasibility of the project. When considering your studies, or to identify baseline conditions project focus, you must consider what is or trends in exposure from water or air the environmental issue you are trying pollutants. Many projects in this category to address? In a single community there determine the effectiveness of environmental may be a number of environmental issues, decisions. Many organizations use this however, it is important to focus and develop category to conduct screening studies for a plan around a single environmental harm. public health assessments and utilize risk Examples of these can include monitoring assessment tools for prioritizing community- a pollutant source (i.e. contamination based actions. from an industrial facility, agricultural

112 Community Science Guide WATER PROJECT 2 THE GARDENROOTS PROJECT DEWEY-HUMBOLDT, AZ

Residents of Dewey-Humboldt, Arizona became in gardening seminars, engaged in forums to concerned about whether arsenic from a nearby discuss health concerns and informed residents Superfund site was contaminating their soil and through fact sheets and personalized results. home gardens. Residents created a group called More than 40 community members signed up to Gardenroots Project and partnered with Dr. attend a 1.5-hour training on how to properly Monica Ramirez-Andreotta from the University collect soil, water, and vegetable samples from of Arizona (UA) Superfund Research Program their home gardens for laboratory analysis. Center (SRP Center). Together, they found that the main sources of arsenic exposure were Ultimately, the community worked together drinking water and incidental soil ingestion. They to understand why there were increased also learned that arsenic concentrations were arsenic levels, learned how to garden to higher in home grown garden vegetables than avoid contamination and ultimately, created a store bought produce. 66 neighborhood network that worked together to solve the problem. Residents in the community collected garden soil for lab analysis of arsenic content, participated Learn more at: gardenroots.arizona.edu

Legal and Policy Action • Media Outlets: local news agencies These projects require the most rigorous often cover major ongoing community planning. To influence legal and policy science efforts. Many community science action, high level quality assurance and projects are advertised via social media documentation is required. The purposes to raise public awareness. of these projects may include regulatory • Organizational Websites: Some decision-making at a local, state, or community science organizations have national level, and often use approved websites that provide information on federal methods, or testing to demonstrate ongoing citizen science projects equivalence to these methods. • For examples, The Waterkeepers Alliance lists organizations across the While developing your project goals, country. Many of the organizations consider whether your project has already run water testing programs in which been done. It may be more beneficial to communities can engage. (www. the existing community science group and waterkeeper.org/) yourself to support existing projects rather • Agency Websites: State and Federal than starting one of your own. environmental agencies also maintain community science information for To find ongoing citizen science projects, you public use. For example, the EPA has a can turn to a number of resources: page dedicated to community science projects. GARDENROOTS PROJECT, UNIVERSITY OF ARIZONA

WATER JUSTICE TOOLKIT 113 2. DESIGN A PROJECT APPROACH 3. IDENTIFY USES FOR COLLECTED Along with identifying the goal of your DATA AND QUALITY STANDARD project, you will also need to initiate a Data must meet certain quality standards “project approach.” The project approach depending on the use of the data. The use of consists of two steps: community science data is subject to various • Identification of a site of interest to you legal standards regarding its credibility • Determination of which pollutant or and reliability, also known as “quality combination of pollutants you will standards.” examine. Many community groups will be in the Usually the site of interest is the source of preliminary stages of establishing their pollution. After identifying the project site community science projects. For those of interest, you must then determine which beginning their community science projects, pollutant or combination of pollutants will the EPA recommends community groups be examined. Usually, you can determine a and individuals consider a number of pollutant through the pollutant source. questions. These questions are important to answer prior to embarking on a community Consider what is the source emitting or science project because it begins the releasing? You can use your senses such as consideration of the quality of data that will smell and sight to determine what kinds need to be produced. Helpful questions to of pollutants you may be dealing with. For consider are: example, you may see a film over the water, or smell an unfamiliar chemical. 1. How and where are you planning to collect samples, data, or other Utilizing media outlets is also a helpful information? resource. News reports provide information 2. How are you training the volunteers on emitting entities and may report on to collect samples, data, or other pollutant issues such as lead, asbestos, or information?How will you control for benzene. Government records and databases errors in the field, in the laboratory, or are also useful since agencies are responsible during data analysis? for regulating pollutant sources. EPA 3. How will you check your data and provides a number of databases through determine if it is useful? EnviroFacts that can be used to determine 4. Where does the data go and who will what pollutants are emitted in nearby look at the data? facilities. To determine quality standards, we must consider: • Who will be using the information and • How will they be using the information?

Ultimately, based on the usage of the data, there will either be a legally imposed quality standard or not.

114 Community Science Guide WHAT IS THE STANDARD IF THERE IS A LEGALLY IMPOSED STANDARD?

Action Quality Standard

Influence If you are using the data gathered to provide information to a regulatory Decision Making agency (federal, state, or local), it is important to note that agency decisions are subject to judicial review. Judicial review means that an agency’s decision can be reviewed by the court to determine whether the decisions and/or procedures behind the decisions were found to be “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.”

Administrative If you are using the information collected in hope that an agency will use or Judicial it to being an administrative or judicial enforcement against someone Enforcement who is violating the law, the standard, on a federal level according to the Administrative Procedures Act (APA) is that “any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.” Essentially, the agency will not consider or include repetitive or irrelevant information. Many, but not all, states have adopted a similar standard under the Revised Model State Administrative Procedures Act (MSAPA). Encourage Future Information can also be used to make an agency aware of a problem where the Independent agency will then conduct an independent act to verify the information through Agency Action its own information generation procedures. Some federal regulations explicitly require states to solicit public participation in the collection of information and require state agencies to comment on citizen generated information. EPA regulations require that the Clean Water Act (CWA), the Resource Conservation and Recovery Act (RCRA), and the Safe Drinking Water Act (SDWA) “provide for, encourage, and assist the participation of the public.” The CWA further states that agencies should actively solicit the help of members of the public “for research they may be conducting or reporting.”

No legally imposed quality standard as evidence in a court case, the information There are no legally imposed quality will be subject to legally imposed quality standards when you are collecting data standards. for yourself. This information can be used for educational purposes, to bolster public Regardless of the use of data, your awareness, or to inform legislatures. audience will look for certain “indicators” to understand the quality of the data such Legally imposed quality standards as precision, accuracy, representativeness, If the data collected from the community completeness, comparability, and science project is used to either provide instrumentation. information to a regulatory agency or used

WATER JUSTICE TOOLKIT 115 TO BETTER UNDERSTAND ACCURACY V. PRECISION ACCURACY

Accurate, but not precise Precise and accurate

Not accurate and not precise Precise, but not accurate

PRECISION

Source: St. Olaf College, Information Technology, wp.stolaf.edu/it/gis-precision-accuracy/

Precision: Precision relates to the degree of Completeness: Completeness involves a agreement between multiple measurements comparison of the number of measurements taken from a single sample or measurements you originally planned to collect and taken from multiple samples collected as the number that you actually collected. close together in time and place as possible. Collecting more samples than you think will be necessary can help assure information Accuracy: Accuracy ensures that your data completeness; this is an indication of high- represents what is actually true. You can quality information. facilitate the measurement of accuracy by collecting quality control samples that have Comparability: Comparability refers known values. to the relationship between results of multiple studies or a single study over Representativeness: Representativeness time. Multiple studies that report similar is related to whether a sample collected conclusions suggest that the data collected from a site is actually representative of that is high quality. Information reported from site. The central concern is to avoid biases a single study that presents results over in the generated information. How, when, time is of higher quality than information where, and by whom samples are collected from a single study that presents sporadic, will influence the representativeness of your unexplained fluctuations in values. information.

116 Community Science Guide Instrumentation: Instrumentation is used consider what your legal rights are to to analyze the samples you collect. Examples enter the property and take samples. of instrumentation include surveys, Understanding who owns the land and questionnaires and scales. the land surrounding the project site is important. It is beneficial to reach out to The EPA has developed two reports, the property owner or managing agency or “Templates for Citizen Science and Quality entity ahead of time to ask permission to Assurance and Documentation” and the conduct your community science project. “Handbook for Citizen Science Quality Assurance and Documentation” that help One way to determine the ownership status organizations employ specific strategies or of your project’s site of interest is to use activities to improve the credibility of their publicly accessible data from the local tax data. assessor’s office, which maintains a public database of local property ownership. The EPA has also created a “Quality Many of these offices maintain an online Assurance Project Plan (QAPP),” which property map viewer with ownership data by discusses the steps a volunteer program parcel. Real estate apps like Zillow.com and might take to further ensure high quality hunter’s apps like OnXHunt also pull this data. This plan is required if you are looking publicly accessible data into a user-friendly to receive EPA grants or contracts or if format. your state has QAPP requirements. Even if the QAPP is not required, it may still be Another resource to map socio-economic advantageous to create a QAPP and ensure factors, visit EPA’s EJScreen: www.epa.gov/ high quality data that is consistent with ejscreen and comparable to other data sets across geographies and the country. Public lands are owned by the government and have their own specific set of rules. It is 4. INFORMATION COLLECTION important to know who is managing public Now that you have a project, goals and plans lands so you can reach out to the correct in place, how do you go about collecting entity when conducting a community science data? It may seem as simple as walking project. Below are descriptions of various over to the pollutant source and gathering public lands and who may be in charge of samples, however, there are laws that may managing those lands. limit your ability to gather data. The next step in your community science project Federal Land: Land owned by the federal process is to consider limitations such as government is often managed either by property rights, ownership, and privacy. the Department of the Interior or by the Department of Agriculture’s Forest Service. If your project site is open to the public, there are no legal barriers in collecting State Land: Each state has land holding samples of air, water, soil quality, or taking agencies that oversee the use of state-owned photographs. However, if the pollutant property. Generally, land is managed by the source is not on public land, you should

WATER JUSTICE TOOLKIT 117 WATER PROJECT 3 DEMONSTRATING THE VALUE OF COMMUNITY-LED RESEARCH TO ADDRESS ENVIRONMENTAL JUSTICE ISSUES MEBANE, NC

Not all community science projects are limited called community-owned and managed to scientific data; some may also collect social research (COMR). WERA combined COMR with data. The West End Revitalization Association collaborative problem-solving (CPS) to empower (WERA) is a great example of community science low-income residents in communities of color to address social issues and racial disparities, to produce scientific research and connect it to which are often connected to a community’s action. Citizen involvement included managing relationship with their environment. In 1994, the research process, becoming certified low-income residents from communities of color monitors by conducting household surveys and in Mebane, North Carolina, established the West community mapping and collecting drinking End Revitalization Association (WERA). WERA water and surface water for fecal pollution was formed in response to a long history of being testing, and mentoring youth through a career denied access to city water and sewer and a development program. WERA ultimately planned road that would destroy neighborhoods facilitated the collection of data needed to without mitigation.67 advocate for legal compliance and enforcement of public health statutes by local, state, and federal To address residents’ civil rights and actors. environmental justice concerns, WERA created an innovative research paradigm To learn more, visit: www.wera-nc.org

Parks Department and/or a Department of is generally encouraged and supported by Natural Resources. national and state governments.

Local and Municipal Land: Municipalities 5. ENGAGING WITH PARTNERS AND can rent and own land within their city DEVELOPING A COMMUNITY SCIENCE limits. Many municipal lands include local MODEL parks, cemeteries, and waterways. Usually Engaging with experts in the field is a municipality’s Parks and Recreation incredibly helpful in developing a successful Department manages such lands. community science project. In order to address environmental hazards that have Even with due diligence, legal issues may disproportionately burdened communities arise. While conducting a community science of color and low-income populations, a project, consider local and state trespass, community-based participatory research loitering, invasion of privacy, and stalking (CBPR) model exists to establish a laws. It is important to do research and coordinated community effort that includes understand property and privacy rights prior community organizations, individual to conducting a project in order to avoid any leaders, universities, and government. legal hardships. Given these legal challenges, Community-based participatory research it should be known that community science (CBPR) emphasizes joint community MEBANE, NORTH CAROLINA / INDY BEETLE partnership in all phases of the research

118 Community Science Guide process. This makes CBPR an appealing address environmental injustices in your model for research with communities of communities. color and low-income populations. For more information on community science Characteristics of the CBPR approach and examples of successful community include: 65 science projects, visit EPA’s website: www. • Recognizing the community as a unit of epa.gov/citizen-science identity, • Building on the strengths and resources of the community, • Promoting co-learning among research partners, • Achieving a balance between research and action that mutually benefits both science and the community, • Emphasizing the relevance of community-defined problems, • Employing a cyclical and iterative process to develop and maintain community/ research partnerships, • Disseminating knowledge gained from the CBPR project to and by all involved partners, and • Requiring long-term commitment on the part of all partners.

CBPR does involve its own set of challenges. When engaging in collaborative research, it is important to: • Be flexible but recognize that everyone has limits, • Be willing to collaborate by sharing leadership, responsibility, and credit for success, • Give thoughtful attention to the ethical implications of your actions, and • Apply the concept of culture in everyday working relationships.

We hope the steps laid out above provide helpful guidance on community science project development and engagement and will support you in your efforts to

WATER JUSTICE TOOLKIT 119 120 UPPERWATER FLINTJUSTICE RIVER TOOLKIT WORKING GROUP ENDNOTES 16 Corporate Finance Institute, “What is Redlining?” https:// corporatefinanceinstitute.com/resources/knowledge/ other/redlining/ 1 U.S. General Accounting Office (GAO), “Siting of Hazardous Waste Landfills and Their Correlation with Racial and 17 Lily Katz, “A Racist Past, a Flooded Future: Formerly Economic Status of Surrounding Communities,” June 1, Redlined Areas Have $107 Billion Worth of Homes Facing 1983. http://archive.gao.gov/d48t13/121648.pdf High Flood Risk—25% More Than Non-Redlined Areas,” March 14, 2021. https://www.redfin.com/news/ 2 U.S. Environmental Protection Agency (EPA), “How Did the redlining-flood-risk/ Environmental Justice Movement Arise?” https://www. epa.gov/environmentaljustice 18 From 1973-1998, the U.S. Army Corps of Engineers spent more than $25 billion to build and operate flood 3 “17 Principles of Environmental Justice,” Adopted at the control projects – only 2% of that went towards flood First National People of Color Environmental Leadership risk reduction. https://www.nwf.org/~/media/PDFs/ Summit, October 24-27, 1991, Washington D.C. https:// Water/199807_HigherGround_Report.ashx www.nrdc.org/sites/default/files/ej-principles.pdf 19 Elliot, James R., Phylicia Lee Brown, and Kevin Loughran. 4 Stockholm International Water Institute, “ICWC Course: 2020. Racial Inequities in the Federal Buyout of Flood- https://www.siwi.org/icwc- Water Justice,” 2012. Prone Homes: A Nationwide Assessment of Environmental course-water-justice/ Adaptation. Socius. Volume 6: 1-15. 5 NASA, “Overview: Weather, Global Warming and Climate 20 Anthropocene Alliance, “Higher Ground LIVE - Green https://climate.nasa.gov/resources/global- Change,” Infrastructure in the City of New Haven, CT,” 2020. Video: warming-vs-climate-change/ https://www.youtube.com/watch?v=OeFYwGr8Trs https:// 6 EPA, “Learn About Environmental Justice,” 21 Vann R. Newkirk, II. “Trump’s EPA Concludes www.epa.gov/environmentaljustice/learn-about- Environmental Racism Is Real,” The Atlantic, February environmental-justice 28, 2018. https://www.theatlantic.com/politics/ 7 EPA, “Learn About Environmental Justice,” https:// archive/2018/02/the-trump-administration-finds-that- www.epa.gov/environmentaljustice/learn-about- environmental-racism-is-real/554315/ environmental-justice 22 Paula Braveman, MD, MPH and Laura Gottlieb, MD, MPHb, 8 Mayo Clinic Health System, “Water: Essential to your body,” “The Social Determinants of Health: It’s Time to Consider July 22, 2020. https://www.mayoclinichealthsystem. the Causes of the Causes,” Public Health Reports, 2014 org/hometown-health/speaking-of-health/water- Jan-Feb; 129 (Suppl 2): 19–31. https://www.ncbi.nlm.nih. essential-to-your-body gov/pmc/articles/PMC3863696/ 9 Snell & Wilmer, “WOTUS Redefined: The New Definition of 23 U.S. Commission on Civil Rights,“Environmental Justice: Waters of the United States,” April 23, 2020. https://www. Examining the Environmental Protection Agency’s jdsupra.com/legalnews/wotus-redefined-the-new- Compliance and Enforcement of Title VI and Executive definition-of-78604/ Order 12,898,” September 2016. https://www.usccr.gov/ pubs/2016/Statutory_Enforcement_Report2016.pdf 10 EPA, “Types of Drinking Water Contaminants” https:// www.epa.gov/ccl/types-drinking-water-contaminants 24 U.S. Department of Energy, Office of Minority Business & Economic Development, “Guide to Advancing Opportunities 11 American Rivers, “Why We Need to Restore Floodplains.” https://www.americanrivers.org/threats-solutions/ for Community Benefits through Energy Project https://www.energy.gov/ restoring-damaged-rivers/benefits-of-restoring- Development,” August 1, 2017, sites/default/files/2017/09/f36/CBA%20Resource%20 floodplains/ Guide.pdf 12 American Rivers, “What Makes a River?” https://www. americanrivers.org/rivers/discover-your-river/river- 25 U.S. EPA, “Case Resolution Manual: Executive Summary,” https://www.epa.gov/sites/production/ anatomy/ January, 2017. files/2017-01/documents/final_epa_ogc_ecrco_crm_ 13 Pralle, S. “Drawing lines: FEMA and the politics of mapping january_11_2017.pdf flood zones,” Climatic Change 152, 227–237, 2019. https:// link.springer.com/article/10.1007/s10584-018-2287-y 26 Rosemere Neighborhood Association v. U.S. EPA, 581 F.3d 1169 (9th Cir. 2009) 14 Kriston Capps and Christopher Cannon, “Redlined, Now 27 Tennessee Courts System, Administrative Office of the Flooding,” Bloomberg CityLab, March 15, 2021 https:// www.bloomberg.com/graphics/2021-flood-risk- Courts, “Title VI Compliance Report And Implementation https://www. redlining/ Plan FY 2017-2018,” October 1, 2018, tncourts.gov/administration/human-resources/title- 15 James R Elliot, Phylicia Lee Brown, and Kevin Loughran. vi-title-ix 2020. Racial Inequities in the Federal Buyout of Flood- 28 Jessica Trounstine, “The Geography of Inequality: How Prone Homes: A Nationwide Assessment of Environmental Land Use Regulation Produces Segregation,” Published Adaptation. Socius. Volume 6: 1-15. online by Cambridge University Press, February

WATER JUSTICE TOOLKIT 121 3, 2020, https://www.cambridge.org/core/ org/uploads/8/8/4/0/8840743/draft_municipal_ journals/american-political-science-review/ public_participation_ordinance.pdf article/abs/geography-of-inequality-how- 39 U.S. Environmental Protection Agency (EPA), land-use-regulation-produces-segregation/ “Addressing Community Concerns: How Environmental BAB4ABDF014670550615CE670FF66016 Justice Relates to Land Use Planning and Zoning,” 29 Sacoby Wilson, Malo Hutson, and Mahasin July 2003. https://www.epa.gov/sites/production/ Mujahid, “How Planning and Zoning Contribute to files/2015-02/documents/napa-land-use- Inequitable Development, Neighborhood Health, and zoning-63003.pdf Environmental Injustice,” Environmental Justice, 40 30-A Me. Rev. Stat., sec. 4324(3)1995. Volume 1, Number 4, 2008. http://www.ced.berkeley. edu/downloads/pubs/faculty/hutson_2008_ 41 Rachel Morello-Frosch, Miriam Zuk, Michael environ-health.pdf Jerrett, “Understanding the Cumulative Impacts of Inequalities in Environmental Health: Implications 30 University of Michigan, Center for Sustainable for Policy,” Health Affairs, VOL. 30, NO. 5: Systems, “Environmental Justice Factsheet,” 2020. Environmental Challenges for Health, May 2011. http://css.umich.edu/factsheets/environmental- https://www.healthaffairs.org/doi/full/10.1377/ justice-factsheet hlthaff.2011.0153 31 U.S. Commission on Civil Rights, “Not in My Backyard: 42 Tishman Environment and Design Center, “Local Executive Order 12,898 and Title VI as Tools for Policies For Environmental Justice: A National Scan,” https://www. Achieving Environmental Justice,” 2003. February, 2019. https://www.nrdc.org/sites/ usccr.gov/pubs/envjust/ch2.htm default/files/local-policies-environmental-justice- 32 James Barnes, Jr, and Philip Rutledge, “Addressing national-scan-tishman-201902.pdf Community Concerns: How Environmental Justice 43 Samantha Maldonado, “How a long-stalled ‘holy grail’ Relates to Land Use Planning and Zoning,” U.S. environmental justice bill found its moment in New Environmental Protection Agency (EPA) July 2003. Jersey,” Politico, August 27, 2020. https://www. (Pg. 25) https://www.epa.gov/sites/production/ politico.com/states/new-jersey/story/2020/08/27/ files/2015-02/documents/napa-land-use- new-jersey-legislature-sends-groundbreaking- zoning-63003.pdf environmental-justice-bill-to-governors- 33 Southwest Michigan Planning Commission, “Planning desk-1313030 and Zoning for Water Quality Protection in the Black 44 State of New Jersey, Office of the Governor, “Governor https://www.swmpc.org/ River Watershed,” 2009. Murphy Signs Historic Environmental Justice downloads/report_planning_and_zoning_1.pdf Legislation,” September 18, 2020. https://www. 34 Brian Miller and Robert McCormick, “The Relationship nj.gov/governor/news/news/562020/20200918a. Between Land Use Decisions and the Impacts on shtml Our Water and Natural Resources,” Planning with 45 Centers for Disease Control and Prevention (CDC), https://ag.purdue.edu/ Power, Purdue University, Healthy Community Design Initiative, “Health extension/scep/Planning%20with%20POWER/ Impact Assessment,” 2016. https://www.cdc.gov/ Landuse-ImpactsonWater.pdf healthyplaces/hia.htm 35 Laura Huizar, “Meaningful Community Participation in 46 Rachel L. Johnson Thornton, MD, PhD, Amelia Greiner, Land Use Decision Making Through Ad Hoc Procedures MS, PhD, Caroline M. Fichtenberg, MS, PhD, Beth J. in New Haven, Connecticut,” Yale Law School, 2011. Feingold, MPH, MESc, PhD, Jonathan M. Ellen, MD, and https://digitalcommons.law.yale.edu/cgi/ (Pg. 16) Jacky M. Jennings, PhD, MPH, “Achieving a Healthy viewcontent.cgi?article=1013&context=student_ Zoning Policy in Baltimore: Results of a Health Impact legal_history_papers Assessment of the TransForm Baltimore Zoning 36 Laura Huizar, “Meaningful Community Participation in Code Rewrite,” Public Health Reports, 2013 Nov-Dec; Land Use Decision Making Through Ad Hoc Procedures 128(Suppl 3): 87–103. https://www.ncbi.nlm.nih. in New Haven, Connecticut,” Yale Law School, 2011. gov/pmc/articles/PMC3945454/ https://digitalcommons.law.yale.edu/cgi/ (Pg. 17) 47 Lauren Berg, “Clean Water and the Environmental viewcontent.cgi?article=1013&context=student_ Justice Movement,” Shared Justice, June 12, legal_history_papers 2019. https://www.sharedjustice.org/most- 37 Audrey G. McFarlane, “When Inclusion Leads to recent/2019/6/12/clean-water-and-the- Exclusion: The Uncharted Terrain of Community environmental-justice-movement Participation in Economic Development,” 66 BROOK. L. 48 Stuart H. Huntington “A Guide to Common Planning REV. 861, 903, 2001. and Zoning Procedures,” Iowa State University, 2000. 38 The Working Group on Legal Frameworks for Public https://www.extension.iastate.edu/buchanan/ Participation, “Draft Municipal Public Participation sites/www.extension.iastate.edu/files/buchanan/ Ordinance,” https://www.citizenadvocacycenter. zGuide.pdf

122 Water Justice Toolkit 49 Amy Bunk, “Federal Register 101,” Office of the Federal citizenscienceassociation.org/articles/10.5334/ Register, 2010. https://www.federalregister.gov/ cstp.170/ uploads/2011/01/fr_101.pdf 61 GEWISS Programme, “Citizen science for all: A guide 50 GW Regulatory Studies Center, The George for citizen science practitioners,” 2016. https://www. Washington University. https://regulatorystudies. buergerschaffenwissen.de/sites/default/files/ columbian.gwu.edu/regulation-101 assets/dokumente/handreichunga5_engl_web. 51 The Public Comment Project. https:// pdf publiccommentproject.org/how-it-works 62 Code of Federal Regulations (CFR) Title 36 - Parks, 52 Adam Looney, “How to effectively comment on Forests, and Public Property Chapter II - Forest regulations,” Center on Regulation and Markets, The Service, Department Of Agriculture Part 219 - Planning Brookings Institution, 2018. https://www.brookings. Subpart A - National Forest System Land Management edu/wp-content/uploads/2018/08/ES_20180809_ Planning § 219.19 Definitions. https://www.law. RegComments.pdf cornell.edu/cfr/text/36/219.19 53 Alaska Wildlife Alliance, “What Makes an Effective 63 J.C. Tweddle, L.D. Robinson, M.J.O. Pocock, & H.E Roy, Public Comment?” https://static1.squarespace. “Guide to citizen science: developing, implementing com/static/5bc75d83e4afe931ade4f0d8/t/5 and evaluating citizen science to study biodiversity beee9f4aa4a9917e7ee0165/1542384119699/ and the environment in the UK.” Natural History What+Makes+a+Good+Public+Comment.pdf Museum and NERC Centre for Ecology & Hydrology for UK-EOF, 2012. https://www.nhm.ac.uk/content/ 54 Environmental Law Institute, “Public Participation in dam/nhmwww/take-part/Citizenscience/citizen- Environmental Decision Making: Step-by-Step Tips for science-guide.pdf Writing Effective Public Comments,” 2013. http://eli- ocean.org/wp-content/blogs.dir/2/files/Written- 64 U.S. Environmental Protection Agency (EPA), Commenting.pdf “Handbook for Citizen Science Quality Assurance and Documentation,” 2019. https://www.epa.gov/ 55 Community Tool Box, “General Rules for Organizing for sites/production/files/2019-03/documents/508_ Legislative Advocacy,” The University of Kansas, 1994- csqapphandbook_3_5_19_mmedits.pdf 2021. https://ctb.ku.edu/en/table-of-contents/ advocacy/direct-action/legislative-advocacy/main 65 Patricia A. Holkup, PhD, RN, Toni Tripp-Reimer, PhD, RN, FAAN, Emily Matt Salois, MSW, ACSW, and Clarann 56 Clean Water Delaware, “Citizens Guide to Clean Weinert, SC, PhD, RN, FAAN, “Community-based Water,” 2017. http://cleanwaterdelaware. Participatory Research: An Approach to Intervention org/wp-content/uploads/2017/02/Citizens_ Research With a Native American Community,” 2009. Guide_2017-02_web.pdf https://www.ncbi.nlm.nih.gov/pmc/articles/ 57 Emmett Environmental Law & Policy Clinic at PMC2774214/ Harvard Law School, “A Manual for Citizen Scientists 66 Mónica Ramírez-Andreotta, Ph.D. “Gardenroots: The Starting or Participating in Data Collection and Dewey-Humboldt, Arizona, Garden Project,” 2008. Environmental Monitoring Projects,” 2019. https:// https://www.niehs.nih.gov/research/supported/ citizenscienceguide.com/sites/default/files/ translational/community/gardenroots/index.cfm images/Citizen%20Science%20Manual%20 March%202019%20_FULL%20VERSION_0.pdf 67 National Institute of Environmental Health Sciences, “West End Revitalization Association: Demonstrating 58 Christopher Hoadley, “Designing citizen science the Value of Community-led Research to Address projects,” Committee on Designing Citizen Science Environmental Justice Issues,” 2012. https://www. to Support Science Learning. https://sites. niehs.nih.gov/research/supported/translational/ nationalacademies.org/cs/groups/dbassesite/ community/west-end/index.cfm documents/webpage/dbasse_189605.pdf 59 A.E. Sorensen, R.C. Jordan, S.L. LaDeau, D. Biehler, S. Wilson, J.-H. Pitas, and P.T. Leisnham, “Reflecting on Efforts to Design an Inclusive Citizen Science Project in West Baltimore.” Citizen Science: Theory and Practice, 4(1), 2019. https://theoryandpractice. citizenscienceassociation.org/articles/10.5334/ cstp.170/ 60 A.E. Sorensen, R.C. Jordan, S.L. LaDeau, D. Biehler, S. Wilson, J.-H. Pitas, and P.T. Leisnham, “Reflecting on Efforts to Design an Inclusive Citizen Science Project in West Baltimore.” Citizen Science: Theory and Practice, 4(1), 2019. https://theoryandpractice.

WATER JUSTICE TOOLKIT 123 ACKNOWLEDGMENTS

Written by Suhani Chitalia, 2020 Anthony A. Lapham Fellow.

This guide has benefited from the contributions of Gary Belan, Olivia Dorothy, Destinee Henton, Jenny Hoffner, Katy Neusteter, and Eileen Shader at American Rivers.

Design by Hannah Palmer.

SPECIAL THANKS TO OUR CONTRIBUTORS:

JASON DOZIER RAQUEL PINTO Intrenchment Creek Community Stewardship Corazón Latino Council VANESA PINTO KIP LE WARN Community Health and Empowerment Coalition for the Delaware River Watershed through Education and Research (CHEER)

JANE LYONS CHERYL SIEVERS-CAIL Coalition for Smarter Growth Waccamaw Indian People of South Carolina, National PFOS Contamination Coalition OMAR MUHAMMAD Lowcountry Alliance for Model Communities ALEXIS SMITH (LAMC) Freshwater Future

SELINA PAGÁN JOANNA GOGER Metro West Community Development University of Maryland Organization MICHAEL SPANOS PAM PINA University of Maryland School of Law Howard EcoWorks

124 Water Justice Toolkit

ABOUT AMERICAN RIVERS American Rivers believes a future of clean water and healthy rivers everywhere, for everyone is essential. Since 1973, we have protected wild rivers, restored damaged rivers and conserved clean water for people and nature. With headquarters in Washington, D.C. and 300,000 supporters, members and volunteers across the country, we are the most trusted and influential river conservation organization in the United States, delivering solutions for a better future.

Headquarters 1101 14th Street, NW, Suite 1400 Washington, DC 20005

AmericanRivers.org

COVER: A high school science teacher gathers water samples from an urban stream. FLINT RIVER, GEORGIA / FINDING THE FLINT