MSDH to EPA: We can’t award Jackson money if city doesn’t apply for it

Agency responds to allegations it denied federal water funding to the city of Jackson.
Mississippi National Guardsmen direct traffic as they pass out cases of drinking water to...
Mississippi National Guardsmen direct traffic as they pass out cases of drinking water to Jackson, Miss., residents, Friday, Sept. 2, 2022, at Smith Wills Stadium. Jackson's water system partially failed following flooding and heavy rainfall that exacerbated longstanding problems in one of two water-treatment plants, and the state is helping with the distribution of drinking water to the city's residents. (AP Photo/Rogelio V. Solis)(Rogelio V. Solis | AP)
Published: Feb. 3, 2023 at 3:44 PM CST
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JACKSON, Miss. (WLBT) - A second state agency has fired back against claims it discriminated against Jackson in doling out federal funds for water and sewer work.

In January, the Mississippi State Department of Health (MSDH) responded to allegations it had violated the civil rights of Jackson’s majority-Black residents by denying funds for water infrastructure improvements.

The response comes months after EPA’s Office of External Civil Rights Compliance opened an investigation into the agency and the Mississippi Department of Environmental Quality to determine whether the agencies had violated Title VI of the Civil Rights Act, as well as other federal anti-discriminatory laws.

If the EPA finds MSDH or another organization being investigated, the Mississippi Department of Environmental Health, violated Title VI, the agencies could lose federal funding.

Demetrica Olabintan, a special assistant to Mississippi Attorney General Lynn Fitch, said in a letter to EPA OECRC Acting Director Anhthu Hoang that MSDH has never discriminated against Jackson, and has approved every loan the city requested.

MSDH awards federal funds for water infrastructure improvements through its Drinking Water Systems Improvement Revolving Loan Fund.

The program is funded in large part with federal dollars, meaning the state must follow federal anti-discrimination laws and is subject to EPA jurisdiction.

“NAACP failed to show how MSDH racially discriminated against the city of Jackson based on MSDH’s administration of EPA funds – either intentionally or by way of disparate treatment,” she wrote. “Contrary to the allegations, MSDH has never denied funding to the city of Jackson when requested through the (SRF) fund.”

In September, at the height of the city’s water crisis, the National NAACP, Mississippi State Conference of the NAACP, and others filed a civil rights complaint against the state for discriminating against the capital city. The EPA agreed to open an investigation the following month.

Among allegations, NAACP said MSDH had only awarded Jackson SRF funds “three times in the 25 years that this program has been in existence.”

The state, though, says the city only received funds three times because it only applied for the funding three times.

“Funding is readily available for any eligible water system to access, but it is completely up to the water system to see assistance from MSDH,” Olabintan wrote. “Despite the program’s long-standing existence, the city of Jackson has only applied for [SRF] funding three times.”

That was in 2016, 2019, and 2021 respectively, according to the letter. And each of those times, the city received funding.

Olabintan also took the NAACP to task for its criticism of the health department’s $5 million cap on borrowers, saying Jackson “repeatedly requested funds that exceeded the $5 million maximum cap” and that all loans awarded were well above that amount.

Drinking Water SRF Loans awarded to JacksonAmountAmount Unused
September 30, 2016$10,861,920$3,875,504
September 30, 2019$12,903,093$3,938,699 (Loan still open)
September 30, 2021$27,953,300Unknown (Loan still open)
August 1, 2016 (Emergency loan) $466,913

“The city of Jackson was aware of its drinking water issues, however, the city... failed to request funding from MSDH until 2016, fifteen years after the program’s existence,” Olabintan said. “It is completely impossible for MSDH to engage in a long-standing practice of systematically depriving... Jackson when, in fact, the city... did not ask for funding until recently.”

Meanwhile, MSDH says EPA has signed off on all of MSDH’s loan rules and has “routinely reviewed the state’s program, including its IUPs and the state’s funding criteria, and [has] determined that the program follows federal law.”

“Moreover, an annual report as recent as July 28, 2022, shows the EPA did not determine that MSDH’s program or funding criteria was discriminatory... to the city of Jackson or to other African American population[s],” Olabintan wrote.

The SRF program was established 25 years ago. MSDH was created in 1982, according to the letter.

In addition to signing off on health department policies, Olabintan also wrote that EPA knew of Jackson’s water issues long before the NAACP complaint was filed.

“On February 28, 2020, MSDH sent a letter to EPA expressing its concern with... Jackson’s failure to comply with the Safe Drinking Water Act. The EPA, after conducting its own investigation, cited the city... for multiple violations,” she wrote. “The city’s... failure to properly maintain its water systems was further evidenced through the written Administrative Compliance Order of Consent.”

In June 2021, the city council agreed to an administrative order, which was designed to make the city more accountable for repairing and maintaining its water system.

That matter aside, MSDH argues that the case should be thrown out, citing a 180-day statute of limitations. Based on when the last SRF loan was awarded, the complaint should have been filed by March 30, 2022.

“Here, the complaint makes the general claim that the state of Mississippi discriminated against the City of Jackson based on its administration of federal funds. It further suggests that underfunding has occurred for over a decade,” Olabintan wrote. “These claims are so general that it is difficult to pinpoint when the alleged discriminatory action took place.”

“EPA’s investigation must be limited to any specifically identified acts of discrimination within the 180-day time period before the filing of the complaint.”

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