[Senate Hearing 113-505]
[From the U.S. Government Publishing Office]
S. Hrg. 113-505
IRRIGATION PROJECTS IN INDIAN COUNTRY
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HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 10, 2014
__________
Printed for the use of the Committee on Indian Affairs
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COMMITTEE ON INDIAN AFFAIRS
JON TESTER, Montana, Chairman
JOHN BARRASSO, Wyoming, Vice Chairman
TIM JOHNSON, South Dakota JOHN McCAIN, Arizona
MARIA CANTWELL, Washington LISA MURKOWSKI, Alaska
TOM UDALL, New Mexico JOHN HOEVEN, North Dakota
AL FRANKEN, Minnesota MIKE CRAPO, Idaho
MARK BEGICH, Alaska DEB FISCHER, Nebraska
BRIAN SCHATZ, Hawaii
HEIDI HEITKAMP, North Dakota
Mary J. Pavel, Majority Staff Director and Chief Counsel
Rhonda Harjo, Minority Deputy Chief Counsel
C O N T E N T S
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Page
Hearing held on September 10, 2014............................... 1
Statement of Senator Barrasso.................................... 2
Statement of Senator Tester...................................... 1
Statement of Senator Udall....................................... 10
Witnesses
Cottenoir, Mitchel T., Tribal Water Engineer, Eastern Shoshone
and Northern Arapaho Tribes Office of the Tribal Water Engineer 41
Prepared statement........................................... 43
Jim, Hon. Ruth, Council Member, Confederated Tribes and Bands of
the Yakama Nation.............................................. 35
Prepared statement........................................... 37
Old Coyote, Hon. Darrin, Chairman, Crow Nation................... 13
Prepared statement........................................... 14
Paisano, Hon. Stuart, Governor, Pueblo of Sandia................. 23
Prepared statement........................................... 24
Roberts, Larry, Principal Deputy Assistant Secretary, Indian
Affairs, U.S. Department of the Interior....................... 3
Prepared statement........................................... 4
Appendix
Aguino, Hon. Marcelino, Governor, Ohkay Owingeh, prepared
statement...................................................... 64
Begay, Hon. Edward T., Chairman of the Board of Directors, Navajo
Agricultural Products Industry, prepared statement............. 59
Chavarria, Hon. J. Michael, Governor, Santa Clara Pueblo,
prepared statement............................................. 61
Frost, Hon. Clement J., Chairman, Southern Ute Indian Tribe,
prepared statement............................................. 62
Inaba, Lon K., President, Yakama Reservation Irrigation District,
letter......................................................... 66
Response to written questions submitted by Hon. John McCain to
Larry Roberts.................................................. 67
Trahan, Hon. Ronald, Chairman, Confederated Salish and Kootenai
Tribes, prepared statement..................................... 64
Vallo, Hon. Fred S., Governor, Pueblo of Acoma, prepared
statement...................................................... 60
IRRIGATION PROJECTS IN INDIAN COUNTRY
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WEDNESDAY, SEPTEMBER 10, 2014
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:30 p.m. in room
628, Dirksen Senate Office Building, Hon. Jon Tester,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
The Chairman. The Committee will come to order.
Good afternoon to everybody. Today the Committee is holding
an oversight hearing on the management of irrigation systems
throughout Indian Country. Irrigation systems are vitally
important for economic development on a number of reservations
in this Country. Often these systems benefit both Indian and
non-Indian communities. There are over 100 irrigation systems
across Indian Country that are owned and managed by the
Department of Interior. These systems range in size, the
smallest may focus on only subsistence farming while some of
the larger projects can span tens of thousands of acres of
critical components for the tribal economies that they serve.
All together, these irrigation systems reach about 1
billion acres, billion with a B. A smaller set of revenue-
generating irrigation projects make up the bulk of that
acreage, and BIA estimates that the projects lead to about $300
million worth of agricultural crops grown each year.
While these irrigation projects are important to
reservation economies, they have been allowed to deteriorate
for decades. In 2006, a GAO study found that these projects had
hundreds of millions of dollars in deferred maintenance needs.
And I can assure you, we have not made much of an investment
since 2006.
More recent estimates by the BIA place the maintenance
needs at about $600 million. The GAO study also found some
issues with staffing levels and the BIA's communication with
the irrigation system stakeholders. I look forward to hearing
about any improvements that the BIA has made on these issues
from both our Federal and our tribal witnesses.
This is not the first time the Committee has looked into
this issue. Senator Barrasso presided over a field hearing in
Wyoming on this issue last Congress. And from a review of the
testimony submitted by witnesses today, it doesn't seem that
much has improved. However, I do know that the BIA is taking
steps to better assess the unmet needs. Solving the problem is
largely an issue of funding, so I am happy to work with my
colleagues to find ways to provide the resources to fix and
improve and make these irrigation infrastructure projects
functional once again.
The Vice Chairman has also expressed interest in this area,
with provisions he added to the Authorized Rural Projects
Completion Act. The bill was reported out of the ENR Committee
last fall and would address funding for both irrigation
maintenance and future tribal water settlements.
I want to thank everybody who is going to testify today,
especially those who traveled great distances to be here. I
appreciate you making that sacrifice. Our tribal witnesses
should shed light on how important these irrigation systems are
for our communities, and I suspect all the witnesses today will
share ideas on how we can address fixing these irrigation
systems as we move forward.
Senator Barrasso is not here. When he comes, we will
accommodate his opening statement. But for right now, I want to
welcome our first witness, Mr. Larry Roberts, who is Principal
Deputy Assistant Secretary for Indian Affairs at the Department
of Interior. Mr. Roberts, I will remind you and well, before we
get to you, we have the honorable Senator from Wyoming here. I
will kick it over to you, John, for your opening statement.
STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
Senator Barrasso. Thank you, Mr. Chairman. Thank you for
holding this important meeting on Indian irrigation.
I want to welcome my friend, Mitch, who is here, a tribal
water engineer from the Eastern Shoshone and Northern Arapaho
Tribes in Wyoming. I am looking forward to the testimony that
you are going to present today. You testified at the field
hearing in 2011 in Wyoming in Fremont County, and you are very
familiar with the challenges that face irrigation projects,
specifically in Wyoming.
There are 16 irrigation projects that were initiated in the
late 1800s and early 1900s by the Department of Interior. When
they were first built, these Indian irrigation projects were
intended to be a central component for the tribal economy. One
of those projects is in the Wind River Reservation in my home
State of Wyoming. The other irrigation systems are in States of
members of this Committee. We have Montana, Washington,
Arizona, New Mexico, Idaho.
The Wind River irrigation project, like the 14 other Indian
irrigation projects, is ``revenue generating,'' and in theory,
is supposed to be self-sustaining. In 2006, the Government
Accountability Office found that many of these projects were
never completed and are not sustaining themselves. The
Committee field hearing held in Wyoming in 2011 confirmed a
serious backlog in deferred maintenance that exists and
continues to grow.
However, the projects are still a very important source of
income and economic development. So Mr. Chairman, the Federal
Government's promise to Indian Country to build and maintain
these projects needs to be fulfilled.
Last year I offered an amendment to S. 715, the Authorized
Rural Water Projects Completion Act, which was pending before
the Energy and Natural Resources Committee. That amendment,
which was strongly supported by the Committee and the tribes,
would provide much-needed assistance for the rehabilitation of
Indian irrigation projects. I want to work with you, Mr.
Chairman, and the Administration, in continuing to address
these serious irrigation issues. The Department of Interior
submitted to this Committee an accomplishments report in
January of 2013 that summarized several policies established to
improve the Indian irrigation program. So I look forward to
hearing from the witnesses today on how the Department has
implemented the policies and what other improvements are needed
to address these important projects.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Barrasso, for your
comments.
Mr. Roberts, you and the second panel, I would ask you to
hold our comments to about five minutes each, as close to that
as you can make it. It will give us an opportunity to ask
further questions. Know that you all, all of your full written
statements will be a part of the official record. So I want to
thank you all again for coming today.
Larry, you may begin.
STATEMENT OF LARRY ROBERTS, PRINCIPAL DEPUTY
ASSISTANT SECRETARY, INDIAN AFFAIRS, U.S. DEPARTMENT OF THE
INTERIOR
Mr. Roberts. Thank you, good afternoon, Chairman Tester,
Vice Chairman Barrasso, members of the Committee. My name is
Larry Roberts, I am the Principal Deputy Assistant Secretary
for Indian Affairs at the Department of Interior. I am a
citizen of the Oneida Nation of Wisconsin.
With me today is David Fisher, Chief of our Irrigation and
Power Branch. I want to thank you for inviting the Department
to provide testimony on irrigation projects in Indian Country.
We appreciate the Committee's continued leadership on this
issue. It is a daunting challenge, and it is a challenge that
is similar to a number of different infrastructure issues we
face across the Country.
As the Committee knows, the Federal Government has been
involved with Indian irrigation since the Colorado River Indian
irrigation project that was authorized in 1867. Today the BIA
irrigation program is responsible for oversight and
administration of 15 revenue-generating Indian irrigation
projects that provide services and deliver water to over 25,000
customers and over 750,000 acres of land in Indian Country.
BIA's irrigation asset inventory includes approximately
6,200 miles of canals and drains and over 58,000 irrigation
structures. The asset inventory and program responsibilities
also include two BIA-owned facilities at non-revenue generating
irrigation projects, including the Navajo Indian irrigation
project in New Mexico and the Pyramid Lake irrigation project
in northern Nevada.
Historically, the Bureau has not charged sufficient
operation and maintenance rehabilitation rates, O&M rates, to
allow for adequate project maintenance and replacement. Over
time this has resulted in less maintenance accomplished and a
steady increase in deferred maintenance. This contributed to
the critical reviews by the Office of the Inspector General in
the 1990s and the Government Accountability Office in 2006.
In response to these reviews, the Bureau implemented a
number of reforms. The BIA has increased the level of
engineering and technical support and management oversight for
project managers, as recommended by the reports, by putting
these projects under the direct supervision of regional or
central irrigation office staff or by implementing more
stringent protocols for engineering review and approval of
actions taken at the projects. BIA is also holding water using
meetings at least twice annually. This policy was implemented
to solicited input from project stakeholders and provide
transparency on the planned use of operation and maintenance
funds.
In addition to collecting more feedback on its management
performance, BIA is providing more opportunity for direct
stakeholder involvement in all or parts of its projects.
And finally, as both Chairman Tester and Vice Chairman
Barrasso have mentioned on a number of occasions, the issue of
deferred maintenance. As part of our efforts to address that
issue, we have been conducting condition assessments. Nearly
all of those assessments are completed. We have three remaining
assessments that are ongoing. Those are scheduled to be
completed in 2017.
So today, some of the 15 revenue-generating Indian
irrigation projects operate with annual O&M fees that are near
or at the full cost of service. But we believe that rates need
to be set at levels to extend the growth of deferred
maintenance. But the existing level of deferred maintenance,
the existing $600 million backlog that we have, is such that it
cannot be economically addressed through increasing O&M rates.
The 2013 deferred maintenance estimate for BIA-owned
irrigation facilities is approximately $600 million. We
understand this is a longstanding issue and we know that the
Department and BIA have worked closely with Committee staff
over the years to address the issue. As both of you mentioned
today, this Congress has introduced legislation that would
provide resources to address the deferred maintenance backlog
at many of the BIA irrigation projects. We stand ready to
continue our work with the Committee on that legislation.
Many of the key structures still function today. They are
the same structures that were constructed over 100 years ago.
In spite of their current condition, BIA estimates that
irrigated lands served by the 15 BIA revenue-generating
irrigation projects had approximately $300 million in revenue
and supports almost 10,000 jobs. So with that, I am happy to
answer any questions that the Committee may have.
[The prepared statement of Mr. Roberts follows:]
Prepared Statement of Larry Roberts, Principal Deputy Assistant
Secretary, Indian Affairs, U.S. Department of the Interior
Good afternoon Chairman Tester, Vice Chairman Barrasso, and members
of the Committee. My name is Lawrence Roberts and I am the Principal
Deputy Assistant Secretary for Indian Affairs at the Department of the
Interior (Department). Thank you for inviting the Department to provide
testimony on Irrigation Projects in Indian Country. We appreciate the
Committee's continued leadership on this issue, as it is a daunting
challenge similar to other infrastructure challenges faced across the
Nation.
I will begin with a brief discussion of the history of the Bureau
of Indian Affairs (BIA) Irrigation Program, provide an overview of the
17 BIA irrigation projects, and discuss the work BIA has been doing on
this issue.
Background
The Federal Government has been involved with Indian irrigation
since the Colorado River Indian Irrigation Project was authorized in
1867. In the early 1900s, Congress began authorizing funding for
construction of numerous Indian irrigation projects in the western
United States. At that time, the Indian Irrigation Service led
construction and early administration of the projects. In the late
1930s and through the 1940s, as construction activities wrapped up on
most projects, the Indian Irrigation Service ceased to exist and
operation and maintenance, referred to hereafter as O&M, was
transferred to the BIA, where it continues today. The BIA irrigation
program is responsible for oversight and administration of fifteen
revenue-generating Indian irrigation projects that provide service and
delivers water to over 25,000 customers and 750,000 acres of land in
Indian Country. BIA's irrigation asset inventory includes approximately
6,200 miles of canals and drains and over 58,000 irrigation structures.
The asset inventory and program responsibilities also include BIA-owned
facilities at non-revenue generating irrigation projects, including the
Navajo Indian Irrigation Project in New Mexico and Pyramid Lake
Irrigation Project in northern Nevada. At these facilities the BIA does
not assess O&M charges to irrigators; those charges are instead paid
through appropriations or other means. The BIA irrigation program also
provides limited support to over 100 irrigation systems that were
constructed in the early 1900s, most of which are operated and
maintained by tribes.
Overview of the Irrigation Projects in Indian Country
BIA irrigation projects are vital economic contributors to the
local communities and regions where they are located. Recent BIA
studies show that the irrigation projects in Indian Country are in
various states of disrepair. Many of the key structures still
functioning today are the same structures that were constructed over
100 years ago. In spite of their current condition, BIA estimates that
irrigated lands served by the 15 BIA revenue generating irrigation
projects add $490M in revenue and supports almost 10,000 jobs.
The BIA operates its irrigation projects consistent with numerous
laws, regulations and policy guidance and many projects have extensive,
specific legislative histories. For example, specific statutory
authorities require that BIA charge O&M assessments to both Indian and
non-Indian customers, and to reimburse the Federal Government for such
O&M costs. Most of the 15 revenue-generating projects receive little or
no appropriated funds. Whenever possible and practical, BIA works to
leverage cost-share opportunities with any other funding that is made
available to tribes and water user organizations. BIA increased its
funding request in the FY15 President' Budget Request for irrigation
project rehabilitation to $2,612,000 from $998,000, an increase of
$1,614,000. The appropriated Construction Funds for Indian Irrigation
Projects are prioritized using multiple factors, including Critical
Health and Safety factors and the Rehabilitation Priority Index (RPI)
values determined from the BIA's Condition Assessment process. Projects
are submitted from our Regional Office engineers and ranked by our
Central Office engineering team using a formal ranking process.
Emergency repair situations also come into play given the large
deferred maintenance backlog, occasionally requiring the reprogramming
of those funds to address those needs. Projects that have received
these funds in the past include lining of the Tyhee Siphon, a critical
feature for the Fort Hall Project in Idaho; repair of the Two Medicine
Canal failure on the Blackfeet Irrigation Project in Montana; and
repair of the Dr. Morrison canal failure on the Pine River Irrigation
Project in Colorado. We will use this same process for determining the
FY15 projects that will be funded. As discussed below, without new
funding deferred maintenance remains an enormous challenge.
Historically, BIA has not charged sufficient Operation, Maintenance
& Rehabilitation (OM&R) rates to allow for adequate project maintenance
and replacement. Over time, this has resulted in less maintenance
accomplished and a steady increase in deferred maintenance. This
contributed to critical reviews by the Office of Inspector General in
the 1990s and the Government Accounting Office in 2006.
Fifteen of the seventeen BIA projects operate with annual O&M fees
near or at the full-cost of service. We believe that rates are now set
at levels to stem the growth of deferred maintenance, but the existing
level of deferred maintenance is such that it cannot be economically
addressed through increased O&M rates. Over the past decade or more,
BIA has made significant progress in systematically increasing O&M
rates at projects where O&M rates are insufficient. In fact, over the
past 10 years, O&M rates have increased approximately 29 percent on
average at BIA irrigation projects, with one project's rates increased
by 74 percent.
Program Accomplishments
The BIA irrigation program has made significant strides over the
past eight years in addressing a variety of issues critical to the
program. These efforts include setting O&M rates at levels we believe
are more sustainable for current operations, and these efforts need to
continue in this area to ensure sustainability of operations and
maintenance into the future.
There are other Department initiatives BIA is implementing that
address challenges at BIA irrigation projects. Some of these
initiatives are in response to recommendations by the Department's
Office of Inspector General and the GAO. One recommendation made in
those reports was that BIA should increase the level of engineering
technical support and management oversight for project managers by
putting these projects under the direct supervision of regional or
central irrigation office staff, or by implementing more stringent
protocols for engineering review and approval of actions taken at the
projects. In February 2007, BIA established policies to ensure adequate
technical oversight and assistance is given to project managers of the
BIA irrigation projects.
In addition to these managerial reforms the BIA is working more
closely with water users, which include the tribe(s), tribal members,
and non-Indians, to be responsive to their concerns and giving the
water users a greater role in Project operations.
In July 2006, a policy was established requiring BIA to hold water
users meetings at least twice annually. This policy was implemented to
solicit input from project stakeholders and provide transparency on the
planned use of O&M funds. In addition to collecting more feedback on
its management performance, BIA is providing more opportunity for
direct stakeholder involvement of all or part of the project. For
example, the Wind River Irrigation Project utilizes a Memorandum of
Agreement (MOA) with the Crowheart Bench Water Users Association, and a
tripartite agreement among the BIA, the LeClair Unit and the Riverton
Valley Irrigation District to conduct O&M activities on BIA's behalf.
In 2008, the BIA revised irrigation regulations published in 25 CFR
171, titled ``Irrigation Operation and Maintenance.'' The revision
contains two key features that were included to benefit all BIA
irrigation projects, Annual Assessment Waivers and Incentive
Agreements. The Annual Assessments Waivers are designed to allow for an
easy method to waive the O&M assessments if the BIA cannot deliver
irrigation water to a customer. Past regulations required BIA to bill
the water user and in order to receive a refund, the water user had to
formally appeal the bill. The new regulations streamlined that process
to minimize administrative requirements for both BIA and the water
users. Many BIA projects have lands that have become idle and have not
been farmed for many years. To assist the BIA and land owners, and
provide incentive to potential lessees to bring these lands back into
production, the new regulations allow for Incentive Agreements.
Incentive Agreements allow the project to waive the irrigation O&M
assessment for up to three years if the landowner or lessee agrees to
make improvements to the lands to bring them back into production.
These agreements benefit both the land owner and the project by
improving land value and increasing Project O&M revenues.
Irrigation Project Condition Assessments
BIA has taken measureable steps to acquire better information about
the irrigation projects to better understand the deferred maintenance
backlog. Beginning in 2007, as required by the Department and BIA's
Asset Management Plans, BIA began conducting engineering condition
assessments. Condition assessments identify the costs to repair and
replace infrastructure and includes the development of priorities based
on health and safety and the asset priority in relation to the overall
project. Since 2007, condition assessments have been completed or are
currently being conducted for all of BIA's revenue generating
irrigation projects. These studies are funded through appropriations to
BIA's irrigation program at the national level as opposed to passing
this cost on to project irrigators. The remaining three assessments are
scheduled to be completed by 2017.
As the remaining condition assessments are completed, BIA's
deferred maintenance estimate will more accurately reflect conditions
in the field. In our next round of condition assessments we will also
include estimates for road crossing and building repairs, which were
not evaluated in the initial assessments. As water settlements are
implemented, like the Crow Water Rights Settlement Act of 2010 and the
Arizona Water Settlement Act of 2004, BIA's estimate of deferred
maintenance will become more refined and better estimates of what might
be needed should be available.
Where tribes have received water settlement funding for irrigation
rehabilitation, infrastructure is being rehabilitated and modernized to
provide reliable irrigation service to customers of BIA-owned and
operated facilities for years to come. One example of where water
settlement funding is providing large-scale capital improvements and
rebuilding an old, dilapidated system into a new, state-of-the-art
project is in Arizona at BIA's San Carlos Irrigation Project, which
serves the Gila River Indian Community.
Addressing Deferred Maintenance
The 2013 deferred maintenance estimate for BIA-owned irrigation
facilities is approximately $600 million. The Department understands
that the deferred maintenance backlog at Indian irrigation projects is
a longstanding issue. As discussed above, we have completed a number of
assessments and anticipate completing the last three assessments by
2017. Without significant capital investment, we believe overcoming the
deferred maintenance backlog is unachievable given the current
agricultural economies of irrigated agriculture in rural Indian
Country.
At the Wind River Irrigation Project in Wyoming, for example, the
deferred maintenance backlog is approximately $35 million and the
project assesses approximately 35,000 acres. Relying solely on O&M
revenues would increase costs to such an extent that irrigated
agriculture would likely not be economically viable. The Department and
BIA worked closely with Committee staff on this issue over the years.
This Congress introduced legislation that would provide resources to
address the deferred maintenance backlog at many of BIA's irrigation
projects. We stand ready to continue our work with the Committee on
such legislation.
This concludes my prepared statement. I will be happy to answer any
questions you may have.
The Chairman. Thank you for your testimony, Larry.
We are going to flesh out this O&M fee thing a little more
here. If the irrigation systems had no deferred maintenance, if
this $600 million, if we spent the $600 million and took care
of that backlog, are you saying that the O&M fees that are
charged the users right now would cover? Are they adequate to
cover any kind of maintenance over the next year?
Mr. Roberts. My understanding of the situation is that at
some of our projects, those rates are high enough. But if
Congress were to pass legislation to affect the deferred
maintenance issue, our goal would be to have all of those O&M
fees basically be self-sustaining. So it is a careful balance,
because obviously we want the farms and farmers to be
economically viable. The goal is to have those rates reflect
actual O&M costs. We are there at some of the projects right
now.
The Chairman. We are there with some of the projects and
not with others?
Mr. Roberts. That is right.
The Chairman. Do you have the information to be able to do
that, to know what to set those O&M fees at? And as long as I
am talking, all the projects, small ones, big ones?
Mr. Roberts. My understanding of the larger projects, there
are 17 projects that the Bureau runs. There is another 100 plus
projects that the Bureau does not run on a daily basis, those
are run by tribes or water authorities. So with the 17
projects, we have done an analysis in terms of how much those
rates would need to be. I think those rates, quite frankly,
would probably need for some of the projects to be implemented
over time.
The Chairman. Yes.
Mr. Roberts. But I think that S. 715 also talked about
implementing that maintenance over time as well. So that is
sort of our goal, is when we are going to, if such legislation
were to be enacted into law, that we don't want to end up in
the same place we are right now.
The Chairman. Okay. Governor Paisano of the Sandia Pueblo
will testify that the Pueblos in his area get their water from
a Bureau of Rec' owned irrigation system that BIA pays a local
conservation district to provide sufficient amounts of water
for the Pueblos' needs. So we have two Federal agencies
involved in trust responsibilities for the Pueblos, yet
Governor Paisano's testimony says that they are treated worse
than any other water users on the system. Are you familiar with
this?
Mr. Roberts. I am familiar with the issue. I know that
Assistant Secretary Washburn and more specifically, Director
Mike Black, have been personally involved in those
conversations, in negotiating O&M rates. We do have
responsibilities there with all the Pueblos. Quite frankly, in
those negotiations, my understanding is that we have withheld
payment because we were basically advocating for the tribal
rights there, and wanting those O&M rates to be set
appropriately. So those conversations are ongoing and Director
Mike Black is personally involved in those.
The Chairman. You are dealing with the Bureau of Rec.
Mr. Roberts. Bureau of Rec, but we are also dealing with
the Middle Rio Grande Water District that we contract with.
The Chairman. Okay. So do you have the ability to require
those folks to treat folks equally? The conservation district
in particular.
Mr. Roberts. We have to get to a fair rate on O&M costs.
And like I said, I know that we have withheld payments. And we
are in active negotiations right now. So it is a complicated
issue. We are working with them and like I said, I think
Director Black has spent a lot of time on this issue
personally.
The Chairman. Do you consult with tribes on their funding
priorities?
Mr. Roberts. We do.
The Chairman. So where are irrigation projects? When you do
your consultation, are they on the list, number one, and where
are they if they are?
Mr. Roberts. We consult with tribes through the tribal
budget committee that the Department of Interior has. All
regions are represented there. It is an issue that is raised.
We have 17 facilities, so it doesn't impact every tribe like
for example education, law enforcement, social services. So it
is a priority. I don't know that it is the top priority that we
hear from Indian Country.
The Chairman. But it is a priority, and the Department
knows it is a priority for the tribes?
Mr. Roberts. Yes, Senator.
The Chairman. Senator Barrasso?
Senator Barrasso. Thank you, Mr. Chairman.
Mr. Roberts, during recent drought years, the irrigation
system operated by the Bureau of Indian Affairs on the Wind
River Reservation experienced significant water shortages. In
some cases, the agency had to shut offer water to several
users.
Meanwhile, same time, the neighboring Crowheart Irrigation
System managed by the water users themselves, they appear to
have done well during the drought, handled it much more
efficiently. Could you explain what the Bureau of Indian
Affairs is doing to improve management of the irrigation system
so that all water users can continue to access water even
during droughts? There is an interesting difference between
Crowheart versus BIA.
Mr. Roberts. Yes. My understanding of that situation with
Crowheart is that that is in a separate drainage and that
drainage had more storage there for that year, whereas, I think
there were other drainages that didn't have as much storage
capacity. But I think there were also issues with other
drainages where essentially, some of the diversions that
ultimately fed into those drainages had issues related to a
pipeline. So there is a pipeline crossing one of the drainages
that we were concerned about sending too much water and that
that water would hit that crossing pipeline.
So my understanding is that the BIA is working with the
tribal water utility during the off-season here to move that
pipeline so that it is not an issue, and that we will be able
to send more water to some of those areas where we haven't. But
I think ultimately, at least on some of those, it was limited
storage capacity that led to that.
Senator Barrasso. On the next panel, we are going to hear
from Mitch Cottenoir, from Fremont County in Wyoming. According
to his written testimony, little has changed on the Wind River
Irrigation Project since the Committee's 2011 field hearing. He
specifically notes that the BIA does not have a long-term plan
for rehabilitation of this project. The Bureau of Indian
Affairs Irrigation Program Overview dated January 3rd of last
year, of 2013, cites persistent drought, water availability and
tribal politics as unique challenges for this project.
So can you talk a little about how these unique challenges
prohibit the agency from developing a long-term rehab plan? And
when will you provide this Committee with a long-term plan for
addressing the deferred maintenance for the Wind River
irrigation project?
Mr. Roberts. In terms of a long-term plan addressing
deferred maintenance, I think at this point, as I said, it is
not a situation where we are going to be able to address it
through raising O&M rates. It is a situation where we are able
to stem some of the deferred maintenance through O&M rates now,
but we are not able to do that with the current funding that we
receive. So some of the things that we are doing, we see more
droughts, we see more extreme weather conditions, we see more
issues not only related to water delivery but other areas on
Indian reservations. And so part of what we are doing is
working with tribes to help develop that capacity in terms of
dealing with those extreme weather events. The other thing that
we are doing is we are working with the California Poly
Irrigation Training and Research Center and we recently
provided training at Wind River to better measure water, so
that we have a more accurate read of the water in the system
and make better use of that.
So in terms of a, to get back to your final question about
a long-term plan, Senator, I don't know that we have that plan,
that we have a time frame for that plan. I think what we would
want to do is finish all of the assessments. We have three more
to finish by the end of 2017. That is our estimated time frame.
And from there, we will have a much better sense of the overall
deferred maintenance.
Senator Barrasso. Thank you. Thank you, Mr. Chairman.
The Chairman. Senator Udall?
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you, Chairman Tester. I really
appreciate your attention to this.
I believe I told your office, Mr. Roberts, about an
urelated question that I wanted to ask about. Because we have
you here today, I want to just take a moment to bring up an
unrelated issue that has recently come to my attention. It is
my understanding that the K-12 Pinehill Schools in the Ramah
Navajo Chapter have a heightened fire risk as a result of non-
working fire alarms, sprinkler systems and smoke detectors.
These life and safety hazards have been allowed to persist. It
is unacceptable; it puts the lives of children and their
education and adults at serious risk. It is contrary to BIE's
own policies and procedures.
It is my understanding that Pine Hill's BIA elementary
school that was constructed three years ago was never issued a
final certificate of occupancy because it never had a working
fire alarm. As a result, this new school has never opened.
Again, the waste and lack of attention to vital safety concerns
is unacceptable.
I would ask Mr. Roberts and his team to look into these
outstanding issues at Pine Hill and expedite steps to put in
place these very simple but important safety measures.
My question is, Pine Hill schools are not on the priority
list of BIA school facilities in poor condition needing
renovation or replacement. Yet there are life safety issues at
its schools, including non-working fire alarms and sprinkler
systems, certificates of occupancy taking months if not years
to be issued, delaying the use of needed facilities. What steps
will the BIA take right now to remedy these situations at BIA
grant schools like Pinehill?
Mr. Roberts. Thank you, Senator. I do know that our staff
is working with your staff on this issue and we appreciate
that.
In terms of life safety issues with the school that you
raise, that is of utmost concern to us. My understanding is
that the southwest region does have a contract in place to
address the fire alarm issue at that school, which is I guess
campus-wide. And then you mentioned the new elementary school
that's been constructed. My understanding is that we contracted
with the tribe's school district for that construction and that
it is 98 percent complete. We are working with the tribe's
school board to bring that to full completion. So this is an
issue that I will raise both with director Monty Roessell when
I get back today and make sure that, obviously, the safety
issue there on fire alarms we want to get fixed immediately.
And this issue about construction, I think we need to
figure out, since the tribe has contracted for that function,
how to get that one across the finish line. My understanding is
that it is about 98 percent complete.
Senator Udall. Thank you very much. This issue has been
lingering for a long time. It has been out there. So I think we
really need to get expedited attention to it, and I appreciate
your attention to it.
Thank you, Chairman.
The Chairman. Senator Udall, did you just say that they
built a new school, didn't finish for three years and it is not
open because they don't have a fire alarm system in it?
Senator Udall. That is right. That is exactly what I said.
The Chairman. We will have a hearing on this if you guys
don't fix it. It should have been done three years ago. I mean,
truthfully, this is the kind of stuff that gives government a
bad name.
Mr. Roberts. I agree.
The Chairman. Senator Fischer isn't here, but I have some
more questions on irrigation. The BIA oversees almost all those
Indian irrigation systems. The BOR has some irrigation systems,
too. Do you know if the BOR backlog is equivalent to or similar
to what the BIA backlog is?
Mr. Roberts. I don't know. That is information, Senator,
that I can provide to the Committee. My understanding of BOR is
that they construct the irrigation project then they turn it
over, they don't operate it actually. So I don't know whether
they have the same O&M issue or not. But that is something that
I will certainly follow up with the Bureau of Reclamation and
provide that information to the Committee.
The Chairman. Okay. Thank you for that.
Many of the recent water settlements authorized tribes to
use the Self-Determination Act contracts to manage many aspects
of the water infrastructure construction projects. However, a
lot of these projects are overseen by Reclamation rather than
the BIA. The Crow chairman who is sitting pretty darned close
to you is going to testify that Reclamation has required the
tribe to use their own funds and then get reimbursed, and this
creates a burden, because there is not a lot of extra bucks
flowing around. And it is contrary to the Self-Determination
Act.
Just a question for you, you have to speak for the
Department, but why would the Department of the Interior refuse
to comply with the Indian Self-Determination Act?
Mr. Roberts. Chairman, I am not up to speed on the
specifics of Reclamation's work with the Crow Tribe. But that
is something that I can, information that we can provide to the
Committee. I don't know if there were specific instances there
or not. But is information I would be happy to provide.
The Chairman. I would appreciate it if you would pass that
on, Larry. And then the last question that I have is, have any
of the tribes assumed management of the irrigation projects in
part or in whole?
Mr. Roberts. I know that the Duck Valley Shoshone Paiute
Tribe, they have compacted to run the project there.
The Chairman. Are there any others that come to mind?
Mr. Roberts. San Carlos may have as well. But I would have
to double check that.
The Chairman. So when they did the contract, was there a
lot of deferred maintenance on those when they did the compact?
Mr. Roberts. I think for Duck Valley, their deferred
maintenance was addressed in large part through their water
settlement.
The Chairman. Okay. I was just trying to see if I could get
any comparison between tribally-compacted irrigation systems
and their deferred maintenance versus the ones that the BIA
oversees. But I want to make sure we are comparing apples to
apples.
Mr. Roberts. We can ask our staff to follow up with the
Committee on that to see if there are any others that I am just
not thinking of.
The Chairman. I appreciate your work, Larry, in the
Department. I appreciate your work with the irrigation systems.
I think you understand how important they are to the economy,
and you also understand if we lose this infrastructure, it is
more costly to get back. The maintenance issue is big.
And I don't mean to be too hard on you on the school thing.
If it is our fault, if there is something we haven't done, that
stops you from fixing that, then let us know and we will fix
it. But if it isn't, then you can move on. You don't need to
respond to that. Thank you very much.
I am going to welcome our second panel up as Larry gathers
up his papers. I appreciate you making the trek over.
And on our second panel, we are going to have Chairman Old
Coyote, Darrin Old Coyote, from the Crow Tribe of Montana. We
are then going to hear from Governor Stuart Paisano of the
Sandia Pueblo Tribe of New Mexico. Then we have Ruth Jim,
Councilwoman from the Yakama Nation of Washington State.
Finally, we are going to hear from Mitchell Cottenoir, an
engineer with the Shoshone and Arapaho Tribes of the Wind River
Reservation that Senator Barrasso talked about. I want to thank
you all for being in front of us today. I would remind you to
keep your statements to five minutes; it would be very, very
much appreciated. It will allow time for questions.
Senator Udall, did you want to introduce Governor Paisano?
Senator Udall. Yes, I would like to introduce Governor
Paisano, if that is okay.
The Chairman. You bet.
Senator Udall. Thank you, Chairman Tester. I will save any
other comments for later.
But first of all, this is tremendously important to the
tribes in my State, what you are holding this hearing on, the
irrigation infrastructure. And it is something that is often
neglected. I really appreciate you making sure that this isn't
overlooked.
I would like to welcome to the Committee my good friend
Governor Stuart Paisano. He is the Governor of Sandia Pueblo
and Chairman of the Coalition of Six Middle Rio Grande Pueblos.
Governor Paisano has served in Pueblo leadership for many
years. He was first appointed as Governor in 2000, the youngest
ever governor to represent the Pueblo. As Governor of Sandia,
Governor Paisano represents a long history of farmers who rely
on the Rio Grande for maintaining crop land in our arid State.
The Governor can speak to the specific needs of members of his
Pueblo who are dealing with crumbling irrigation
infrastructure, and can also speak to the difficulty Sandia
Pueblo has working with local entities and the BIA, so that the
deliveries of the tribe's senior water rights are carried out.
As Chairman of the Coalition of Six Middle Rio Grande
Pueblos, Governor Paisano understands the larger issues that
confront the six Pueblos who depend on the Middle Rio Grande
for community agriculture. The Governor knows the challenges
the River Pueblos face working with local conservation and
irrigation districts and the need for funding Pueblo
infrastructure. After years of drought and centuries of compact
negotiation and water lawsuits, water is no simple issue for
New Mexico.
I look forward to the Governor's testimony, and look
forward to working more with him to address the issues that
Sandia Pueblo and the other Rio Grande Pueblos face.
Thank you, Senator Tester.
The Chairman. Thank you, Senator Udall.
Chairman Old Coyote, you may begin.
STATEMENT OF HON. DARRIN OLD COYOTE, CHAIRMAN, CROW NATION
Mr. Old Coyote. Good afternoon, Chairman Tester, Vice
Chairman Barrasso and members of the Committee.
Thank you for holding this hearing on irrigation projects
in Indian Country. This is an important subject for not only
the Crow people but for Indian Country in general.
My name is Darrin Old Coyote and I am the Chairman of the
Crow Nation. I am honored to be here on behalf of the Crow
Nation to testify on our experiences with the Crow Irrigation
Project, or the CIP. I would like to provide the Committee with
a summary of the historic issues we experienced with our
irrigation system, what has been done and what is being done in
the future to achieve a well-run and efficient irrigation
system.
The CIP is located on the Crow Indian Reservation in south
central Montana and has been a subject of problems for many
decades. Construction on the CIP began in the late 1800s, and
currently consists of 11 units with a total area of over 60,000
acres. Historically the CIP was operated and maintained by the
BIA, who spent the majority of the operation and maintenance
budget on personnel costs rather than actual maintenance on the
system.
The CIP was also underfunded, because the BIA failed to
collect assessments from users of the system. Together, the
deferred maintenance and underfunding resulted in a very run-
down and inefficient irrigation system. The historical problems
at the CIP led to rehabilitation and improvement of the system
being a major component of the Crow Tribe Water Rights
Settlement Act of 2010. The Crow Water Settlement otherwise,
$132 million for CIP rehab, of this amount $74 million was
mandatory appropriations.
We cannot emphasize enough the importance of this mandatory
funding that was only possible because of Chairman Tester's and
Senator Baucus's diligent efforts to find funding offsets. We
would like to thank both of them for their hard work on behalf
of the Crow Nation. We recommend that future Indian water
rights settlements include mandatory funding as well.
The CIP project also requires ongoing annual appropriations
to maintain the construction schedule that we are finalizing
with BOR. Most if not all current and future Indian water
settlements have a similar annual appropriations need. We urge
Congress to continue to appropriate all the necessary funds to
complete the critical work on the CIP.
Another aspect of our settlement that benefits the CIP is
the provision that allows for flexibility in the transfer of
funds between two large construction project accounts: the CIP
and the MR&I Clean Drinking Water System. We have already
noticed the benefits of carving this type of flexibility into
legislation and recommend that future Indian water settlements
include such provisions.
The settlement also established BOR as the lead Federal
agency, rather than the BIA. In 2011, we entered into a 638
agreement with BOR to carry out the rehabilitation improvement
activities. While the tribe supported BOR serving as the lead
on the CIP moving forward, we have experienced early obstacles.
In fiscal year 2012, there seemed to be very little oversight
from BOR before the agency abruptly increased oversight in 2013
and crippled the project's progress. This inconsistent
oversight by BOR halted funding to the tribe from March 2013 to
January 2014, and caused construction crew layoffs for the
entire construction season. The BOR also demanded that the
tribe advance construction funds from the tribe's general fund
account and seek reimbursement. This is impossible for any
tribe.
After difficult discussions and negotiations with BOR, we
have evolved to today's level of oversight that is a happy
medium and have worked out a funding mechanism that does not
require the tribe to advance the construction costs from our
general fund budget. Despite these initial obstacles,
construction commenced on the CIP in 2012 and we are now in a
position to move forward aggressively to rehab the CIP. One of
the benefits of funding irrigation projects is that the results
are tangible. You can see the before and after pictures of the
difference that Federal dollars make on the ground.
Forty jobs will be created in 2015 and we will continue to
increase the number of local jobs for the next 10 years. In
closing, every Indian irrigation system is unique and poses its
own challenges. In our case, we are dealing with several
decades of deferred maintenance on the CIP that must be
remedied on a strategic, forward-thinking approach in order to
make the most out of the Crow water settlement funds. Even
though we have experienced a few temporary setbacks in
implementation of the settlement, we are headed in the right
direction and are optimistic that we will be successful in
restoring the CIP.
Thank you again for the opportunity to provide testimony
today. I am happy to answer any questions that the Committee
may have.
[The prepared statement of Mr. Old Coyote follows:]
Prepared Statement of Hon. Darrin Old Coyote, Chairman, Crow Nation
I. Introduction
Good afternoon. My name is Darrin Old Coyote and I am the Chairman
of the Crow Nation. On behalf of the Crow Nation, I would like to thank
Chairman Tester and members of the Senate Committee on Indian Affairs
for holding this Oversight Hearing on Irrigation Projects in Indian
Country and inviting the Tribe to provide testimony on our experience
with the Crow Irrigation Project within the Crow Reservation.
As I will discuss in further detail below, the Crow Irrigation
Project (``CIP'') has been the subject of considerable problems on the
Crow Reservation for many decades. Historically, the CIP was operated
and maintained by the Bureau of Indian Affairs (``BIA''), with a
majority of the Operation and Maintenance (``O&M'') budget weighted
towards personnel costs and deferred maintenance that resulted in
extensive deficiencies with the CIP. Funding problems were compounded
by a failure to collect assessments from users of the system, which
left the system seriously underfunded. Thus, in an effort to remedy the
vast failings of the CIP, the Crow Tribe Water Rights Settlement of
2010 was enacted to, among other things, rehabilitate and improve the
CIP and provide meaningful Federal funding for such work. Today, we
share our experience both in terms of the historic issues that have
surrounded the CIP, as well as our current and future work with the
Department of Interior through the Bureau of Reclamation as it has
evolved since passage of the Crow Water Settlement legislation.
II. Brief Overview of Crow Irrigation Project
A. Brief History of Crow Irrigation Project
The CIP is located on the Crow Reservation in south-central
Montana. The Crow Tribe's first reservation, established in the Fort
Laramie Treaty of 1851, was 35 million acres of land in Montana and
Wyoming. In the Fort Laramie Treaty of 1868, the Crow Tribe agreed to
reside on an 8-million acre reservation in south-central Montana and
established the senior tribal water right claim of the Crow Tribe on
May 7, 1868. Later land cessions from the Crow Tribe to the United
States in 1882, 1891, and 1904 reduced the Reservation to its current
2.3 million acre size today. Importantly, each land cession and
subsequent land sale by the United States to meet its treaty
obligations to the Crow Tribe constituted the original and early
subsequent appropriations for the Federal CIP.
In 1920, Congress passed the Crow Allotment Act, which triggered a
massive land conversion from collective tribal to individual allotted
Crow. The amount of land and the number of individual Crow allottees
both doubled within fifteen years of this Act. However, for reasons
outside of this testimony and despite a federal prohibition on the
amount of acreage to ever be owned by a non-Indian individual (1,280
acres) or a corporation (1,920 acres), hundreds of thousands of acres
ultimately passed to non-Indians within the Crow reservation. That
historical fact, the legal issues, and claims associated with the lands
subject to the 1920 Act remain in dispute to the present day. See 1920
Crow Allotment Act, Section 2, 41 Stat. 751 (1920); Crow Tribe v.
Campbell Farming Corp., 31 F.3d 768 (9th Cir. 1994).
The first irrigation works, the Reno Ditch, was constructed by the
Federal Government in 1885. Surveys for the present CIP began in 1890.
The first general authorization for the construction of the irrigation
project on the Crow Reservation was contained in the agreement between
the Crow Tribe and the United States, dated December 8, 1890, and
ratified by Section 31 of the Indian Appropriation Act of March 3, 1891
(26 Stat. 989, I Kappler 407, 432). Designs, surveys, and construction
for the CIP were performed by the United States Reclamation Service,
now the Bureau of Reclamation (Reclamation), for the BIA until 1922.
Reclamation constructed nine of the eleven units from 1885 to 1922.
Further construction on the irrigation units was performed by the BIA
after 1922. The remaining two irrigation units were privately
constructed, with lateral ditches off of the main canals constructed by
Reclamation in the early 1920s to serve Crow allotted lands. Active
expansion of the irrigation units ceased in 1925 and nearly all of the
irrigation facilities were completed before 1940.
Subsequent Congressional acts provided for continued construction
and development on the CIP. The Act of July 1, 1932 repealed collection
of construction costs against Indian owned lands under government
irrigation projects until the land is no longer under Indian ownership.
Public Law 79-468 (60 Stat. 333), Section 9 states, ``[n]o further
construction work on the Crow Indian Reservation shall be undertaken by
the United States without the prior consent of: (1) the Crow Tribe; (2)
the irrigation district or districts affected, and; (3) the Congress of
the United States, and without the prior execution of repayment
contracts by non-Indian water users or irrigation district or
districts, obligating the non-Indian lands for the repayment for their
share of such construction costs.'' Public Law 79-468 further states,
``that such consent shall not be necessary to construct laterals
necessary to irrigate the lands within the CIP as now determined and
classified as irrigable by the land designation committee report, as
approved by the Secretary of the Interior in 1944.'' The Public Law
also cancelled all back debt to the United States government owed by
all Indian owned land and also cancelled United States government debt
to the Crow Tribe for funds expended from treaty settlements for the
irrigation projects.
B. CIP Overview
The Crow Irrigation Project consists of eleven units with a total
area of 63,365 acres. There are eleven diversion dams, one storage dam,
nine canal systems and five drainage systems. Specifically, the eleven
CIP irrigation units consist of the Bighorn, Agency, Forty Mile, Reno,
Lodge Grass #1, Lodge Grass #2, Bozeman Trail, Upper Little Horn
(Wyola), Pryor, Soap Creek, and Two Leggins Units. The Upper Little
Horn Unit is also referred to as Wyola throughout as attributed to the
fact that Wyola is the more common name used. Of these eleven units,
the Bozeman Trail and Two Leggins Units are privately owned and
operated, with the remaining nine CIP Units operated and maintained by
the BIA's office located in Crow Agency, Montana. The rehabilitation
and betterment of the Bozeman Trail and Two Leggins Units will only
occur where land is held in Trust by the United States for the Tribe
and Crow Allottees are beneficiaries.
The CIP lands are located along the Bighorn and the Little Bighorn
Rivers, Pryor Creek, Lost Creek, Sunday Creek, Soap Creek, and Lodge
Grass Creek, all of which are tributaries to the Yellowstone River. The
eleven units are located entirely in the Pryor, Lower Bighorn, and
Little Bighorn Sub-basins, with the general direction of flow within
both basins from southwest to northeast. Across the eleven units, the
CIP consists of eleven diversion dams, one storage dam with a capacity
of about 23,000 acre-feet, approximately 122 miles of main canals, 43
miles of drains, 257 miles of additional canals (e.g., laterals,
sublaterals, and wasteways), and approximately 3,800 irrigation
structures (including both BIA and non-BIA-owned structures) such as
checks, drops, headworks, flumes, siphons, turnouts, road crossings,
spillways, and diversion dams. All units are gravity fed and lack any
automated flow measurement or gate controls, with the exception of the
Bighorn Unit, which has automated gates controlled by Reclamation at
the main diversion point (headworks) at the Afterbay below the
Yellowtail Dam and Bighorn Reservoir.
In 2006, the CIP served approximately 1,118 water users. Current
irrigation practices include both surface and sprinkler methods, with
most irrigation methods consisting of flood, furrow, wheel-lines, gated
pipe, and sprinklers with both unlined and lined ditches as
distribution systems. Additionally, several select laterals and
sublaterals have been converted to pipe, particularly in the Two
Leggins Unit. The CIP serves both Tribal and non-Tribal landowners.
Non-Tribal landowners in the two irrigation districts (Bighorn and
Little Bighorn Districts) and private ditch companies (Bozeman and Two
Leggins) in the CIP are organized as legal entities under Montana
statutes. The Irrigation District Boards are chartered under state law
and only represent owners of fee simple lands.
Most of the reservation is comprised of grasslands and plains with
the Wolf Mountains to the east and Bighorn and Pryor Mountains to the
southwest. The climate on the reservation varies from humid above 7,000
feet in the Bighorn Mountains, with 24 inches of annual precipitation,
to semi-arid around 2,900 feet near Hardin, with 12 inches of annual
precipitation. The primary source of water for the CIP originates on
Tribal lands in the Bighorn Mountains. All CIP irrigation water is
supplied by surface water sources. The primary irrigated crops are hay
and alfalfa, irrigated pasture, sugar beets, corn, and grains.
Precipitation averages 12-18 inches annually, with temperatures that
vary from -48 to +110 degrees Fahrenheit, and the average growing
season is 135 days from mid-May to the end of September.
Over the years, the Tribe asserted that the BIA's role in
overseeing and maintaining the CIP fell short of the United States'
trust obligation to the Tribe and Crow allottees to maintain the
system. We saw that the vast majority of funds on the CIP were weighted
towards personnel costs rather than much needed O&M. Most recently, for
example, there has only been one BIA operator for the entire CIP system
who performs such operations with 25 year-old equipment. Accordingly,
the CIP continued to wear down and operate at a sub-optimal efficiency
level. Indeed, the dilapidated conditions on the CIP spurred the
Tribe's efforts to ultimately settle the Tribe's claims against the
United States for failing to fulfill its trust obligations to the
Tribe, and which resulted in the Crow Tribe Water Rights Settlement Act
of 2010.
III. Crow Tribe Water Rights Settlement
The Montana Reserved Water Rights Compact Commission was
established by the Montana legislature in 1979 for purposes of
concluding compacts for the equitable division and apportionment of
waters between the State and its peoples and the Indian Tribes claiming
reserved water rights within the State. In 1999, the Montana State
Legislature ratified the Crow Tribe-Montana Water Compact. MCA 85-20-
901 (1999). By entering into this Compact, all interested parties
settled their claims with the State of Montana and the Crow Tribe and
avoided costly and lengthy litigation.
In 2010, the United States Congress passed the Crow Tribe Water
Rights Settlement Act which further authorized, ratified and confirmed
the Crow Tribe-Montana Water Rights Compact entered into by the Tribe
and the State of Montana in 1999, and was signed into law by President
Obama on December 8, 2010. Claims Resolution Act, P.L. 111-29, Title
IV, 124 Stat. 3097 (``Crow Water Settlement''). One of the critical
components of the Crow Water Settlement was Interior's obligation to
fulfill its trust obligation to properly maintain the CIP, which the
Tribe asserted the United States had failed to do. The Crow Water
Settlement specifically provided for Reclamation to carry out such
activities as necessary to rehabilitate and improve the water diversion
and delivery features of the CIP, in accordance with an agreement to be
negotiated between the Secretary of Interior and the Crow Tribe. Crow
Water Settlement, Sec. 405. In 2011, the Tribe and Reclamation entered
into a Self-Determination Contract, commonly referred to as a 638
contract, to carry out the rehabilitation and improvement activities
envisioned by the Crow Water Settlement.
Significantly, the Crow Water Settlement also authorized $132
million, adjusted to reflect changes since May 1, 2008, in construction
cost indices applicable to the types of construction involved in the
rehabilitation and improvement of the CIP. Of that authorized amount,
$73, 843,000 was a mandatory appropriation, with the remaining
$58,000,000 as authorized discretionary funds. Crow Water Settlement,
Sec. 414(a). We cannot emphasize enough the importance of the mandatory
funding that was included in our Settlement, which was a direct result
of Chairman Tester and former Senator Baucus' diligent efforts to find
funding offsets. As you are keenly aware, the mandatory appropriations
provide direct funding to enable the Tribe to begin work immediately on
the CIP. That being said, it has been emphasized that the discretionary
portion of the BIA irrigation funding, approximately $8 million per
year, will need to be substantially increased in the upcoming fiscal
years to avoid layoffs and cyclical employment.
Notwithstanding the anticipated increase in construction costs as
the project progresses, the mandatory funding element of the Settlement
is critical towards the overall intent and success of the Settlement.
Thus, while we recognize that identifying offsets and providing for
mandatory funding in Indian Water Settlements is a difficult task to
say the least, we highly recommend that future Indian water settlements
strive to include mandatory funding. We also urge Congress not to
forget that the mandatory funding for our and other Indian water
settlements will run out and we will need Congress to be prepared to
appropriate the funds necessary to complete the critical work of our
settlement, including our work on the CIP.
Lastly, with respect to the Crow Water Settlement legislation
itself, we were able to include a provision within the Settlement that
allowed for flexibility between our two large construction projects--
the CIP and the MR&I System (clean drinking water system). Section
414(h) provides that the Secretary of Interior may transfer funds
between the CIP account and the MR&I account as the Secretary, with the
concurrence of the Tribe, determines to be necessary. We have already
noticed the benefits of carving this type of flexibility into the
legislation, which in our case was especially important as we work to
rehabilitate the existing CIP system and construct a new MR&I System
within the Crow Reservation. Again, we would recommend that future
Indian water settlements consider such provisions in their settlements
if they envision needing a certain level of flexibility between their
relevant construction activities.
IV. Current and Future Outlook for the CIP
The Crow Water Settlement provides much needed funding and
directives to Reclamation to carry out the necessary construction to
improve the overall efficiency of the CIP. Unlike the historical
management of the CIP by the BIA, the Crow Water Settlement provided
that Reclamation would serve as the lead agency on the project going
forward. While the Tribe certainly supported Reclamation serving as the
lead on the CIP moving forward, we have experienced early obstacles
(perhaps due to an expected learning curve by Reclamation with Indian
irrigation projects as opposed to their standard non-Indian projects),
both in terms of the level and balance of BOR oversight on the project,
as detailed below.
Once construction and improvement continues we expect that project-
wide efficiency of the irrigation system to the farm turnouts will be
roughly 30 percent. Moreover, future irrigation water demands should
decrease from the current existing irrigation system demands with
improved system efficiency resulting from rehabilitation and betterment
efforts. Efficiencies of 50-70 percent could potentially be realized
through a combination of CIP rehabilitation and betterment efforts and
improved system O&M. CIP rehabilitation and betterment, in conjunction
with improved O&M, may also help to increase irrigation wastewater
quality by decreasing pollutant concentrations within the system (e.g.,
sediments, chemicals, etc.). Reductions in water pollutant
concentrations in wastewater ultimately, however, will be largely
dependent on individual on-farm irrigation methods and practices.
The total irrigated acres may increase if additional acres
currently in TNA (Temporarily Non-Assessed Acres, which are currently
not receiving water for various reasons) status can be brought into PA
(Presently Assessed acres) status. Currently 8,200 acres of land are
identified as TNA. Some of these tracts of land have potential to be
irrigated and assessed with minor rehabilitation. The addition of on-
farm improvements in other areas may also add more irrigated land, as
would the development of additional lands for irrigation (Dunmore
Bench).
A. CIP 638 Contract
As discussed above, the Crow Tribe entered into a 638 Contract with
Reclamation to implement the CIP. In the first two years of the
Settlement Act implementation, we experienced inconsistent oversight,
both from the Tribe's perspective and Reclamation's perspective (as
referenced above), that resulted in minimal funding to the Tribe from
March 2013 to January 2014 and that caused construction crew layoffs
for the entire irrigation season. In contrast, FY 2012 seemed to have
very little oversight from Reclamation, and then an abrupt change
occurred that resulted in significant Reclamation oversight--thus
crippling the project's movement. Fortunately, after difficult
discussions and negotiations, we have evolved to today's level of
oversight that is a happy median, which we believe will lead to
successful interactions with Reclamation in the future.
Additionally, the Tribe encountered another substantial obstacle
during this first phase of implementation under the 638 Contract when
Reclamation demanded that the Tribe advance the funds for construction
from the Tribe's general government operating fund (approximately $20
million per year) and be reimbursed after each Reclamation audit. As
would undoubtedly be the case for many tribal budgets, this became
impossible for the Tribe (it would have caused other tribal department
shutdowns and layoffs to provide the advance funding for the water
projects). We voiced these concerns with Reclamation and ultimately
worked out a mechanism in which the Tribe will no longer have to
advance the funds from the Tribe's general fund. Hence, this year's
2015 Annual Funding Agreement (AFA) appears to be on track and we are
optimistic that the following important milestones will be achieved.
1. Crow Irrigation Project Master Plan
The 638 Contract executed by the Tribe and Reclamation in 2011
included a requirement that the parties draft a CIP Master Plan of
project construction activities and responsibilities under the
Contract. The Final Draft CIP Master Plan was reviewed by Reclamation
and the BIA, with all final comments received on August 29, 2014. The
Final CIP Master Plan was submitted to Reclamation last week for final
review and acceptance.
It is anticipated that Reclamation will provide a formal response
to the Final CIP Master Plan in the form of a letter, and provided that
no additional comments warranting revision in the Master Plan are
supplied, the Final CIP Master Plan will then be provided for final
signature by the Crow Tribe's Chairman, Crow Tribal Water Rights Office
Director, and Engineer of Record (Bartlett & West). The Master Plan is
important as an overarching document with generalized approval of
projects over the duration of the settlement with expected oversight of
project specifications, funding adjustments, and other issues as they
arise.
2. CIP Environmental Assessment
The CIP Environmental Assessment (EA) is also nearing completion.
The CIP EA has been reviewed internally be Reclamation, and is
scheduled to be distributed for a one month public comment period by
September 15, 2014. Following the public comment period, a response to
all comments will be prepared, and all EA documents are expected to be
finalized. The issuance of a signed FONSI by Reclamation is anticipated
by the end of 2014.
B. CIP Completed and Future Work
Construction work on the Crow Irrigation Project under the
Settlement Act commenced in 2012, and has continued since that time but
in a somewhat reduced scope of activities. Construction work on
projects during this timeframe has been primarily limited to smaller
rehabilitation projects, and is contingent upon final sign off on the
CIP Master Plan to proceed forward at full scale construction. A number
of large rehabilitation projects are scheduled to commence construction
in calendar year 2015, and include major structures on the Bighorn and
Forty Mile Units, as well as the Willow Creek Feeder Canal (Lodge Grass
Feeder Canal).
Another significant issue that we have encountered (after engaging
in more specific project reviews and implementation) is that the
current condition of the irrigation structures and redesign options
from original cost estimates by engineering consultants have increased
in many cases (e.g., originally undersized bridges, culverts, etc.).
This fact poses new challenges for the Tribe and Reclamation to fulfill
the objectives of the CIP while staying within the $132 million budget.
We recognize that this ultimately means that the Tribe will need to
search for more creative solutions to resolve underlying unanticipated
and major estimated design system flaws (based primarily on poor
oversight and enforcement of the system by the BIA in the past).
One of the benefits of funding the rehabilitation and improvement
of irrigation systems on Indian Reservations is that the results are
tangible. You can see a tangible difference that Federal dollars make
on the ground in the day-to-day functionality of the systems in Indian
country. As such, we have provided a few examples below of what the CIP
looked like before and after the Crow Water Settlement implantation
began to demonstrate how the appropriated funds have made a difference
on the Crow Reservation to rehabilitate and improve much needed
segments of the CIP.
2012 Completed Projects
a. Agency Diversion
The Agency Diversion Riprap Repair project was completed by the
Crow Tribe Water Rights Department (``CTWRD'') during the fall of 2012
and spring of 2013. Work completed under this project generally
consisted of:
Placing compacted soil to fill the eroded bank area on the
east side of the Little Big Horn River.
Placing geotextile fabric and rock to armor bank area.
Site grading, surface restoration and seeding.
b. Lodge Grass No. 1
The Lodge Grass Canal No. 1 Headworks rehabilitation project was
completed by the CTWRD during the winter of 2012 and 2013. Work
completed under this project generally consisted of:
Construction of cofferdams and dewatering in Lodge Grass
Creek.
Demolition of a portion of the old deteriorated headwall.
Construction of a concrete overlay over the deteriorated
headwall.
Construction of two new concrete walkway support walls.
Installation of a new steel walkway over Lodge Grass Creek.
Site grading, surface restoration and seeding.
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c. Lodge Grass No. 2
The Lodge Grass Canal No. 2 Headworks rehabilitation project was
completed by the CTWRD during the winter of 2012 and 2013. Work
completed under this project generally consisted of:
Construction of cofferdams and dewatering in Lodge Grass
Creek.
Demolition of a portion of the old headworks structure.
Construction of new headwork structures including cast-in-
place concrete walls and slab and installation of precast
concrete box culverts and three slide gates.
Construction of two new concrete walkway support walls.
Installation of a new steel walkway over Lodge Grass Creek.
Site grading, surface restoration and seeding.
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2. 2013 Completed Projects
a. Bighorn High Check Emergency Repair
Emergency repairs were completed in the spring of 2013 to stabilize
the structure and to prevent its failure until it could be fully
rehabilitated in FY 2015. Work consisted of the following:
Backfill was imported to fill in the erosion
Extended downstream concrete apron
Install EPDM liner with riprap ballast to reduce further
erosion
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b. Reno O&M Road Improvements
It was determined that O&M road improvements were necessary from
the Old Hwy 87 Frontage Road to the Reno Diversion Dam and Headworks.
The improved road will provide all weather access to the Reno Diversion
Dam and Headworks and Siphon. It will also help facilitate construction
when the Reno Diversion Dam and Headworks and the Siphon are
rehabilitated and for future O&M activities on the structures
thereafter. The Reno Diversion Dam and Headworks is planned for
rehabilitation in FY2015. The Reno Siphon is planned for replacement in
FY2015.
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c. Rotten Grass Wasteway
It was determined that stabilization and erosion protection
improvements were necessary for the Rotten Grass Wasteway. Immediate
efforts were needed to protect the structure and downstream channel
from further erosion and damage, and allow for continued operation of
the wasteway.
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3. 2014 Completed Projects
a. High Check O&M Road Improvements
It was determined that O&M road improvements were necessary from
the Little Owl Loop Road to the vicinity of High Check. The improved
road would provide all weather access to High Check and the turnout for
Lateral 728. It would also facilitate construction when High Check and
High Drop are replaced and for future O&M activities on the structures
thereafter.
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4. Major Upcoming Construction Projects
There are a number of projects that are planned for 2015.
a. Willow Creek Feeder Canal Phase I, II, & III
Install riprap below the diversion dam and headworks
structures and install new slide gates on the headworks.
Replace the existing stop logs in the wasteway with a slide
gate and restore the radial gate to operation.
Remove brush and trees and reshape the canal prism.
Install earthen lining for select reaches of the canal to
address seepage concerns.
Construction of a new terminal drop structure.
b. Reno Diversion Dam, Headworks, and Flume
Install one Obermeyer gate and construct a radial gate
sluiceway.
Remove and construct a new headwork structure.
Remove and replace existing ramp flume.
c. Forty Mile Headworks & O&M Road
Remove the existing headworks and construct a new structure
with a new slide gate.
Remove the existing Parshall flume and constructing a new
Parshall flume.
Stabilize river bank adjacent to the new structure.
Complete improvements to the existing O&M road including
leveling, grading, and placing gravel.
d. Bighorn High Check
Removing old structure and replacing with a new check
structure.
V. Conclusion
Every Indian irrigation system is unique and poses its own
challenges. In our case, we are dealing with several decades of
deferred maintenance on the CIP that must be remedied on a strategic
and forward-thinking approach in order to make the most out of the Crow
Water Settlement funds. As we make progress, we will also have to
ensure that the future funds for operation, maintenance and replacement
are collected from users on a timely basis or we will face the same
funding shortfalls that plagued the system in the past. Even though we
have experienced a few temporary setbacks in the implementation of the
Settlement, we are headed in the right direction and are optimistic
that the CIP will ultimately be restored to the state it was originally
intended to be for the Crow Indian Reservation.
The Chairman. You are getting pretty darned good at this,
Mr. Chairman. You have two seconds left. Thank you very much
for your testimony.
Governor Paisano, you are up.
STATEMENT OF HON. STUART PAISANO, GOVERNOR, PUEBLO OF SANDIA
Mr. Paisano. Good afternoon, and greetings from the Pueblo
of Sandia. Chairman Tester, Vice Chairman Barrasso, and our
good friend and Senator Tom Udall and Committee members, thank
you for the opportunity to appear before you today and to
testify concerning some of the problems with the irrigation
infrastructure serving the Six Middle Rio Grande Pueblos in New
Mexico.
The Coalition of the Six Middle Rio Grande Pueblos, as the
name implies, is comprised of the six Pueblos whose lands are
within the Middle Rio Grande Valley: the Pueblos of Cochiti,
Santo Domingo, San Felipe, Santa Ana, Sandia and Isleta. The
Coalition, which used to be called the Pueblo Irrigation
Committee, focuses exclusively on water and irrigation issues.
The six Pueblos are the aboriginal occupants of the valley,
which now includes close to a million people located primarily
in and around the City of Albuquerque. The Pueblos' lands are
largely rural in character and we continue to practice and rely
on irrigated agriculture for our culture, as we have for
centuries.
Unfortunately, the six Pueblos, largely because they are
located in the most populous area of the State, no longer have
their own separate diversions and canals. Instead, the Pueblos
now depend on irrigation facilities that are owned by the U.S.
Bureau of Reclamation, but which are operated and maintained by
an entity known as the Middle Rio Grande Conservancy District,
or the MRGCD. Under Federal law the MRGCD is obligated to
maintain certain on-Pueblo irrigation facilities and to deliver
water to meet congressionally and federally recognized prior
and paramount water rights of the Pueblos, without charge, in
exchange for vital rights-of-way across the Pueblos.
For congressionally-recognized water rights for the
Pueblos' newly reclaimed lands served by the same Middle Rio
Grande Project, the Bureau of Indian Affairs contracts with the
MRGCD for operation and maintenance services. It is a
complicated agreement and one that, frankly, has historically
not worked for the Pueblos. Specifically, irrigation facilities
that only serve Pueblo lands have not been maintained as well
as those serving non-Pueblo lands. Consequently, the Pueblos
often have a more difficult time than our non-Indian neighbors
irrigating their lands and obtaining operations and maintenance
services. Attached to my statement are some pictures
illustrating the MRGCD's unequal maintenance of facilities on
the Pueblo versus non-Pueblo lands.
The irrigation facilities serving the Coalition Pueblos
were not reviewed and evaluated by the GAO back in 2006 because
they are not part of a BIA project, but it certainly would have
been useful had the GAO done such a review.
The BIA must do a better job in ensuring that the MRGCD
operates and maintains facilities serving the Pueblo lands on
an equal basis with facilities serving non-Pueblo lands. To its
credit, the BIA has recently shown an interest in achieving
this goal and Director Black has become personally involved in
negotiating for a new O&M agreement between the BIA and the
MRGCD. I also understand that Director Black and Assistant
Secretary Washburn have worked to secure sufficient funds for a
conditions assessment of irrigation facilities on Pueblo lands
and that BIA expects to enter into a contract for this
assessment work next month.
While the Coalition Pueblos greatly appreciate Assistant
Secretary Washburn's and Director Black's efforts, serious
problems still remain. Each year the vast majority of the
limited funds budgeted by BIA for operations, maintenance and
betterment of irrigation facilities serving the six Pueblos
goes for water delivery operations and routine maintenance,
such as mowing and dredging, not betterment work. Thus, our
antiquated and inefficient irrigation systems continue to
deteriorate. Without improved and efficient irrigation systems,
there is little incentive for our farmers to invest in higher
value crops or to increase the acreage they irrigate.
Inefficient systems also means that more water must be
diverted from the Rio Grande, which is a river that is
sufficiently over-appropriated. These problems were recognized
several years ago by former Senators Domenici and Bingaman who
co-sponsored legislation passed in 2009 known as the Rio Grande
Pueblos Irrigation Infrastructure Improvement Act. It directs
the Secretary, through the Bureau of Reclamation, to conduct a
study of irrigation infrastructure serving all of the Pueblos
in the Rio Grande Valley, based on the results of that study,
to develop a list of projects to repair, rehabilitate or
reconstruct irrigation infrastructure. The Act further
authorizes an appropriation of $4 million for the study, and
$60 million over a ten-year period for irrigation system
repairs and projects to modernize our systems and to make them
more efficient.
Unfortunately, funds have yet to be appropriated for any of
the work directed by the Act. To address this, Senators Udall
and Heinrich recently introduced a drought relief bill, S.
2470, which includes as one of its provisions reauthorization
of the Pueblos Irrigation Infrastructure Improvement Act. This
reauthorization would extend the time period for, and increase
the amount of, funding under the Act. The Coalition Pueblos
strongly support the reauthorization and the appropriations to
accomplish the Act's purpose.
Thank you again for inviting me to testify this afternoon
and I will be pleased to respond to any questions.
[The prepared statement of Mr. Paisano follows:]
Prepared Statement of Hon. Stuart Paisano, Governor, Pueblo of Sandia
Chairman Tester, Vice Chairman Barrasso and Committee members,
thank you for the opportunity to appear before you today and to testify
concerning some of the problems with the irrigation infrastructure
serving the Six Middle Rio Grande Pueblos in New Mexico.
The Coalition of Six Middle Rio Grande Pueblos, as the name
implies, is comprised of the six Pueblo tribes whose lands are within
the Middle Rio Grande Valley--the Pueblos of Cochiti, Santo Domingo,
San Felipe, Santa Ana, Sandia and Isleta. The Coalition, which used to
be called the Pueblo Irrigation Committee, focuses exclusively on water
and irrigation issues.
The six Pueblos are the aboriginal occupants of the Valley, which
now includes close to a million people located primarily in and around
the City of Albuquerque. Unlike Albuquerque and its environs, however,
the Pueblos' lands are still largely rural in character and we continue
to practice and rely on irrigated agriculture, as we have for
centuries. And--unlike relatively newer irrigation projects serving
lands that were never historically irrigated--the Pueblos' agriculture,
and the diversions, ditches and water associated with it, have long
been an integral part of Pueblos' culture and traditions.
Unfortunately, the six Pueblos, largely because they are located in
the most populous area of the state and surrounded by non-Indian lands,
no longer have their own separate diversions and canals. Instead, the
Pueblos now depend on irrigation facilities that are owned by the U.S.
Bureau of Reclamation, \1\ but which are operated and maintained by an
entity known as the Middle Rio Grande Conservancy District or the
MRGCD. Under federal law the MRGCD is obligated to maintain certain on-
Pueblo irrigation facilities and to deliver water to meet
Congressionally-recognized prior and paramount water rights of the
Pueblos, without charge, in exchange for vital rights-of-way across the
Pueblos. For Congressionally-recognized water rights for Pueblo ``newly
reclaimed lands'' served by the same Middle Rio Grande Project, the
Bureau of Indian Affairs contracts with the MRGCD for operation and
maintenance services. It is a complicated arrangement and one that,
frankly, has historically not worked well for the six Pueblos.
---------------------------------------------------------------------------
\1\ Except for the Isleta diversion dam, which is owned by the
Pueblo of Isleta and is currently operated by the MRGCD without any
legal authorization.
---------------------------------------------------------------------------
Specifically, irrigation facilities that only serve Pueblo lands
have not been maintained as well as those serving non-Pueblo lands.
Consequently, the Pueblos often have a more difficult time than our
non-Indian neighbors irrigating their lands and obtaining operations
and maintenance services. Attached to my statement are some pictures
illustrating the MRGCD's unequal maintenance of facilities on Pueblo
versus non-Pueblo lands. The irrigation facilities serving the
Coalition Pueblos were presumably not reviewed and evaluated by the GAO
back in 2006 because they are not part of a BIA project, but it
certainly would have been useful had GAO done such a review.
The BIA must do a better job in ensuring that the MRGCD operates
and maintains facilities serving Pueblo lands on an equal basis with
facilities serving non-Pueblo lands. To its credit, the BIA has
recently shown an interest in achieving this goal and Director Black
has even become personally involved in negotiations for a new O & M
agreement between the BIA and the MRGCD. I also understand that
Director Black and Assistant Secretary Washburn have worked to secure
sufficient funds for a conditions assessment of irrigation facilities
on Pueblo lands and that BIA expects to enter into a contract for this
assessment work next month.
While the Coalition Pueblos greatly appreciate Assistant Secretary
Washburn's and Director Black's efforts, serious problems remain. Each
year the vast majority of the limited funds budgeted by BIA for
operations, maintenance and betterment of irrigation facilities serving
the six Pueblos goes for water-delivery operations and routine
maintenance, such as mowing and dredging, not betterment work. Thus,
our antiquated and inefficient irrigation systems continue to
deteriorate. Without improved and efficient irrigation systems, there
is little incentive for our farmers to invest in higher value crops or
to increase the acreage they irrigate. Inefficient systems also mean
more water must be diverted from the Rio Grande--a river that is
significantly over-appropriated.
These problems were recognized several years ago by former Senators
Domenici and Bingaman who co-sponsored legislation passed in 2009,
known as the Rio Grande Pueblos Irrigation Infrastructure Improvement
Act. This Act was drafted primarily by Mike Connor, the current Deputy
Secretary of the Interior and former Commissioner of the Bureau of
Reclamation. It directs the Secretary, through the Bureau of
Reclamation, to conduct a study of irrigation infrastructure serving
all of the Rio Grande Pueblos and, based on the results of that study,
to develop a list of projects to repair, rehabilitate or reconstruct
irrigation infrastructure. The Act further authorizes an appropriation
of $4 million for the study, and $60 million over a ten year period for
irrigation system repairs and projects to modernize our systems and
make them more efficient.
Unfortunately, funds have yet to be appropriated for any of the
work directed by the Act. To address this, Senators Udall and Heinrich
recently introduced a drought relief bill, S. 2470, which includes as
one of its provisions reauthorization of the Pueblo Irrigation
Infrastructure Improvement Act. This reauthorization would extend the
time period for, and increase the amount of, the funding under the Act.
The Coalition Pueblos strongly support this reauthorization and the
requisite appropriations to accomplish the Act's purposes.
Thank you again for inviting me to testify this afternoon and I
will be pleased to respond to any questions.
Attachments
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The Chairman. Thank you, Governor. Thank you for your
testimony.
Council Member Ruth Jim, you may proceed.
STATEMENT OF HON. RUTH JIM, COUNCIL MEMBER, CONFEDERATED TRIBES
AND BANDS OF THE YAKAMA NATION
Ms. Jim. [Greeting in native tongue.]
Good afternoon. My name is Ruth Jim. I would like to
recognize the Creator, because water is very sacred. Without
water, irrigation can't happen.
Thank you for allowing me to testify today. I will now
summarize my testimony. I am a member of the Yakama Nation's
Tribal Council and Chair of the Tribal Council's Roads,
Irrigation and Land Committee. Our Tribal Council is the
governing body of the Yakama Nation and of the Yakama
Reservation.
I am testifying today because the Bureau of Indian Affairs,
through the Wapato Irrigation Project, WIP, needs to satisfy
its trust duty to the Yakama Nation and its members. WIP has
had some serious problems, and it is falling apart. There have
been numerous studies of the WIP by the GAO and the Department
of Interior. The BIA knows what the problems are. The BIA needs
to fix WIP so WIP can deliver water to our Indian lands.
The problems can be solved if the BIA spends the money
needed to fix WIP, so that it can deliver water reserved in our
treaty of 1855 to our lands. Old structures need to be replaced
or repaired. WIP is 100 years old this year, and needs work.
The problem is especially hard for our Indian lands. Most of
the lands within WIP are owned by the Yakama Nation and its
members. Many of our Indian lands cannot get water from WIP
because the project cannot physically deliver water to all of
the land within the project boundaries. In some cases, it would
require new canals, or in other cases, the lands, for instance,
on steeply-sloped areas, wouldn't hold water.
However, WIP still continues to bill us for O&M, even when
water isn't delivered. Many of our lands are also not being
irrigated because the BIA has not helped us get the lands
developed. The BIA has both failed to help Indian farmers
develop the lands and failed to get the land leased by others
if the Indian owner wants to lease the land. Many of our lands
are also in probate and are fractionated, which makes
management of them difficult. In some cases, especially when
highly fractionated, we do not even know all of the owners. The
lands that are not in production are referred to as idle lands.
Prior to 1980, the BIA helped fund the WIP operating
budget. Suddenly, the BIA designated WIP as a Class 1 self-
sustaining project, even though it had never been self-
sustaining. The combination of having 20 percent or more of the
project lands in idle status, the loss of BIA funds and the
sugar beet industry leaving the area all occurred in close
proximity to one another and created a serious financial burden
on WIP. While the BIA had already totally shirked its
responsibility to repair the project, it then got worse and
deferred maintenance became standard operating procedure.
There are solutions to these problems and we are working on
them. There are identified lands we hope to move to production.
There are areas outside of WIP, but on the reservation on which
we are examining the potential of transferring WIP water
rights. We are trying to be innovative, but we cannot solve
these problems without more time and an influx of Federal
funds. The Congress should direct that the Class I self-
sustaining status be changed to its former status.
We also ask that Congress please enact S. 715, including
the Barrasso amendment, which is now Title IV of that bill, as
reported by the Energy and Natural Resources Committee. Title
IV will quite appropriately allow projects such as WIP to
access the Reclamation Fund. Washington State is a Reclamation
Act State and that statute creating this fund indicates that it
is ``to be used in the examination and survey for and the
construction and maintenance of irrigation works for the
storage, diversion and development of waters for the
reclamation of arid and semi-arid lands in the said States.''
There is no reason why irrigation projects on Indian
reservations such as WIP or Wind River in Wyoming should be
denied access to the Reclamation Fund dollars, particularly at
a time when the fund is flush and we understand they have $12
billion in it. These funds would definitely allow us to fix the
project and use our treaty water on our reservation.
Once again, I thank you, and I would be pleased to answer
any questions. I also have an article from the Yakama Herald
where the BIA was almost, the water irrigators filed suit
against the BIA, a tort claim, to submit with my testimony.
Thank you.
[The prepared statement of Ms. Jim follows:]
Prepared Statement of Hon. Ruth Jim, Council Member, Confederated
Tribes and Bands of the Yakama Nation
My name is Ruth Jim. I am a member of the Yakama Nation's Tribal
Council and Chair of the Tribal Council's Roads, Irrigation and Land
Committee. Our Tribal Council is the governing body of the Yakama
Nation and of the Yakama Reservation. For many years our Tribe has been
dealing with problems related to the Wapato Irrigation Project, a
Bureau of Indian Affairs irrigation project on the Yakama Reservation.
I. Background
The Wapato Irrigation Project (``WIP'' or ``Project''), operated by
the Bureau of Indian Affairs (BIA), is an Indian irrigation project
located entirely on the Yakama Indian Reservation. WIP operates under
the direction of the Bureau of Indian Affairs Regional Director. The
Yakama Reservation covers an area of approximately 1.7 million acres in
south central Washington State. Water was reserved by the Yakama Nation
in the Treaty of June 9, 1855. The Nation's Treaty water is delivered
through WIP to Tribal and allotted lands. The three units comprising
the WIP have a combined total between 140,000 and 150,000 acres of land
within their boundaries.
Irrigation under the auspices of the BIA began in the Nineteenth
Century on the Reservation in the Toppenish Creek area shortly after
the Reservation was created. Irrigation also occurred from Ahtanum
Creek which forms the northern border of the Reservation. Assistance by
the Federal Government for the provision of irrigation water from the
Yakima River itself was initiated by the Indian Service (which is now
the BIA) with the construction of the Irwin or Old Reservation Canal in
1896-1897.
WIP was authorized by the United States government and planned by
the BIA in the early 1900s. In 1912, a report from the Department of
the Interior was presented to Congress which confirmed that the water
provided to the Yakama Nation from the Yakima River was inadequate. As
a result of this report the Secretary was ordered in the 1912
Congressional appropriations act to develop a plan to get more Treaty
water onto the Reservation:
That the Secretary of the Interior be, and he is hereby,
authorized and directed to investigate the conditions on the
Yakama Indian Reservation . . . with a view to determine the
best, most practicable and most feasible plan for providing
water for such lands . . .
Act of August 24, 1912, 37 Stat. 518
A report was also produced by Congress that recommended that work
proceed on enlargement of WIP for the use of additional Treaty water
for the Yakama Reservation. ``Report of the Condition of the Yakama
Indian Reservation, Washington,'' H. Rept. Doc. No. 1299 (62nd Cong.,
3d Sess.) (Jan. 24, 1913). Pursuant to this authority and this Report,
Congress appointed a commission to investigate and make recommendations
on providing additional Treaty irrigation water for the Yakama Nation
and its Reservation and the ``construction of an irrigation system'' on
it. Act of June 30, 1913, 38 Stat. 77, Sec. 23. Most of the facilities
comprising the Project were constructed between 1917 and 1950.
WIP is divided into three units. The surface water for the bulk of
the irrigated land is diverted to the Wapato-Satus Unit from the Yakima
River near Parker Washington. There are also smaller irrigation units
on Ahtanum Creek and on Toppenish and Simcoe Creeks which deliver
natural flow from those creeks for irrigation. Of the designated lands
entitled to delivery of water through the Wapato-Satus Unit of WIP, a
disproportionate number, about 27, 973 acres are idle Indian lands as
of 2000. ``Idle'' means in this context that these lands are entitled
to a delivery of water through WIP but are not being irrigated. The
land is not being irrigated due to a number of factors outside of the
control of the owner including an inability of WIP to actually deliver
water to many of those acres. Some of the idle land included in the
project is marginal for irrigation due to slopes and other factors such
as its location near the end of laterals resulting in poor water
supply. Such land can be farmed but requires the investment of a great
deal of money that is not available. Up to 7,000 acres of such land was
included in the project in the 1930's with the understanding that it
would not pay O & M because it could only occasionally be farmed. The
problems for these lands specifically and the Project in general can be
corrected but it will take a great deal of time and money to do so.
II. Problems With the Wapato Irrigation Project
As the above shows, WIP has been in existence for over a hundred
years. Many of the constructed works are between 50 and 100 years old.
Because of a lack of funds, necessary maintenance for this Project has
been repeatedly postponed. As it relates to all of the BIA irrigation
projects the Government Accountability Office has concluded that
because `` . . . .the BIA has historically not had adequate funds to
operate and maintain the projects, the projects are in a serious state
of disrepair.'' Indian Irrigation Projects--Numerous Issues Need to Be
Addressed to Improve Project Management and Financial Sustainability
GAO 06-314 (Feb. 2006) at p. 30. Reviews of WIP, in particular, have
repeatedly found problems in funding. In 1995 the Inspector General's
office of the BIA found that `` . . . sufficient funds were not
available to properly maintain the Project, and it has deteriorated to
the extent that several studies have concluded that the continued
ability of the Project to deliver water is in doubt.'' Final Audit
Report of the Wapato Irrigation Project, Bureau of Indian Affairs, (No.
95-I-1402) (Sept. 30, 1995) at p. 5. The Inspector General found that
WIP budgets would exclude the ``costs of needed capital improvements .
. . '' thus creating a situation where `` . . . maintenance was
performed only on an exceptional basis, whenever funds were available
to the Project.'' Id. at p. 6. The Inspector General concluded that ``
. . . [t]he lack of adequate maintenance, combined with the increased
age of Project facilities, has resulted in the deterioration of the
Project.'' Id. This was followed by a later GAO report on WIP. See,
Indian Programs, BIA's Management of the Wapato Irrigation Project,
GAO/RCED-97-124 (May 1997). Most recently the BIA has released a report
prepared for it by Dowl HKM which estimated that the cost of
rehabilitation and replacement of failing WIP facilities to be between
136 and 276 million dollars in 2013 dollars. See, Engineering
Evaluation and Condition Assessment, Wapato Irrigation Project, Vol. 1
(Oct. 2013) at p. vi (Executive Summary).
Part of the problem is due to the age of the Project. However, this
problem was exacerbated by the Department of Interior's decision in the
early 1980's to classify the Wapato-Satus Unit as ``financially able to
pay the full cost.'' Report of the Current Status of Indian Irrigation
Projects Administered by the Bureau of Indian Affairs (May 1988) at p.
23, 25. The Wapato-Satus Unit was arbitrarily listed as a Category I
project which the BIA called one that is `` . . . self-supporting, and
water users are required to pay the full cost of operation.'' Id. at p.
23. But WIP was never self-supporting. Hundreds if not thousands of
acres of Indian land within the Wapato-Satus Unit have never been
irrigated resulting in less land producing adequate funds to pay O & M.
\1\
---------------------------------------------------------------------------
\1\ Indeed some Tribal and individual lands that were designated
for the delivery of WIP water were known to be marginal lands at the
time they were included and have rarely or never been irrigated.
---------------------------------------------------------------------------
Until the 1980s, appropriated funds subsidized the operation and
maintenance costs for this idle land. The cessation of annual
appropriated funds in the 1980s unfortunately coincided with the
increase of idle lands. Marginal lands had previously been planted with
sugar beets. When the sugar beet industry collapsed in the Yakama area
about the same time, the idle lands increased dramatically. The U.S.
should have determined then that WIP was no longer self-supporting
(without conceding it ever was) and started providing appropriated
funds but failed to do so. This meant that there were fewer funds from
O & M coming into WIP to pay for its operation precisely at the same
time that federal appropriations also stopped. \2\
---------------------------------------------------------------------------
\2\ The fact that the BIA would charge Indian land owners O & M
fees for water delivery on lands that had never received any water was
confounding to the Indian land owners. Since the land (a) wasn't
getting any water; and (b) wasn't generating any income from crops to
pay O & M, many of the land owners didn't or couldn't pay their
assessments and there were no longer federal funds to help make up the
difference.
---------------------------------------------------------------------------
While there has been disagreement with BIA concerning the causes of
the deferred maintenance problem on WIP and the liability of Indian
owners of idle land to pay the O & M, there is no disagreement about
the underlying deferred maintenance problem. Indian people and the
Yakama Nation itself have been unwilling to pay O & M on this long term
idle land (including land that has never been irrigated) merely to
subsidize the federal government and non-Indian farmers. In many cases
WIP cannot even deliver water to these idle lands due to deteriorated
or non-existent delivery infrastructure.
The deferred maintenance has helped cause the following problems
among others:
a.) Supplies of water delivered through WIP are increasingly
unreliable due to deteriorating infrastructure. Last year there
was a failure of pumps on Unit 2 which caused a delay and
failure to deliver water to certain trust and fee lands
serviced by the Unit 2 Canal of WIP. Many other key facilities
critical to the operation of WIP are in a similar state of
disrepair. For example, the Main Diversion headgates and flow
control system are failing making it difficult to open and
close the gates and regulate diversions from the Yakima River.
b.) Leaky, unlined delivery canals have made irrigation
deliveries more difficult and inefficient. Lack of annual
cleaning and maintenance programs for these canals exacerbate
these problems.
c.) An increasing inability to convey irrigation water within
the WIP delivery system has made it more difficult to fully
deliver water to idle designated trust and allottee lands. This
has led to parcels designated for delivery not being leased and
a loss of assessed income to the WIP.
d.) Antiquated diversion structures and leaky, unlined
delivery canals result in poor water management and conveyance
losses. This has required the diversion of more water to meet
irrigation requirements on Ahtanum, Toppenish and Simcoe
Creeks. Downstream from the diversion points the project spills
canal water and discharges polluted return flows to Toppenish
and Simcoe Creek, then diverts these return flows onto other
portions of the WIP Project thus often impairing other natural
resources in these Creeks and degrading Cultural sites. While
instream flow for fish and other aquatic life is senior in
priority to all irrigation rights, pressure to divert extra
water for irrigation inevitably puts pressure on the
environment and the Yakama Nation's natural and cultural
resources. The Wapato Irrigation Project has a profound impact
on Toppenish Creek and its tributary Simcoe Creek, which harbor
their own distinct population of steelhead trout. Ahtanum,
Toppenish and Simcoe creeks are used as both a water supply and
a waste conduit by the Project. The Yakama Nation has
conceptual designs for using natural stream water more
efficiently, and for rerouting Project spills and return flows
directly to canals for use on Project lands without entering
these natural streams, but the Project lacks the funding to
fully develop and implement them.
III. Conclusion
The chronic deferred maintenance can be reduced if Congress does
the following:
a.) Adopts S. 715, particularly Title IV, so as to allow
access to the Reclamation Fund (which now has over $11 billion
dollars in it) to be used to address deferred maintenance on
Indian Irrigation Projects and to identify WIP as a priority
project for the use of these funds.
b.) Amend the Yakima River Basin Water Enhancement Project
(YRBWEP), P.L. 103-434, to increase funding levels for proposed
WIP improvements to account for inflation and projected
increased project costs. YRBWEP currently provides $23 million
in authorization for WIP improvements. YRBWEP was enacted to
address some of the water availability and fisheries issues
both on and off Reservation. Unfortunately, this authorizing
language for the Yakama Reservation, which was passed during
the 103rd Congress, does not provide for adjustments to current
day dollars. This lack of adjustment to current day dollars is
inconsistent with other sections of YRBWEP which do provide
adjustments for inflation for other portions of the Act. We
believe that this exclusion of the WIP improvement project
funding from having an inflation adjustment was a technical
oversight. This is an important issue to resolve because
funding of the Priority Irrigation Water Conservation and
Management Measures Plan for the Wapato Irrigation Project
(Priority Measures Plan) \3\ developed through the YRBWEP
program will require approximately $53 million (in 2004
dollars) to complete. The Priority Measures Plan was developed
to identify priority items for WIP conservation and
improvements after a much more comprehensive list of
rehabilitation and reconstruction items for WIP were determined
to exceed the YRBWEP authorization. Thus a shorter (although
certainly not complete) list of priority items was identified.
Without the ability to adjust the original $23 million
authorized for this project for inflation and provide an
increase in the original authorization limit amount, YRBWEP
will not provide the necessary funding to complete the
construction of the conservation measures outlined in the WIP
Priority Measures Plan.
---------------------------------------------------------------------------
\3\ The Plan was partially certified by the Secretary of Interior
for funding and implementation through the YRBWEP. Its major components
consisted of upgrading the Satus Unit of the WIP through installation
of a new downriver pumped diversion on the Yakima River and piping
water to users in the Satus, improved measurement facilities to enable
better Project water management and measurement of on-farm water
deliveries, development of a tiered O&M assessment classification for
irrigated parcels and creation of a water transfer/leasing system to
enable irrigation water transfer within the WIP.
c.) Congress should also request that the Secretary of the
Interior consult concerning the YRBWEP Priority Measures Plan
and help implement this so as to address the underlying WIP
problems. The Priority Measures Plan was partially certified on
August 28, 2006 in a letter from the Secretary's office.
However, the Secretary did not at that time certify two
components of the Plan concerning a change in the WIP operation
and maintenance rate structure and a plan to facilitate water
leasing and transfer within the Reservation. The Secretary has
agreed to continue to work on this without certification to
address the WIP structural problems. We ask your help in
facilitating resolution of these issues and provide authorized
funding for these key components of the Wapato Irrigation
Project.
Attachment
Water worries persist with Wapato Irrigation Project--posted on July 2,
2014--by Ross Courtney, Yakima Herald-Republic
WHITE SWAN--Federal authorities have declined to award damages to
farmers who claimed they lost crops last year due to neglience that
contributed to broken pumps and motors at the beleaguered Wapato
Irrigation Project.
Now many of those growers plan to sue.
''They denied every one of those claims,'' cattle rancher Larry
Doman said. ``Paid nothing, accepted nc responsibility.''
After a few months of easing tensions this spring, frustration is
high again on the Unit 2 canal, a remote ditch that irrigates 3,336
acres of orchards, hay, mint and other crops southeast of White Swan,
along the base of the Toppenish Ridge.
Officials with the Bureau of Indian Affairs, which operates the
Wapato Irrigation Project, denied a total of between $750,000 and $1
million in tort claims filed by ii farmers who say a June 2013 failure
at the pumphouse that supplies the canal left them with inadequate
water during the hottest stretch of summer.
Fields of corn and hay withered and died as growers prioritized
their irrigation rotation on the highest value crops.
Bureau attorneys argued the farmers provided no evidence the
problems were created by negligence.
''After reviewing your claim, I find no credible evidence to
establish any negligent or wrongful act or omission on the part of the
government in this matter that would qualify for compensation under the
FTCA (Federal Tort Claims Act),'' wrote Alexandra James, the regional
solicitor for the bureau in Portland, in a letter to all ii growers.
``Accordingly, your claim is hereby denied.''
Some of the growers are searching for attorneys to help them take
the fight to federal court.
''I can't blame them,'' said Bodie Shaw, deputy regional director
of the bureau's Northwest Regional Office in Portland. ``I've been a
farmer. If put in the same situation, I would do the same thing.''
Doman is trying to rally support for a class-action case, hoping to
find strength in numbers.
''The smart move for these guys is for all of us to band
together,'' Doman said.
Some farmers are preparing an appeal directly to the BIA while also
exploring a lawsuit, which must be filed within six months, said Aaron
Olson, another denied Unit 2 rancher.
Troubles with equipment and canals are nothing new on the 17
irrigation districts operated by the bureau throughout the West.
Scathing Government Accountability Office reports dating back to the
1970s decry weed-choked canals, dilapidated fish screens and numerous
other maintenance deficiencies, as well as hundreds of millions of
dollars in funding shortages due to complicated assessments and billing
disputes.
The irrigation projects must pay for their own maintenance and
operations expenses through grower assessments. They receive no
subsidies from the federal government, Shaw said.
The Wapato Irrigation Project, which supplies Yakima River
irrigation water to 225 square miles of the Yakama reservation, is the
largest of the 17 and it has the same problems as the rest. But things
were worse than usual last year on the Unit 2 canal.
The canal is supplied by the Toppenish Creek Pumphouse, built in
1933 and housed with World War II-era equipment.
Early last summer, a pipe that burst drenched pumps and motors,
forcing officials to haul in temporary pumps, which ended up having
their own mechanical glitches.
The problems combined to leave growers with rationed water during
the hottest periods of the summer and prompted the project to send all
three motors and some of the pumps to Portland, Idaho and Spokane for
repairs to the tune of nearly $650,000.
''They're arguing that no WIP employee is responsible for those
pumps going down,'' Olson, using an expletive, said. He lost much of
his corn and hay last year.
Both farmers and irrigation project officials have discussed the
need for maintenance, specifically at the Toppenish Creek Pumphouse, at
least as early as 2011, according to meeting minutes and letters of the
Yakama Reservation Irrigation District, the association of water
clients that pays the Wapato Irrigation Project through annual
assessments.
''We were screaming this needed to be taken care of,'' Olson said.
Meanwhile, the pumphouse problems still are not completely fixed.
The facility has a total of four pumps.
One is a small ``primer'' pump, used just in the startup process
each season.
The biggest is a 1,500-horsepower machine that, when operating
properly, sends roughly 60 cubic feet of water from a Toppenish Creek
pool up the slope of Toppenish Ridge to the headwaters of the Unit 2
canal.
Two others are 800-horsepower backup pumps that together provide
about the same amount.
Earlier this spring, the two smaller pumps were reinstalled and
hooked up to their motors. They are now providing 57 cubic feet of
water--just shy of the canal's capacity of 60.
The motor of the big pump, sent away for rebuilding, still is not
working. Meanwhile, one of the smaller pumps has a bearing with a
tendency to get too hot, said Ed Lewis, administrator of the Wapato
Irrigation Project.
That means the whole operation is relying on dicey backup
equipment, much like driving a car aroum on an already bald spare tire,
the growers argue.
Lewis said Riverside Electric Motor & Pump Specialists, the Parma,
Idaho, contractor hired to rebuik the motor for the large pump,
delivered by the May 31 deadline. But electrical problems have plagued
the equipment since then and the contractor's electrician took weeks to
visit the Yakima Valley to diagnose it himself, Lewis said.
Now, the equipment is scheduled to be repaired by July 7, Lewis
said.
The contractor has reliably repaired equipment before, Lewis said.
But he admitted he is getting frustrated.
''If we can't get this thing resolved ... we'll have to start
talking about voiding out the contract, doing something there,'' he
said.
Simply buying new pumps is way out of the project's price range,
Lewis said. They would have to be custom-built.
Lewis declined to discuss the tort claims but disagreed that
neglect caused the problems.
''I would disagree with that statement,'' he said.
The Chairman. Thank you, Councilwoman Jim. I appreciate
your testimony.
Mitchel Cottenoir, you are up.
STATEMENT OF MITCHEL T. COTTENOIR, TRIBAL WATER
ENGINEER, EASTERN SHOSHONE AND NORTHERN
ARAPAHO TRIBES OFFICE OF THE TRIBAL WATER
ENGINEER
Mr. Cottenoir. Chairman Tester, Vice Chairman Barrasso and
members of the Committee, thank you for inviting me to
represent the Eastern Shoshone and Northern Arapaho Tribes to
appear before you today.
I have submitted a detailed statement and now I will
summarize that statement. As Senator Barrasso earlier stated,
little has changed on the Wind River Irrigation Project since
the April 2011 field hearing held in Riverton, Wyoming.
Operation and maintenance assessments have continued to rise
and deferred maintenance continues to rise as well. The Bureau
of Indian Affairs, the entity that owns and operates the
project, continues to not have a long-term plan for
rehabilitation nor a short-term plan for rehabilitation. The
major rehabilitation efforts that have been undertaken have
been led by the Eastern Shoshone and Northern Arapaho Tribes.
The Bureau of Indian Affairs Irrigation staff at Wind River
is significantly understaffed and the system is operated
inefficiently with only minor necessary improvements. In an
effort to provide the required operational and maintenance
needs of the system the Tribes have encouraged irrigators in
the system to form users associations. These users associations
negotiate cooperative assistance agreements, CAAs, with the
Bureau of Indian Affairs to assume the operation and
maintenance on their designated portion of the system. A
percentage of the irrigation assessment is returned to the
association to provide funding for operation staff and needed
maintenance. Under the CAA the association has seen a dramatic
improvement over the overall operation and maintenance of their
part of the system compared to the past service provided by the
Bureau of Indian Affairs. Nevertheless, the overall project is
still in dire need of major improvement.
It is hoped that each association can accumulate a
rehabilitation fund that can be leveraged to acquire additional
funding from sources such as the Wyoming Water Development
Commission. The Eastern Shoshone and Northern Arapaho Tribes
strongly endorse the Barrasso amendment, Title IV of S. 715,
the Authorized Rural Water Projects Completion Act. The funds
that would be provided through this bill would provide for the
much needed rehabilitation of the Wind River Indian Irrigation
Project that has for decades been neglected by the Bureau of
Indian Affairs.
Additionally, these funds could be leveraged to acquire
additional funding from the State of Wyoming. While we
understand that S. 715 is not pending before the Indian Affairs
Committee, the Eastern Shoshone and Northern Arapaho Tribes ask
you as individuals to support successfully moving the bill
forward.
The Reclamation Fund now has surplus funds in it, certainly
more than has been expended in any one year. We live in the
middle of one of the Reclamation States. It is really not fair
that Indian Irrigation projects have not previously been able
to tap into that funding.
The Tribes have compiled a successful track record doing
rehabilitation work on the project. In 2004, in an effort to
facilitate the rehabilitation of the Wind River Irrigation
Project, the Eastern Shoshone and Northern Arapaho Tribes,
through the efforts of the Wind River Water Resource Control
Board applied to and were granted a $3.5 million grant from the
Wyoming Water Development Commission to aid in the
rehabilitation of irrigation structures. The State
appropriation was a 50 percent grant that required an
additional $3.5 million in matching funds before the State
funds could be used. Once again through the efforts of the Wind
River Water Resource Control Board, in conjunction with the
efforts of Senator Mike Enzi, a Federal appropriation of $3.72
million was secured to match the $3.5 million in State funds.
These funding sources were utilized to rehabilitate 15
major structures that were crucial to the operation of the
irrigation system and were considered to be in critical need of
repair or replacement. The total cost of this phase of the
rehabilitation project was $7.7 million. Without the efforts of
the Shoshone and Arapaho Tribes, this phase would not have even
taken place.
The current Federal and State appropriations have been
depleted now, and the Water Resource Control Board is going
forward with approaching the State of Wyoming to acquire
additional funds for rehabilitation. The Eastern Shoshone and
Northern Arapaho Tribes again, once again, endorse the Barrasso
amendment to S. 715.
Maintenance fees on the Wind River Irrigation Project
continue to rise. And our maintenance continues to decrease.
According to a 2008 HKM assessment, the total replacement cost
is about $69.6 million. Today those costs are $77.1 million.
I could go on more and more about the Wind River Irrigation
Project, but it is clear that the Bureau of Indian Affairs has
neglected it over decades. We encourage this Committee to help
move S. 715 forward to help with our further irrigation rehab.
Thank you once again for having me, and I look forward to
answering your questions.
[The prepared statement of Mr. Cottenoir follows:]
Prepared Statement of Mitchel T. Cottenoir, Tribal Water Engineer,
Eastern Shoshone and Northern Arapaho Tribes Office of the Tribal
Water Engineer
Chairman Tester, Vice Chairman Barrasso and members of the
Committee, thank you for inviting me as a representative of the Eastern
Shoshone and Northern Arapaho Tribes to appear before you today.
Little has changed on the Wind River Reservation Irrigation Project
since the April 2011 Field Hearing held by Senator Barrasso in
Riverton, WY. Operation and Maintenance Assessments have continued to
rise and deferred maintenance continues to rise as well. The Bureau of
Indian Affairs, the entity that owns and operates the project,
continues to not have any long term plan for rehabilitation of the Wind
River Irrigation Project. The major rehabilitation efforts that have
been undertaken have been led by the Eastern Shoshone and Northern
Arapaho Tribes, the Wind River Water Resource Control Board and the
Office of the Tribal Water Engineer.
The Bureau of Indian Affairs Irrigation staff at the Wind River
project is significantly understaffed and the the system is operated
inefficiently with only minor necessary maintenance. In an effort to
provide the required operational and maintenance needs of the system
the Tribes have encouraged irrigators in the system to form water users
associations. These associations have negotiated Cooperative Assistance
Agreements (CAA) with the Bureau of Indian Affairs to assume the
operation and maintenance of their designated portion of the system. A
percentage of the irrigation assessment is returned to the association
to provide funding for operating staff and needed maintenance. Under
the CAA each association has seen a dramatic improvement the overall
operation and maintenance of their part of the system compared to the
past services provided by the Bureau of Indian Affairs. Nonetheless the
overall project is in dire need of major repair.
It is hoped that each association can accumulate a rehabilitation
fund that can be leveraged to acquire additional funding from sources
such as the Wyoming Water Development Commission. We have had some
success in such efforts in recent years.
The Eastern Shoshone and Northern Arapaho Tribes, the Wind River
Water Resource Control Board and the Office of the Tribal Water
Engineer strongly endorse the Barrasso amendment (title IV) to S. 715,
the Authorized Rural Water Projects Completion Act. The funds that
would be provided thru this bill would provide for the much needed
rehabilitation of the Wind River Irrigation Project that has for
decades been neglected by the Bureau of Indian Affairs. Additionally,
these funds could be leveraged to acquire additional funding from the
State of Wyoming. While we understand that S.715 in not pending before
the Indian Affairs Committee, the Eastern Shoshone and Northern Arapaho
Tribes ask for your individual support in successfully moving the bill
forward. The Reclamation Fund now has surplus funds in it, certainly
more than has ever been expended in any year and we live in the middle
of one of the Reclamation States. It is really not fair that Indian
Irrigation projects have not previously been able to tap into this
fund.
The Tribes have compiled a successful track record doing
rehabilitation work on the project. In 2003, the Wyoming Legislature
passed House Bill 144 which allowed the Tribes to participate in state
funding toward water development projects. That bill was strongly
supported by both the Joint Business Council and the Wind River Water
Resource Control Board.
In 2004 in an effort to facilitate the rehabilitation of the Wind
River Irrigation Project, the Eastern Shoshone and Northern Arapaho
Tribes through the efforts of the Wind River Water Resource Control
Board applied to and were granted a $3.5M grant from the Wyoming Water
Development Commission to aid in the rehabilitation of irrigation
structures that were in dire need of repair or replacement. This State
Appropriation was a 50 percent grant that required an additional $3.5M
in matching funds before the State funds could be used. Once again
through the efforts of the Wind River Water Resource Control Board in
conjunction with the efforts led by Senator Mike Enzi, a Federal
appropriation of $3.72M was secured in 2005 and 2006 as matching funds
for the $3.5M in State funds.
These funding sources were utilized to rehabilitate 15 major
structures that were crucial to the operation of the irrigation system
and were considered to be in critical need of repair or replacement.
These structures include: the Johnstown and Lefthand Ditch diversion
and waste-way structures on the Big Wind River, the Coolidge Canal--
Trout Creek diversion structure, the Mill Creek--Ray Canal Crossing
structure, the Ray Canal--South Fork of the Little Wind diversion
structure, the Coolidge Canal--Little Wind diversion structure, Ray
Canal 11C, 39C and 59C diversion structures, Coolidge Canal 14B
diversion structure, the Sub-agency Canal--Little Wind River diversion
structure, the North Fork of the Little Wind River diversion chute
structure, and the Willow Creek and Meadow Creek diversion structures
in the Crowheart area.
Incorporated in the design and construction of the Coolidge and
Sub-agency structures are Fish Ladders. In addition to a Fish Ladder, a
Fish Screen structure was also designed and constructed on Ray Canal.
The fish passage will mitigate the loss of hundreds of thousands of
fish to the irrigation system. The fish passage project was a combined
effort among the Tribes, the US Fish and Wildlife Service, the Bureau
of Indian Affairs, Trout Unlimited and the State of Wyoming.
The total cost of Phase I of the Wind River Irrigation
Rehabilitation Project was $7,713,695.
Without the efforts of the Eastern Shoshone and Northern Arapaho
Tribes through the Wind River Water Resource Control Board, even these
phases of rehabilitation of the Project would not be occurring.
The current Federal and State appropriations are now depleted. The
WRWRCB plans on pursuing additional funds from both the Federal
Government and the State of Wyoming. The Tribes and the Wind River
Water Resource Control Board request the aid and assistance of both
Senators Barrasso and Enzi and the Senate Committee on Indian Affairs
to help secure future funding for the ongoing rehabilitation of the
Wind River Irrigation System. For this reason, the Eastern Shoshone and
Northern Arapaho Tribes, the Wind River Water Resource Control Board
and the Office of the Tribal Water Engineer again endorse the Barrasso
amendment (title IV) to S. 715, the Authorized Rural Water Projects
Completion Act. The 38,300 irrigated acres of the Wind River Irrigation
Project are assessed Operation and Maintenance Fees to finance the
Irrigation Project's operations, maintenance and administrative
functions. These O&M assessments have been historically low, but over
the past 20 years these rates have risen from a low of $10.90 in 1991
to $22 in 2014. With each irrigation season comes additional assessment
costs to cover increased budget shortfalls caused by mandated pay
raises for Bureau of Indian Affairs Irrigation Project employees. Even
with the rising assessment fees, little rehabilitation efforts have
been made.
According to the GAO Report 06-314 dated February 2006, the Wind
River Irrigation Project was authorized for construction in 1905 but
construction was never completed.
The Wind River Irrigation Project is comprised of 3 storage
facilities, 11 canals and 377 miles of canals and laterals. These
facilities provide water to 38,300 acres of which 67 percent is Indian
owned and 33 percent non-Indian owned.
According to the 1994 Natural Resource Consulting Engineers (NRCE)
Project Assessment and Plan, no Project-wide rehabilitation of the
delivery system has occurred since the 1930's. According to that study
due to deferred maintenance over many years, 60 percent or 1200
structures were in need of repair or replacement and 45 percent or 190
miles of canals and laterals need repair or reconstruction. According
to the study structure failures were routine resulting in the
progressive loss of control of Project water and that catastrophic
failure of segments of the delivery system was imminent. According to
the 1994 NRCE Project Assessment and Plan due to the Project's current
configuration, it only has 66 acres of irrigated land per mile of
canal. In comparison, Midvale Irrigation District has over 160 acres
per mile of canal. As a general guideline, the Bureau of Reclamation
suggests that irrigation projects, in the region, need at least 140
acres of irrigated land per mile of canal to be economically self
sufficient. The study also stated that the resulting poor delivery
performance had contributed to a progressive deterioration in crop
quality and the water users' ability to pay assessments. It is apparent
that the Wind River Irrigation System cannot be considered self
sufficient.
The condition of the Wind River Irrigation Project sadly continues
to deteriorate and little has changed since the 1994 NRCE Wind River
Irrigation Project Assessment, the 2006 GAO Report numbered 06-314 or
the 2008 HKM Wind River Irrigation Project Engineering Evaluation and
Condition Assessment. The 2008 HKM Wind River Irrigation Project
Engineering Evaluation and Condition assessment estimated the costs for
needed replacement construction to be $69,640,000. Inflation raises
those cost to approximately $77,091,500 in 2014.
Clearly something needs to be done. While we hope the Congress will
enact S. 715 with the Barrasso Amendment, we understand the odds of
that happening this year are not good. If funds are not made available
to deal with the repairs needed, the project will continue to lose
water, and both the Indian and non-Indian people who rely on the
project, as well as the fisheries impacted by the project, will all
suffer. Allowing for congressionally directed appropriations as Senator
Enzi was once able to do for us needs to be brought back and the
leaders in the highest levels of the Department of the Interior and at
OMB need to be forced to own up to what their neglect of this project
has caused.
What follows is a report on the Irrigation Rehab Project for which
the Tribes have submitted Level II Phase II Storage Site Study
Applications to the WWDC. These studies will identify at least 2
suitable storage sites on each of the Big and Little Wind Rivers. The
need for additional storage on the Wind River Reservation has been
graphically demonstrated during drought years when irrigators have been
shut off early in the summer months as early as the first or second
week in July. These photos graphically show what progress looks like,
i.e., what we can jointly accomplish when we have the funding as well
as demonstrate what happens when maintains is deferred and the project
is allowed to deteriorate.
In order for the rehabilitation effort to move forward, it will
take a united effort from the Eastern Shoshone and Northern Arapaho
Tribes, the Bureau of Indian Affairs, the Wyoming Water Development
Commission, and our State and Federal Legislators.
Your strong support of the Tribes and their efforts is of the
utmost importance. Our efforts will bring much needed relief to both
Tribal and non-Tribal irrigators on the Wind River Reservation.
We look forward to working closely with you now and in the future.
Thank you for your time and consideration.
Attachments
WIND RIVER IRRIGATION REHAB UPDATE by THE OFFICE OF THE TRIBAL WATER
ENGINEER
The Wind River Water Resource Control Board and the Office of the
Tribal Water Engineer appreciates this opportunity to up-date the
members of the United States Senate Committee on Indian Affairs on the
progress of the Wind River Irrigation Rehabilitation Project.
In 2004 the Wyoming State Legislature appropriated $3,500,000 thru
the Wyoming Water Development Commission to assist in the
rehabilitation of the Wind River Irrigation Project. These funds were
matched with two Federal appropriations in 2006 and 2007 totaling
$3,722,500. The combined funding was utilized to rehabilitate
irrigation structures in critical need of repair. To this date the
total estimated cost of rehabilitating the Irrigation Project remains
in the $90M range.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
During the 2010-2011 and 2011-2012 construction seasons the
following rehabilitation project structures were completed:
Coolidge--Trout Creek Diversion Structure
Johnstown Diversion Structure
Lefthand Ditch Diversion and Waste Way Structures
Ray Canal--Mill Creek Crossing Structure
Ray Canal Diversion Structure
Coolidge Canal Diversion Structure
Ray Canal Fish Screen Structure
Structures: 39-C, 11-C, 59-C, and 14-B
Total cost of rehabilitating these structures was $5,097,095.
In addition to replacing the Ray and Coolidge Canal diversion
structures, fish ladders were installed on both diversion structures to
enable aquatic life to migrate the stream above and below the diversion
structures. A fish screen structure was also constructed in the Ray
Canal down steam of the diversion structure. The fish screen will
prevent the loss of thousands of fish to the Ray Canal irrigation
system. The fish screen structure was built thru the collaborative
efforts of various agencies. Funding partners for the fish passage and
screens were: USF&W, Trout Unlimited, the Wyoming Wild Life Trust Fund,
BIA Wildlife Resources Branch, the WWDC and the Eastern Shoshone and
Northern Arapaho Tribes. These funding partners contributed an
additional $720,760.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The 2013-2014 construction season brought this phase of the Wind
River Irrigation Rehabilitation Project to a close. WWDC and Federal
Funding have been depleted with the start of the 2014 irrigation
season. Projects constructed during this period were:
North Fork Chute
Willow Creek Diversion Structure
Meadow Creek Diversion Structure
Sub-agency Diversion Structure
The total construction costs of these structures were
$2,616,599.29.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
It should be noted this rehabilitation project has provided an
economic boost to Fremont County, the State of Wyoming and the Wind
River Indian Reservation. State and local contractors and sub-
contractors have been utilized during the construction projects. These
contractors include:
Inberg-Miller Engineers (Riverton, WY)
Lowham Walsh LLC (Lander)
Dowl HKM (Lander)
High Country Construction (Lander)
71 Construction (Riverton)
Reiman Corp. (Cheyenne)
This phase of the Irrigation Rehab Project has barely scratched the
surface of the overall needs of the Wind River Irrigation Project. As
stated before the estimated cost of total rehabilitation is in the $90M
range. The Office of the Tribal Water Engineer has begun the process of
developing a Phase III list of priorities for rehabilitation. This list
and a cost estimate will be brought to the WWDC during the next funding
cycle, in November of 2014.
*Phase III photos of structures on the priority list have been
retained in the
Committee files*
The Chairman. Thank you, Mitchel, thank you for your
testimony. Thank you all for our testimony.
Senator Barrasso?
Senator Barrasso. Thank you very much, Mr. Chairman. Thanks
to each and every one of you for bringing these stories to us
today.
If I could ask just a couple of questions, first, Chairman
Old Coyote, in your written testimony, you noted that despite
some temporary setbacks in improving the Crow Irrigation
Project, that ultimately progress is being made in the right
direction. You also noted that the improvements to the system
did actually provide tangible results.
Can you just tell us a little bit about how your tribal
members and the economy can benefit, have benefited or will
benefit from the improvements to the Crow Irrigation Project?
Mr. Old Coyote. There is a portion in the settlement that
anticipates the tribes buying land for farming, taking land
into trust, using provisions in the settlement and developing
that land for tribally-owned farms. We will be using those
provisions as the project develops.
We do not currently anticipate any significant non-tribal
development of additional acreage. So that is one of the
impacts on the tribe.
Senator Barrasso. Thank you.
Mr. Cottenoir, last fall we talked a little bit about that
amendment, S. 715, to the Authorized Rural Water Projects
Completion Act, which would assist in the rehabilitation of
Indian irrigation projects. Your written testimony states that
the irrigation funding could then be leveraged to access
additional funding for rehab and repairs.
Can you just tell us a little bit more about how this rehab
would benefit the tribes, the members, the local economies that
surround the Wind River Reservation?
Mr. Cottenoir. Yes, Vice Chairman Barrasso. The funding
that we could get through S. 715 could be leveraged through to
acquire funds from the State of Wyoming through the Wyoming
Water Development Commission. Our previous matching funds were
acquired through the efforts of Senator Enzi, that was $3.72
million. We were able to able to match the $3.5 million with
the State of Wyoming to acquire the $7.7 million that we used
in our irrigation.
Those funds over the past few years have been an economic
boost to not only the Wind River Reservation but to Fremont
County and the State of Wyoming. We have utilized local
contractors that provided all the work, all the contractors
were from within the State of Wyoming. Through our TERO
ordinance, the contractors had to employ Indian contractors and
Indian workers. So that provided dramatic boosts to our economy
over that period of five years.
Senator Barrasso. The other thing that caught my eye when
reading your written testimony and also hearing your oral
testimony today was how the water users on the Wind River
Reservation have formed associations, associations to assume
the operation and maintenance of their portion of the Wind
River Irrigation System. And the associations, as you said,
have seen a dramatic improvement in the overall operation and
maintenance of their part of the system compared to the past
services from the BIA.
So can you just explain a little why there is such an
improvement when the associations take over the operations and
the maintenance of the system?
Mr. Cottenoir. Yes, Senator Barrasso. As you mentioned, the
O&M costs on the Wind River continue to rise and the deferred
maintenance continues to increase. BIA does little if any
maintenance. It is mostly operations. All the funds that they
collect go mainly for the statutorily mandated wage increases
for BIA personnel.
In our irrigation associations, which the tribes are
encouraging to be going out and negotiating more and more
cooperative agreements, the BIA collects the O&M still, but
then they return a portion of that, probably 50 percent of
that, to the association. The association goes out and hires
their own operational people and they have their own
maintenance schedule. They are able to fund through their own
efforts the maintenance necessary on their portion of the
irrigation system. And the Crowheart has two of these
associations, and we have a Ray Canal Association which was
just formed. Since the time of the formation of those groups,
there has been a drastic improvement over the services and over
the maintenance that has been provided. BIA, through their
inefficient and ineffective management and operation, they
can't provide those services and they can't provide the
maintenance necessary. The CAAs enable the water users to go
ahead and take care of their needs, the needs that they see
that are needed and the maintenance and operation that the BIA
cannot or will not provide.
Senator Barrasso. Thank you very much. Thank you, Mr.
Chairman.
The Chairman. Thank you. Senator Udall?
Senator Udall. Thank you, Senator Tester, and thank you for
the courtesies on the time here.
Let me thank, first of all, all the witnesses. I think you
have given very good testimony on these irrigation issues. The
thing that is important here is I think throughout this there
is a theme about BIA neglect on these irrigation issues that
this Committee needs to take notice of.
I have a couple of comments and then a couple of questions
to Governor Paisano. As you mentioned, Governor Paisano,
Senator Bingaman had a piece of legislation called the Rio
Grande Pueblos Irrigation Infrastructure Improvement Act. We
have built on that act in terms of putting in, Senator Heinrich
and I, the New Mexico Drought Relief Act. We put that in to
address this and other irrigation and water delivery issues. It
calls for the reauthorization of Senator Bingaman's act, and an
increase in funding for infrastructure. This legislation would
also authorize emergency and non-emergency funding to further
support water deliveries and irrigation for New Mexico Pueblos
and other communities.
I would also like to just mention the Navajo Irrigation
Project, which has begun to accumulate a backlog of
maintenance, despite being years from completion of the
project. This project is vital to the Navajo economic
development and is a result of a decades-old agreement with the
Federal Government. The project is years behind schedule and
this demands the attention of our Committee and the BIA. I
would invite my colleagues on the Committee to work with me, to
increase appropriations for Pueblo infrastructure and for the
Navajo Irrigation Project and other tribal irrigation funding
through the Interior Department appropriations.
Now, Governor Paisano, can you just give us a sense of how
much of a priority is irrigation infrastructure improvement and
related water issues for your administration at Sandia Pueblo
and for the other six Middle Rio Grande Pueblos?
Mr. Paisano. Chairman Tester, Senator Udall, water is such
a huge priority. One thing I didn't mention here, because of
the sensitivity of time, is related to the cultural aspects of
water, what that means to us. My colleague here, Councilwoman
Jim, recognized that at the beginning.
You can't even place a value on that culture, the history
and the traditions. It is hard to convey in the English
language. But besides that, water delivery to our farmers in
order to provide food for our community, food for the families,
to provide a source of economic development for them, is a
priority for the six Pueblos of New Mexico. We consistently are
fighting with the BIA. We are caught in the middle between two
Federal agencies, that is the Reclamation and BIA. And then
another third party, the MRGCD, which is a totally different
entity, and our farmers and the Pueblos are caught in the
middle.
We are being left out because we are not the ones writing
the check. So we typically don't get listened to, so to speak.
So it is an uphill battle for us. Over the years it has become
a little bit better with the increased involvement with the
BIA. But we need funding to help fix the infrastructure in
order to get that water delivered to the six Pueblos.
So that is our number one priority right now. Because of
the cultural sensitivity of it, providing nutrition for the
members of our communities and to also provide a sense of
economic development for our farmers in growing higher value
crops, such as alfalfa, the sweet sudans, and/or foods like
corn, lettuce, tomatoes, chili, et cetera.
Senator Udall. Thank you, and it is very important, the
emphasis on the cultural side of this. You are struggling to
maintain your language, you are struggling to maintain your
culture. Water is intimate to that. And the production of
agricultural products really makes a difference there. I am
glad you emphasized that, and the other witnesses did too.
Could you in just a few seconds here, because I am running
out of time, give us an idea what you think the BIA could be
doing to be more supportive of your situation? They are a key
agency here.
Mr. Paisano. One key thing probably would be the
instability of the staff. Over the last five years, we have
gone through three designated engineers. That is the individual
who is assigned by the BIA to help coordinate this water
delivery and maintenance of our infrastructure with the MRGCD.
There is a lot of turnover in the BIA, and that doesn't help
us. That is probably one key priority that they could help us
with. Obviously the funding already mentioned.
Senator Udall. Well, we have to do everything we can, I
think, Senator Tester, to help push the BIA to get more
involved in all these irrigation situations. Thank you so much
for bringing the attention to this. I really, really appreciate
it.
The Chairman. Thank you, Senator Udall, for your questions,
and thank you for your interest in the issue. A lot of these
problems aren't going to be solved unless we appropriate the
kind of money we need to be able to support the projects.
You had a question or comment?
Ms. Jim. Mr. Chairman, I would like to make a correction to
my testimony.
The Chairman. Sure.
Ms. Jim. I stated $12 million. It is supposed to read $12
billion. I want you to excuse me for that.
The Chairman. A small bit.
[Laughter.]
Ms. Jim. Thank you for allowing me to make that correction.
The Chairman. Absolutely. I have a few questions here.
Chairman Old Coyote, your testimony stated that a couple years
back there was negotiating between yourselves and the Bureau of
Rec since your tribal water settlement has been approved. A
couple of things, what kind of issues came up, but more
importantly, what is your relationship with the Bureau of Rec?
Mr. Old Coyote. Thank you, Chairman Tester. There were a
lot of issues, some technical oversight issues, some on budget.
The biggest issue I mentioned in my testimony initially was
that they were requiring the tribe to advance all the money
from our general fund budget, which was nearly impossible.
These have largely been resolved, and now we have the master
plan, which we are hoping, we expect to have approved very
soon. With a big ramp-up in construction right now, there is
close to 28 construction jobs. And with the master plan being
approved, that will ramp up to like 50 for the next three or
four years.
So our relationship with BIA, we have always had an
excellent relationship with Mike Connor. He has been one of the
most pragmatic and decisive people we have dealt with. Our
relations with the region have not always been as good, but
currently are in a fairly good place and we hope they stay
there.
The Chairman. The Crow irrigation project was included in
the 2006 GAO report, which stated the project had over $50
million in deferred maintenance back in 2006. The maintenance
for the project was included in the tribal settlement that was
passed since then.
Based on your tribe's experience of coupling the irrigation
infrastructure with water settlements, I just want to make it
clear, I think you addressed this in your testimony, but I want
you to make it clear, what advice do you have for us lawmakers
as far as considering laws that would improve tribal access to
water and coupling maintenance with water settlements, for
example?
Mr. Old Coyote. Chairman Tester, thank you. First, the
future water settlements must include a sufficient level of
mandatory appropriations. The Crow Tribe, the Crow Nation is
extremely fortunate that our settlement included mandatory
funding, thanks to you and Senator Baucus for seeing the need
there for mandatory funding.
Another aspect of funding that Congress should include is
the flexibility to shift funding among relevant accounts. Right
now we have a CIP and MR9, both accounts shifting among
relevant accounts. That is another area that we would make
suggestions as well.
The Chairman. Okay. Question for you, Governor Paisano, and
thank you, Chairman Old Coyote. Your testimony states that the
BIA pays the Middle Rio Grande Conservancy District for the
operations and maintenance of the irrigation system on Pueblo
lands. But that same conservancy district has not done a very
good job of treating Pueblo lands equally with others. Do they
give you any reasons for that?
Mr. Paisano. Chairman Tester, quite honestly, no. The BIA
has appropriated about a million dollars a year for the
services. The BIA automatically takes off about $150,000 of
that for salaries, I guess, for the designated engineer. So
what is left to negotiate for those services is about $850,000.
Whatever is left is very little, typically, in order to improve
our infrastructure. But it is kind of a give and take. It is
all relationship building in New Mexico. And we don't have a
good working relationship with the MRGCD at the upper echelon.
We do with the on the ground folks.
But the on the ground folks, when we ask them, we
literally, and I have seen it happen, bribe them to, we will go
out and get them breakfast burritos, we will take them
doughnuts, and so forth, and they'll mow our irrigation
ditches. That is literally what it has come down to, is
building that relationship.
But when they get upset at you, they say, sorry, we haven't
been paid, we are not going to cut the weeds, we are not going
to fix the ditches. It is quite a mess, quite honestly.
The Chairman. Is there any accounting of Middle Rio Grande
Conservancy District's use of the funds that they get from the
BIA?
Mr. Paisano. We have started to build our own. That is
something we have asked to have done. To my knowledge, I don't
believe it has been officially. We take photographs, we mark
the date that they are out there doing some work for us. And we
then give that information to the BIA. Then we somewhat have an
internal document that we will sign off on before the BIA will
pay the funds to MRGCD for the services rendered.
But if they are not paid, once again that goes back to,
hey, we did this much, and BIA says, oh, no, you only did a
quarter of a mile, then they stop all work on all the Pueblos
until they get paid.
The Chairman. Thank you, and thank you for your testimony
also.
Councilwoman Jim, it is good to have you here too. Your
testimony indicates that the Wapato Irrigation Project was
erroneously listed as a self-sustaining project by the DOI back
in the 1980s. So could I ask you, even if we come up with the
funding to fix the deferred maintenance issue, the project
itself would not be collecting enough O&M fees to keep the
maintenance up to date. Is that a correct assessment or am I
off on that one?
Ms. Jim. No, it isn't, because the Wapato Irrigation
Project is on the Yakama Reservation. We do have our lands that
are owned by tribal members that are leased. But being that
they are fractionated, then you run into the incapability of
leasing that land, because maybe the biggest share landowner
has expired and then so it is in probate. Then you have probate
upon probate.
The Chairman. So I would assume you guys are involved with
the buyback program?
Ms. Jim. We did put a letter of intent in. But we were
informed by Genevieve or GG, whatever the lady that is in
charge now, not to do anything for 60 months.
The Chairman. We will follow up on that, too. It is an
important issue for tribes across this Country and it was set
up to help remedy situations exactly like you have. I say that
as I am looking at the Crow and they are in the same program,
probably all of you are, quite frankly.
You have a number of projects, as per your testimony. And
you have a large number of acres that aren't irrigated on your
reservation. If we fix the deferred maintenance, would that
save enough water to open up some more acres?
Ms. Jim. Yes, it would. Like I stated in my testimony,
there have been numerous studies on all Indian irrigation
projects. During the last study, they said it would cost
approximately $136 million to $276 million just to do the rehab
of Wapato Irrigation Project. And this wasn't even recent.
The Chairman. Well, thank you for being here today, thank
you for your testimony. We very much appreciate it.
Mitchel, your testimony discussed some of the construction
projects to repair the Wind River Irrigation Project in the
last 10 years, after getting some funding from the State and
the Feds. Can you estimate how many jobs this funding helped to
create?
Mr. Cottenoir. Senator Tester, I believe that it is in the
order of 100 jobs that were created for construction people. We
employed five different engineering firms to do design work.
The Chairman. Over how long of a period?
Mr. Cottenoir. Since 2006, I believe, is when the design
work began. The construction phase just concluded this past
spring.
The Chairman. Okay. Could you discuss the impact that the
Wind River Irrigation Project has on both tribal and the non-
tribal community, both, what impact does it have?
Mr. Cottenoir. The impact on both tribal and non-tribal are
the same. We are pretty much a checkerboard area, where tribal
and non-tribal irrigators are side by side. So both tribal and
non-tribal irrigators are dependent on this inefficient and
mismanaged system that we have had for decades. It is just a
hardship for everyone, tribal and non-tribal. It doesn't
distinguish between tribal and non-tribal.
The Chairman. This question is for all of you. It is just a
question on who benefits from these irrigation systems. Is it
the tribes? I am talking about the tribal government and the
tribes. Are they able to take advantage of irrigation systems
and improvements? Or does the primary advantage go to
individual farmers that may either have or lease tribal lands?
Mr. Old Coyote. The benefit is to landowners, it increases
the value of their lands. Also the farmers and ranchers, for
the crops and farming, it increases their farming as well. So
the benefit goes to the farmer. The reason why I say farmer is
that a lot of times, the landowners are tribal members and the
farmers are non-Indians. So it benefits both.
The Chairman. Okay. Governor Paisano, how about in your
neck of the woods?
Mr. Paisano. Chairman Tester, in New Mexico, in the Middle
Rio Grande Valley, probably, I have to say that the individuals
that benefit the most are the non-Pueblo irrigators. You see in
the pictures that I provided to this Committee, because the
infrastructure is so outdated and not maintained within the
reaches of the Pueblo, the water just goes straight through and
then everything is being cleaned and maintained and so forth to
non-irrigators. And whatever water we don't use, it gets dumped
back into the Middle Rio Grande River to help support the
silvery minnow, which is under the Endangered Species Act, and
then it goes further south to a reservoir called Elephant
Butte, that then goes to Texas to help with the compact
routine, Colorado, New Mexico and Texas.
The Chairman. Do you have additional acres that you could
put under irrigation if there was water available to irrigate?
Mr. Paisano. Yes.
The Chairman. Councilwoman Jim, same question. Who gets the
advantage out of the improvements? Is it the tribes, the
members, the farmers, who is it in Washington?
Ms. Jim. All of the above.
The Chairman. Really? Okay.
Ms. Jim. Yes, because the Tribe owns a lot of land, tribal
tracts. We still have a lot of Indian landowners. And we have a
lot of farmers in the Yakima Valley.
The Chairman. Mitchel, how about you?
Mr. Cottenoir. Senator Tester, I think I agree, all of the
above are the ones that get the advantage to improvements on
our irrigation system. At Wind River we have a water code that
has 15 beneficial uses, and they are outlined in the code. It
goes all the way from domestic to cultural to irrigation. But
each and every one of those uses are held at the same priority.
I think that ultimately, right now, the people that most
benefit from our irrigation system are the downstream water
users, the water users off the reservation. Because of our
inefficient system, the deferred maintenance, the lack of
storage, we can't use the water when we have it. So the actual
beneficiaries of our water at the present are the downstream
users off the reservation.
The Chairman. Once again, thank you all. We appreciate your
testimony and appreciate the answers to the questions today,
and I appreciate your making the trek here to Washington, D.C.
Note that the hearing record will be open for two weeks from
today for any additions.
With that, this hearing is adjourned. Thank you all.
[Whereupon, at 3:50 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Edward T. Begay, Chairman of the Board of
Directors, Navajo Agricultural Products Industry
Introduction
Good afternoon Chairman Tester, Vice Chairman Barrasso, and members
of the Senate Committee on Indian Affairs. I am Edward T. Begay and I
am the Chairman of the Board of Directors for the Navajo Agricultural
Products Industry (NAPI), an agricultural company chartered under the
laws of the Navajo Nation. I am pleased to submit this Statement for
the Record relating to the Committee's Oversight Hearing titled,
``Irrigation Projects in Indian Country.''
Background on the Navajo Indian Irrigation Project
In 1868, the United States Senate ratified a Treaty with the Navajo
Nation which recognized the importance of agriculture to the self-
sufficiency of the Navajo people.
In 1962, after ten years of intense negotiations between the Navajo
Nation, the State of New Mexico, and the United States, Congress
authorized the Navajo Indian Irrigation Project (``NIIP,'' Pub.L.87-
483), to fulfill, in part, the United States treaty obligations to
supply water and a farming operation for the Navajo Nation. The
legislative history, as well as the text of the 1962 statute, makes
clear the Federal commitment to build an 110,630-acre, irrigated-farm.
The 1962 Act authorized $135 million for these purposes. In 1970,
Congress amended the Act and increased the authorized appropriations to
$206 million. In 2005, the Bureau of Indian Affairs (BIA) indexed this
figure to 2005 dollars and estimated that there might be as much as
$229 million in funding that could be appropriated without the need for
a fresh authorization.
It was originally estimated that the NIIP would be completed in
about twelve years, in tandem with a companion project--the San Juan-
Chama Project. The Navajo Nation made valuable concessions in exchange
for the NIIP, allowing water from the San Juan Basin (to which the
Navajo Nation had valid claims) to be transported to the Rio Grande
Basin in New Mexico, for the substantial benefit of non-Navajos. The
San-Juan Chama Project was completed in 1976, and the residents and
businesses of the Rio Grande Basin have been enjoying the benefits of
the bargain for nearly forty years.
The NIIP construction began in 1964 and fifty-two years later, only
seventy percent has been completed and, as one would expect, the NIIP's
physical infrastructure has begun to fall into serious disrepair.
NAPI's Operations and Economic Importance
On April 16, 1970, NAPI was established by the Navajo Nation
Council as a tribal enterprise to manage and operate the NIIP. The idea
behind NAPI was to both manage the NIIP and to create economic
opportunities for the Navajo people and to build a foundation of
commitment, pride, and dedication to their Nation.
Today, NAPI operates a 75,000-acre farm in Farmington, New Mexico,
generates $69 million in revenues to the Navajo Nation and San Juan
County, employs more than 417 people in the Four Corners Area, and
purchases tens of millions of dollars in goods and services both
locally and across the Nation. In its operations, NAPI has stressed the
use of the state-of-the-art technology and environmentally-friendly
practices. NAPI's agribusiness features state-of-the-art farming
equipment, including high-tech radio control, and a computerized center
pivot irrigation system that reduces operational costs and efficiently
manages water resources.
NAPI produces premier ``Navajo Pride'' brand agricultural products,
including alfalfa, corn, wheat and small grains, potatoes, and pinto
beans. NAPI also operates a flour mill and leases land for cattle
grazing, and specialty crops, including pumpkins, popcorn, and chipper
potatoes used for potato chips. Our products have earned the
distinction of being ``New Mexico Grown'' by the New Mexico Department
of Agriculture.
Through its Operation & Maintenance Division, NAPI manages the
operation and maintenance of the NIIP pursuant to Pub.L.93-638 (Indian
Self-Determination and Education Assistance Act), including Operations
and Maintenance (O&M), On-Farm Development (OFD), and Agricultural
Testing Research Laboratory. While the Bureau of Reclamation, a
contractor to the BIA, is responsible for the planning, design, and
construction of the NIIP, the BIA has the sole responsibility,
including funding requirements, to complete the NIIP.
NIIP Funding Inadequacies
Annual funding for the NIIP O&M was approximately $26 million per
year during the Clinton Administration and $14 million during the Bush
Administration. Despite promises of unconditional support by the Obama
Administration, the budget for the NIIP O&M has been reduced by more
than $9 million to a paltry $4 million for the past three fiscal years.
The Fiscal Year 2015 budget request includes $3.384 million for the
NIIP.
The NAPI Board believes the NIIP O&M funding is wholly inadequate.
This level of funding creates a large deferred maintenance backlog. The
BIA Irrigation O&M account receives approximately $11 million annually
and is used primarily for court-mandated payments, statutory
requirements, and water storage costs. Currently, as much as one-third
of the $3.384 million NIIP O&M funding pays for electricity for
pumping.
NAPI is currently facing an urgent dilemma with the NIIP's 3500
linear foot main canal which requires concrete canal lining replacement
and drainage embankment repairs. The NAPI Board has urged the BIA to
address these matters to prevent a possible catastrophic failure of the
main canal during normal operations, which would result in a failure to
deliver water to most of the NAPI farming land.
The Authorized Rural Water Projects Completion Act (S. 715)
In April 2013, former Senator Max Baucus (D-MT) introduced the
Authorized Rural Water Projects Completion Act (S. 715). The measure
establishes, in the U.S. Department of the Treasury, a Reclamation
Rural Water Construction Fund. An amendment sponsored by Vice Chairman
Barrasso added three additional accounts: the Rural Water Project
Account, the Indian Irrigation Account, and the Reclamation
Infrastructure and Settlement Implementation Account.
S. 715 directs the Secretary of the Treasury to transfer $150
million and any interest earned from the existing Reclamation Fund into
the proposed fund annually through 2035. This amount includes annual
funding of $80 million for rural water projects, $35 million for Indian
reclamation infrastructure and settlement claims, and $35 million for
Indian irrigation projects. The bill authorizes appropriations of
annual deposited amounts plus earned interest to complete underfunded
rural water projects, settles Indian water claims, and maintains
irrigation projects on tribal lands. Indian irrigation projects that
have not been funded for the last fifteen years would be given a
priority.
In addition, S. 715 directs the Secretary of the Interior to
consult with tribal governments and conduct a study that evaluates
options for improving programmatic, project management, and performance
of irrigation projects managed and operated by the BIA.
The NAPI Board strongly supports S. 715 and urges the Committee to
support passage of the bill in the 114th Congress. Further, we wish to
thank Vice Chairman Barrasso for his support in proposing a strong
tribal amendment to S. 715.
Conclusion
The history of Federal funding and support for the NIIP and related
activities reveals that partial and delayed funding has resulted and
continues to result in delayed or derailed economic opportunities, job
creation, and chronic problems in maintaining physical infrastructure
and irrigation equipment.
This concludes my written statement. Thank you for providing me the
opportunity to submit this Statement for the Record.
______
Prepared Statement of Hon. Fred S. Vallo, Governor, Pueblo of Acoma
The people of the Pueblo of Acoma are residents of the longest
continuously occupied community in the United States. For centuries,
our people have relied upon traditional farming as a means of survival
and as a deeply held cultural belief. Crops like traditional Acoma
white corn are used in religious ceremonies. As the Committee is aware,
torrential rains and floods during 2010, 2011, 2013, and 2014 resulted
in serious damage to our irrigation facilities. These environmental
catastrophes paired with years of inadequate maintenance to existing
structures have created serious problems with diversions along the
system. We provide this comment in strong support of significant
funding to restore and renovate Pueblo irrigation ditches.
Anzac Irrigation Ditch was significantly damaged by flooding
events, and we have since struggled to initiate and complete repairs
under Force Account while coordinating traditional irrigation events
and usage with seasonal restrictions and other flood disaster events.
Unfortunately, the continual onslaught of environmental events along
with other issues have resulted in unavoidable delays to our repairs,
which continually compound the problem of irrigation water delivery and
progressing damage. In April 2014, we contracted repair services with a
priority schedule to make full repair and restoration. Concerns over
potential quantity and unit cost overruns were brought to the attention
of all participants, including the New Mexico Department of Homeland
Security and Emergency Management (DHSEM).
Ditch cleanup and lining removal revealed damage and repairs well
beyond the original FEMA scope of work. Once the sediment was removed
from ditches, it was apparent much of the damage sustained was below
the sediment deposit and normal operational flow level. There is also
extensive erosion behind the concrete lining that is minimally
accounted for. Once major cleaning and demolition work was completed, a
new estimate of the final damage was determined. Unfortunately, the
damage repairs and costs are substantially more than the original PW
370 scope of work.
The use of irrigation water is critical to Acoma Pueblo's inherent
right as the original and first users of area waters. There is a
decades-old water litigation court case State v. KerrMcGee that is
ongoing; in light of that case, it is essential that Acoma continue to
demonstrate the continued use of waters to farm our lands. Without this
ability, non-Acoma water users will increase their use and share of
water, which will negatively impact Acoma Pueblo for issues that are
beyond the Pueblo's control. Lack of maintenance and environmental
catastrophes have resulted in the poor condition of our irrigation
system today.
The Acoma Pueblo irrigation system is a traditional, cultural,
sacred site. It is 47.9 miles in length. Every year, traditional
irrigation Ditch Bosses are appointed by our traditional leaders and
male members of the community are required to perform seasonal work to
clean and maintain the ditch using only hand tools. Ditch work is a
community service. Minimal federal and non-federal funds are used only
to purchase propane and hand tools. Approximately 85 percent of the
irrigation system is lined with concrete and is currently under a
phased assessment project to address the issues outlined above.
Immediate funding is needed to complete the assessment project, and to
thereafter improve and repair the 47.9 miles of traditional irrigation
ditches.
Clearly, the Pueblo of Acoma, along with other pueblos in New
Mexico, have a great need for funding to apply to irrigation projects.
These projects generate jobs and profits not only for tribal members,
but for non-members as well. Acoma urges Congress to appropriate the
funds needed for these culturally essential and agriculturally
necessary projects.
Thank you for your time and consideration, we would be pleased to
answer any questions you may have regarding this comment.
______
Prepared Statement of Hon. J. Michael Chavarria, Governor, Santa Clara
Pueblo
The people of the Santa Clara Pueblo are the original occupants of
what is now Rio Arriba County, New Mexico; our Pueblo currently numbers
approximately 3,500. Water plays a major cultural role in our beliefs,
and we continue to be reliant on traditional farming and agricultural
practices as well. As the Committee is aware, our Pueblo faces a number
of issues stemming from the Las Conchas fire. This environmental
disaster paired with years of inadequate maintenance to the existing
structure has created serious problems with diversions along the
system. We provide this comment in strong support of significant
funding to restore and renovate Pueblo irrigation ditches.
First, the main ditch inlet from the Rio Grande River must be
reconstructed to divert water to Santa Clara's irrigation ditches.
Years of upstream flooding has damaged the structure beyond simple
repairs; the approximate cost to adequately construct the project is
$226,575. Monthly maintenance of the river channel to maintain proper
water flow will be tribally funded. However, major maintenance like
tree removal and concrete repairs, which have an annual cost of
$110,000, lack funding.
Regarding the Canyon Ditch/Guachupangue, this diversion was
destroyed by flooding subsequent to the Las Conchas fires.
Approximately 1,000 feet of underground irrigation pipe, repairs to the
irrigation diversion, and the clearing of 22 culverts from the canyon
head gate through the Pueblo and to the south fields have been funded.
Clearing the sediment from the canyon irrigation diversion has only
been funded once, despite it being necessary monthly maintenance. It is
currently also funded by Santa Clara. The Guachpanque earthen ditch was
destroyed; as a result, at least one apple orchard has been lost by the
Pueblo. Funding is needed for the annual and monthly maintenance of the
Guachpanque ditch.
A culvert at the Rio Grande River has been excavated and cleared by
a contractor at the River Ditch. A survey of the ditch has been
tentatively funded by the United States Department of Agriculture, but
is not yet confirmed. River Ditch starts just south of Santa Clara
Creek at the Rio Grande, and runs south for approximately 3 miles. The
survey is needed to determine the elevation and slope of the ditch to
determine if water will flow, or if additional work is needed.
Santa Clara Pueblo also has a need for funding to hire a seasonal
ditch caretaker and 6 to 8 temporary laborers for six-week periods to
clear brush, and dig ditches and culverts. These positions are
currently funded by the Pueblo. Some specific equipment is needed as
well, including a wheeled excavator, to dredge the river and canyon
diversions for adequate flow throughout the season, as well as a farm
tractor and mower to keep the ditches clear. The latter equipment has
been partially funded.
The Main Ditch has yet to be completed--approximately 2 miles must
be relined with concrete at an estimated cost of $580,000. This project
is not funded. Additionally, the Pueblo Ditch has smaller culverts that
are in need of replacement at a cost of $250,000.
Clearly, Santa Clara Pueblo, along with other pueblos along the Rio
Grande, have a great need for funding to apply to irrigation projects.
These projects generate jobs and profits not only for tribal members,
but for non-members as well. Santa Clara urges Congress to appropriate
the funds needed for these culturally essential and agriculturally
necessary projects.
Thank you for your time and consideration, we would be pleased to
answer any questions you may have regarding this comment.
______
Prepared Statement of Hon. Clement J. Frost, Chairman, Southern Ute
Indian Tribe
On behalf of the Southern Ute Indian Tribe (the Tribe), I am
pleased to submit this statement for the record regarding the Committee
on Indian Affairs' September 10, 2014, Oversight Hearing on Irrigation
Projects in Indian Country.
The purpose of the Oversight Hearing was to receive testimony from
federal officials and tribal leaders on the current state of Indian
irrigation projects and the financial resources required to
rehabilitate and maintain them. The hearing was conducted in the
context of bills pending in the House (H.R. 4420) and Senate (S. 715)
known as the Authorized Rural Water Projects Completion Act. The Tribe
is greatly interested in promoting progress to resolve issues of
irrigation project deterioration that are a part of the bills' intent,
and wishes to provide its perspectives on these important matters.
The Tribe is heartened that the Congress continues to deliberate
the best method for the United States to meet its obligation to work
with tribes to resolve an issue of great importance for many of the
western Indian tribes. Our Tribe has a particular interest in this
issue because the Pine River Indian Irrigation Project (PRIIP) on the
Southern Ute Indian Reservation has suffered many decades of neglect
and mis-management. Wholly inadequate management of the PRIIP by the
U.S. Bureau of Indian Affairs has resulted in a rehabilitation and
maintenance backlog variously estimated at between $20 million and $60
million.
The PRIIP has been an important part of the economy and culture of
the local Indian and non-Indian community since the late 1800s. Its
continued deterioration through the decades has caused economic
hardship for both Indians and non-Indians. The project long ago reached
a point where conditions created a disincentive for aggressively
practicing agriculture. Now, as the Tribe pursues greater efforts to
maintain a diversified economy, the state of the PRIIP is a major
impediment to economic progress.
The disrepair of the system has still not been adequately
catalogued but the following illustrate the system's deplorable
condition:
only an estimated 15 percent of the project's 175 miles of
canals can be considered in good condition;
some of the project's major diversion structures date to the
1930s, with no major rehabilitation or improvements since the
1960s;
an estimated 40 percent of the project's irrigable acreage
is not being irrigated, and a significant amount of that simply
cannot be irrigated given the current state of the project;
the project's largest canal, serving over 4,500 acres of
Indian and non-Indian land, has breached twice in less than a
year and is only delivering water due to temporary, stop-gap
measures;
dozens of smaller drop structures constructed pre-1920s have
collapsed and simply been abandoned;
many newer structures have already failed due to erosion,
poor design, and poor maintenance;
ditches have been abandoned and lands that were previously
irrigated have become derelict, requiring costly
rehabilitation; and
erosion has created miles of incised canals and ditches
where elevated head-gates no longer allow for the diversion of
water to lands that historically were irrigated.
The vast amount of work that is needed to even bring the system to
functionality is staggering.
While the Tribe has worked with Congress in the past on PRIIP-
specific legislation, at this time we are strongly supportive of the
tribal-specific planning and funding approach outlined in the Senate
version of the pending legislation, which includes amendments offered
by Vice Chairman Barrasso. The Tribe believes this approach can be part
of the way forward in addressing the problems of the PRIIP.
In addition to our Tribe's pressing need on its own Reservation, we
strongly support and advocate for a system-wide solution to this issue.
Furthermore, we believe that the solution to the problem of irrigation
project rehabilitation, maintenance, and continued operation must be
based on sound planning intended to create long-term agricultural
sustainability and economic viability. Only with a clear financial
basis, and with commitment from both the United States and the tribes,
can these issues be resolved in a manner that prevents this from
continuing to be a perpetual burden for the United States and the
Tribes.
The Tribe supports both the House and Senate legislation, and
strongly endorses S.715 with the Barrasso language included and
encourages Congress to commit to working with affected tribes to meet
its obligation to resolve this long-standing problem.
I thank you for considering these comments and would be happy to
elaborate on the Tribe's experience and perspectives on irrigation
projects in general and the PRIIP in particular.
______
Prepared Statement of Hon. Ronald Trahan, Chairman, Confederated Salish
and Kootenai Tribes
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Prepared Statement of Hon. Marcelino Aguino, Governor, Ohkay Owingeh
Chairman Tester, Vice Chairman Barrasso and members of the
Committee, thank you for the opportunity to provide written testimony
for the recent oversight hearing on irrigation projects in Indian
Country. I am providing these comments on behalf of Ohkay Owingeh.
Ohkay Owingeh is located 25 miles north of Santa Fe, New Mexico, at
the confluence of the Rio Grande and the Rio Chama. The Pueblo Grant is
within our ancestral lands. Our people have been diverting water and
capturing rain water for crops for more than 1000 years. Archeologists
have found our ancestors' irrigated agricultural fields dating to the
12th century. Our name, Ohkay Owingeh, is Tewa for ``place of the
strong people'', a truly fitting name to be sure. Ohkay Owingeh is the
home of the leader of the Pueblo revolt of 1680, Po'pay. Today, Po'pay
is one of only seven Native Americans honored in the U.S. Capitol with
a statue in the National Statuary Hall Collection.
For all of these centuries and relatively until recent times, the
Pueblo was able to rely upon a clean, and sufficient supply of water.
Population increases, an increasing demand for water, water quality
concerns, and drought have caused our water supplies to become less
reliable. Our ability to maintain our homeland for the future for Ohkay
Owingeh people depends on our ability to protect our culture and
livelihood, maintain our traditions and ceremonies, protect our rivers,
wetlands and lands, and develop our economy. A healthy homeland can
only be attained through the continued availability of an adequate
supply of safe and clean water. As we have for centuries, the Pueblo
continues to rely on irrigated agriculture as a way of life and a key
part of our economy. Effective, reliable irrigation projects are
essential for economic development both for the Pueblo and for our
neighbors, the non-Indian communities that surround us.
Unfortunately, the condition of water and irrigation projects in
Indian Country is deteriorating every day. A 2006 Government
Accountability Office (GAO) study found that irrigation projects in
Indian Country had hundreds of millions of dollars in deferred
maintenance costs. There exists a current backlog in maintenance of
approximately $598 million for 15 projects. And, because maintenance is
being deferred, the infrastructure is falling further into disrepair
all across Indian Country.
There is legislation that would begin to address this problem. But
much more will need to be done. We support Chairman Tester's bill, the
Authorized Rural Water Project Completion Act (S. 715) as well as
Senator Udall and Senator Heinrich's drought relief bill (S. 2470)
which contain language reauthorizing the Pueblo Irrigation
Infrastructure Improvement Act. Unfortunately, these two pieces of
legislation will not fix a problem that has been allowed to worsen with
years of deferred maintenance costs and severe federal budget cuts. As
a sovereign government, Ohkay Owingeh is ultimately responsible to
protect and care for the Ohkay Owingeh people. Consequently, we work
closely with our non-Indian neighbors, the acequia associations, to do
everything we can to maintain irrigation ditch systems that, in some
instances, are hundreds of years old.
Ohkay Owingeh is in active discussions with the State of New
Mexico, the United States, Santa Clara Pueblo, the City of Espanola,
and multiple acequia associations to confirm our right to sufficient
water to meet our current and future needs while also protecting the
existing uses of our neighbors. We are currently using surface water
for irrigation of crops and pasturelands, and to restore native plants
and the wetlands of the Rio Grande bosque. Our source of water for
domestic, commercial and municipal uses is groundwater. The aquifer
underlying the Grant may have unacceptable levels of natural toxins
such as arsenic. The Pueblo cannot rely upon that groundwater to meet
its future needs without thoroughly analyzing the water quality, and
the economic feasibility of using it. It will require several hundred
thousand dollars to assess the groundwater's quality and quantity.
Those are funds the Pueblo does not have--Ohkay Owingeh looks to its
trustee, the United States, for assistance in analyzing its groundwater
resource. Our Grant is only a small part of Ohkay Owingeh's ancestral
lands and having safe groundwater is essential to our economic
security.
For many years the Pueblo has been restoring the Rio Grande bosque
for cultural, ceremonial and environmental purposes. It is critical
that we return the River's natural flow patterns while removing non-
native species while also creating a native habitat for all native, and
listed endangered species in order to rehabilitate the bosque.
Water is essential to life for all of us. For Ohkay Owingeh, water
is woven through every part of our lives--it is necessary for our
ceremonies, is a part of our traditions, and is central to the Pueblo's
ability to achieve economic self-sufficiency. The State of New Mexico
is deeply committed to quantifying the water rights of all of its
citizens. It has commenced litigation to determine the Pueblo's water
rights. We must respond. We have made two commitments in that response:
that we will ensure that our people have a safe, clean, reliable and
sufficient water for the future, and that our neighbors, the non-
Indians who live with us in these lands, will be able to continue their
existing uses of water. To achieve both of these goals, it is essential
that a federal negotiating team be appointed to provide the expertise
and resources needed to resolve these complex issues in a timely and
cost-efficient manner. The commitment by the U.S. government of
sufficient resources to achieve this fair and reasonable settlement is
considerably more economical than assigning government resources to
years of litigation of multiple cases in which Ohkay Owingeh must
assert water rights claims.
In summary, Ohkay Owingeh supports these bills, and supports the
efforts of members of Congress to attend to the woefully neglected
water supply systems of Indian country.
Thank you for this opportunity to provide testimony on behalf of
Ohkay Owingeh for the record.
______
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Response to Written Questions Submitted by Hon. John McCain to
Larry Roberts
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