[Senate Hearing 118-195]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 118-195

   WATER AS A TRUST RESOURCE: EXAMINING ACCESS IN NATIVE COMMUNITIES

=======================================================================

                                HEARING

                               BEFORE THE

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION
                               __________

                           SEPTEMBER 27, 2023
                               __________

         Printed for the use of the Committee on Indian Affairs
         
                  
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                    U.S. GOVERNMENT PUBLISHING OFFICE
                    
54-473 PDF                WASHINGTON : 2024                     
         


                      COMMITTEE ON INDIAN AFFAIRS

                     BRIAN SCHATZ, Hawaii, Chairman
                 LISA MURKOWSKI, Alaska, Vice Chairman
MARIA CANTWELL, Washington           JOHN HOEVEN, North Dakota
JON TESTER, Montana                  STEVE DAINES, Montana
CATHERINE CORTEZ MASTO, Nevada       MARKWAYNE MULLIN, Oklahoma
TINA SMITH, Minnesota                MIKE ROUNDS, South Dakota
BEN RAY LUJAN, New Mexico
       Jennifer Romero, Majority Staff Director and Chief Counsel
                  Amber Ebarb, Minority Staff Director

                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on September 27, 2023...............................     1
Statement of Senator Cortez Masto................................    50
Statement of Senator Daines......................................    56
Statement of Senator Hoeven......................................    54
Statement of Senator Lujan.......................................    52
Statement of Senator Murkowski...................................     2
Statement of Senator Schatz......................................     1

                               Witnesses

Curley, Hon. Crystalyne, Speaker, Navajo Nation Council..........    17
    Prepared statement...........................................    18
Davidson, Hon. Valerie Nurr'araaluk, President/CEO, Alaska Native 
  Tribal Health..................................................    45
    Prepared statement...........................................    46
Newland, Hon. Bryan, Assistant Secretary For Indian Affairs, U.S. 
  Department of the Interior.....................................     6
    Prepared statement...........................................     7
Smith, Benjamin, Deputy Director, Indian Health Service, 
  Department of Health and Human Services........................    11
    Prepared statement...........................................    13
Tanana, Heather, Initiative Lead, Universal Access to Clean Water 
  for Tribal Communities Project.................................    34
    Prepared statement...........................................    36
Watson, Kali, Chairman, Department of Hawaiian Home Lands........    20
    Prepared statement...........................................    21

                                Appendix

DIGDEEP, prepared statement......................................    66
Picard, Hon. Meryl, Chairwoman, Bishop Paiute Tribe, prepared 
  statement......................................................    70
Ute Indian Tribe of the Uintah and Ouray Reservation, prepared 
  statement......................................................    61

 
   WATER AS A TRUST RESOURCE: EXAMINING ACCESS IN NATIVE COMMUNITIES

                              ----------                              


                     WEDNESDAY, SEPTEMBER 27, 2023


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:35 p.m. in room 
628, Dirksen Senate Office Building, Hon. Brian Schatz, 
Chairman of the Committee, presiding.

            OPENING STATEMENT OF HON. BRIAN SCHATZ, 
                    U.S. SENATOR FROM HAWAII

    The Chairman. Good afternoon. We will call the hearing to 
order.
    Access to clean, reliable water is essential for the health 
and well-being of all people in the United States. But this 
access is under increasing threat, and the need to find 
solutions is urgent.
    Families and communities across the Country face daily 
risks to safe, affordable, and reliable water supplies. That is 
why this Committee, along with the Energy and Natural Resources 
and Environment and Public Works Committees coordinated 
hearings to examine the ongoing challenges to clean water 
access.
    For too many Native communities, the total lack of access 
to clean and safe drinking water and sanitation facilities is 
an everyday reality. An estimated 2 percent of Native homes 
lack access to safe water supply or wastewater disposal 
facilities, as compared to less than 1 percent of all homes in 
the United States.
    Native households are 19 times more likely than non-Native 
households to lack indoor plumbing. Approximately 29 percent of 
Native homes need sanitation improvements.
    These statistics are not just numbers on a page. They 
reflect real threats to the health, safety, and well-being of 
Native peoples living on Indian reservations, on Hawaiian 
homelands, and Alaska Native villages.
    The COVID-19 pandemic ripped the band-aid off and exposed 
these inadequacies, spurring Congress to act with urgency. So 
over the last two and a half years, Congress and this Committee 
worked hard to address water insecurity in Native communities, 
resulting in the Bipartisan Infrastructure Law and the 
Inflation Reduction Act.
    These landmark laws cleared longstanding water and 
sanitation infrastructure backlogs by delivering $3.5 billion 
to IHS for critical water and sanitation infrastructure, $2.5 
billion to fully fund existing water rights settlements, and 
millions of dollars in dedicated funding for drought mitigation 
in Native communities.
    Today, we will hear from our witnesses on how the 
Bipartisan Infrastructure Law and the IRA are addressing water 
access disparities. We will learn about the work we still have 
to do to protect water as a trust resource and secure access 
for all Native communities.
    Let's be clear: ensuring water access is not just the right 
thing to do. It is the Federal Government's trust and treaty 
responsibility. It is our legal obligation, not just to reserve 
rights, but to live up to our promises and take affirmative 
steps to secure this access to the best of our ability.
    Before I turn to the Vice Chair for her opening statement, 
I would like to extend my aloha to Chairman Kali Watson, and my 
many thanks to our witnesses for joining us today.
    Vice Chair Murkowski?

               STATEMENT OF HON. LISA MURKOWSKI, 
                    U.S. SENATOR FROM ALASKA

    Senator Murkowski. Thank you, Mr. Chairman. I really am 
appreciative that we are having this hearing today. You have 
outlined the case, the priorities. But for most of us here in 
this Country, filling up our glass with tap water or washing 
our hands is pretty commonplace. But as we know, unfortunately, 
it is not the case for far too many of our Native communities.
    According to the IHS, one in ten Native Americans lacks 
access to clean water or indoor plumbing. It is often the case 
that tribal members in remote communities pay a premium to haul 
water to their homes by truck or barge. Others fill drums with 
river water or rain water that oftentimes fails to meet water 
quality standards.
    In Alaska, roughly 20 percent of Native homes don't have an 
adequate supply of clean water or a connection to a sewer 
system. There is an estimated 3,000 homes in 34 villages that 
are completely without basic indoor plumbing. I have been to 
many of these communities. Many of these underserved 
communities use communal facilities that are called 
washeterias. It is where you go to wash your clothes, it is 
where you go to take a shower for your family. So if you have a 
husband and wife and four or five kids, and you are living in a 
village of 350 people, and you have a washeteria that has four 
washers, four dryers, maybe they all work, usually, they don't. 
Usually in these washeterias the showers, many of them are not 
operational. I have gone to certain villages where the entire 
washeteria has been closed for the past year.
    So when you think about what does that mean, what does that 
mean just from your own personal sanitation, how you keep your 
kids clean, how you make sure that you are able to really meet 
some pretty basic needs? Instead of flushable toilets in so 
many of these homes, they have a system that we call a honey 
bucket. A honey bucket is no more sophisticated than basically 
a Home Depot bucket that is sitting in the corner. Sometimes 
there is a screen around it.
    I think for most in this room today you can't imagine what 
it means to basically collect your human waste in a bucket and 
have somebody empty it. I have been to many of these villages. 
I have shared a story with many back home of being in one 
village, I asked to use the facilities before we left the 
community center and I was told they don't have any in the 
community center, but I was invited to go over to the mayor's 
mom's home, which was not too many homes down.
    I went in and was directed to a corner in a kitchen right 
next to the stove, toilet paper sitting on top of the stove. 
And there was the bucket in the corner. The mom and a daughter 
were sitting at the table beading, without interruption, 
because this was just a function of life.
    I share it because it should shock us as Alaskans. It 
should shock us as Americans that basic, basic matters like 
safe water, drinking water, basic sanitation needs are still so 
unmet in so many places. That can be a hazard to public health. 
We can recount what it meant during COVID time to not be able 
to properly wash your hands.
    It is not just the water, sewer and washing your hands with 
COVID, studies show that infants in the Yukon Kuskokwim Delta 
are up to 11 times more likely to be hospitalized for 
respiratory infections and pneumonia than those with access to 
piped water.
    Mr. Chairman, you mentioned the Bipartisan Infrastructure 
Law and the historic investment that was made in sanitation 
system construction. We are seeing some improvement, we are 
starting to see some gains, connecting homes to sewer and water 
treatment systems in villages like Akiachak and Stebbins. 
Stebbins, they have been waiting for water there for 40 years.
    I was there earlier this year, and I asked, it has taken 40 
years, when are we going to see running water, when are we 
finally going to see it? I was told, it is going to be a little 
bit more time, even with the funding, it is going to take maybe 
a couple of years.
    I thought that the people in that community meeting would 
be outraged that it was going to take a couple of years. One 
man said to me, you know, I have waited 40 years, I can wait 
another couple of years. That was his comment.
    When I went and talked to the women at the back of the room 
who had been waiting to be able to have an easier way to wash 
clothes, not have to haul water to do the dishes, to wash their 
family, they were like, hurry it up.
    But we are seeing things moving. In Kipnuk, in Tuluksak, in 
Tununak, in Wales, this is going to be a big step forward.
    But we know Native communities are going to face additional 
challenges to water and sanitation infrastructure. Erosion and 
melting permafrost are damaging rural water systems actually 
faster than we can rebuild them. EPA's latest tribal needs 
survey estimates that $4 billion is needed for tribal water 
systems over the next 20 years, nearly $1 billion in Alaska 
alone.
    Projects constructed today will require recapitalization in 
they ears ahead. Of course, inflation is driving up the costs 
of labor and materials for tribes that operate and maintain 
these systems.
    Earlier this year, I asked GAO to conduct a study on agency 
support for tribal O&M costs. My understanding is that the GAO 
is going to start work on that request within the next few 
weeks. I am looking forward to those findings and 
recommendations from that work.
    This issue requires a whole-of-government approach. I am 
glad that both the ENR and EPW committees here in the Senate 
are also looking at water issues. One committee, though, Mr. 
Chairman, you and I have talked about and we are engaging with 
them on, is the Agriculture Committee with the Farm Bill right 
around the corner here. But there are, under USDA, eight grant 
and technical assistance programs specific to tribes along with 
many other water programs at Rural Development and Rural 
Housing Service. That is yet another opportunity for us.
    Mr. Chairman, again, I thank you for the hearing today. I 
am looking forward to hearing from our panel about ways that we 
can optimize all of these programs across the Federal 
Government to ensure that Native people have access to 
affordable, clean water and basic sanitation, something that 
every person deserves.
    That concludes my opening. I am happy to introduce our 
Alaskan witness when it is appropriate. I am happy that we are 
here today. Thank you.
    The Chairman. Thank you very much, Vice Chair Murkowski.
    I will now introduce the witnesses. We have the Honorable 
Bryan Newland, the Assistant Secretary for Indian Affairs at 
the Department of the Interior. We have Mr. Benjamin Smith, 
Deputy Director at IHS, at the U.S. Department of Health and 
Human Services. We have Crystalyne Curley, the Speaker of the 
Navajo Nation Council in Arizona. My friend, Kali Watson, the 
Chairman of the Hawaiian Homes Commission and the Director of 
the Department of Hawaiian Home Lands. And Professor Heather 
Tanana, Professor Heather Tanana, Initiative Lead, Universal 
Access to Clean Water for Tribal Communities Project in San 
Clemente, California.
    Vice Chair Murkowski, if you would like to introduce your 
witness.
    Senator Murkowski. Thank you, Mr. Chairman.
    Valerie Davidson is going to be joining us virtually from 
Anchorage. She is the President and CEO of the Alaska Native 
Tribal Health Consortium. She was born in Bethel; she is an 
enrolled tribal citizen of the Orutsararmiut Traditional Native 
Council. Val is part of OTNVC, and she has been not only an 
extraordinary leader for us in the Alaska Native communities, 
but she previously served as our Lieutenant Governor for the 
State of Alaska. I am pleased to be able to welcome Val 
Davidson.
    Senator Schatz. Thank you.
    Okay, before we get started, both of our Federal witnesses 
submitted written testimony well after the Committee deadline. 
We have a Committee rule that requires Federal witnesses who 
fail to timely file their written testimony, that they explain 
their reason for tardiness.
    We have done this before. I usually wait, I don't want to 
sit here and chew you out for being late, but I just want you 
to understand, this actually does impede the work. This isn't 
some arbitrary administrative requirement. I can't see your 
testimony when I am prepping for the hearing. That is not a 
trivial thing. That means none of the Committee memos can be 
finished, that means that members are not briefed, that means 
the Vice Chair doesn't have the information she needs.
    So I am going to ask a couple of specific questions. 
Assistant Secretary Newland, you have to go through an 
interagency process, correct?
    Mr. Newland. Yes.
    The Chairman. Where is the holdup? Which agency?
    Mr. Newland. Mr. Chairman, we have had some challenges with 
our colleagues at the Department of Justice getting timely 
review of our testimony.
    The Chairman. When you have been late in the past, has it 
been Justice every time?
    Mr. Newland. I can't answer that question.
    The Chairman. Well, let me say it another way, because I 
know you are careful. Has this happened before with the 
Department of Justice in the interagency process?
    Mr. Newland. Yes.
    The Chairman. Is it usually them?
    Mr. Newland. It has often been the Department of Justice, 
Mr. Chairman.
    The Chairman. Mr. Smith?
    Mr. Smith. Thank you very much, Senator, for the reminder. 
We certainly want to work as expeditiously as possible. To your 
points about being timely, we certainly want to make sure that 
our information is correct as well. That interagency 
collaboration is just essential.
    The Chairman. I get all that. But were you guys on time and 
another agency held you up?
    Mr. Smith. This is really a team approach when it comes 
to----
    The Chairman. Come on. I am asking you a direct question 
about a violation of the Committee rules. I don't need a 
talking point. I just want to know where the holdup is. No one 
is going to jail over this. I need to know where the problem is 
so we can talk to them and say, could you please prioritize the 
Senate Committee on Indian Affairs, so that we can conduct our 
business.
    So is it DOJ with you guys too?
    Mr. Smith. I honestly cannot pinpoint an agency, but I will 
take it back.
    The Chairman. Can you consider that a question for the 
record? This is not something that should take two weeks for 
you to get back to us about. I just want to know where the 
holdup is. We have friends in most of the agencies. There is an 
Office of Legislative Affairs. I am not even sure they are 
entirely aware that they are the holdup.
    It is not your job to cover for anybody. I am being the 
jerk here, I am saying, who is the holdup. So you have to tell 
me who the holdup is, so we can follow up, so I don't have to 
waste time and the Committee doesn't have to waste its breath 
on such a goofy little thing. But on the other hand, I need the 
testimony in time. So, onward. Thank you.
    Mr. Smith. Understood. Thank you.
    The Chairman. Secretary Newland, please proceed with your 
testimony.

          STATEMENT OF HON. BRYAN NEWLAND, ASSISTANT 
       SECRETARY FOR INDIAN AFFAIRS, U.S. DEPARTMENT OF 
                          THE INTERIOR

    Mr. Newland. Thank you, Mr. Chairman. Boozhoo, good 
afternoon, Chairman Schatz, Vice Chair Murkowski and members of 
the Committee. I am pleased to be here again to present the 
department's views on access to water in Native communities.
    As you noted, Mr. Chairman, the United States acts as a 
trustee for the land and water rights of Indian people. The 
United States has a trust responsibility to Indian tribes and 
Indian people and has charged itself with obligations of the 
highest responsibility and trust. These obligations are at 
their greatest when it comes to protecting the ability of 
tribes and their citizens to continue to exist on their 
homelands.
    The President's Administration recognizes that water is 
necessary for Indian people to lead healthy, safe, and 
fulfilling lives on their homelands. This Administration also 
recognizes that longstanding water crises continue to undermine 
public health and economic development in Indian Country.
    We strongly support the resolution of Indian water rights 
claims through negotiated settlements. These settlements 
protect the senior water rights reserve by tribal nations and 
help ensure that citizens of these nations have reliable and 
safe water. These settlements also help fulfill the United 
States' trust responsibility to tribes.
    We also know that water plays an important role in the 
Native Hawaiian community. The Native Hawaiian community has 
asserted its water rights through specific and sometimes 
prolonged litigation with private water users and the State of 
Hawaii. Through our historical role and expertise in protecting 
Indian water rights, the department seeks to examine the nature 
and extent of water rights available for Hawaiian homelands and 
for Native Hawaiian traditional and customary rights and 
practices.
    One way the Federal Government and the Administration has 
demonstrated its commitment to meeting its trust obligation is 
by negotiating settlements of Indian water rights claims and 
working with Congress to them enacted into law. These 
settlements lead to real change on the ground in tribal 
communities.
    To date, the Biden-Harris Administration has invested more 
than $3.1 billion toward fulfilling the terms of enacted Indian 
water rights settlements. This includes more than $2.2 billion 
from the Indian Water Rights Settlement Completion Fund enacted 
under the Bipartisan Infrastructure Law.
    Building on investments under that law, the President 
recently submitted a proposal to the Senate and the House for 
mandatory funding over ten years to fund Indian water rights 
settlements. This includes $250 million per year to expand the 
Indian Water Rights Settlement Completion Fund, which will 
cover the costs of enacted and future water rights settlements. 
It also includes $34 million per year for ongoing costs, 
including O&M associated with those settlements.
    The Inflation Reduction Act provided $550 million for the 
Bureau of Reclamation to tackle issues relating to water access 
for disadvantaged communities. This funding can be used for 
planning, design or construction of water projects to provide 
domestic water supplies to communities that don't have reliable 
access to them.
    The IRA also provides a unique authority and opportunity 
for the department. The Bureau of Reclamation generally 
requires a cost-share and/or repayment. But the IRA allows 
Reclamation to provide up to 100 percent of the cost of 
planning, design, or construction of water projects. This 
flexibility will benefit communities that do not have reliable 
access to domestic water supplies. Since enactment, Reclamation 
has worked with tribes and stakeholders across the west to 
understand how to implement this funding to benefit 
disadvantaged communities.
    Lastly, I want to highlight two cases where we have been 
able to use funds from the Bipartisan Infrastructure Law to 
deliver clean drinking water to communities in Indian Country. 
At Hopi, we have invested more than $25 million in funding from 
this law to install new drinking water infrastructure. This 
will connect communities and homes to the Hopi arsenic 
mitigation project, which is a regional water supply system 
that brings safe drinking water to the Hopi reservation.
    We are also investing more than $3 million in Bipartisan 
Infrastructure Law funding to improve drinking water at treaty 
fishing access sites in Oregon and Washington along the 
Columbia River. We have already used this money to install a 
new drinking water well at the Cook site in Washington, which 
has allowed us to work with EPA to lift an administrative order 
for that site. We are planning additional investments in 
drinking water wells and improvements at other sites.
    I want to thank you, Mr. Chairman, Madam Vice Chair, for 
the opportunity to present the department's views today. I have 
submitted longer written testimony for the record, and I 
appreciate the opportunity to answer your questions.
    [The prepared statement of Mr. Newland follows:]

   Prepared Statement of Hon. Bryan Newland, Assistant Secretary For 
            Indian Affairs, U.S. Department of the Interior
    Aanii (Hello)! Good afternoon, Chairman Schatz, Vice Chairman 
Murkowski, and members of the Committee. My name is Bryan Newland, and 
I am the Assistant Secretary for Indian Affairs at the U.S. Department 
of the Interior (Department). Thank you for the opportunity to present 
the Department's testimony at this important oversight hearing, ``Water 
as a Trust Resource: Examining Access in Native Communities.''
Introduction
    The United States acts as a trustee for the land and water rights 
of Tribes, American Indians, and Alaska Natives. The United States has 
a trust responsibility to Indian Tribes and Indian people and 
consistent with that has charged itself with moral obligations of the 
highest responsibility and trust. These obligations are at their 
greatest when it comes to protecting the ability of Tribes, and their 
citizens, to maintain their existence on lands the United States holds 
in trust for their benefit.
    The Biden Administration recognizes that water is essential for 
people to lead healthy, safe, and fulfilling lives on Tribal lands. 
Water is the among the most sacred and valuable resources for Tribal 
nations.
    The Administration further recognizes that long-standing water 
crises continue to undermine public health and economic development in 
Indian Country. The Administration strongly supports the resolution of 
Indian reserved water rights claims through negotiated settlements. 
Indian water settlements protect the senior water rights reserved by 
Tribal Nations and help ensure that the citizens of these Nations have 
reliable and safe water for drinking, cooking, and sanitation; improve 
the public health and environment on reservations; enable economic 
growth; promote Tribal sovereignty and self-sufficiency; and help 
fulfill the United States' trust responsibility to Tribes.
    Within the Department, the Office of Native Hawaiian Relations is 
responsible for discharging the Secretary's responsibilities in 
administering the United States' relationship with the Native Hawaiian 
Community. Water plays an important role in the Native Hawaiian 
Community. That Community has a saying ``Ola i ka wai'' which 
translates to water (wai) is life (ola), and the importance of water is 
expressed in other words such as waiwai which means valuables or wealth 
and kanawai which means laws and codes and literally translates to 
``belonging to the waters'' as traditional laws regulated the water 
systems. While the Native Hawaiian Community has asserted its water 
rights through specific and sometimes prolonged litigation with private 
water users and the State of Hawai`i, through its historical role and 
expertise in protecting Indian water rights, the Department seeks to 
examine the nature and extent of water rights available for Hawaiian 
home lands and for Native Hawaiian traditional and customary rights and 
practices.
    Below is a discussion of some of the ways that we are meeting our 
obligations to Tribes to ensure access to this critical resource.
Water Rights Settlements
    Indian water rights settlements are one of the many areas in which 
the Department is working to uphold the federal government's trust 
responsibilities to Tribes. These settlements help ensure that Tribal 
Nations have safe and reliable water supplies that provide the 
foundation for future economic development. The Secretary's Indian 
Water Rights Office manages the Department's Indian Water Rights 
Settlement Program. Since 1978, the Department has entered into 35 
Congressionally-enacted Indian water rights settlements. Water rights 
settlements typically quantify Tribal water rights, identify water 
supplies available to satisfy those rights, and provide funding for 
water-related infrastructure and other purposes. When determining 
sources and quantity of water, drought and climate change are 
considerations, especially now that we are experiencing significant 
drought in many areas.
    Settlements often include mechanisms to address drought and climate 
change. For example, the Arizona Water Settlements Act of 2004 (AWSA), 
involving water rights of the Gila River Indian Community and the 
Tohono O'odham Nation, allows for underground storage of surface 
supplies when surface water is not immediately needed so that that 
stored water can be accessed in times of shortage. In addition, AWSA, 
the White Mountain Apache Tribe Water Rights Quantification Act of 
2010, and the Hualapai Tribe Water Rights Settlement Act of 2022 each 
require the Secretary and the State of Arizona to provide specific 
quantities of ``firmed'' Central Arizona Project water. Through 
``firming,'' the Tribes receive delivery of higher priority water 
during times of shortage. An additional drought mitigation tool is 
surface storage. Several settlements include funding for the 
construction of surface water storage facilities for use by Tribes. One 
such example is the White Mountain Apache Tribe Water Rights 
Quantification Act of 2010, which authorizes the construction of a 
rural water project, including a reservoir, to serve the White Mountain 
Apache Tribe. Some settlements, such as the Navajo-Utah Water Rights 
Settlement, provide funding for on-farm efficiencies intended to 
increase conservation and thereby make additional water available for 
domestic purposes. Finally, settlements often include funding to 
rehabilitate and modernize Indian irrigation projects. As discussed 
below, improvements to irrigation can conserve water by making these 
projects more efficient.
    Investments in Indian water rights settlements lead to real change 
on the ground for Tribal communities. To date, the Biden-Harris 
Administration has invested more than $3.1 billion towards fulfilling 
the terms of enacted Indian Water Rights Settlements. This includes 
more than $2.2 billion from the Indian Water Right Settlement 
Completion Fund (Completion Fund) enacted under the Bipartisan 
Infrastructure Law (BIL).
    Building upon investments in the BIL, the Biden-Harris 
Administration recently transmitted a proposal to the Senate and House 
for $250 million annually in mandatory funding over 10 years to expand 
the Indian Water Rights Settlement Completion Fund to cover the costs 
of enacted and future water rights settlements and $34 million annually 
in mandatory funding over 10 years for ongoing costs including 
operations and maintenance costs associated with enacted water 
settlements. These annual requirements are associated with the Ak Chin 
Indian Water Rights Settlement Project, the Animas-La Plata Project 
(Colorado Ute Settlement), the Columbia and Snake River Salmon Recovery 
Project (Nez Perce Settlement), and the Navajo-Gallup Water Supply 
Project. Providing a stable, dedicated funding source for Indian water 
rights settlements helps to ensure these commitments are honored and 
Tribal communities have safe, reliable water supplies to support public 
and environmental health and economic opportunity.
Bureau of Indian Affairs (BIA) Drought Mitigation Efforts
Tribal Climate Resilience Program
    Since 2011, the Tribal Climate Resilience Program (TCR) has awarded 
over 35 projects that address Tribal specific Drought Plans and 
Vulnerability Assessments. TCR has funded around $1 million in Drought 
Vulnerability assessments for Tribes to conduct studies and assess 
impacts on their lands and people. TCR also funded $4 million to Tribes 
to identify drought mitigation strategies for the future. In 2022, TCR 
awarded two implementation projects addressing drought specific 
impacts: $1.6 million for the installation of infrastructure for water 
recirculation at a Tribal hatchery and $999,436 for rangeland water 
improvement. TCR is part of three Drought Working Groups across the 
nation and have attended five technical meetings that deal with drought 
specifically.
Irrigation Programs
    Many of the Indian Irrigation projects were designed and 
constructed over a hundred years ago, long before drought mitigation 
became a concern. The old infrastructure and the design of the 
Irrigation projects themselves need to be modernized to adapt to less 
available water for irrigation. To mitigate drought effects, BIA is 
incorporating state-of-art modernization concepts that modify existing 
facilities to improve water management and improve irrigation service 
to customers. Examples of drought mitigation projects include 
transitioning from open channel canals to pipelines, or using canal 
liners, to reduce evaporation and seepage. BIA is also advancing the 
concept of small, re-regulating reservoirs to store irrigation water 
within the project boundaries, which improves water use efficiency 
during droughts. BIA is increasing utilization of SCADA (Supervisory 
Control and Data Acquisition) systems, which use computers to control, 
monitor, and analyze water usage rather than relying on a ditch rider 
to open and close water control gates. SCADA helps mitigate effects of 
water shortage due to drought by improving operations.
    Recent modifications to pumping plants at the Fort Peck Irrigation 
Project in Montana will improve water supply to the Project, especially 
during times of low flow in the Missouri River. Uintah and Flathead 
Irrigation Projects are converting open channel canals to pipelines, 
which eliminates seepage and evaporation. BIA is currently working with 
the Colorado River Indian Tribes on a proposed re-regulating reservoir 
at the Colorado River Irrigation Project in Arizona to allow BIA to 
better manage water within the Project and reduce the impacts of 
drought.
Colorado River Indian Tribes Water Resiliency Act
    The BIA is implementing P.L. 117-343, the Colorado River Indian 
Tribes Water Resiliency Act, with the Colorado River Indian Tribes 
(CRIT) and the Bureau of Reclamation to establish water conservation 
and leasing agreements which will make Tribal decreed water available 
for drought mitigation in the Lower Colorado River Basin. P.L. 117-343 
authorized permanent authority for CRIT to enter into lease or exchange 
agreements, storage agreements, and agreements for reductions in 
consumptive use (e.g., conserved water) of CRIT's Arizona decreed water 
allocation in the Lower Colorado River Basin in Arizona. The 
Department, CRIT, and the State of Arizona are in the process of 
finalizing the three-party agreement required for implementation of P.L 
117-343.
San Carlos Irrigation Project-Power Division (SCIP)
    Reductions in hydropower generation in the Lower Colorado River 
Basin due to years of drought and extremely low water levels available 
to generate hydropower negatively impact the cost of SCIP's power 
purchase contracts. Recent extreme weather events in Texas, wildfires 
in California and other factors outside of BIA's control, such as 
spikes in natural gas prices, also impacted the purchase power market 
available to SCIP. Recent spikes in the cost of purchased power created 
significant funding shortfalls for SCIP. As a result, the BIA increased 
rates charged to its customers to meet the new purchase power 
requirements and continue normal operation and maintenance of SCIP 
facilities. SCIP has not had its own hydro-generation for several 
decades and relies solely on power purchases to serve its customers. 
BIA has little or no access to renewable energy sources to mitigate 
drought impacts. The BIA, Tribes, and customers would all benefit from 
the development of large-scale renewable power generation projects 
which could be the source of a long-term power supply commitment for 
SCIP.
Water Resources Programs
    The Branch of Water Resources provides funding for necessary 
technical research, studies, and other information for Indian Tribes to 
serve as informed and prudent managers of their water resources. Water 
supplies and availability are under stress on multiple Tribal 
reservations and/or jurisdictions across the United States. Some of 
these areas have longstanding issues related to water stress such as 
the Colorado River and the Rio Grande River Basins, and these 
challenges are likely to increase with development and climate change. 
The Branch has provided project funding to aid Tribes in assessing 
their water supply vulnerabilities during drought. These projects 
include the preparation of comprehensive reservation water management 
and development plans, interagency drought management plans, and 
technical assessments to define and characterize Tribal water 
resources. Projects to fund stream gauging systems have provided 
groundwater, surface water and reservoir water data to aid Tribes in 
management decisions regarding water supply management during all 
stages of drought.
Improvement of Bureau of Indian Affairs and Hopi Public Water Systems
    To address groundwater supplies with naturally occurring elevated 
arsenic concentrations, the Hopi Tribe (Tribe) implemented a regional 
water supply delivery system termed the ``Hopi Arsenic Mitigation 
Project'' (HAMP). HAMP involves the construction of wells at the 
Turquoise Trail region and the installation of water lines to the areas 
of First Mesa and Second Mesa.
    To address challenges with arsenic treatment, and to assure 
drinking water quantity and quality with the BIA public water systems 
(PWSs) serving Hopi communities, the BIA initiated a process to connect 
the BIA PWSs to the HAMP or regional water supply, increase the 
capacity of the HAMP, and to update the BIA-owned water delivery 
infrastructure. This process involves BIA and Hopi Tribal partnerships 
in the design and construction of drinking water delivery 
infrastructure related to connecting BIA assets to HAMP to include 
expanding the capacity of the HAMP; and upgrading BIA assets so that 
these assets are in acceptable condition for transfer to the Tribe.
    The Department has invested $10.48 million in annual appropriations 
and $15.366 million BIL funding to accomplish the replacement of old 
water infrastructure with new state of the art infrastructure as well 
as the addition of new water infrastructure, enhancing the HAMP/
existing regional water supply.
    Successes completed and planned include: (1) strengthening the Hopi 
Tribal government's utility program; (2) historic investment in the 
Hopi community to help bolster community resilience and replace aging 
infrastructure; (3) the provision of superior quality drinking water to 
Hopi communities; (4) improving the safety and reliability of water to 
Hopi communities; (5) the provision of the effective use and management 
of trust resources/groundwater for the next 50 years; and (6) the 
transfer of water infrastructure assets, and the operation and 
maintenance of those assets to the Tribe.
    With these accomplishments, the Department demonstrates a new 
vision on leveraging the resources of the federal government to help 
the Hopi community. Funding is essential to advancing, supporting, and 
empowering the Tribe. These investments ensure operational, efficient, 
and resilient water systems, protect Hopi communities, and fulfill the 
Department's trust responsibilities.
Columbia River
    Drought increases impact on water quantity and quality of the 
rivers Indian Tribes rely on for economic, subsistence and cultural 
activities. From 2017 to 2023, the BIA doubled the amount of funding 
from approximately $5 million to approximately $10 million to the 
Columbia River Columbia River Inter-Tribal Fish Commission (CRITFC) to 
ensure Tribal access to the river and support a healthy fishery 
resource. In addition to annual appropriations, the BIA also awarded 
$2.5 million in BIL water sanitation funding to CRITFC to upgrade 
critical water and sanitation needs that will ensure safe drinking 
water. With these annual appropriations, the BIA continues to work on 
multiple Treaty Fishing Access Sites (TFAS) and In-Lieu Fishing Sites, 
including Cooks In-Lieu and North Bonneville TFAS.
Bureau of Reclamation Drought Mitigation
    The BIL and Inflation Reduction Act (IRA) provided substantial 
funding to help Reclamation advance its mission. Combined, these laws 
represent the largest investments in climate resilience in the nation's 
history and provide unprecedented resources to support the 
Administration's comprehensive, government-wide approach to make 
western communities more resilient to drought and climate change. For 
Reclamation, this includes a $13 billion total investment in western 
water infrastructure as well as a share in executing the $2.5 billion 
for authorized water rights settlement projects. These additional 
resources made available by Congress have significantly increased 
Reclamation's efforts to mitigate for drought while advancing 
substantial investments to increase water access for underserved 
communities.
    Section 50231 of the IRA provided $550 million specifically to 
tackle the issue of water access for disadvantaged communities--
allowing for Reclamation to provide funding for planning, design, or 
construction of water projects to provide domestic water supplies to 
communities or households that don't have reliable access to domestic 
water supplies. The funding provided under Section 50231 provides a 
unique authority and opportunity for Reclamation--while Reclamation's 
analogous authorities generally require a cost share and/or repayment, 
this section allows for us to provide up to 100 percent of the cost of 
the planning, design, or construction of water projects. Reclamation 
expects this flexibility to significantly benefit communities that do 
not have reliable access to domestic water supplies and may require 
additional funding assistance. Since enactment, Reclamation has worked 
with Tribes and stakeholders across the west to understand how to best 
implement this funding and ensure that the federal investment assists 
in delivering benefits to disadvantaged communities.
    Regarding BIL's implementation over the past two years, 
Reclamation's focus has been on using the historic investments in water 
infrastructure in an effective and efficient way while ensuring it has 
tangible impacts in the communities we serve. To date, Reclamation has 
allocated $2.7 billion of BIL funding to 370 projects across more than 
12 program areas and sub-categories identified in the law, and in all 
17 western states as well as Hawai?i and Puerto Rico. The BIL made 
substantial investments in designated programs, including significant 
funding for programs that directly address mitigating drought and 
increasing water access.
United States Geological Survey Drought Mitigation Efforts
    The U.S. Geological Survey (USGS) uses Cooperative Matching Funds 
(CMF), which leverage other agencies' resources with USGS funding, to 
support water research in Indian Country. In Fiscal Year 2022, through 
USGS Water Science Centers, CMF were used in partnership with 64 Tribes 
or Tribal entities to conduct a wide range of monitoring and 
interpretive science activities. This amounted to $4.5 million in 
combined funding.
    In addition to CMF, the USGS has provided limited funding through 
the National Groundwater Monitoring Network and the Federal Priority 
Streamgages Program for monitoring and research on Tribal lands. 
Starting in 2017, Congress directed the USGS to use CMF to work closely 
with Tribal leaders in conducting water-resource investigations to 
support Indian water rights negotiations, implementations, and 
settlements. Through Fiscal Year 2023, a total of $3.5 million has been 
allocated, through a solicitation process, to support Indian water 
rights settlement activities.
Conclusion
    We have a clear charge from the President and Secretary Haaland to 
improve water access and water quality on Tribal lands. Access to water 
is fundamental to human existence, economic development, and the future 
of communities- especially Tribal communities. As highlighted above, 
the Department has tried to maximize the impact of IRA, BIL, and annual 
appropriations to uphold our trust responsibilities and ensure Tribal 
communities receive the water resources they have long been promised.

    The Chairman. Thank you very much.
    Mr. Smith, please proceed with your testimony.

         STATEMENT OF BENJAMIN SMITH, DEPUTY DIRECTOR, 
          INDIAN HEALTH SERVICE, DEPARTMENT OF HEALTH 
                       AND HUMAN SERVICES

    Mr. Smith. Good afternoon, Chairman Schatz, Vice Chair 
Murkowski, and members of the Committee. Thank you for the 
opportunity to provide testimony on the topic of Water as a 
Trust Resource: Examining Access in Native Communities, and the 
issue of waterlessness and sanitation issues in Native 
communities.
    Let me start by underscoring that the Biden-Harris 
Administration agrees that water is sacred. It is a sacred 
resources that must be protected.
    As part of my statement, I would like to provide an update 
on the Indian Health Service's sanitation facilities 
construction program benefiting American Indians and Alaska 
Native communities under the Infrastructure Investment and Jobs 
Act, or what we refer to as IIJA.
    The IIJA represents a once in a generation investment in 
our Nation's infrastructure and competitiveness. It also 
represents an opportunity to make good on decades of chronic 
underinvestment in infrastructure for American Indian and 
Alaska Native communities.
    The bipartisan effort in Congress, including many champions 
in this room, helped to ensure that these funds for clean 
drinking water and modern wastewater and sanitation systems 
were included in the final IIJA. Thank you. The Department of 
Health and Human Services and the Indian Health Service are 
grateful for this partnership with Congress, our shared 
commitment to ensure that this historic funding is implemented 
successfully, and that these dollars reach Indian Country as 
quickly as possible.
    As you know, the mission of the Indian Health Service is to 
raise the physical, mental, social, and spiritual health of 
American Indians and Alaska Natives to the highest level. One 
way that we can do this is through our sanitation facilities 
construction program.
    The 1988 amendments to the Indian Health Care Improvement 
Act require that the Indian Health Service maintain an 
inventory of sanitation deficiencies for existing Indian homes 
and communities, to prioritize those deficiencies, and to 
annually report those deficiencies to Congress. This program 
works collaboratively with tribes to strive toward providing 
all American Indian and Alaska Native homes and communities 
with safe and adequate water supply and waste disposal 
facilities.
    The list of sanitation projects is in our sanitation 
deficiency system, but these lists of projects are not static. 
In collaboration with tribes, the IHS annually updates the 
project list to account for newly identified sanitation 
deficiencies as well as to update cost estimates due to 
increases in the various factors, such as inflation, labor, 
material costs and project scope changes.
    This brings me to the IIJA, which supports the construction 
of water, wastewater and solid waste facilities in American 
Indian and Alaska Native tribes and communities. The IHS 
support for these facilities is an integral component of IHS 
disease prevention activities. The IIJA appropriated a total of 
$3.5 billion to this program over the next five years, and the 
IIJA directs the agency to use up to $2.2 billion of that $3.5 
billion total on economically infeasible projects, providing an 
opportunity to address longstanding unmet needs in many tribal 
communities.
    Last year, as well as this year, we have announced two 
years of funding for Fiscal Years 2022 and 2023 the allocation 
decisions for $700 million appropriated in each of these fiscal 
years of the IIJA. For example, in Fiscal Year 2023, the IHS 
will allocate over $612.5 million in IIJA funding for Tier I 
projects construction costs.
    When you combine this with the Fiscal Year 2023 annual 
appropriations, this means the IHS will fully fund construction 
costs for 197 Tier I projects. This allocation also includes 68 
economically infeasible Tier I projects, totaling nearly $500 
million in eligible costs.
    Historically, the IHS received limited program support 
resources to address the sanitation facility construction 
project workload. The project funding has increased since 
Fiscal Year 2018, and more importantly, the IHS funding has 
significantly increased the sanitation facility construction 
workload.
    However, the IIJA also limits funding for program support 
activities to 3 percent per year. Given this limitation, it is 
possible that the average project duration could be greater 
than the current project duration which we estimate about three 
and a half years per project.
    As with much of our work to deliver care and services in 
Indian Country, we have encountered a number of issues related 
to workforce recruitment. Through our efforts, we have worked 
with various agencies such as the Office of Personnel 
Management to look at waivers that will allow recruitment, 
relocation and retention up to 50 percent for certain 
engineers.
    We are also enhancing our partnerships with organizations 
like the American Indian Science and Engineering Society as 
well as the U.S. Army Corps of Engineers and the Department of 
Interior's Bureau of Reclamation to leverage Inflation 
Reduction Act funds.
    I too have submitted written testimony. We look forward to 
working with Congress relating to this program and the use of 
the IIJA funds. I am happy to take any questions that the 
Committee may have for me today. Thank you.
    [The prepared statement of Mr. Smith follows:]

 Prepared Statement of Benjamin Smith, Deputy Director, Indian Health 
            Service, Department of Health and Human Services
    Good afternoon Chairman Schatz, Vice Chair Murkowski and Members of 
the Committee. Thank you for the opportunity to provide testimony on 
the topic of ``Water as a Trust Resource: Examining Access in Native 
Communities'' and the issue of waterlessness and sanitation issues in 
Native Communities, and to provide an update on Indian Health Service's 
(IHS) Sanitation Facilities Construction program benefitting American 
Indian and Alaska Native communities under the Infrastructure 
Investment and Jobs Act (IIJA).
    I want to start by underscoring that the Biden-Harris 
Administration agrees that water is a sacred resource that must be 
protected. The IIJA represents a once in a generation investment in our 
nation's infrastructure and competitiveness. It also represents an 
opportunity to make good on decades of chronic underinvestment in 
infrastructure for American Indian and Alaska Native (AI/AN) 
communities. The bipartisan efforts of Congress--including many 
champions in this room--helped to ensure these funds for clean drinking 
water and modern wastewater and sanitation systems were included in the 
final bill. The Department of Health and Human Services and IHS are 
grateful for this partnership with Congress, and our shared commitment 
to ensure that this historic funding is implemented successfully and 
that these dollars reach Indian Country as quickly as possible. We look 
forward to sharing our progress on implementation of the IIJA, as part 
of our commitment to transparency to Congress and AI/AN communities.
    As you know, the Indian Health Service's mission is to raise the 
physical, mental, social, and spiritual health of American Indians and 
Alaska Natives to the highest level. This mission is carried out in 
partnership with American Indian and Alaska Native Tribal communities 
through a network of over 687 Federal and Tribal health facilities and 
41 Urban Indian Organizations (UIOs) that are located across 37 states 
and provide health care services to approximately 2.7 million American 
Indian and Alaska Native people annually.
Sanitation Facilities Construction Program
    The 1988 amendments to the Indian Health Care Improvement Act 
require the IHS to maintain an inventory of sanitation deficiencies for 
existing Indian homes and communities, to prioritize those 
deficiencies, and to annually report those deficiencies to Congress. 
Since 1989, the IHS has annually reported these needs to Congress in 
the form of projects, which are currently catalogued in the Sanitation 
Deficiency System (SDS). Projects are identified by the facilities to 
be provided, the cost of those facilities, and the number of homes to 
be served by the facilities. Funding for projects is distributed to the 
Areas based on an allocation formula that takes into account the 
relative needs identified in each Area's SDS inventory. The Sanitation 
Facilities Construction (SFC) program employs a cooperative approach 
for planning, designing, and constructing sanitation facilities serving 
American Indian and Alaska Native communities. Each project is 
initiated at the request of a Tribe or Tribal Organization, and 
coordination is maintained throughout project planning, design, and 
construction.
    The SFC Program works collaboratively with Tribes to strive toward 
providing all American Indian and Alaska Native homes and communities 
with safe and adequate water supply and waste disposal facilities. The 
residents of these homes will benefit from reduced health care cost 
associated with water-related illnesses. The IHS estimated in FY 2022 
that every $1 in funding provided for sanitation facilities resulted in 
$0.68 in avoided medical cost related to inpatient and outpatient 
visits related to respiratory, skin and soft tissue, and gastro enteric 
disease.
    At the end of fiscal year (FY) 2022 about 5,906, or 1.6 percent of 
all American Indian and Alaska Native homes tracked by IHS lacked water 
supply or wastewater disposal facilities; and, about 113,749 or 
approximately 30 percent of American Indian and Alaska Native homes 
tracked by IHS were in need of some form of sanitation facilities 
improvements. Many of these homes without service are typically located 
in remote locations such as on the Navajo Nation and in some remote 
Alaska Native Villages. In addition to operational challenges, the 
capital cost to construct these facilities are significantly higher 
than the provision of similar facilities in other geographic locations. 
Additionally, the cost burden associated with operation and maintenance 
of these facilities usually exceeds the capacity of the Tribal utility 
to generate sufficient revenue from the system users to support ongoing 
operation.
    As mentioned, sanitation projects are tracked in the SDS. The list 
of sanitation projects in the SDS is not static. In collaboration with 
Tribes, the IHS annually updates the SDS project list to account for 
newly identified sanitation deficiencies and to update cost estimates 
due to increases related to inflation, labor and material costs, and 
project scope changes.
    At the end of calendar year (CY) 2022, the SDS included 1,369 
projects. Of this total, 751 projects were feasible and 618 projects 
were infeasible with a combined total database cost estimated at $4.4 
billion in eligible costs and an additional $1.1 billion in ineligible 
costs that will have to come from other non-IHS funding resources.
    Ineligible costs are the costs associated with serving commercial, 
industrial, or agricultural establishments, including nursing homes, 
health clinics, schools, hospitals, hospital quarters, and non-American 
Indian and Alaska Native homes. The Sanitation Facilities Construction 
Act prevents the IHS from using its appropriations for these costs. 
However, the IHS regularly partners with Tribes and other Federal 
Agencies to identify alternative resources to successfully support 
these ineligible costs. If our Federal funding partners are not able to 
contribute financial support for the projects that have IHS ineligible 
costs, those projects will not be fully funded and cannot be completed 
if the Tribe does not have the financial capability to fund the 
ineligible portion of the project.
    Economically infeasible projects are those that exceed a per unit 
cost set for each IHS Area, and three different regions within the IHS 
Alaska Area. While there was not a statutory barrier to funding 
economically infeasible projects, the IHS had not been able to fund 
these projects in light of limited annual appropriations before the 
IIJA was enacted and had to prioritize those which were economically 
feasible. The IIJA provides $2.2 billion for economically infeasible 
projects.
    The IHS categorizes SDS projects into three Tiers depending on a 
project's progress toward completing planning activities.

   Tier 1 projects are considered ready to fund because 
        planning is complete. However, design and construction contract 
        document creation activities are not yet complete for current 
        Tier 1 projects. These projects then move through the design 
        and construction contract document creation steps before a 
        construction contract can be initiated through Federal or 
        Tribal procurement methods.

   Tier 2 projects are projects that have a level of 
        engineering assessment completed, such that the deficiency is 
        understood and a recommended solution has been analyzed and 
        scoped; these projects have a cost estimate and design 
        parameters that are accurate within plus or minus 25 percent.

   Tier 3 projects are projects with cost estimates and design 
        parameters that do not have a specific accuracy target, but are 
        based on the best information available at the time of 
        submission. These projects demonstrate that an eligible 
        deficiency has been identified, but the Area may not have 
        determined the recommended solution.

    The IHS also assigns a Deficiency Level to each project in the SDS. 
Deficiency Levels are assigned in accordance with section 302(g)(4) of 
the Indian Health Care Improvement Act (IHCIA) (25 U.S.C.  1632(g)(4)) 
for each sanitation facilities project that has been identified as a 
need to support Indian Tribes and communities. The Deficiency Levels 
are explained in the table below.

------------------------------------------------------------------------
 Sanitation Deficiency
         Level                             Description
------------------------------------------------------------------------
V                       An Indian tribe or community that lacks a safe
                         water supply and a sewage disposal system.
IV                      An Indian tribe or community with a sanitation
                         system that lacks either a safe water supply
                         system or a sewage disposal system.
III                     An Indian tribe or community with a sanitation
                         system that has an inadequate or partial water
                         supply and a sewage disposal facility that does
                         not comply with applicable water supply and
                         pollution control laws, or has no solid waste
                         disposal facility.
II                      An Indian tribe or community with a sanitation
                         system that complies with all applicable water
                         supply and pollution control laws, and in which
                         the deficiencies relate to capital improvements
                         that are necessary to improve the facilities in
                         order to meet the needs of such tribe or
                         community for domestic sanitation facilities.
I                       An Indian tribe or community with a sanitation
                         system that complies with all applicable water
                         supply and pollution control laws, and in which
                         the deficiencies relate to routine replacement,
                         repair, or maintenance needs.
0                       No deficiencies to correct.
------------------------------------------------------------------------

    SFC projects can be directly operated by the IHS through Federal 
Acquisition Regulation contracts or through Tribal procurement. Tribes 
can directly operate SFC projects through Indian Self-Determination and 
Education Assistance Act construction contracts (25 C.F.R. 900 Subpart 
J, 42 C.F.R. 137 Subpart N).
Infrastructure Investment and Jobs Act
    Research supported by the Centers for Disease Control and 
Prevention states populations in regions with a lower proportion of 
homes with water service, reflect significantly higher hospitalization 
rates for pneumonia, influenza, and respiratory syncytial virus. \1\ 
Researchers associated the increasing illnesses with the restricted 
access to clean water for hand washing and hygiene. The IIJA supports 
the construction of water, wastewater, and solid waste facilities in 
American Indian and Alaska Native tribes and communities. The IHS 
support for these facilities is an integral component of IHS disease 
prevention activities.
---------------------------------------------------------------------------
    \1\ Thomas W. Hennessy, Troy Ritter, Robert C. Holman, Dana L. 
Bruden, Krista L. Yorita, Lisa Bulkow, James E. Cheek, Rosalyn J. 
Singleton, and Jeff Smith. The Relationship Between In-Home Water 
Service and the Risk of Respiratory Tract, Skin, and Gastrointestinal 
Tract Infections Among Rural Alaska Natives. American Journal of Public 
Health: November 2008, Vol. 98, No. 11, pp. 2072-2078.
---------------------------------------------------------------------------
    The IIJA appropriated a total of $3.5 billion to the IHS SFC 
program. The IIJA includes $700 million annually from FY 2022 through 
FY 2026 which includes a maximum 3 percent ($21 million) set-aside for 
salaries, expenses, and administration each year. This set-aside is 
limited to Federal costs only. It also directs the IHS to provide 0.5 
percent ($3.5 million) each year to the Office of Inspector General for 
oversight of these funds. Finally, the IIJA directs the Agency to use 
up to $2.2 billion of the $3.5 billion appropriation on economically 
infeasible projects providing an opportunity to address longstanding, 
unmet needs in many tribal communities. As required by the bill, IHS 
will update the Congressional spend plan for these funds annually 
through FY 2026.
FY 2022 Bipartisan Infrastructure Law Funding Allocations
    Since President Biden signed the Infrastructure Investment and Jobs 
Act, the Administration has prioritized results and is making key 
progress towards implementation. Last year, on May 31, 2022, the IHS 
announced the FY 2022 allocation decisions for $700 million 
appropriated to the IHS in the IIJA.
    The IHS conducted 3 virtual tribal consultations on the IIJA from 
November 22, 2021, to January 5, 2022, and based on review and 
consideration of input received through tribal consultation, the IHS 
decided to use current SDS data and the agency's existing funding 
mechanisms to allocate these resources. This includes IHS direct 
service projects funded through Federal Acquisition Regulations 
contracts or tribal procurement, and Indian Self-Determination and 
Education Assistance Act construction contracts.
    The FY 2022 allocation decisions align with recommendations from 
tribal leaders to prioritize funding for projects that have completed 
the planning phase and can be immediately placed into the design and 
construction phase, and to provide sufficient funding for planning and 
design activities to get projects ready to fund.
FY 2023 Bipartisan Infrastructure Law Funding Allocations
    On September 7, 2023, the IHS announced the FY 2023 allocation 
decisions for $700 million appropriated to the IHS in the IIJA.
    The IHS conducted a virtual Tribal Consultation on the IIJA on 
April 12, 2023, and accepted written comments through April 28, 2023.
    The IHS will allocate approximately $612.6 million in FY 2023 IIJA 
funding for Tier 1 project construction costs. When combined with FY 
2023 annual SFC appropriations, the IHS will fully fund construction 
costs for 197 Tier 1 projects. These Tier 1 projects span Deficiency 
Levels 2 through 5.
    This allocation also includes 68 economically infeasible Tier 1 
projects, totaling $496.6 million in eligible costs.
    Since design activities and construction contract document creation 
activities have not been completed for current Tier 1 projects, these 
steps must be finalized before a construction contract can be initiated 
through Federal or Tribal procurement methods. The IHS is allocating 
approximately $28.9 million in FY 2023 IIJA funding to support 
contracts with architecture and engineering firms to complete design 
and construction document creation activities for Tier 1 projects.
    The IHS will use FY 2023 annual SFC appropriations to support 
additional planning, design, and construction document creation 
activities for Tier 2 projects. The SDS currently includes 589 Tier 2 
projects, totaling approximately $2.5 billion.
    The IHS will allocate $65.5 million in FY 2023 IIJA funding to 
address potential project shortfalls, and to support additional 
planning, design, and construction document creation activities. 
Project shortfall funding is needed to support previously funded SFC 
projects that exceeded the original project budget due to increased 
construction costs driven by inflation and supply chain constraints.
Sanitation Facilities Construction Workforce and Support Resources
    Historically, the IHS has received limited program support 
resources to address the SFC project workload. SFC project funding has 
increased since FY 2018, and the IIJA funding has significantly 
increased the SFC workload. However, the IIJA limits funding for 
program support activities to 3 percent per year. Given this 
limitation, it is possible that the average project duration could be 
greater than the current average project duration of 3.6 years. The 
IIJA also restricts program support funding to federal activities, 
which means that Tribes that operate their SFC projects directly cannot 
access these needed administrative resources.
    To address the need for administrative support, the FY 2024 
President's Budget requests an additional $49 million in Facilities and 
Environmental Health Support resources to support IIJA implementation. 
This funding would be available for federal activities and to Tribes 
who compact or contract under the Indian Self-Determination and 
Education Assistance Act to implement SFC projects, unlike the 
administrative set-aside in the IIJA. This investment is critically 
necessary to maintain existing project completion deadlines and ensure 
successful implementation of IIJA resources.
    As with much of our work to deliver care and services in Indian 
Country, IHS has encountered some familiar challenges, including 
workforce recruitment and retention. The IHS is leveraging multiple 
strategies and available authorities to support IIJA recruitment, 
hiring, and project execution. The IHS has centralized SFC recruitment 
and hiring at the headquarters level to streamline processes. The IHS 
is also implementing a recently approved Office of Personnel Management 
(OPM) waiver to allow it to pay recruitment, relocation, and retention 
incentives of up to 50 percent for certain engineers and is working 
with OPM to support the development of marketing tools. The IHS is 
maximizing other partnerships by collaborating with the American Indian 
Science and Engineering Society to recruit recent graduates; using an 
Inter-Agency Agreement with the U.S. Army Corps of Engineers to provide 
planning, design, and/or construction support; and formalizing a 
partnership with the Department of the Interior Bureau of Reclamation 
(BOR) to leverage BOR`s Inflation Reduction Act funds.
    We look forward to continuing our work with Congress related to the 
SFC program and the use of IIJA funds to make improvements in tribal 
communities. We are committed to working closely with Tribes and we 
understand the importance of working with other stakeholders and 
partners to address the needs of American Indians and Alaska Natives.

    The Chairman. Thank you very much.
    The Honorable Crystalyne Curley, please proceed with your 
testimony.

  STATEMENT OF HON. CRYSTALYNE CURLEY, SPEAKER, NAVAJO NATION 
                            COUNCIL

    Ms. Curley. Ya'at'eeh, Chairman Schatz, Vice Chair 
Murkowski, and members of the Committee. My name is Crystalyne 
Curley, Speaker of the 25th Navajo Nation Council.
    This year the Navajo Nation Council celebrates its 100th 
year anniversary. I point this out because I am testifying 
today on water access and water as a trust resource. The 
challenges facing the Navajo Nation concerning water access 
today are at least as old as our Council, pre-dating our 
Council's creation and coincide with the American presence in 
Dine Bikeyah, translated as Navajo Aboriginal Territory.
    Our Navajo people often say that water is sacred, and we 
fully understand the sacredness of this precious resource. 
Unfortunately, approximately 30 percent of our Navajo Nation 
homes lack running water. I know this esteemed body is already 
aware of the impact COVID-19 had on the Navajo people, 
resulting in the highest rates of transmission and death on a 
per capita basis.
    This esteemed Committee worked tirelessly to fully fund the 
Indian Health Service Sanitation Deficiency Program through the 
Investment in Infrastructure and Jobs Act in 2021. And I thank 
you for that.
    While we are still anxiously waiting for the IHS funding to 
be fully deployed, the Navajo Government is working hard to 
streamline the environmental clearance processes so that we are 
not standing in the way of the construction of water and sewer 
lines.
    The lack of access to water includes more than a domestic 
water supply. The lack of water access impedes economic 
development on the Navajo Nation. Water is needed to support 
farming, industrial development, and municipal development.
    As you know, the IHS program is limited to water and sewer 
for Navajo homes. There are no Federal programs to address 
water access for economic development. Therefore the settlement 
of our water rights cases has served as a vehicle for obtaining 
sufficient Federal funding and authorization as necessary to 
design and construct clean drinking water projects that will 
promote economic development by serving businesses, government 
buildings and other municipal needs.
    Along these lines, one of the most important ways that this 
Committee can support the Navajo Nation is by helping to enact 
legislation to approve and implement water rights settlements 
we have negotiated with States, the Federal Government, and 
other parties. Through these settlements, the Navajo Nation can 
secure more reliable water supplies by quantifying our reserved 
water rights and obtaining support for infrastructure projects 
needed to put those water rights to use to benefit our people.
     In July of this year, Navajo Nation President Buu Nygren 
testified in support of the Navajo-Gallup Water Supply Project 
Amendments Act of 2023, S. 1898. By making it possible to fully 
implement the commitments made by the Federal Government as 
part of the San Juan River Basin Water Rights Settlement, 
enacting S. 1898 will help secure a reliable water supply for 
water users in the eastern part of the Navajo Nation, the 
southwestern portion of the Jicarilla Apache Nation, and the 
City of Gallup, New Mexico.
    Currently, the areas that this project will serve rely on a 
rapidly depleting groundwater supply that is of poor quality 
and is unable to meet current and future water demands. 
Additionally, the Navajo Nation anticipates working with our 
Congressional delegation and this Committee to introduce 
settlement legislation to approve water rights settlements for 
the Rio San Jose Basin and the Zuni Basin in New Mexico.
    The Navajo Nation is also working very hard to bring 
parties together within the State of Arizona so we can bring a 
settlement of our water rights in Arizona to this Congress. 
While ambitious, it is doable.
    I say this is doable because non-Indian parties are 
expressing their desire to work with the Navajo Nation, and my 
people are energized by the Navajo-Gallup Water Supply Project 
pipelines that are currently being laid on the side of major 
roadways on the Navajo Nation. They know water is coming. We 
want to have this same excitement and opportunity throughout 
the entire Navajo Nation.
    Finally, I want to express support for Tribal Access to 
Clean Water Bills S. 2385 and H.R. 4746. These bills will, 
among other things, address operations and maintenance of IHS 
constructed facilities and ensure that we do not create another 
crisis on the Navajo Nation.
    Navajo Nation leadership stands ready to work with this 
Committee, with Congress, and the Administration to address the 
biggest issue facing the Navajo Nation, which is access to 
clean drinking water. Such leadership working together can 
secure a future where the Navajo people have access to clean, 
reliable water needed to thrive.
    Thank you for your time, and I look forward to further 
discussions on how we can address the water crisis facing the 
Navajo Nation. Ahehee'.
    [The prepared statement of Ms. Curley follows:]

 Prepared Statement of Hon. Crystalyne Curley, Speaker, Navajo Nation 
                                Council
    Ya'at'eeh Chairman Schatz, Vice Chair Murkowski, and Members of the 
Committee,
    My name is Crystalyne Curley, Speaker of the 25th Navajo Nation 
Council. This year the Navajo Nation Council celebrates its 100th year 
anniversary.
    I point this out because I am testifying today on water access and 
water as a trust resource. The challenges facing the Navajo Nation 
concerning water access today, are at least as old as our Council and 
indeed pre-date our Council's creation and coincide with the American 
presence in what I call Dine Bikeyah, roughly translated as Navajo 
Aboriginal Territory. Our Navajo people often say that ``water is 
life'' and we fully understand the sacredness of this precious 
resource.
    Unfortunately, approximately 30 percent of Navajo Nation homes lack 
running water. I know this esteemed body is already aware of that fact 
as the COVID-19 pandemic shined a light on the disparities in the 
standard of living on the Navajo Nation that resulted in not only the 
highest rates of COVID but the highest rates of death from COVID 
throughout the United States. This esteemed Committee worked tirelessly 
to fully fund the Indian Health Service (IHS) Sanitation Deficiency 
Program through the Investment in Infrastructure and Jobs Act in 2021. 
And I thank you for that.
    While we are still anxiously waiting for the IHS funding to be 
fully deployed, the Navajo Government is working hard to streamline the 
environmental clearance processes so that we are not standing in the 
way of the construction of water and sewer lines.
    The lack of access to water includes more than a domestic water 
supply. The lack of water access impedes economic development on the 
Navajo Nation. Water is needed to support farming, industrial 
development, and municipal development. As you know, the IHS program is 
limited to water and sewer for Navajo homes.
    There have not been federal programs to address water access for 
economic development and therefore the settlement of our water rights 
cases has served as the vehicle for obtaining sufficient federal 
funding and authorization as necessary to design and construct clean 
drinking water projects that serve businesses, government buildings, 
other municipal needs, and light industry.
    Along these lines, one of the most important ways that this 
Committee can support the Navajo Nation is by helping to enact 
legislation to approve and implement water rights settlements we have 
negotiated with States, the federal government, and other parties. 
Through these settlements, the Nation secures a more reliable water 
supply by quantifying our reserved water rights and obtaining support 
for infrastructure projects needed to put those water rights to use to 
benefit our people.
    In July of this year, Navajo Nation President Buu Nygren testified 
in support of the Navajo-Gallup Water Supply Project Amendments Act of 
2023, S. 1898. By making it possible to fully implement the commitments 
made by the Federal government as part of the San Juan River Basin 
Water Rights Settlement, enacting S. 1898 will help secure a reliable 
water supply for water users in the eastern part of the Navajo Nation, 
the southwestern portion of the Jicarilla Apache Nation, and the
    City of Gallup, New Mexico. The areas that the Navajo-Gallup Water 
Supply Project will serve currently rely on a rapidly depleting 
groundwater supply that is of poor quality and is inadequate to meet 
current and future water demands. In addition to this pending bill, the 
Navajo Nation anticipates working with our Congressional delegation and 
this Committee to introduce settlement legislation to approve water 
rights settlements for the Rio San Jose Basin and the Zuni Basin in New 
Mexico in the near future as well. In addition, the Navajo Nation is 
working very hard to bring parties together within the State of Arizona 
so we can also bring a settlement of our water rights in Arizona to 
this Congress. While ambitious, it is doable.
    I say this is doable because non-Indian parties are expressing 
their desire to work with the Navajo Nation, and my people are 
energized by the Navajo-Gallup Water Supply Project pipelines that are 
currently being laid on the side of major roadways on the Navajo 
Nation. They know water is coming. We want to have this same excitement 
and opportunity throughout the entire Navajo Nation.
    Finally, I want to express support for Tribal Access to Clean Water 
Bills S. 2385 and H.R. 4746. These bills will among other things 
address operations and maintenance of IHS constructed facilities and 
ensure that we do not create another crisis on the Navajo Nation.
    Navajo Nation Leadership stands ready to work with this Committee, 
with Congress, and with the Administration to address the biggest issue 
facing the Navajo Nation, access to clean drinking water. Such 
leadership working together can secure a future where the Navajo people 
have access to clean reliable water needed to thrive.
    Thank you for your time, and I look forward to further discussions 
on how we can address the water crisis facing the Navajo Nation. 
Ahehee'.

    The Chairman. Thank you very much, Speaker.
    Next, we have Mr. Kali Watson, the Chairman of the Hawaiian 
Homes Commission, and Director of the Department of Hawaiian 
Home Lands. Welcome, Mr. Watson.

STATEMENT OF KALI WATSON, CHAIRMAN, DEPARTMENT OF HAWAIIAN HOME 
                             LANDS

    Mr. Watson. Aloha, Chairman Schatz, and Vice Chair 
Murkowski. I would like to thank you for inviting me to testify 
on behalf of the Department of Hawaiian Home Lands at your 
oversight hearing.
    My name is Kali Watson. I am the Chairman as well as the 
Director of the Department of Hawaiian Home Lands. Access to 
water has been and remains a critical barrier in fulfilling the 
purposes of the Hawaiian Homes Commission Act. As detailed in 
my written testimony, if DHHL is to fulfill the requirements of 
that Act, we need access to millions of additional gallons of 
water per day, which will also require hundreds of millions of 
dollars of investment to develop.
    A little history about this program, it was created by 
Congress over 100 years ago. It started in 1921. It was created 
in response to the deterioration of the Native Hawaiians, or 
the indigenous people of Hawaii. As a result of that, Prince 
Jonah Kuhio Kalaniana'ole lobbied and was successful in passing 
this Act, which resulted in the setting aside of a little over 
200,000 acres.
    Unfortunately, the lands that were set aside were not 
arable lands, with little infrastructure, isolated and very, 
very expensive to develop. Besides this huge deficiency in the 
assets of the program, there was also a lack of funding. So in 
the past 100 years of the program's existence, there has been 
roughly maybe 100 units or homestead lots that were created. A 
very, very dismal record based on all these challenges that 
were really not addressed when the program was created over 100 
years ago.
    So if Prince Kuhio were to be alive today, While he would 
be happy about the passage of the Act, he would be very, very 
disappointed and sad, especially when you look at the reason 
why that Act was created. It was the deterioration of these 
Hawaiian people that really was the motivation and the passion 
with which he lobbied successfully for the passage of this Act.
    Even today, we still have the same problems. Forty percent 
of incarcerated people in the prisons are Native Hawaiians. 
Forty percent of the homeless in Hawaii are Hawaiians. They 
have the most disparate or lowest amount of home ownership of 
all the ethnic groups, the most overcrowded situations. When 
you look at the health, they lead all the statistics on whether 
it is diabetes or breast cancer, it goes on and on.
    Part of the problem is a lack of housing. We are in the 
process of trying to get our projects out.
    But the biggest hurdle is access to infrastructure, because 
of the location of the lands. So how do we address that?
    In looking at the funding sources, I think the biggest 
problem is a lack of parity. When we talk about the Bipartisan 
Infrastructure Law, Hawaiiain Home Lands doesn't have access to 
that. DHHL and Native Hawaiian beneficiaries of the Act are not 
eligible and do not have the dedicated stream of Federal 
funding for infrastructure needs that are currently afforded as 
provided in the program such as the Indian Health Services 
program in the Bureau of Indian Affairs.
    The Winters Doctrine, which protects a reservation's water, 
established as of the date that the Federal Government created 
the reservation involved, does not apply to Hawaiian Home 
Lands. But the need for the access, as well as the funding, 
remains. So basically, when we look at all our different 
homestead areas throughout the State, we have this big, big 
problem. A good example is in Leiali'i, which is part of 
Lahaina, where we had these wildfires, as all of you know 
about. It was very, very tragic. Many people died in that 
event.
    Fortunately, Leiali'i, which is a phase one we have there, 
about 104 homesteaders, they were, because of the construction 
materials used and various other things, only two of the houses 
were destroyed, unlike the 2,200 that were lost.
    So we are in the second phase, and where we want to put 
additional housing, not only over there, but right up the 
street in Honokowai, another area we want to put in housing as 
well as develop our agriculture and pastoral lots, big problem: 
no water. So we are attempting to find sources of funding to 
move these programs along.
    But without that kind of funding, these unfortunate next 
phases as well as current development of Honokowai as well as 
all of our projects throughout the State, whether it is the big 
island, Moloka'i or Maui or even O'ahu, without infrastructure 
funding, not only can we not put in the water systems, but also 
the sewer systems, the roads and all this infrastructure that 
makes development possible.
    So unless the Federal Government steps up, it is going to 
be very, very difficult for us. Part of it is not only the 
funding, but the current laws that really deprive our 
particular program, which was federally created 100 years ago. 
Unless we change those laws to create parity with other Indian 
as well as Alaskan entities, we are going to continue to be 
plagued. At present, we have 29,000 people on our waiting list, 
and it is growing.
    So I ask you to really consider that in your deliberations. 
In conclusion, I want to thank Chairman Schatz for allowing me 
this opportunity to testify. Mahalo.
    [The prepared statement of Mr. Watson follows:]

  Prepared Statement of Kali Watson, Chairman, Department of Hawaiian 
                               Home Lands
    Aloha Chairman Schatz, Vice Chairman Murkowski, and Members of the 
U.S. Senate Committee on Indian Affairs:
    Thank you for inviting me to testify on behalf of the Department of 
Hawaiian Home Lands (DHHL) at your Oversight Hearing entitled ``Water 
as a Trust Resource: Examining Access in Native Communities.'' DHHL is 
governed by the Hawaiian Homes Commission Act of 1920 (HHCA), enacted 
by the U.S. Congress to protect and improve the lives of native 
Hawaiians. \1\ Spearheaded by Prince Jonah Kuhio Kalaniana'ole, the 
HHCA set aside public lands, called Hawaiian Home Lands, to establish a 
rehabilitative program for native Hawaiians. \2\ Under the HHCA, native 
Hawaiians may obtain 99-year homestead leases at $1 per year for 
residential, agricultural or pastoral purposes. Indeed and as my 
testimony will explain, access to water has been and remains a critical 
barrier in fulfilling the purposes of the HHCA. As detailed in my 
testimony, if DHHL is to fulfill the requirements of the Act we will 
need access to tens of millions of additional gallons of water per day, 
which will require hundreds of millions of dollars in investment to 
develop.
---------------------------------------------------------------------------
    \1\ Hawaiian Homes Commission Act, 1920, Pub. L. No. 67-34, 42 
Stat. 108 (1921), https://www.doi.gov/sites/doi.gov/files/uploads/Act-
of-July-9-1921-42-Stat-108.pdf.
    \2\ The HHCA defines a native Hawaiian as any descendant of not 
less than one-half part of the blood of the races inhabiting the 
Hawaiian Islands previous to 1778.
---------------------------------------------------------------------------
    My testimony is divided into four main parts. In Part 1, I explain 
how water accessibility issues have been central to our struggle, even 
before the passage of the HHCA and to this day. Part 2 details the 
various Federal, State and Local policies that have attempted to 
address our water accessibility issues. Part 3 reviews the types of 
water accessibility issues we face, our calculated demands for water, 
water reservations held, and our known and estimated costs to develop 
needed water sources and systems. Part 4 summarizes how water is an 
essential trust asset for fulfillment of the HHCA.
Part 1: Background on the HHCA and Water Accessibility Challenges
    As contained in the Congressional Record and well documented by 
scholars, \3\ passage of the HHCA by Congress took many years of effort 
by Delegate Kalaniana`ole, was controversial both in Hawai`i and in 
Washington D.C., and required multiple compromises in order to secure 
passage. One of the key areas of controversy and compromise had to do 
with the dry and remote nature of the lands to be set aside in the Act 
and the difficulty homesteaders would face in water accessibility. This 
was discussed before the US Senate Committee on the Territories in 
December 1920 as they considered HR 13500, which became the HHCA. A 
written submittal to the Committee was provided by Albert Horner, a 
noted agricultural expert, who said in part: \4\
---------------------------------------------------------------------------
    \3\ See for instance McGregor, Davianna Pomaika'i. 1990. ```Aina 
Ho`opulapula: Hawaiian Homesteading.'' Hawaiian Journal of History. 
Vol. 24.
    \4\ The 1920 U.S. Senate Committee on the Territories Hearing on 
H.R. 13500 to Establish the Hawaiian Homes Commission, https://
www.doi.gov/sites/doi.gov/files/uploads/HHCA-House-Hearing-Dec-14-1920-
for-HR-13500.pdf

         You will note that all `cultivated sugar-cane lands' are 
        excluded from `available lands'. . .thus confining the lands 
        available for the rehabilitation project to those upon which it 
        is not possible for the Hawaiian or anyone else to make good. 
        In short, it gives the plantation all arable and the Hawaiians 
---------------------------------------------------------------------------
        all arid lands.

    As it stands today, most of DHHL's lands are located on the 
neighbor islands in rural or more remote locations with over half of 
the acreage on the island of Hawai`i, \5\ including over 56,000 acres 
on the slopes of Mauna Kea and over 11,000 acres at the southernmost 
point in both the Hawaiian Islands and US. \6\ With over 30,000 acres 
on Maui, \7\ a significant portion of those lands include over 22,000 
acres on the dry southern flank of Haleakala at Kahikinui with 
elevation ranges from sea level to 9,700 feet near the summit. \8\ 
DHHL's lands on Moloka`i consist of over 25,000 acres of which over 
half of those lands at Ho`olehua is a rural agricultural community 
ranging from level plains to rolling hills and sea cliffs at the 
northern coastal boundary. \9\ Kaua`i includes over 20,000 acres of 
Hawaiian Home Lands with over 15,000 acres in Waimea, of which two 
thirds of the area is described as steep, mountainous terrain and 
isolated valleys. \10\ O`ahu, the island with the greatest demand of 
applicants looking for homestead opportunities has the least amount of 
land with just over 8,000 acres, of which over 1,400 acres is 
designated conservation primarily consisting of the steep cliffs along 
the Ko`olau. \11\
---------------------------------------------------------------------------
    \5\ DHHL Hawaii Island Plan (May 2002), https://dhhl.hawaii.gov/
wpcontent/uploads/2012/05/Island_Plan_Hawaii_2002.pdf.
    \6\ South Point Resources Management Plan (October 2016), https://
dhhl.hawaii.gov/wpcontent/uploads/2017/06/DHHL-South-Point-Final-
Plan_101916_to-DHHL_low-res.pdf.
    \7\ Maui Island Plan (September 2004), https://dhhl.hawaii.gov/
wpcontent/uploads/2012/05/Island_Plan_Maui_2004.pdf.
    \8\ Kahikinui Regional Plan (July 2011), https://dhhl.hawaii.gov/
wpcontent/uploads/2011/06/Kahikinui_RP_110711.pdf.
    \9\ DHHL Molokai Island Plan (June 2005), https://dhhl.hawaii.gov/
wpcontent/uploads/2012/05/Island_Plan_Molokai_2005.pdf and 2019 Molokai 
Regional Plan, https://dhhl.hawaii.gov/wp-content/uploads/2020/02/
Molokai-Regional-Plan-Update-Final_02-18-20_HHC.pdf.
    \10\ Kauai Island Plan (May 2004), https://dhhl.hawaii.gov/wp-
content/uploads/2012/05/Island_Plan_Kauai_2004.pdf.
    \11\ Oahu Island Plan (July 2014), https://dhhl.hawaii.gov/wp-
content/uploads/2013/04/DHHL-OIP-Final-140708.pdf.
---------------------------------------------------------------------------
    Awareness of the water access challenges for Hawaiian Home Lands 
continued through the territorial period, and concerns about how access 
related to larger issues of equity were just as prominent in the 1950s 
as they were in the 1920s. In 1957, then territorial Delegate to 
Congress (and later Governor) John Burns raised concerns about water 
access for Hawaiian Home Lands. A contemporary news account noted his 
concern with obtaining water for planned homestead development in 
Waimanalo, O`ahu. The Hawaiian Homes Commission had been told by the 
water utility that there was insufficient source, and yet the paper 
went on to note ``Many are asking why this could be when Harold 
Castle`s Kaneohe Ranch is getting ample water for [its] subdivisions 
and is planning more subdivisions with hundreds of homes.'' \12\
---------------------------------------------------------------------------
    \12\ Honolulu Record, Volume 10 No. 19, Thursday, December 5, 1957 
p. 1. https://www.hawaii.edu/uhwo/clear/HonoluluRecord/articles/v10n18/
Hawaiians%
20Kept%20Off%20Land%20By%20Suburban%20Water%20Stall%20System%20Supplies%
20
Subdivides%20but%20Not%20Homesteads.html
---------------------------------------------------------------------------
    The first responsibility to fulfill the Act and address its water 
accessibility and other challenges fell to the federal government, 
which served as the sole trustee of the Hawaiian Home Lands program 
until Statehood. As required by the Admission Act of 1959 \13\ and as a 
compact with the United States, the State and the people of Hawaii 
adopted the HHCA as a provision of the State Constitution and agreed to 
faithfully carry out the spirit of the HHCA. \14\ The Admission Act 
provides that the United States continues to have oversight 
responsibilities over the HHCA and certain amendments may be made only 
with the consent of the United States. Thus, the United States and the 
State assumed the duties of a trustee for native Hawaiians under the 
HHCA. Primary responsibility for the management and administration of 
the Hawaiian Home Lands program rests with DHHL, a principal department 
of the State subject to State and Federal laws.
---------------------------------------------------------------------------
    \13\ Hawaii Admission Act, Pub. L. No. 86-3, 73 Stat. 4 (1959), 
https://www.doi.gov/sites/doi.gov/files/uploads/An-Act-to-Provide-for-
the-Admission-of-the-State-of- Hawai.pdf.
    \14\ HAW. CONST. ART. XII  1-2 (1978), https://
www.capitol.hawaii.gov/hrscurrent/Vol01_Ch0001-0042F/05-Const/
CONST_0012-0001.htm and https://www.capitol.hawaii.gov/hrscurrent/
Vol01_Ch0001-0042F/05-Const/CONST_0012-0002.htm.
---------------------------------------------------------------------------
    Section 101 of the HHCA establishes the purpose of the Act as a 
device to enable native Hawaiians to return to their lands to fully 
support self-sufficiency for native Hawaiians and the self-
determination of the native Hawaiians while preserving the values, 
traditions, and culture of native Hawaiians. This philosophy can only 
be attained by first making the lands delineated to DHHL usable. In 
particular this section notes that a principal purpose of the Act is 
``Providing adequate amounts of water and supporting infrastructure, so 
that homestead lands will always be usable and accessible.''
    To the degree that water accessibility and other challenges have 
been successfully overcome, credit goes not only to Federal and State 
efforts but to the homestead lessees themselves. As noted by Moloka`i 
homesteader, farmer, and scholar Glenn Teves: \15\
---------------------------------------------------------------------------
    \15\ See pp. 2 in Teves, Glenn. `Aina Ho`opulapula: The Hawaiian 
Homes Act Going Forward. Molokai Native Hawaiian Beginning Farmers 
Quarterly (Summer 2022).

         If these early pioneers didn't succeed, the Hawaiian Homes 
        Commission Act would be rescinded. Through perseverance, and 
        against all odds, they succeeded, and personal homestead 
        journals of this era speak of fasting and praying for rain to 
        assure success in their plantings. In the late 1920's, state 
        and federal officials visited Ho`olehua and saw the success of 
        crops growing. As a result, the Act was deemed a success and 
        the program was made permanent. It was through the 
        determination of these early pioneers that the Hawaiian Homes 
---------------------------------------------------------------------------
        Commission Act exists today.

    Along with developing new homesteads, DHHL also has other critical, 
albeit lesser-known responsibilities. Akin to a County, DHHL maintains 
and repairs existing infrastructure (e.g. clearing of flood channels 
and drainage, fire protection of all lands, roads and facilities 
maintenance, sewer emergencies and repairs, etc.) In addition to 
County-like responsibilities, DHHL also performs water utility 
functions as part of its efforts to address water accessibility 
challenges. DHHL owns and operates three regulated public water systems 
on Moloka`i, Kaua`i, and Hawai`i islands. Together, the systems have a 
total of 826 meters serving approximately 2,500 individuals (not 
including the schools and airport that are supported by the Moloka`i 
system). DHHL also owns and operates a non-potable water system for 
stock watering purposes in Pu`ukapu and soon to be constructed non-
potable water system in Honokaia, both on Hawai`i Island. These non-
potable water systems are designed to service over 200 connections.
    The mission of DHHL is to manage the Hawaiian Home Lands Trust 
effectively and to develop and deliver land to native Hawaiians. Today, 
DHHL is responsible for the management of approximately 200,000 acres 
of these trust lands, 9,997 homestead leases statewide, and 47,036 
lease applications. \16\ Addressing this long list of lease 
applications will depend in significant part on continuing to address 
problems of water accessibility. There are some Federal, State, and 
County policies that have been enacted which are intended to address 
these and I will review those next.
---------------------------------------------------------------------------
    \16\ Lease and application counts as of 8/31/2023. An applicant can 
hold a maximum of two applications, one for a residential lease and the 
other for either an agricultural lease or pastoral lease. The 47,036 
lease applications are held by less than 29,000 native Hawaiian 
applicants.
---------------------------------------------------------------------------
Part 2: Federal, State and County Policies Addressing DHHL Water 
        Accessibility Federal Policies
    DHHL and native Hawaiian beneficiaries of the HHCA do not enjoy 
access to all the same programs, laws, and court rulings that are 
available in Indian Country. Notably, Hawai`i Courts have ruled that 
the ``Winters Doctrine'' (which protects a reservation of water 
established as of the date the federal government created the 
reservation involved) does not apply to Hawaiian Home Lands. \17\
---------------------------------------------------------------------------
    \17\ In re Waiola o Molokai, 103 Hawai`i 401, 83 P.3d 664 (2004). 
However, water reservations under state law are allowed, discussed 
further below.
---------------------------------------------------------------------------
    Programs that provide for funding in Indian County for water 
accessibility through the Indian Health Service does not extend to 
Hawaiian Home Lands. However, there is some availability for funding 
for DHHL water projects through the United States Department of 
Agriculture (USDA) and the Native American Housing Assistance and Self 
Determination Act of 1996 (NAHASDA).
State Policies
    Water in Hawai`i is held as a public trust resource, a status which 
derives from laws in the Hawaiian Kingdom as well as common law, case 
law, and State Constitutional provisions. \18\ A number of laws and 
policies at the State level have been enacted and/or ruled on which, at 
least in black letter law, provide mechanisms for addressing the water 
needs of native Hawaiians on Hawaiian Home Lands. Chief among these are 
provisions of the State Water Code (HRS 174C). Key mechanisms in the 
Water Code which address DHHL water accessibility include:
---------------------------------------------------------------------------
    \18\ See for example D. Kapua`ala Sproat, From Wai to Kanawai: 
Water Law in Hawai`i, in Native Hawaiian Law: A Treatise (Second 
Edition of the Native Hawaiian Rights Handbook) (MacKenzie, Serrano, & 
Sproat eds., 2015).

   HRS 174C-101, ``Hawaiian Water Rights'' which provides in 
        part that ``Decisions of the commission on water resource 
        management relating to the planning for, regulation, 
        management, and conservation of water resources in the State 
        shall, to the extent applicable and consistent with other legal 
        requirements and authority, incorporate and protect adequate 
        reserves of water for current and foreseeable development and 
        use of Hawaiian home lands as set forth in section 221 of the 
        Hawaiian Homes Commission Act.'' This has allowed DHHL to work 
        with the State of Hawai`i's--Department of Land and Natural 
        Resources (SOH--DLNR) Commission on Water Resource Management 
---------------------------------------------------------------------------
        (CWRM) to reserve water for DHHL across the archipelago.

   HRS 174C-49(e) which provides in designated water management 
        areas, all permits issued ``shall be subject to the rights of 
        the department of Hawaiian home lands as provided in section 
        221'' of the HHCA. Currently these permits are required for 
        groundwater and surface water only in a portion of the state. 
        \19\
---------------------------------------------------------------------------
    \19\ See https://files.hawaii.gov/dlnr/cwrm/maps/wmainfo.pdf

   HRS 174C-31 requires the development of a multi-part Hawai?i 
        Water Plan (HWP). The Plan consists of five component parts 
        including a Water Resource Protection Plan, Water Quality Plan, 
        State Water Projects Plan, Agricultural Water Use and 
        Development Plan, and Water Use and Development Plans for each 
        County. Provision (q) of this part requires that in each of 
        these Plans ``. . .each county and the commission shall 
        incorporate the current and foreseeable development and use 
        needs of the department of Hawaiian home lands for water as 
---------------------------------------------------------------------------
        provided in section 221 of the Hawaii Homes Commission Act.''

    Some progress has been made in implementing these provisions since 
passage of the Code in 1987 and key amendments addressing DHHL water 
access issues in 1990. For instance, in 2015 CWRM reserved water for 
DHHL outside of a water management area. The 2017 update to the State 
Water Projects Plan specifically focused on DHHL water needs for nearly 
all of its landholdings, which provided information allowing for 
additional water reservations to be made. \20\
---------------------------------------------------------------------------
    \20\ State Water Projects Plan Update (May 2017), https://
files.hawaii.gov/dlnr/cwrm/planning/swpp2017.pdf
---------------------------------------------------------------------------
    Though DHHL has some reservations granted by CWRM, the reservation 
process is still incomplete. DHHL has twenty-seven reservations as of 
November 2022. DHHL has submitted additional reservation requests and 
continues to calculate additional reservations for tracts. Triggers for 
CWRM considering water reservations include establishing new Interim 
Instream Flow Standards (which determine how much water should remain 
in streams for instream beneficial and public trust uses), adoptions of 
components of the HWP, designation of Water Management Areas, and State 
issuance of water licenses/leases.
    Generally speaking, consistent underfunding and understaffing of 
CWRM compared to its vast duties has hindered DHHL interests, as it has 
slowed progress on the many triggering actions that would require 
adoption and/or enforcement of DHHL water needs and reservations. In 
addition, it is important to note that CWRM has often had their initial 
decisions overruled by State appellate courts, often for failing to 
protect native Hawaiian water rights, including the rights of DHHL and 
its beneficiaries. \21\
---------------------------------------------------------------------------
    \21\ See pp. 97-98 in Scheuer, J. L. and B. K. Isaki, 2021. Water 
and Power in West Maui. Lahaina: North Beach West Maui Benefit Fund.
---------------------------------------------------------------------------
    Other State legal provisions taking into account DHHL water 
accessibility challenges and rights are also noteworthy. These include:

   HRS 171-58(g), which requires that water dispositions by the 
        State must be preceded by a reservation of water for DHHL 
        sufficient for foreseeable needs.

   HRS Chapters 167 and 168, regarding the Molokai irrigation 
        system, which protect DHHL and homesteader interests in that 
        system.

   Hawai'i Supreme Court rulings that have protected DHHL water 
        interests and clarified that the reservations for and uses of 
        water by DHHL are one of four protected public trust uses of 
        water that should be accommodated prior to the allocation of 
        water to private, commercial uses:

          --Waiola o Moloka`i, 103 Haw. 401 (2004) and Kukui 
        (Moloka`i), Inc., 116 Haw. 481 (2007) established DHHL water 
        reservations and homesteading uses as a public trust purpose, 
        thereby creating priority over private interests. Additionally, 
        proposed water uses cannot negatively affect native Hawaiian 
        traditional and customary practices or impermissibly raise salt 
        levels in DHHL wells.

          --These provisions have been reiterated in many subsequent 
        decisions, notably in Kaua`i Springs, Inc. v. Kaua`i Planning 
        Commission, 133 Hawai`i 141 (2014)

    Just as funding challenges for CWRM have impacted DHHL, shifting 
policy implementation priorities have also sometimes lessened our 
ability to address water accessibility issues. For a number of years, 
it was the practice of the State of Hawai`i's Department of Land and 
Natural Resources to secure funding for water exploration and 
development, and some of the water resources so produced were dedicated 
to County Boards and Departments of Water Supply, with some of the 
resulting credits issued in favor of DHHL. Those efforts however, 
ceased over a decade ago.
County Policies
    Partly in recognition of the significant role in which DHHL 
Homestead development can address much needed housing demand in the 
Counties, the Counties have started to explore ways in which they can 
use their limited powers related to water to address the water needs 
and accessibility challenges of DHHL.
    Maui County has led the way in these efforts. In 2007, Maui County 
enacted Ordinance 3502, often referred to as the ``show me the water'' 
ordinance. This requires verification of ``a long-term reliable source 
of water before subdivisions are approved.'' The goal of this policy is 
to conserve the County's resources for affordable housing. In 2021, 
Ordinance 5313 specifically exempted DHHL projects from this 
requirement.
    Also in Maui County, in November of 2022, Charter Amendment 12 was 
approved, establishing the East Maui Water Authority Board. This 
eleven-member Board will oversee the Nahiku, Ke`anae, Honomanu and 
Huelo water license areas. The responsibilities of the Board include 
approval of watershed management plans and related programs, approval 
of annual operations budget appropriation requests, and recommendations 
on water rates. One seat was reserved for a representative of the 
Hawaiian Homes Commission. This is the first instance in which a state 
or county water managing body has specifically dedicated a seat to 
represent and look out for DHHL interests.
    In 2023, also in Maui County, the Council passed a 0.5 percent 
surcharge on top of the State's 4 percent general excise tax. Twenty 
percent of the county's revenue from the surcharge will go toward 
development of County infrastructure projects that would allow DHHL to 
proceed with homestead development, including the development of 
necessary water infrastructure.
    In April 2022, the Hawai'i County Council passed two bills allowing 
the development of timeshares, affordable workforce housing and other 
facilities at a particular site in Waikoloa, South Kohala. As passed, 2 
percent of timeshare sales and resales from the proposed project will 
be donated to the Waikoloa Foundation, and 25 percent of those derived 
funds will be allocated to an agency or program to directly or 
indirectly support water-related needs associated with housing programs 
for Native Hawaiians within the South Kohala district.
    Despite the importance and significance of these Federal, State, 
and County policies, progress on addressing the significant water 
access challenges of DHHL on the Hawaiian Home Lands remains a very 
significant challenge. The scope of this challenge is described in 
greater detail next.
Part 3: DHHL Water Needs by Type, Island, Reservation, and Known and 
        Estimated Costs
    The water needs of DHHL on Hawaiian Home Lands are extensive and 
diverse. Beyond the basic distinction that we have significant needs 
for potable and non-potable water, there are other notable 
characteristics of our water accessibility challenges. I first review 
the types of water access issues we face and then offer a high-level 
summary of needs by Island, our reservations to date, and an overview 
of known and estimated capital needs.
Types of Water Access Issues
    In some parts of Hawaiian Home Lands--such as Keokea and Waiohuli 
on the island of Maui--we have access to some water, but there is an 
insufficient volume of both potable and non-potable water, restricting 
both the ability to use vast landholdings for additional homesteads, 
and preventing existing homesteaders from farming or even irrigating 
residential yards. Just a few miles away, our lands at Kahikinui lack 
access to any flowing water whatsoever and homesteaders rely on 
trucking in water for domestic uses.
    Some areas have access to water but it is not of potable quality, 
such as our Pu`ukapu tract on Hawai`i island, which only has access to 
a non-potable water system. While the water comes from a potable source 
controlled by Hawai`i County, the vast size of the tract and the costs 
involved of building a system to county standards made that infeasible. 
Other tracts have similar situations where County water systems border 
Hawaiian Home Lands, but these lands have no access to that water, even 
as nearby developments receive water from those water lines, just as 
Waimanalo, O`ahu faced the same challenges in the 1950s described 
above. This includes HHL at Pu`ueo and La`i `Opua on Hawai'i Island, 
Honokowai on Maui, and Ualapu`e on Moloka`i. Similarly, HHL in Anahola 
and Moloa`a on Kaua`i have privately controlled water systems abutting 
HHL, and yet lack sufficient access to water for homesteading. On 
Moloka`i, despite significant landholdings and homesteading and demands 
for irrigation water, and a statutory guarantee to two thirds of the 
water from the Moloka`i Irrigation System, many homesteaders lie just 
outside the service area of the system and cannot access that water. On 
Kaua`i, for DHHL's extensive landholdings above the Mana Plain, DHHL is 
partnering with the Kaua`i Island Utility Cooperative in their pursuit 
of a pumped storage hydroelectric project that will if implemented, 
provide water access and other needed infrastructure to HHL around Pu`u 
`Opae.
    Some tracts, in addition to having source limitations, also face 
exorbitant water delivery costs. At Kailapa near Kawaihae on Hawai`i 
Island, water is delivered to homesteaders from a secondary system with 
source deliveries from a private system, and they pay some of the 
highest water costs of any customers in the State. Kailapa also faces 
some level of water insecurity, as the agreement with that private 
system, which provides water to a luxury development immediately north, 
allows that purveyor to cease delivering water with two years' notice. 
Water security issues also extend to other areas of Hawai`i. Especially 
on O`ahu, the fuel spills from the US Navy Red Hill Bulk Fuel Storage 
Facility have contaminated the island's most productive and relied on 
aquifer. While the Navy has its own water system that draws on that 
aquifer, all homesteaders on O`ahu are customers of the Honolulu Board 
of Water Supply, which has been challenged by the loss of access to 
some of their most productive water sources.
Unmet Water Demands Statewide and by Island
    While the typology above describes the diverse nature of water 
access challenges on Hawaiian Home Lands, much of DHHL's focus has been 
on securing basic water access for each tract, as it is self-evidently 
impossible to successfully homestead lands without any access to water. 
As noted above, the 2017 update to the State Water Projects Plan (SWPP) 
was developed by the Department of Land and Natural Resources' 
Engineering Division and focused on DHHL needs across all islands and 
tracts.
    The SWPP 2017 update records DHHL's potable and non-potable water 
projections for each island until the year 2031. Though not completely 
up to date not without limitations, it is the best available estimate 
for DHHL water needs statewide.
    A specific methodology and set of assumptions were employed in the 
SWPP to calculate water demands due to the diverse scope of land uses 
across Hawaiian Home Lands, the particular land use designation 
categories applied by the HHC under the General Plan, and the diversity 
of DHHL tracts. While those are laid out in detail in that document, 
the general practice was to calculate the demands by correlating DHHL's 
land use designations to an equivalent land use in the applicable 
County Water System Standards and apply the respective demand unit 
rate. For each tract, low, medium, and high demand rates were 
calculated. Under the guidelines adopted by CWRM for all elements of 
the Hawai`i Water Plan, the SWPP only looks at a twenty-year planning 
horizon. For this reason, the numbers in the SWPP do not represent the 
full build out demands for all Hawaiian Home Lands, but represent a 
research-based estimate of some of the demands.
    Under a medium water demand scenario, the total potable water 
demand across the State was calculated to be just under 22 million 
gallons per day (mgd). The total non-potable water demand projection 
across the State is approximately 183.5 mgd. This medium demand by 
island appears immediately below.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Water Reservations to Date from CWRM
    While the SWPP has been a valuable resource in helping DHHL and 
CWRM calculate our water demands as a basis for securing reservations 
of water (discussed in Part 2, above), the nature of the calculations 
in the SWPP means the two do not always completely corelate. Most 
significantly, as previously noted, the SWPP has a 20 year time horizon 
for calculating demand estimates. Water Reservations under Hawai`i 
State law are by contrast intended to protect ``foreseeable'' demands, 
which for the DHHL must include scenarios where all reasonably usable 
land is available for homesteading.
    To date, reservations by CWRM for DHHL's uses have been pursued in 
a collaborative manner. DHHL has proposed its best estimates of 
foreseeable demands, and CWRM has evaluated them with knowledge of the 
set limits previously determined by them for the respective water 
resources. Progress has been slow but improving.
    After passage of the Code in 1987, CWRM staff had interpreted the 
Code as only allowing for DHHL reservations in water management areas. 
However, beginning in 2015 they agreed with DHHL staff interpretation 
of HRS 174C-101 that reservations can and must be made anywhere we have 
foreseeable needs. Our reservations to date, representing about 16 
percent of our foreseeable needs by volume, total 32.610 mgd.
    The reservations adopted to date by CWRM by hydrologic unit are as 
follows. \22\
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    \22\ As summarized in a CWRM staff submittal from November 15, 2022 
available at https://files.hawaii.gov/dlnr/cwrm/submittal/2022/
sb20221115B5.pdf

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    The CWRM is still considering DHHL's newer reservation requests.
Infrastructure and Financing Needs to Develop and Maintain Homestead 
        Lots
    The HHC annually approves DHHL's budget requests, including funding 
for lot development and repair and maintenance of infrastructure. 
Funding of $198.5 million for lot development and over $228 million for 
repair and maintenance of infrastructure including sewer and water 
systems would provide the level of infusion needed to quicken the pace 
of homestead development. A dedicated, consistent, and reliable stream 
of funding allows for steady production of lots. The funding amounts 
reflected in the table that follows may only represent funding for a 
particular phase (planning, design, construction) and not the entire 
amount.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Another critical component of infrastructure funding is upgrading 
and modernizing wastewater systems through cesspool conversion. Hawai`i 
has nearly 88,000 cesspools that put 53 million gallons of raw sewage 
into the State's groundwater and surface waters every day. \23\ An 
estimated 2,500 cesspools or around 3 percent are on Hawaiian Home 
Lands. \24\ The Cesspool Conversion Working Group recognizes that it is 
critical to carefully consider conversion requirements that are 
socially equitable and financially feasible. Cesspool conversion costs 
are high, especially in remote locations, meaning that conversion 
options must be practical and regionally specific. There is no simple, 
single solution to replace Hawaii's cesspools. Each community's risk of 
health and environmental harm is different, along with the costs of 
conversions, when considering geography, hydrology, cesspool density, 
and proximities to groundwater and the ocean are taken into 
consideration.
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    \23\ Interim Report for the Cesspool Conversion Working Group 
(December 2020), https://health.hawaii.gov/opppd/files/2020/12/Act-170-
Cesspool-2021-Leg-Report.pdf.
    \24\ The cesspool estimates are still being assessed by DHHL 
because there may be a conflation of cesspools and septic systems and 
some of the old cesspools may have long been decommissioned.
---------------------------------------------------------------------------
    The above data reflects the budgetary request from the DHHL to the 
State Legislature, but is not inclusive of all the costs that would be 
needed to develop the necessary infrastructure to deliver potable and 
non-potable water to tracts, either in the amounts of calculated demand 
from the SWPP or the amounts already reserved by CWRM,
    Estimates of these costs are necessarily rough and will vary 
considerably by island, location, local hydrology, and proximity to 
existing infrastructure including power sources, roads, and water 
transmission and storage structures. For ground water, recent DHHL 
experience is that fully developing a one mgd well, along with the 
associated infrastructure, permitting, and reviews, will cost a range 
of $10-20 million. Looking only at one of our known reliable numbers--
reserved ground water--DHHL would need an additional $220--$440 million 
in capital funds. Less productive wells, developing surface water, and 
developing non-reserved water would require multiples of that figure.
Part 4: Conclusions
    As potentially disarming and daunting as the above testimony is, it 
should also be noted that there are additional water issues and 
challenges related to water accessibility that are not addressed in 
this testimony today. DHHL under the original terms of the HHCA is 
entitled to 30 percent of the receipts from water leases/licenses that 
are issued by the State and that provision is contained in the State 
Constitution today. These receipts are to be deposited into the Native 
Hawaiian Rehabilitation Fund (NHRF) and distributed in grants to 
Hawaiian Homestead Associations. Due to significantly delayed State 
action on converting Revocable Permits into leases, and not assertively 
pursuing leases for private entities using water emanating from State 
lands, DHHL has had precipitously declining revenue into the NHRF in 
the past years.
    DHHL, as a native Hawaiian serving organization also faces 
challenges in developing its water resources so that HHCA beneficiaries 
may also exercise constitutionally protected traditional and customary 
practices associated with those waters. Not only can this both 
constrain water resource development and represent additional water 
needs for our beneficiaries, this raises additional complexities. Due 
to the history and nature of the Hawaiian Home Lands, many HHL tracts 
are in areas where there are also Native Hawaiian non-Hawaiian Home 
Land communities. DHHL must navigate how to develop its lands and serve 
its beneficiaries, but not in a manner that would harm other Native 
Hawaiian non-Hawaiian Home Land communities. This and other water 
dynamics in Hawai`i are reviewed in a ``Water Primer'' that I have 
attached to this testimony.
    Finally, we note that the state CWRM estimates of water available 
from surface and ground water sources do not currently incorporate 
climate change projections. As our islands may be facing a much drier 
future--which can both decrease supply and increase demand--we must 
continue to monitor and update our water demands for existing and 
future homestead communities.
    Water in Hawai`i is held in trust by the State, a distinct 
advantage we have in planning for a changing world where we still will 
work to implement the HHCA. However, our challenges we face in water 
access are very significant, as we have touched on in my testimony. 
Access to water has been and remains one of the most significant--if 
not the single largest barrier--toward fulfillment of the HHCA.
    In closing, I wish to express my appreciation and gratitude to 
Chairman Schatz for inviting me to testify and for focusing on this 
critical issue. It has been an honor to have had this opportunity to 
address you and this Committee. *
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    * The publication OLA I KA WAI: A LEGAL PRIMER FOR WATER USE AND 
MANAGEMENT IN HAWAI`I has been retained in the Committee files.

    The Chairman. Thank you very much, Chair Watson.
    Professor Tanana, please proceed with your testimony.

   STATEMENT OF HEATHER TANANA, PROFESSOR, INITIATIVE LEAD, 
 UNIVERSAL ACCESS TO CLEAN WATER FOR TRIBAL COMMUNITIES PROJECT

    Ms. Tanana. [Greeting in Native tongue.] Thank you to the 
Committee and the members for inviting me to testify today. 
[Phrase in Native tongue.] My name is Heather Tanana. [Phrase 
in Native tongue.] I am a citizen of the Navajo Nation.
    I wear many hats, one of those being a law professor. But I 
am here today as the Lead of the Universal Access to Clean 
Water for Tribal Communities Initiative.
    The water challenges tribes face are extensive and historic 
in nature. While training in public health and the law, I 
didn't need to go to school to learn about the inequities 
experienced in Indian Country. I had personally witnessed it 
since I was born on the Navajo Nation. It is my family's 
experience.
    If you are Navajo, you or someone close to you has 
experienced plumbing poverty. My father grew up in a home 
without water service. Two of his brothers, my uncles, fought 
as Navajo code talkers during World War II. Remarkably, for 
some of the code talkers, training was the only time in their 
life when they had running water, a toilet, a sink where they 
lived.
    Today we recognized and honor the service of Navajo code 
talkers, yet this Country has done little to ensure that after 
they returned, they and their family, future generations, would 
be able to survive on their federally promised homelands here 
in the United States. Mass federally supported infrastructure 
projects have been constructed near and across tribal lands to 
benefit neighboring cities and large-scale agriculture.
    Despite Federal promises of an agrarian lifestyle and an 
economy for Native communities, much of the land remains barren 
due to the lack of water. Today I still have relatives residing 
on the Navajo Nation without reliable access to clean water.
    Universal's work and that of others has led to an 
increasing acknowledgement of these challenges. It has garnered 
much public sympathy. But sympathy alone cannot close the water 
gap experienced in Indian Country. Instead, the Federal 
Government, particularly Congress, must take action and in 
fact, is obligated to do so under its treaty and trust 
responsibility to tribes.
    The Federal Government has treaty and trust responsibility 
to tribes. In recognition of these legal duties, Congress has 
already authorized various Federal programs to support tribal 
water infrastructure by several different agencies. We heard 
from two today. Through these programs, the Federal trust 
responsibility is being implemented and recognizes two binding 
promises of the Federal Government. First, the promise of a 
permanent homeland where tribal communities can live, prosper 
and thrive forever.
    Second, the promise to promote the health of Native 
Americans. Access to water is required to fulfill both of these 
legal mandates. Land without water is not viable and cannot be 
a homeland. Water is also necessary for health. Death is 
inevitable without water, and that is not a doomsday prophecy, 
it is the reality. It is unacceptable that 21st century Native 
Americans experience such severe water insecurity, particularly 
because tribes have a secure and legally defensible right to 
obtain water.
    Under the Winters Doctrine, the U.S. Supreme Court 
decision, when reservations were created it included water 
rights sufficient to be a viable homeland. Congressional action 
is needed, in fact required after the Supreme Court's ruling in 
Arizona v. Navajo Nation this past June. The court recognized 
Navajo Nation has water rights. They are actually held in trust 
by the United States.
    Shockingly, the court found the Federal Government does not 
have a duty to simply help secure those rights. In other words, 
the United States does not have to help the Navajo Nation 
access water that it is legally entitled to, despite the 
promise of a permanent and viable homeland.
    This is not the first time Congress would have to fix 
something that the court has done. The most well-known case was 
after Duro v. Reina, in 1990, when Congress enacted the Duro 
fix to restore tribal criminal jurisdiction over non-members. 
Congressional action affirming the Federal trust duty is 
necessary to close the water gap in Indian Country.
    In the wake of Arizona v. Navajo Nation, the burden has 
been fully placed on tribes. Some may say that is just part of 
tribal self-governance, but they are wrong. Fulfillment of the 
Federal trust responsibility is a necessary pre-condition to 
truly realize tribal self-determination.
    Past Federal policies sought to destroy and terminate 
Native existence that created the inequalities that we are 
experiencing today. It is imperative that the Federal 
Government remedy harms inflicted, but even more so, just hold 
up its end of the deal and honor healthy permanent homelands.
    To that end, we recommend Congress explicitly reaffirm the 
trust responsibility, support tribal capacity through passage 
of bills like the Tribal Access to Clean Water Act, and assist 
in the realization of tribal water rights.
    Thank you. We have also submitted written testimony and 
look forward to any questions you may have.
    [The prepared statement of Ms. Tanana follows:]

Prepared Statement of Heather Tanana, Initiative Lead, Universal Access 
             to Clean Water for Tribal Communities Project
Introduction
    On behalf of the initiative on Universal Access to Clean Water for 
Tribal Communities (UACW), thank you for holding this hearing and the 
opportunity to provide testimony. UACW is composed of Tribal members, 
water experts, and non-profit organizations working together to enhance 
Tribal capacity and secure access to clean, safe drinking water for all 
Native communities in the United States. \1\
---------------------------------------------------------------------------
    \1\ Universal Access to Clean Water for Tribal Communities, https:/
/tribalcleanwater.org.
---------------------------------------------------------------------------
    Access to clean water is a human right. Clean water is foundational 
for human health, growing economies, and a basic level of support for 
communities. As such, access to water is fundamental to the exercise of 
tribal sovereignty. However, an estimated 48 percent of households on 
Native American reservations do not have access to reliable water 
sources, clean drinking water, or adequate sanitation. \2\ The lack of 
access to clean and safe drinking water in Tribal communities reflects 
historical and persisting racial inequities that have resulted in 
health and socioeconomic disparities. The federal government, often 
through treaties, promised to establish reservations as permanent 
homelands for Tribes. \3\ A permanent, livable, and prosperous homeland 
cannot exist without this minimum requirement of life--access to an 
adequate and healthful supply of drinking water. Unfortunately, the 
federal government has largely failed to fulfill its duty to ensure 
clean water access for Tribes. Congress could remedy this failure by 
explicitly reaffirming its trust responsibility to Tribes, supporting 
Tribal capacity, and assisting in the realization of Tribal water 
rights.
---------------------------------------------------------------------------
    \2\ Democratic Staff, House Committee on Natural Resources, Water 
Delayed is Water Denied: How Congress has Blocked Access to Water for 
Native Families (Oct. 2016), https://democrats-
naturalresources.house.gov/waterdelayed-is-water-denied.
    \3\ See e.g., Treaty Between the United States of America and the 
Navajo Tribe of Indian art. XI, Sept. 9, 1849, 9 Stat. 974. See also 
Treaty with the Apache art. XI, July 1, 1852, 10 Stat. 979.
---------------------------------------------------------------------------
    Native American households are more likely to lack adequate water 
services than any other group in the United States. Existing water 
infrastructure on reservations continues to deteriorate and inadequate 
water quality remains pervasive across Indian Country. According to the 
U.S. Water Alliance, while Black and Latinx households are almost twice 
as likely as white households to lack indoor plumbing, Native American 
households are about 19 times as likely. \4\
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    \4\ DigDeep-US Water Alliance, ``Closing the Water Access Gap in 
the United States,'' 2019, https://www.digdeep.org/close-the-water-gap; 
Jay Willis, The Hidden Racial Inequities of Water Access in America, 
GQ, November 25, 2019, https://www.gq.com/story/hidden-racial-
inequities-water-access.
---------------------------------------------------------------------------
    Without a safe, reliable, affordable, and easily accessible water 
supply, Tribal households are unable to meet basic personal hygiene, 
food preparation, domestic cleaning, and other needs required for good 
health. Indeed, without access to water, tribal nations are unable to 
truly exist and fully exercise their sovereign rights. The harsh 
reality is that the U.S.'s failure to prioritize and meaningfully 
address tribal water rights and access essentially perpetuates pre-
1800s extermination policies.
    As part of UACW, we have looked closely at the various federal 
programs that address the provision of clean water and associated 
infrastructure in Indian Country. These programs are based on the 
federal government's treaty and trust responsibilities to Tribes and 
have improved conditions for some Native American communities. However, 
several barriers exist which prevent Tribes from fully realizing the 
benefits of these programs. This testimony addresses the severe water 
insecurity challenges many Tribes continue to experience and the 
federal responsibility to assist Tribes in overcoming those challenges. 
UACW has produced two reports to date, Universal Access to Clean Water 
for Tribes in the Colorado River Basin and Recommendations for 
Operational, Administrative, Policy, and Regulatory Reform, which we 
request be entered into the record of this hearing. \5\
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    \5\ Portions of this testimony are taken from UACW's findings and 
reports and Professor Tanana's scholarship, Securing a Permanent 
Homeland: The Federal Government's Responsibility to Provide Clean 
Water Access to Tribal Communities, 69 The Federal Lawyer 2 (Mar./Apr. 
2022).
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Federal Trust Responsibility to Tribes
    The federal government has an underlying trust responsibility to 
Tribes. The trust responsibility is a ``fiduciary obligation . . . to 
protect Tribal treaty rights, lands, assets, and resources, as well as 
a duty to carry out the mandates of federal Indian law.'' \6\ To be 
``judged by the most exacting fiduciary standards,'' the federal 
government has ``charged itself with moral obligations of the highest 
responsibility and trust. \7\ Indeed, ``[n]early every piece of modern 
legislation dealing with Indian tribes contains a statement reaffirming 
the trust relationship between tribes and the federal government.'' \8\
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    \6\ Bureau of Indian Affairs, What Is the Federal Indian Trust 
Responsibility? http://www.bia.gov/FAQs/index.htm.
    \7\ Seminole Nation v. United States, 316 U.S. 286, 297 (1942).
    \8\ Cohen's Handbook of Federal Indian Law  5.04[3][a] (Nell 
Jessup Newton ed., 2012).
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Permanent Homelands Require Water
    The federal trust responsibility includes fulfilling the promise of 
a permanent homeland. Each Tribe has its own unique history, 
traditions, and community. However, many Tribes share common 
experiences stemming from colonization, including forced removal from 
their homelands, treaty making with the federal government, and 
establishment of reservations. When the United States established 
reservations, it did so to provide a permanent home for each Tribe that 
would support their people forever. ``The key to carrying out that 
promise is water--a fact that the tribal leadership has always known 
but which the United States has sometimes forgotten.'' \9\
---------------------------------------------------------------------------
    \9\ Colorado Ute Settlement Act Amendments of 1998: Hearing on H.R. 
3478 Before the U.S. H. Natural Res. Comm., 105th Cong. (July 28, 1998) 
(testimony of Clements Frost, Chairman, Southern Ute Indian Tribe).
---------------------------------------------------------------------------
    In Winters v. United States, \10\ the U.S. Supreme Court addressed 
Tribal water rights, holding that when reservations were created, the 
United States and Tribes reserved water rights--enough to fulfill the 
purposes of the reservation, including the residential, economic, and 
governmental needs of the Tribe. At the heart of the Winters decision 
is the United States' trust obligation to provide true homelands to 
Tribes. There is no substitute for water. ``Access to a clean, reliable 
supply of water is basic to human health,'' \11\ and clearly a 
necessary component to making a homeland habitable and permanent.
---------------------------------------------------------------------------
    \10\ 207 U.S. 564 (1908).
    \11\ U.S. Bureau of Reclamation, Colorado River Basin Ten Tribes 
Partnership, Tribal Water Study at 7-10 (2018).
---------------------------------------------------------------------------
    The Winters doctrine is an important component of Tribal water 
access because it provides a secured and legally defensible right to 
obtain water--particularly in the western United States, where water 
generally is awarded under a system of prior appropriation. Under the 
doctrine of prior appropriation, ``water is allocated to users based on 
the order in which water rights were acquired.'' \12\ ``The doctrine's 
basic command that `first in time is first in right' incentivized rapid 
development and use of scarce water resources with little regard for 
conservation, efficiency, or equitable allocation.'' \13\ Federally 
reserved Indian water rights have been recognized as impliedly included 
in a Tribe's foundational agreements with the federal government. \14\ 
But, these rights are often overlooked by states, even though Tribal 
rights often have more senior priority dates than other state-based 
users in prior appropriation states.
---------------------------------------------------------------------------
    \12\ Congressional Research Serv., Indian Water Rights Settlements 
(Mar. 28, 2023) at 5, https://crsreports.congress.gov/product/pdf/R/
R44148.
    \13\ Brief of Tribal Nations and Indian Organizations as Amici 
Curiae in Support of Respondents, No. 21-1484 (U.S.), June 22, 2023, 
https://www.supremecourt.gov/DocketPDF/21/21-1484/254374/
20230208173956207_43203%20pdf%20Whitemanrunshim%20br.pdf.
    \14\ 207 U.S. 564 (1908).
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    The federal government also has a treaty and trust responsibility 
``to ensure the highest possible health status for Indians'' and to 
provide healthcare services to Tribes. \15\ The link between water and 
survival is so strong that the United Nations, several countries, and a 
few states have recognized a human right to water. \16\ Lack of water 
access exposes individuals to preventable health risks and can 
contribute to malnutrition and diarrheal disease, among other 
illnesses. \17\ ``For decades, experts have documented how lack of 
access to clean water and sanitation in Indian Country contributes to 
high rates of morbidity and mortality among American Indians and Alaska 
Natives.'' Notwithstanding the strong connection between water access 
and public health, the federal government has contributed to health 
disparities and other inequities in Tribal communities by prioritizing 
nontribal water projects in the past. A century ago, the U.S. 
government invested in modern water and sanitation systems as a means 
of eradicating waterborne diseases, but largely bypassed reservations. 
\18\
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    \15\ Indian Health Care Improvement Act, Pub. L. 94-437   2, 601.
    \16\ G.A. Res. 64/292, The Human Right to Water and Sanitation, 
(July 28, 2010). See also Global Analysis and Assessment of Sanitation 
and Drinking-Water (GLAAS), National Systems to Support Drinking-Water 
Sanitation and Hygiene: Global Status Report 2019, World Health 
Organization, at 48-55 (2019). Massachusetts and Pennsylvania recognize 
the right to water in their state constitutions, and California and 
Virginia have been successful in passing legislation recognizing this 
right. Mass. Const., art. XCII; Pa. Const., art. 1,  27; Assemb. B. 
685, 2011-12 Leg. Sess. (Cal. 2012) (codified at Cal. Water Code  
106.3); Assemb. B. 401, 2015-16 Leg. Reg. Sess. (Cal. 2015).; H.R.J. 
Res. 538, 2021 Leg., Spec. Sess. (Va. 2021).
    \17\ Ctrs. for Disease Control and Prevention, Food and Waterborne 
Diarrheal Disease (Dec.21, 2020), https://www.cdc.gov/climateandhealth/
effects/food_waterborne.htm. See also World Health Organization, 
Drinking Water, https://www.who.int/news-room/fact-sheets/detail/
drinking-water.
    \18\ U.S. House of Representatives Comm. on Appropriations, 
Subcomm. on Energy and Water Develop., 116th Cong. (Mar. 10, 2021) 
(testimony of Bidtah Becker, Navajo Nation); see also Nat'l Water 
Comm'n, Water Policies for the Future 476 (1973) (``[I]n the water-
short West, billions of dollars have been invested, much of it by the 
Federal Government, in water resource projects benefiting non-Indians 
but using water in which the Indians have a priority of right if they 
choose to develop water projects of their own in the future.'').
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Fulfilling the Trust Responsibility
    The late 1960s/early 1970s ushered in the current federal Indian 
policy era of self-determination. This era purports to strengthen 
Tribal sovereignty and promote Tribal self-determination. The federal 
government must implement the trust relationship with the foundational 
goals of the selfdetermination era in mind, including respecting Tribal 
sovereignty, capacitating Tribal sovereigns, and, more broadly, 
facilitating the continued existence of Native peoples within the 
United States. Ensuring Tribal access to clean water is essential to 
those goals.
    Following the U.S. Supreme Court's decision in Arizona v. Navajo 
Nation, it is critical that Congress reaffirm the trust responsibility 
to Tribes and its commitment to the survival of Tribal Communities. The 
Court found that the Navajo treaties did not establish a conventional 
trust relationship with respect to accessing water for the Tribe. As a 
result, the Navajo treaties did not require the United States ``to take 
affirmative steps to secure water for the Navajos.'' \19\ But, the 
Court recognized that Congress may enact-and often has enacted-laws to 
assist Tribes with their water needs. Congress should therefore express 
an intent in any legislative action that the United States take 
affirmative steps to secure water for Tribes, including assessing a 
Tribe's water needs, developing a plan to secure needed water, and 
facilitating access to that water. ``Under the Constitution, Congress 
and the President have the responsibility to update federal law as they 
see fit[.]'' \20\ Now is the time to do so.
---------------------------------------------------------------------------
    \19\ Arizona v. Navajo Nation, No. 21-1484 at 2 (June 22, 2023).
    \20\ Id.
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    UACW supports passage of the Tribal Access to Clean Water Act and 
the Senate Resolution recognizing the critical importance of access to 
reliable, clean drinking water for Native Americans and affirming the 
responsibility of the Federal Government to ensure such water access. 
Importantly, the resolution calls on the Executive Branch to employ a 
``whole of government'' approach to ensure access to reliable, clean 
drinking water to households on Indian reservations, in Alaska Native 
villages, and in Native Hawaiian communities.
    Congress also must provide a better, more reliable process by which 
federal reserved Indian water rights can be recognized, quantified, and 
tribes compensated through fair and expedient settlement. Through the 
Secretary of the Interior's Indian Water Rights Office (SIWRO), Tribes 
across the country have an opportunity to explore settlement of their 
water right claims and obtain much needed funding to address 
infrastructure and access issues, in addition to the legal certainty 
needed to maintain and enforce water rights when they come into 
competition with other uses. \21\ However, of the 574 federally 
recognized tribes, only 39 have achieved settlement. \22\ Of these 
Tribes with settled water rights, a still smaller set have received the 
funding they agreed to in exchange for vast amounts of water to which 
they would otherwise still have a legal claim. \23\ The Indian Water 
Rights Settlement Completion Fund and the Reclamation Water Settlements 
Fund have served as the sources of federal dollars for these 
settlements, but rely on the priorities of a given administration for 
funding. If made permanent, the way settlements are achieved would 
become more durable and efficient.
---------------------------------------------------------------------------
    \21\ U.S. Dep't of Interior, Secretary's Indian Water Rights 
Office, https://www.doi.gov/siwro.
    \22\ U.S. Dep't of Interior, Secretary's Indian Water Rights 
Office, Enacted Indian Water Rights Settlements, https://www.doi.gov/
siwro/enacted-indian-water-rights-settlements.
    \23\ Indian Water Rights Settlements; see also FY 2022 Allocation 
of Funding for Indian Water Rights Settlements, https://www.doi.gov/
sites/doi.gov/files/fy-2022-bil-iwrs-allocations.pdf.
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    Failure to help Tribes secure water access cannot be reconciled 
with the general trust responsibility of providing a permanent homeland 
to Tribes and promoting the survival and welfare of their communities. 
``Ensuring access to water and sanitation for all people is not simply 
a question of water resources, technology and infrastructure, but also 
of setting priorities, tackling poverty and inequality, addressing 
societal power imbalances, and above all, political will.'' \24\
---------------------------------------------------------------------------
    \24\ U.N., Outcome of the International Experts' Meeting on the 
Right to Water, Paris, France, July 7-8, 2009, at 2.
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Tribal Water Needs Today
    Household water security is defined as ``the safe and reliable 
access to sufficient quantity and quality of water for household 
consumption, production, and cleanliness.'' \25\ ``In the United 
States, potable water infrastructure is broadly assumed to be 
`universal' in its coverage, to the point where the U.S. Census Bureau 
has recently considered dropping its plumbing question from the 
[American Community Survey] questionnaire.'' \26\ However, despite 
public perception, ``universalized water infrastructure remains an 
incomplete promise for different populations in different places across 
the nation[.]'' \27\ This is particularly true for Native Americans, 
who are generally the first occupants, but often the last to receive 
the promises of a permanent homeland. For example, within the Colorado 
River Basin, it is largely Tribal communities that lack piped water 
services and suffer from plumbing poverty, including the Navajo Nation, 
Hopi Tribe, White Mountain Apache Tribe, Ute Mountain Ute Tribe, and 
Southern Ute Indian Tribe.
---------------------------------------------------------------------------
    \25\ Shiloh Deitz & Katie Meehan, Plumbing Poverty: Mapping Hot 
Spots of Racial and Geographic Inequality in U.S. Household Water 
Insecurity, 109 Annals Am. Ass'n Geographers 1 (2019) [hereinafter 
Plumbing Poverty].
    \26\ Id. at 1, 7 (2019).
    \27\ Id. at 8.
---------------------------------------------------------------------------
    From a Tribal perspective, there are four interrelated aspects to 
ensuring and maintaining water security for their communities:

   Service--there is a reliable piped water system connecting 
        to the household;

   Quality--the water available to the household meets minimum 
        acceptable quality standards;

   Infrastructure--existing water and sanitation infrastructure 
        are sufficient and in good condition to meet community needs; 
        and

   Maintenance--the operation and maintenance (O&M) 
        requirements and associated costs to support existing water and 
        sanitation infrastructure are met;

    As discussed below, Tribes encounter challenges in each of these 
areas.
Service
    The rural location of many Tribal reservations and homelands 
presents unique challenges to the construction and maintenance of water 
systems. Connecting remote homes to a centralized piped water system 
results in a higher cost per connection. There are also practical 
design and construction concerns that must be taken into account, such 
as difficult terrain and short construction seasons. However, 
``[r]urality is not the sole or even best predictor of plumbing 
poverty''-race is the most significant predictor of plumbing access. 
\28\ Native American communities are ``equally likely to lack complete 
plumbing whether they are high- or low- income, and whether they live 
in urban or rural areas.'' \29\ And, living in a Native household 
dramatically increases the odds of being plumbing poor. \30\
---------------------------------------------------------------------------
    \28\ Id. at 9.
    \29\ U.S. Water Alliance and DigDeep, Closing the Water Access Gap 
in the United States: A National Action Plan 22 (2019) [hereinafter 
Closing the Water Access Gap].
    \30\ Plumbing Poverty at 1, 3; Closing the Water Access Gap, at 22.
---------------------------------------------------------------------------
    The Navajo Nation, the largest and most populous reservation in the 
country, has significant piped water access gaps. \31\ Navajo residents 
are 67 times more likely than other Americans to live without access to 
running water. \32\ As a result, many households are required to haul 
water from communal wells--a costly and time--consuming burden.
---------------------------------------------------------------------------
    \31\ DigDeep, Brief of DigDeep Right to Water Project and Utah 
Tribal Relief Foundation as Amici Curiae in Support of Respondents, No. 
21-1484 (U.S.), June 22, 2023, http://www.supremecourt.gov/DocketPDF/
21/21-1484/254361/20230208163233914_DigDeep%20UTRF%20Amicus%20Brief%20-
%20final.pdf.
    \32\ DigDeep, Navajo Water Project, https://
www.navajowaterproject.org/project-specifics.
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Water Quality
    Inadequate, unsafe water quality is another barrier to clean and 
secure water access, where an estimated 1 in 10 Tribal members lacking 
access to reliable clean tap water and basic sanitation. \33\ Although 
a home may have access to piped water and indoor plumbing, the 
accessibility is negated if the water is contaminated and unsafe for 
consumption. The geographic profile and history of mining in the West 
has led to elevated levels of contaminants, such as arsenic and 
uranium, in groundwater sources. \34\ Agricultural runoff has also 
caused nitrate and bacteria contamination that can be particularly 
troubling for Tribal resources and uses of water. Concentrations of 
these contaminants above drinking water standards in unregulated water 
sources pose health risks to the local community. In addition, water 
quality issues also exist in regulated water sources. In its first 
Indian Policy, the Environmental Protection Agency (EPA) recognized 
regulatory gaps that exist in Indian Country with respect to water 
quality protection:

    \33\ Lakhani, Nina, The Guardian, Tribes without clean water demand 
an end to decades of US government neglect. April 28, 2021.
    \34\ Jani C. Ingram, et al., Uranium and Arsenic Unregulated Water 
Issues on Navajo Lands, J. Vacuum Sci. Tech. A. 38(3) (2020). Percy 
Deal is a Navajo citizen and lifetime resident of Black Mesa, Arizona, 
which is where Peabody Energy operated a coal mine for several decades. 
His personal story, outlined in a letter to the Office of Surface 
Mining Reclamation and Enforcement identifies the environmental 
degradation experienced in the area and the impact it has had on water 
quality and community health. UACW requests that Mr. Percy's letter be 
entered into the record.

         [W]ithout some modification, our programs, as designed, often 
        fail to function adequately on Indian lands. This raises the 
        serious possibility that, in the absence of some special 
        alternative response by EPA, the environment of Indian 
        reservations will be less effectively protected than the 
        environment elsewhere. Such a result is unacceptable. The 
        spirit of our federal trust responsibility and the clear intent 
        of Congress demand full and equal protection of the environment 
        of the entire nation without exceptions or gaps. \35\
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    \35\ Envt. Protection Agency, EPA Policy For Program Implementation 
on Indian Lands 3 (Dec. 19, 1980).

    Although there have been several legislative and regulatory changes 
since the EPA Indian Policy was first issued in 1980, \36\ the water 
quality gap in Indian Country has persisted and inadequate water 
quality is pervasive. For example, in Nebraska, the Santee Sioux Nation 
has been under a no-drink order from the EPA since 2019 for manganese 
contamination in their drinking water wells. Tribal members have used 
funding from the Bureau of Indian Affairs to buy bottled water, but it 
will soon run out and there is no long-term solution on the horizon. 
\37\ Similarly, the Hopi Tribe has struggled with arsenic contamination 
in its water supply since its drinking water systems were first 
installed in the 1960s. The Tribe estimates that approximately 75 
percent of people living on Hopi land are drinking contaminated water. 
Such contamination poses serious health risks, including diabetes, skin 
discoloration, cancer, blindness, and partial paralysis.
---------------------------------------------------------------------------
    \36\ Safe Drinking Water Act Amendments of 1986, Pub.L. No. 99-339, 
42 U.S.C.  300j-11(a); Clean Water Act Amendments of 1987, Pub. L. No. 
100-4, 33 U.S.C.  1377(e).
    \37\ Nebraska Public Media. `Everyone's sympathetic,' But after 4 
years without safe drinking water, sympathy isn't enough for the Santee 
Sioux Nation. (September 11, 2023), https://nebraskapublicmedia.org/en/
news/newsarticles/everyones-sympathetic-but-after-4-years-without-safe-
drinking-water-sympathy-isnt-enough-for-the-santeesioux-nation/.
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Water Infrastructure
    Water infrastructure refers to the network of structures (e.g., 
pumps, pipes) and facilities (e.g., treatment plants, storage 
facilities) required to deliver water services. A large proportion of 
water systems were built over a century ago and either have reached the 
end of their expected lifespan, or are not able to handle additional 
demands associated with growing populations, increased treatment 
requirements, and the impacts of climate change. \38\ Aging 
infrastructure also contributes to unnecessary water loss. ``Drinking 
water systems currently lose at least six billion gallons of treated 
water per day, or 2.1 trillion gallons per year.'' \39\ This water loss 
is particularly felt in the Western United States where water is 
already a scarce resource. Additionally, as infrastructure 
deteriorates, risk of water contamination and non-potable water 
delivery increases, which can lead to additional challenges to secure a 
reliable water supply. \40\
---------------------------------------------------------------------------
    \38\ American Society of Civil Engineers, The Economic Benefits of 
Investing in Water Infrastructure 6 (2020).
    \39\ Id. at 10.
    \40\ Deborah Vacs Renwick, et al., Potential Public Health Impacts 
of Deteriorating Distribution System Infrastructure, 111 J. Am. Water 
Works Association 2, 42-53 (2019).
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    Tribal communities typically face even greater challenges and 
woefully inadequate water infrastructure. Investment in water 
infrastructure has not kept up with population growth and other needs. 
Such underinvestment in physical infrastructure harms ``the social, 
physical, and mental wellbeing'' of Tribal communities and impairs 
their ability to thrive. \41\ A significant portion of existing Tribal 
infrastructure was installed over the course of many decades, beginning 
in the late 1800s. The high costs associated with outdated technology 
and infrastructure repairs can limit a Tribe's ability to realize the 
full potential value of its water and meet the growing needs of its 
community.
---------------------------------------------------------------------------
    \41\ National Congress of American Indians, Tribal Infrastructure: 
Investing in Indian Country for a Stronger America 4 (2017), https://
www.ncai.org/NCAI-InfrastructureReport-FINAL.pdf.
---------------------------------------------------------------------------
    The Warm Springs Indian Reservation in Oregon has lacked reliable 
clean drinking water for decades. In December 2022, the EPA and the 
Indian Health Service (IHS) completed a formal agreement that provided 
more than $23 million to build a new water treatment plant at the 
Reservation. Nearly all the funding is the result of the Infrastructure 
Investment and Jobs Act (IIJA).
Operation and Maintenance (O&M)
    The ability to continually operate and maintain functional water 
delivery infrastructure is critical for providing communities with 
clean and safe water access. Similar to water infrastructure costs, O&M 
costs have also increased over time and are outpacing available funding 
across the United States. \42\ The rise in O&M costs is partly 
associated with aging infrastructure-it is more costly to operate and 
maintain systems that are near or have exceeded their expected 
lifespan. The shortage of trained and qualified individuals to 
undertake the planning and construction, and long-term O&M of 
infrastructure projects compounds the lack of funding available for 
infrastructure projects in Indian Country. \43\
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    \42\ American Society of Civil Engineers, The Economic Benefits of 
Investing in Water Infrastructure 12 (2020).
    \43\ National Congress of American Indians, Tribal Infrastructure: 
Investing in Indian Country for a Stronger America 4 (2017), https://
www.ncai.org/NCAI-InfrastructureReport-FINAL.pdf.
---------------------------------------------------------------------------
    ''There are many federal programs authorized and funded to support 
water infrastructure construction and technical assistance, but they 
have limited authority or funding to support direct operation and 
maintenance of the facilities provided.'' \44\ Ironically, both the 
Indian Sanitation Facilities Act (ISFA) and the Indian Health Care 
Improvement Act authorize IHS to provide O&M activities for existing 
water and sanitation facilities. \45\ However, Congress has never 
appropriated funding to provide those services.
---------------------------------------------------------------------------
    \44\ Bloomberg American Health Initiative, Getting Out Ahead of 
Water Infrastructure Challenges: Q&A with Bloomberg Fellow David Harvey 
(Aug. 6, 2020), https://americanhealth.jhu.edu/news/getting-out-ahead-
waterinfrastructure-challenges-qabloomberg-fellow-david-harvey.
    \45\ The Indian Sanitation Facilities Act authorizes the Surgeon 
General ``to construct, improve, extend, or otherwise provide and 
maintain by contract or otherwise, essential sanitation facilities[.]'' 
Pub. L. No. 86-121, 73 Stat. 267 (1959) (codified at 42 U.S.C.  
2004a(a)). Pursuant to the Indian Health Care Improvement Act, the 
Secretary is authorized to provide ``(A) Financial assistance to Indian 
Tribes and communities in the establishment, training, and equipping of 
utility organizations to operate and maintain Indian sanitation 
facilities; (B) Ongoing technical assistance and training in the 
management of utility organizations which operate and maintain 
sanitation facilities; (C) Operation and maintenance assistance for, 
and emergency repairs to, Tribal sanitation facilities when necessary 
to avoid health hazard or to protect the Federal investment in 
sanitation facilities'' as well as ``financial assistance to Indian 
Tribes and communities in an amount equal to the costs of operating, 
managing, and maintaining the facilities provided[.]'' Pub. L. No. 94-
437 (1976) (codified at 25U.S.C.   1632(b)(2), (e)(1)).
---------------------------------------------------------------------------
    While certain Tribes have been able to initially construct suitable 
water infrastructure, O&M of the systems has proven to be difficult. 
The Jicarilla Apache Nation has experienced the challenges associated 
with providing ongoing support for O&M of Tribal infrastructure. Like 
other Tribes, the Jicarilla Apache Nation is unable to utilize 
traditional means of collecting revenue to support O&M--e.g., taxing 
Tribal lands. Infrastructure O&M, therefore, must be separately 
budgeted for year after year. When budgets are tight, allocations for 
O&M often suffer, repairs are delayed, and established infrastructure 
starts to degrade. The Jicarilla Apache Nation has seen this happen to 
its water delivery system, and water services to the community has been 
threatened.
Maximizing Funding for Tribal Water Infrastructure
    In recognition of its treaty and trust responsibilities, the 
federal government has established several programs under various 
agencies to support Tribal water infrastructure and clean water access. 
The primary agencies include the Indian Health Services (IHS), 
Environmental Protection Agency (EPA), United States Department of 
Agriculture (USDA), and Bureau of Reclamation (Reclamation). 
Historically, these programs have been grossly underfunded compared to 
Tribal needs. However, the Infrastructure Investment and Jobs Act 
(IIJA) and Inflation Reduction Act (IRA) have provided much needed 
funding to fulfill the federal trust responsibility to Tribes, 
including the following:

   Indian Health Services--IHS received $3.5 billion from IIJA 
        for its Sanitation Facilities Construction Program, which 
        designs and constructs water, wastewater, and solid waste 
        facilities for Native American homes. This funding level 
        accounts for the end of year 2020 estimate of currently 
        identified projects in the Sanitation Deficiency System (SDS), 
        although an Office of Inspector General report noted several 
        challenges to implementing this funding. \46\
---------------------------------------------------------------------------
    \46\ HHS Office of Inspector General Report, Initial Observations 
of IHS Capacity to Manage Supplemental $3.5 Billion Appropriated to SFS 
Projects (2022), https://oig.hhs.gov/oei/reports/OEI-06-22-00320.pdf.

   Environmental Protection Agency--EPA funds drinking water 
        and wastewater infrastructure largely through two Tribal set-
        aside programs for the Safe Drinking Water Act (SDWA-TSA) and 
        Clean Water Act (CWISA), respectively. IIJA increased 
        appropriation to both programs. From fiscal years 2022-2026, 
        EPA anticipates investing over $254 million in Tribal 
        wastewater infrastructure improvements, and over $614 million 
        in Tribal drinking water infrastructure improvements. \47\ 
        Under the IRA, Congress also appropriated billions into several 
        environmental justice programs administered by the EPA. 
        However, it remains to be seen how those will be implemented or 
        how they might improve Tribal access to water.
---------------------------------------------------------------------------
    \47\ Memorandum re: Implementation of the Tribal Water 
Infrastructure Appropriations in the Bipartisan Infrastructure Law from 
Radhika Fox, EPA, to Reg'l Water Div. Dirs. et al., (May 27, 2022), at 
3, https://www.epa.gov/system/files/documents/2022-05/
Final%20Tribal%20Set-Asides%20Memo_May%202022.pdf.

   Bureau of Reclamation--Reclamation has primarily been 
        involved in Tribal water projects because of federal Indian 
        water rights settlements or other specific Congressional 
        direction. IIJA provided $8.3 billion to Reclamation, including 
        $3.2 billion for aging infrastructure projects, $1 billion for 
        rural water projects. \48\ Although not Tribal specific, this 
        funding could potentially benefit Native communities. IIJA also 
        provided $2.5 billion to the Secretary of the Interior for a 
        newly created Indian Water Rights Settlement Completion Fund. 
        It is expected that a portion of this funding will be directed 
        to implementation of previously authorized Indian water rights 
        settlements, while other funding will be distributed directly 
        to Tribes for settlement implementation. The IRA appropriated 
        additional funding for new programmatic authority; 
        specifically, $550 million for disadvantaged communities 
        domestic water supply projects (including planning, design, and 
        construction) and $12.5 million for financial assistance to 
        address drinking water shortages and mitigate loss of trust 
        resources due to drought for Tribes impacted by the operation 
        of a Reclamation project.
---------------------------------------------------------------------------
    \48\ Congressional Research Serv., Bureau of Reclamation Provisions 
in the Infrastructure Investment and Jobs Act (P.L. 117-58) (2022), 
https://crsreports.congress.gov/product/pdf/R/R47032.

Need for Tribal Capacity Building
    In order to providing drinking water and sanitation as quickly as 
possible to those currently lacking these basic services, the federal 
government must focus on building Tribal capacity through technical 
assistance and O&M support. Many Tribes lack a dedicated water resource 
staff, program, or department. Additionally, identifying and 
successfully applying for the various forms of federal funding 
available is an arduous and time-consuming task. Tribal governments, 
which are often already at capacity in addressing other facets of 
governance, must also track and prepare applications for funding 
programs across several federal agencies. Many Tribes lack a qualified 
grant writer or sufficient staff to handle the research and application 
process. And, even if Tribes are apprised of funding opportunities, the 
amounts offered may not be sufficient to merit an application.
    While some technical assistance (TA) is available to assist Tribes 
in various parts of the application process, TA providers are often 
unable to fully serve Tribal water needs. Many providers are not 
culturally competent or knowledgeable about the Tribe's unique needs. 
Furthermore, providers often work in silos. EPA's technical assistance 
providers, for example, are not necessarily familiar with all the other 
federal programs available to Tribes. Tribal governments, then, may be 
required to work with a different provider in each agency for every 
funding opportunity. In a similar vein, no agencies have mapped out or 
otherwise explained to Tribes how all of these federal programs can fit 
together to support water infrastructure projects.
    Notably, USDA did not receive funding for its Tribal water 
infrastructure programs under IIJA or IRA. However, the Tribal Access 
to Clean Water Act of 2023, H.R. 4746 and S. 2385, seeks to address 
Tribal capacity challenges, in part through USDA authorizations. The 
bill would authorize the USDA to make grants and loans for technical 
and financial assistance as well as for construction; and authorize 
increased funding for USDA's Rural Development Community Facilities 
Grant and Loan Program of $100 million per year for five years and $30 
million per year specifically for technical assistance. Such assistance 
would help ensure that Native communities are treated equitably and 
appropriately when considered for grants and loans.
    To that end, UAWC has also supported reauthorizing of the USDA 
Water & Waste Disposal Technical Assistance & Training Grant Program to 
the maximum amount (Section 306(a)(14)(A)) of the Consolidated Farm and 
Rural Development Act 7 U.S.C. 1921 et seq.), with a set-aside of no 
less than 10 percent of the funding directed to expanded technical 
assistance and capacity building for Tribes.
Conclusion
    Thank you for the opportunity to testify on water access in Tribal 
Communities and to share our recommendations on how the federal 
government can fulfill its trust responsibility to Tribes.

    Attachment

                                                 September 25, 2023
Amy Ryser,
One Federal Center,
Building 41,
Lakewood, CO.

Ms. Ryser:

    Please accept this comment leJer regarding the consideraKon by 
OSMRE bond release (Phased I N11 and J21 and Phase II J19 and J21) as 
requested by the Peabody Mine.
    My name is Percy Deal, reKred and 74 years old and lifeKme resident 
of Black Mesa, just south of Peabody Lease area. My parents (both gone) 
and their parents going back many generaKons always resided in the 
area. My family and neighbors raised sheep and other animals for food 
and other economic purposes, and we sKll do. As a boy in my early 
years, I tended to herd sheep. I remember many different naKve plants 
for our animals for the wildlife, herbs for medicine, food for 
ourselves, and for ceremonies. We planted crops in our field, and it 
brought many vegetables. There were no windmills anywhere, however 
there were several places in the washes, at the base of the mountains 
and elsewhere, where there was water available year-round. The air was 
clean, and we were blessed with plenty of moisture year-round. Life was 
wonderful.
    My mother told me, the community received visitors from Window Rock 
and some white men in late 60's to tell them there will be coal mining 
with big machines, the community will in return receive money and jobs. 
The operaKon will last 50 years. They were never told about the use of 
ground water. It wasn't unKl years later, people noKced their springs 
were drying up, naKve plants were disappearing and changing. That's 
when they started to ask quesKons, they were finally told the mining 
operaKon was pumping millions and millions of gallons of ground water. 
The people were never told it was never explained to them how much 
water, they didn't understand what an acer foot of water was, and they 
never gave consent to the use of their water.
    Today, the natural springs are sKll dry, many naKve plants are gone 
together with the wildlife. Cornfields do not produce crops, corn used 
to grow six to seven feet tall, today it either does not grow or it 
will only get a foot high and not produce any crop. The ground is very 
dry, obnoxious weeds took over. The weather has drasKcally changed; 
they call it climate change. It's caused by the extracKve and power 
plant industries. The coal mines and power plant are closed, their 
lease term has expired; they are in the process of moving out. It's now 
Kme for reclamaKon of areas disturbed and recharging and replacing 
water used.
    OSMRE held public meeKngs, to hear from the public. I aJended most 
of those meeKngs including site visits to the mined areas to share my 
concerns. In listening to the impact communiKes, in addiKon to their 
unsaKsfactory comments on the reclamaKon just about everyone spoke very 
strongly about the water, which OSMRE seems to have very liJle 
concerns, as a maJer of fact they provided us a one page on water (N-
aquifer) indicaKng very minimal impact on the aquifer from mining. This 
is very disheartening and very disturbing that an arm of our trustee 
would take opposiKon to the people whom they are charged with protecKng 
and instead side with the destroyer of land and water.
    In the 40+ years Peabody Coal been in operaKon, it paid royalKes to 
the Navajo NaKon. If you drive through the Black Mesa area, you will 
not seem any benefit from the revenue received. Peabody instead 
destroyed all local businesses with their lack of support. Doing away 
with all local jobs immediately outside the lease area.
    Today, acer the closure of the mine and power plant we are seeing 
new challenges, new forces all wanKng to take what's lec of our ground 
water to benefit outside interest. We don't know how much of the N-
aquifer is lec and if it's safe from contaminaKon. We are aware, USEPA 
did a study a few years ago on the Hopi reservaKon and found high 
levels of arsenic in the aquifer they were drinking, we share the same 
water with the Hopis. The Navajo NaKon will not tell us if the water we 
are using is also contaminated. We are also aware; U.S. Geological 
Survey did a study and determine Peabody has used 63 percent of the 
ground water to support its operaKon. We don't have a river or large 
reservoir nearby, all we have is the aquifers, it's our sole source.
    Briefly, the new challenges and forces are Nature and People First, 
an industry from Phoenix who applied for preliminary permits with the 
Federal Energy Regulatory Commission for three pumped storage energy 
projects at the northern edge of Black Mesa to produce energy for 
Phoenix and other ciKes south of the reservaKon. The project requires 
450,000 acer-feet of water and it's looking at Black Mesa aquifer for a 
period of 100 years. Next, the Hopi Tribe claimed over 90,000 acer-feet 
of water from the LiJle Colorado River, the Arizona Superior Court 
awarded them less than 30,000 AF from the aquifers and run offs from 
rain and snow. And it appears none from the river. All run off comes 
from Black Mesa. Navajo Department of JusKce told us the Hopi decision 
is a preview of what's coming to Navajo (Black Mesa). The other force 
is the water shortage in Arizona, parKcularly from Colorado River which 
the state of Arizona didn't allow the Navajo tribe any share. The 
recent Supreme Court decision did not help at all, instead the tribe 
will have to get its share from the state through liKgaKon and/or 
negoKaKon which will take years. I don't see any enKty in Arizona that 
would share their water with the Navajo NaKon. Above all these 
challenges are climate change and drought.
    I strongly recommend the federal government (OSMRE) take a stronger 
stand to protect the interests of the local communiKes, protect natural 
resources and not let Peabody mine receive the bond money. Once they 
receive it, the people will be lec with all the issues; failed 
reclamaKon, not knowing how much water is lec and not knowing if the 
water is free from contaminaKon, failure to provide recharge system, 
failure to provide reservoirs for wildlife, not knowing how much health 
and economic impact they created. The restoraKon should not be limited 
to the 64,000-acer lease area but must include surrounding areas. The 
remaining bond money should be used to study all the impacts and look 
at restoring all areas and should be used to provide a true economic 
transition.
    The federal government must fully exercise its trust responsibility 
and ensure the land is returned as received.

        Thank you,
                                   Percy Deal, Big Mountain

    The Chairman. Thank you very much.
    Finally, we have Ms. Val Davidson, President and CEO of 
Alaska Native Tribal Health Consortium in Anchorage. Welcome.

STATEMENT OF HON. VALERIE NURR'ARAALUK DAVIDSON, PRESIDENT/CEO, 
                  ALASKA NATIVE TRIBAL HEALTH 
                           CONSORTIUM

    Ms. Davidson. Quyana. Thank you. My name is Valerie 
Nurr'araaluk Davidson. I serve as the President-CEO of the 
Alaska Native Tribal Health Consortium. We are a statewide 
tribal health organization serving all 229 federally recognized 
tribes in Alaska and all Alaska Native and American Indian 
people in Alaska.
    Chairman Schatz, Vice Chair Murkowski, my favorite, and 
members of the Committee, thank you for holding this hearing on 
water as a trust resource. As you have heard repeatedly today, 
reliable water and sanitation services really are critical to 
the health and well-being of our families and our communities.
    Senator Murkowski mentioned earlier, Vice Chair Murkowski 
mentioned that Alaskans living in communities without access to 
running water are five times more likely to be hospitalized for 
lower respiratory tract infections and eleven times more likely 
to be hospitalized for pneumonia than those with it. This is 
not theory; these are not numbers; these are actually real 
people that we know and love.
    My youngest daughter contracted RSV, respiratory syncytial 
virus, when she was only eight months old. She was hospitalized 
for nine days, fighting for her life. Her compromised 
respiratory system meant by the time she was seven years old, 
she had been hospitalized nine times. Ironically, I was in D.C. 
advocating for sanitation funding to improve our health when I 
received the call that she was in the hospital. That baby is 
now 20 years old today.
    Sadly, her experience is common. In our underserved 
communities, we expect one in every three infants to be 
hospitalized every year. Imagine in the room that you are in 
today, one out of every three people as babies being 
hospitalized every year and suffering long-term respiratory 
issues. That would be unacceptable.
    We really appreciate the significant Federal investment 
over 40 years that has dramatically reduced the number of 
unserved communities. Today, though, roughly 20 percent of our 
homes in rural Alaska Native still lack in-home piped water, 
and 34 communities remain unserved, even in these great United 
States of America.
    Thanks to your leadership, the bipartisan Infrastructure 
Investment and Jobs Act provides resources to help. We so 
appreciate your prioritization of projects in communities whose 
high cost of service historically disqualified them from 
funding. Without your brilliant vision of making that change, 
communities without running water would have continued to go 
without it and our children would have continued to suffer, not 
only physically, but also the message that they heard at the 
time before your intervention, that their lives weren't worth 
as much as the lives of other Americans.
    On behalf of those who will live healthier lives because of 
your investment, we really appreciate the members of this 
Committee for your advocacy and your leadership.
    We also appreciate our partners at the IHS for their work 
in ensuring that these resources reach the communities intended 
by Congress. ANTHC absolutely supports the IHS Fiscal Year 2023 
allocation decision for infrastructure funding. We recognize 
that this legislation is intended to address the most 
challenging communities to serve, those that were considered 
economically infeasible under prior policy.
    ANTHC also supports the IHS Fiscal Year 2023 allocation of 
$65.5 million for projects that exceeded the original budget 
estimate due to persistent inflation and ongoing supply chain 
challenges. The challenge of rising costs also impacts the 
ongoing operations and maintenance of these systems.
    The good news is that the Indian Health Care Improvement 
Act recognizes the IHS's authority to provide funding in 
support of operating, managing, and maintaining tribal water 
and waste facilities. IHS acknowledged that authority and the 
need for O&M funding in its Fiscal Year 2024 Congressional 
justification. The inclusion of O&M in the Fiscal Year 2024 
justification is an important step in the right direction.
    For decades, ANTHC and our partners in the Alaska Tribal 
Health System have really worked to increase local and regional 
operational capacity in support of these systems. While we have 
made great progress, the most significant challenge continues 
to be the lack of ongoing financial resources to support these 
activities. We look forward to working with Congress and the 
IHS to ensure that operation and maintenance resources 
necessary to protect your investment of Federal infrastructure 
in our communities continues.
    We appreciate the Committee's focus on such an important 
and pressing issue and appreciate the opportunity to provide 
testimony today. Quyana. Thank you.
    [The prepared statement of Ms. Davidson follows:]

  Prepared Statement of Hon. Valerie Nurr'araaluk Davidson, President/
              CEO, Alaska Native Tribal Health Consortium
    My name is Valerie Nurr'araluk Davidson. I serve as the President/
CEO of the Alaska Native Tribal Health Consortium (ANTHC), a statewide 
Tribal health organization serving all 229 Tribes and all Alaska Native 
and American Indian people in Alaska.
    Chairman Schatz, Vice Chair Murkowski, and members of the 
committee, thank you for holding this hearing on water as a trust 
resource.
    Reliable water and sanitation services are critical to the health 
and well-being of our families and communities.
    Alaskans living in communities without access to these services are 
five times more likely to be hospitalized for lower respiratory tract 
infections and 11 times more likely to be hospitalized for pneumonia 
than those with it. \1\
---------------------------------------------------------------------------
    \1\ The Relationship Between In-Home Water Service and the Risk of 
Respiratory Tract, Skin, and Gastrointestinal Tract Infections Among 
Rural Alaska Natives--American Journal of Public Health, November 2008, 
Vol 98, No. 11
---------------------------------------------------------------------------
    My youngest daughter contracted respiratory syncytial virus when 
she was eight months old and was hospitalized for nine days. Her 
compromised respiratory system resulted in eight additional 
hospitalizations before her eighth birthday.
    Sadly, her experience is common.
    In our unserved communities, we expect one in every three infants 
to be hospitalized every year--who also then face long-term health 
challenges.
    While significant federal investment over four decades has 
dramatically reduced the number of unserved communities, roughly 20 
percent of rural Alaska Native homes still lack in-home piped water, 
and 34 communities remain unserved.
    Thanks to your leadership, the Infrastructure Investment and Jobs 
Act (IIJA) provides resources to serve these communities. We especially 
appreciate your prioritization of projects in communities whose high 
cost of service historically disqualified them from funding. Without 
your brilliant vision, communities without running water would have 
continued to go without it. Our children would have continued to 
suffer.
    On behalf of those who will live healthier lives due to this 
investment, thank you to the members of this committee for your 
advocacy and leadership.
    Thanks also to our partners at the Indian Health Service (IHS) for 
their work in ensuring these resources reach the communities intended 
by Congress.
    ANTHC fully supports the IHS Fiscal Year (FY) 2023 allocation 
decision for IIJA funding, recognizing the legislation is intended to 
address the most challenging communities to serve, those considered 
economically infeasible under IHS policy.
    ANTHC also supports the IHS FY 2023 allocation of $65.5 million for 
projects that exceeded the original budget estimate due to persistent 
inflation and ongoing supply chain challenges.
    The challenge of rising costs also impact the ongoing operations 
and maintenance (O&M) of these systems.
    The Indian Health Care Improvement Act recognizes the IHS's 
authority to provide funding in support of operating, managing, and 
maintaining tribal water and waste facilities.
    In its FY 2024 Congressional Justification, IHS acknowledged this 
authority and the need for O&M funding.
    The inclusion of O&M in the FY24 Congressional Justification is an 
important step in the right direction.
    For decades, ANTHC and our partners in the Alaska Tribal Health 
System have worked to increase local and regional operational capacity 
in support of these systems.
    While we have made great progress in developing the capacity needed 
to extend the working life of these systems, the most significant 
challenge continues to be the lack of ongoing financial resources to 
support these activities.
    We look forward to working with Congress and IHS to ensure the O&M 
resources necessary to protect the existing and future federal 
infrastructure investments in our communities.
    ANTHC appreciates the Committee's focus on such an important and 
pressing issue and for the opportunity to provide testimony today.

    The Chairman. Thank you very much.
    I will start with Mr. Watson. Chair Watson, how would DHHL 
benefit from a program like the IHS Sanitation Facilities 
Construction Program that provides dedicated funding for 
construction and maintenance of water and sanitation 
infrastructure?
    Mr. Watson. We would benefit tremendously from such a 
source. Unfortunately, we have to go to the legislature every 
year to, I won't call it beg, but lobby for funding. Recently, 
I have to say that this legislature in 2022 was very generous 
in the fact that they provided about $600 million. But that 
$600 million goes, and is used up quickly when you have all 
these infrastructure costs. Primarily, most of that money is 
going to infrastructure.
    So if we can use some Federal funds in lieu of that, 
especially with a steady stream, that would help our program 
tremendously. As I said, we have 29,000 people on our waiting 
list. We have lands that are marginal at best. So the 
infrastructure is a huge, huge cost that needs to be addressed.
    The Chairman. Thank you very much.
    Professor Tanana, I have been a co-sponsor of Senator 
Bennet's resolution that clarifies and affirms that the United 
States' trust responsibility is to ensure water access. Can you 
walk us through exactly what the Supreme Court said, whether or 
not you agree with it, and what we can do about it? You have 
three and a half minutes, not three and a half hours.
    [Laughter.]
    Ms. Tanana. First of all, thank you so much for your co-
sponsorship and support of that resolution. It talks about all 
of the issues we talked about today, including the trust 
responsibility. So I think it is really key that that was 
introduced and hopefully ratified.
    Why did the Supreme Court go the other way, not finding a 
trust responsibility? I would like to note it was a closed 
case, five to four decision. Frankly, I do think that the 
majority got it wrong. They did not find Navajo treaties or any 
other acts of Congress, anything to specifically impose this 
fiduciary duty on the United States to assess Navajo Nation.
    At that point, Navajo Nation was just asking for help in 
assessing, where is our water, what are our needs, what is a 
plan. There is a lot of talk about building pipes and 
infrastructure in that case that I think was kind of a 
distractor. This was just help in understanding what asset the 
government has been holding in trust for them and if it has 
been misused, let's get a plan to fix that.
    Now, I think what is really important is that in that case, 
the Supreme Court explicitly recognized that Congress may enact 
and often has laws to assist tribal nations and others with 
their water needs, and that Congress has the authority to do 
that. So there is no question today that Congress can affirm 
the trust responsibility, strengthen the fiduciary duties to 
tribes, and actually make it mean something.
    The Chairman. The question I have is, it is a lot easier to 
pass an appropriations bill than an authorizing statute. I am 
trying to figure out whether degree of difficulty wise, if we 
try to establish that trust responsibility as a matter of 
Federal statute, that could be a long battle.
    However, getting money to Native communities for 
infrastructure I think is an easier sell. I am wondering 
whether you think that does the trick or still leaves Native 
communities vulnerable. What is your tactical advice on this?
    Ms. Tanana. Passing these appropriation bills, and that is 
really why we are pursuing water settlements as a means of 
quantifying tribal rights, is because as opposed to 
adjudication and litigation in court, you can include these 
infrastructure projects. But I think that is a challenge 
because tribes desperately needing water have often conceded 
their rights, things that they are entitled to, to get those 
Federal projects through.
    So certainly that is helpful on the ground, that is how we 
got Gallup Water Supply approved.
    The Chairman. But as a practical matter, can that 
extinguish claims and all that?
    Ms. Tanana. Right. I don't think it is our best tool. And 
it doesn't broadly address all 574 tribes. We would be doing it 
on a tribe by tribe basis. Yet as we saw at the Supreme Court, 
a case without all nations broadly is affecting all our tribal 
nations.
    The Chairman. So you are saying, just in terms of how they 
got it wrong, you are saying they essentially misunderstood the 
assignment in the sense of, it would have been a closer call if 
the question is, does the Federal, especially the Executive 
Branch, have an affirmative obligation to develop water into 
wet water in every instance. You are saying, that is not even 
what Navajo was asking for, they were just asking for help in 
inventorying those things that are held in trust.
    And if you are holding something in trust, it is not 
unreasonable for the tribe to go and say, hey, can you just 
tell us what we have here, trustee? Am I getting that right?
    Ms. Tanana. Yes, I think that is an apt summary.
    The Chairman. I am going to go to law school.
    [Laughter.]
    Ms. Tanana. I think Congress has often recognized in all 
modern statutes, there is often a reference to the trust 
responsibility. But the way it has been worded to date, the 
U.S. Supreme Court did not read statutes that are in existence, 
did not read the Navajo treaty to find that. That is why we 
need Congressional clarification.
    The Chairman. Thank you very much.
    Vice Chair Murkowski?
    Senator Murkowski. Thank you, Mr. Chairman. This is an 
issue we probably want to come back to and have a discussion 
with the Assistant Secretary as well.
    I want to shift to the issue that you raised, Ms. Davidson. 
Val, you had mentioned in your comments the O&M and how 
critical those are. As you know, I am assuming you know, for 
the Fiscal year 2024 appropriations, IHS requested $10 million 
to conduct a nationwide analysis to determine the cost funding 
for O&M for tribes. They are looking at that, at this study, to 
inform mandatory spending levels down the road, so that when 
the infrastructure funds run out, we have a better handle on 
that.
    Given what you know of the operation and maintenance needs 
in Alaska villages today, there are a couple of questions here 
for you. First of all, can they wait for the results of this 
study that we really won't see until Fiscal Year 2027; and do 
you feel we have sufficient data, that IHS has the data that 
they need now to make an informed estimate on O&M support, at 
least for the Alaska region right now?
    Ms. Davidson. Quyana for the question, Vice Chair 
Murkowski.
    The quick answer is no, we don't think that we should wait. 
We already have enough data in Alaska. In fact, with the 
inclusion of an O&M study in the recent IHS Congressional 
justification, we know that that need is there. In Alaska, 
ANTHC, along with EPA, USDA and the Alaska Department of 
Environmental Conservation have already provided extensive data 
and feedback to the IHS in the development of numerous studies 
that appear to match the current proposal's intent.
    These are potential ideas, these are actual tribal 
utilities and their respective operation and maintenance 
expenses, including employee wages, benefits, electrical 
engineering, energy expenses, water testing, treatment costs, 
and other common operational requirements.
    So from our perspective, we can either spend our limited 
time and resources to perfect another study, and make that 
study perfect, or we can invest in what we already know works. 
The data that ANTHC has previously provided is not an estimate. 
These are from real systems that exist in Alaska today.
    So we believe that the best investment would be to use 
those dollars to be able to fund a pilot project that would be 
able to extend and provide real information that the IHS could 
then build upon. So really, we have a choice to make. We can 
either fund another study or we can make an investment to 
protect our babies and to keep them in communities, our 
communities, where we belong.
    Senator Murkowski. Let me interrupt and ask this to Mr. 
Smith. I think you have outlined what it is that we do know, 
and again, it is not just numbers, as you state, from ANTHC, 
but these are from our other Federal agencies, EPA, USDA, the 
Alaska Department of Environmental Conservation.
    Mr. Smith, what do you think about Ms. Davidson's 
suggestion about piloting the deployment of O&M support in the 
interim, at least in Alaska? The year 2027 is a long way away, 
and as you have heard me detail and certainly she has outlined 
it as well, the need is extensive. We have infrastructure that 
is in place that is threatened. So O&M support is pretty key.
    What do you think about a pilot?
    Mr. Smith. Thank you, Vice Chair Murkowski, for the 
question. First off, we absolutely agree that operation and 
maintenance funds are necessary to ensure that sanitation 
facilities projects cam remain functional for their entire 
usable life. That is just a given; we have enough to see out 
there.
    And as you mentioned, thank you for mentioning what is 
proposed in the President's budget request for a study.
    I also want to point out that the budget also requests $250 
million per year for operation and maintenance activities, 
starting in Fiscal Year 2027, which would be the final year of 
the Bipartisan Infrastructure Law appropriations, when those 
end. So we are looking at every opportunity possible. So we 
would look to learn more about what is being proposed as a 
pilot and whether that falls within our existing scope of 
authority.
    Senator Murkowski. We would encourage you to look at that. 
Again, I don't think anybody feels like we need to have another 
study to know that we have a very extensive list when it comes 
to O&M needs.
    Thank you, Mr. Chairman.
    The Chairman. Senator Cortez Masto?

           STATEMENT OF HON. CATHERINE CORTEZ MASTO, 
                    U.S. SENATOR FROM NEVADA

    Senator Cortez Masto. Thank you, thank you to the Chairman 
and Ranking Member for this important discussion today. It is 
pretty timely for what we are dealing with in Nevada. I want to 
touch on that a little bit.
    A study was published last year by Nevada-based Desert 
Research Institute, in partnership with the Guinn Center. They 
found that tribal water access in Nevada lags behind the rest 
of the Nation. Nevada had a higher rate of Native American 
homes without indoor plumbing, a growing rate of plumbing 
poverty, and an increase in the number of Safe Drinking Water 
Act violations, in Nevada.
    Now, combine these circumstances with the unprecedented 
drought across the southwest, and it is clear that there is a 
lot of work we have to do, not just in Nevada, but across the 
Country. So I am very proud we have passed legislation, the 
Bipartisan Infrastructure Law and the Inflation Reduction Act 
to start focusing Federal dollars and investments in our tribal 
communities, Native Hawaiian and Native Alaskan communities 
across this Country.
    But I want to bring to your attention one issue that I 
really need an answer and help from the Federal Government with 
addressing. So I am going to direct this question to Mr. Smith 
and Assistant Secretary Newland. The correlation between 
investment in water infrastructure and health outcomes is well 
documented.
    One example of what under-investment and lack of oversight 
can result in is in the town of Owyhee, it is located within 
the Duck Valley Shoshone Paiute Reservation in northern Nevada. 
The water supply was contaminated as a result of improper 
disposal of diesel and other oils through a shallow well within 
a BIA maintenance shop located on the reservation. The 
proximity of this contaminated water deposit to the 70-year old 
Owyhee Combined School where tribal members have been educated 
for generations has caused hundreds of children to be exposed 
to these dangerous toxins.
    Now, over 100 tribal members in the area have died of 
cancer of the years. That is an extraordinary number for a 
tribe of around 3,000 members. So these deaths are likely the 
result of contamination that started in the 1950s.
    So my question to you, gentlemen, is can you provide an 
update on BIA's plan for remediation of the reservation's water 
supply?
    Mr. Newland. Thank you for the question, Senator. I have 
had a chance to speak directly with tribal leadership up there 
on the Duck Valley Reservation about this issue. I know our 
team has as well. We have invested, or committed, rather, $1.2 
million on the assessment work that the tribe has asked for 
related to the contamination as well as to assist in the 
development of a remediation plan. We are going to continue to 
work with leadership from the tribe there on those issues.
    I know also that there were concerns about the school.
    Senator Cortez Masto. Relocating the school.
    Mr. Newland. Yes, relocating the school, which is, my 
understanding is that is a State-funded public school. But we 
are trying to assist the tribe with the assessment and 
remediation work.
    In terms of the study that you also referenced for the 
cancer rates, I have had a chance to speak with Deputy Director 
Smith and Director Tso about this issue fairly recently in 
trying to coordinate between our agencies the appropriate folks 
to respond to the tribe.
    Senator Cortez Masto. I appreciate that, and I am going to 
hold you to it. I look forward to continued conversations with 
all of you to make sure we are taking action and doing right 
here at the end of the day. Yes, we are going to relocate the 
school. State funding has kicked in. But I do think there is a 
Federal obligation here, because the contamination, my 
understanding, is that because of the BIA maintenance facility.
    So I am hopeful that you all, in telling us what we need to 
do here at a Federal level in Congress, but working together to 
address this and not taking time to get it done. It has already 
taken too much time, as we have seen.
    My time is running out, so thank you, gentlemen. I 
appreciate that.
    Let me jump to an issue, Ms. Tanana, thank you for being 
here. Thank you for the conversation. I am going to jump to an 
issue that I also believe is something and a barrier we have to 
deal with, which is a workforce related issue. It is one thing 
to get all these Federal funds available, all these great 
projects into our tribal communities.
    But I also hear from my tribes that there is a challenge, 
particularly in the rural areas, about the workforce. How do we 
put these projects together? Where is the workforce? What do we 
need to be doing with respect to a workforce that is deficient 
to move forward one some of these projects that are important?
    I hate to put it all on you, but do you have any ideas that 
would be helpful?
    Ms. Tanana. Thank you for bringing that up. That is one of 
the biggest barriers to getting this historic investment, IIJA, 
IRA funds out. It is great. But if tribes cannot access it 
because they don't have that capacity to apply for these 
complex grants from multiple agencies, we are not going to get 
there. I think putting it in context, it is important to 
acknowledge the Federal Government contributed to these 
capacity issues, with the boarding school rules. You took our 
engineers, you took our leaders, and we are healing from that 
still.
    Notwithstanding amazing hydrologists like Crystal Tulley-
Cordova, Navajo Nation, best hydrologist I know. But more are 
needed. I think maybe tying it in with education programs, 
these circuit riders, these ideas are floating around of having 
tribal circuit riders to come out and do trainings. But it has 
to be of the local people. We can't just continually have 
outsiders come in, because we know they will stay for a little 
while, and then they leave.
    So I think there are broader systems. We have a couple of 
reports that talk about tribal capacity specifically, that I 
have referenced in my written testimony. It is a critical 
issue.
    Senator Cortez Masto. Thank you. Thank you, Mr. Chairman.
    The Chairman. Senator Lujan.

               STATEMENT OF HON. BEN RAY LUJAN, 
                  U.S. SENATOR FROM NEW MEXICO

    Senator Lujan. Thank you, Mr. Chairman, and to our Vice 
Chair, for this important hearing.
    Speaker Curley, welcome. It is good to see you again.
    Mr. Chairman, I would like to ask for unanimous consent to 
enter a statement from Dig Deep into the record which 
highlights the extraordinary water access gap that tribal 
households are facing.
    The Chairman. Without objection, so ordered.
    Senator Lujan. Without action, Mr. Chairman, insufficient 
Federal funding will remain a significant barrier to Indian 
water rights settlements. Insufficient annual appropriations 
have also caused construction delays and increased total 
project cost.
    Assistant Secretary Newland, yes or no, does the Bureau of 
Indian Affairs plan to ask for additional appropriations for 
Indian water rights settlements in future budget requests?
    Mr. Newland. Senator, may I say yes, it is part of the 
mandatory funding proposal that we have submitted to Congress 
for Indian water rights settlements over the next decade.
    Senator Lujan. I would also like to point out that 
maintenance of project infrastructure is just as important as 
constructing it. The line of questioning we have heard from 
colleagues today; it seems that we all agree here.
    Assistant Secretary Newland, yes or no, would expanding the 
Indian Water Rights Completion Fund help meet our trust 
responsibility to tribes with an active water rights 
settlement?
    Mr. Newland. Yes.
    Senator Lujan. And how is the Department of Interior 
coordinating with Reclamation to ensure costs for Indian water 
rights settlement projects do not surpass their authorizations 
requiring additional action from Congress?
    Mr. Newland. Thank you, Senator. That is an ongoing effort 
to make sure that this work starts in a timely manner before 
costs can rise beyond what was contemplated in the settlement. 
So it has been a priority of ours at the department, both 
Reclamation and Indian Affairs and the other offices involved 
to get started as quickly as we can to avoid those scenarios. 
That is one important way to avoid that.
    Senator Lujan. I appreciate that. Yesterday I was proud to 
introduce legislation to waive 50 percent cost share for tribe 
for WaterSMART grants which received $1 billion from the 
Bipartisan Infrastructure law. Reclamation recently put out a 
notice for the WaterSMART grants with the reduced cost share, 
but stopped short of waiving the cost share for tribes.
    Assistant Secretary Newland, yes or no, does the presence 
of even a reduced cost share limit tribal access to Federal 
funds?
    Mr. Newland. Yes.
    Senator Lujan. And yes or no, do you agree that Congress 
should waive the cost share entirely for tribes whenever it 
can?
    Mr. Newland. Senator, respectfully, I want to defer to my 
colleagues within the Bureau of Reclamation and follow up on 
that question. I know it bears on consideration of other 
legislation that is pending.
    Senator Lujan. I am surprised by that answer. The answer 
should be yes. We hear the problems with tribe after tribe; the 
question that went to Ms. Tanana associated with technical 
expertise to even go after a grant. And how many tribes are in 
a position financially if they secure then they can't come up 
with the cost share?
    I don't mean to go on a tangent, Mr. Chairman, but I am 
about to. There was a project where a bridge went out in 
Manuelito. There was a declaration, FEMA came forward, put the 
money forward. There was still a question on cost share. But 
BIA said, we are not going to give you the easement because of 
all the process that it takes.
    What should have taken 12 months took 12 years. We finally 
broke ground on this. Cost shares, lack of support technically, 
or agencies not working together results in projects not being 
completed. I am hopeful we can find a way to get there with 
some of this. I apologize, Mr. Chairman.
    Earlier this year, like every year, I ask the leadership 
from the Navajo Nation, namely NTUA, to give me numbers of 
families that are not connected to water and wastewater, 
electricity and broadband. The numbers I got this year from the 
Navajo Nation was approximately 15,500 Navajo households, 
nearly double those that I get when I ask IHS. SES lists for 
the area office as well.
    Mr. Smith, yes or no, does IHS have adequate staff to fully 
quantify the water access gap on tribal lands?
    Mr. Smith. No, we do not. However, we are working within 
the resources and some of the examples that were provided to 
address the workload issues as we move forward. But the true 
answer is no.
    Senator Lujan. Does the Department of Interior at Indian 
Affairs collect the data, Assistant Secretary?
    Mr. Newland. I am not sure about that, Senator, but I can 
confirm that for you shortly.
    Senator Lujan. I appreciate that.
    The reason for this question, Mr. Chairman, and to our Vice 
Chair, is there should be data that we can rely on that 
progress is being made, when we are able to work together to 
pass bipartisan infrastructure packages as well, to make sure 
that that number, in this case drops from 15,500 to 10,500 in a 
year. Then down to zero at some point, understanding that there 
may be some additional numbers.
    I am constantly and consistently frustrated by the lack of 
data gathering and consistent data in this space. I hope that 
is somewhere we can have a more robust conversation, look at 
methodology, understand what may or may not be occurring in 
that space so that we can move forward with funding, especially 
given the decision that came down from the Supreme Court so 
that we can just have initiatives for water settlements that 
move forward to ensure that our brothers and sisters are able 
to get the water that is theirs.
    I appreciate that, Mr. Chairman. Thank you, Vice Chair, as 
well.
    The Chairman. Thank you very much, Senator Lujan.

                STATEMENT OF HON. JOHN HOEVEN, 
                 U.S. SENATOR FROM NORTH DAKOTA

    Senator Hoeven. Thank you, Mr. Chairman. I appreciate it.
    Director Smith, my staff has been in contact with yours 
regarding efforts that we have been working on with both the 
Devil's Lake Community in North Dakota, but also with the 
Spirit Lake Tribe. The existing hospital in Devil's Lake is a 
critical access hospital that serves the entire lake region, 
the community, the tribe, and the whole region.
    But there is widespread concern about the hospital and care 
there, not because of the employees. The employees there are 
great. They are doing a super job. The problem is getting 
investment into that hospital. It is a critical access care 
hospital so it means it is the only one that can have that 
designation in a 35-mile radius, and as you know, provides 
better reimbursement rates.
    But that hospital needs investment. The parent company is 
not doing that. So I would like to know what role Indian Health 
Service can play in helping us get needed investment in that 
rural hospital to serve that community, that rural area and the 
Spirit Lake Tribe.
    Mr. Smith. Thank you, Senator Hoeven, for the question. 
Certainly, we acknowledge the serious challenges that Devil's 
Lake is experiencing right now. We are certainly aware of the 
services that are provided to members of the Spirit Lake Tribe 
within that facility.
    In terms of what is available under the Bipartisan 
Infrastructure Law funding----
    Senator Hoeven. No, I want to know any and all tools that 
you have under any and all funding, or any funding or any 
authorities or anything else you have that can help us get the 
common spirit, parent company, to make the needed investment in 
that hospital for the benefit of the tribe as well as all the 
people that live in this lake region area. Any and all 
authorities and funding you have, not limited to any specific 
bill.
    Mr. Smith. Okay, understood. Our answer for the Indian 
Health Service funding is going to be limited. But we know that 
the Spirit Lake Tribe is operating under Title 5 of the Indian 
Self-Determination and Education Assistance Act. We would be 
happy to partner with them and have conversations about things 
that they might be utilizing, or plans that they have within 
the local community with the Federal funding that they have 
awarded through their self-governance compact and funding 
agreement.
    So I would be happy to take that back to the agency and 
work with the tribe.
    Senator Hoeven. Would you be willing to sit down with my 
office and strategize on anything, any possibilities that we 
can undertake to help with this very important challenge?
    Mr. Smith. We would be happy to provide any technical 
assistance once requested.
    Senator Hoeven. We really do need your help on figuring out 
how we get this needed investment for the benefit of the tribe 
and the region. So we really do need you to sit down with us 
and strategize, and of course, with the tribe as well. But we 
need to know what you can do to help get this problem solved.
    Mr. Smith. Understood. We are very aware of other 
communities where a tribal health program or the Indian Health 
Service may be the only shop in town, which is a little bit of 
the reverse of the situation.
    Senator Hoeven. Well, this is different. It is a different 
situation, but it is one that I think is not only really 
important in this case, but if we can come up with some good 
solutions here it will help in a lot of other cases as well. So 
we need your best creativity and your good ideas to help us 
meet this challenge.
    Mr. Smith. Thank you very much. We will be happy to help.
    Senator Hoeven. Good, thank you. I appreciate it, Director.
    My other question is to Assistant Secretary Newland, 
regarding the Tribal Trust Grant program. Again, Spirit Lake on 
Devil's Lake, or as they call it, Spirit Lake, and also our 
Standing Rock Sioux Tribe on the Missouri River both have 
grants related to tourism and utilization of their water 
resources for that purpose.
    Will you commit to work with both those tribes to see how 
we could, and then of course we have Three Affiliated Tribes on 
Lake Sakakawea, which you are well aware of. How do we better 
pair water resource development with economic development 
opportunities?
    Mr. Newland. Thank you, Senator. It is great to see you. I 
appreciate the question.
    I absolutely would be willing to work with tribal 
leadership on those issues. As somebody who was previously a 
leader of a tribe on Lake Superior, I understand very well the 
importance of water and economic development for tribal 
communities. I would be happy to talk with leadership from the 
tribes.
    Senator Hoeven. Yes, with your background, there are some 
great opportunities there in all three cases and some others 
that you could be very helpful with. All the tribes want to see 
if that can do some more beneficial things, not just with water 
use but with tourism. Thank you.
    Mr. Newland. Thank you.
    The Chairman. Thank you, Senator Hoeven.
    Senator Daines?

                STATEMENT OF HON. STEVE DAINES, 
                   U.S. SENATOR FROM MONTANA

    Senator Daines. Chairman Schatz, Vice Chair Murkowski, 
thank you and thanks to your staff for working with me to 
include the Fort Belknap Indian Community Water Rights 
Settlement Act, the NDAA. It is a big deal. It is the last 
water rights battle we have in Indian Country, and it is a big 
deal for Montana. It is also a big deal for our Nation.
    I am grateful for all the work and support you have given 
us to finish the last Indian water settlement in the State of 
Montana. This hearing is perfectly timed to examine the 
importance of water rights settlements.
    Finalizing Montana's settlements has been a bipartisan 
effort in the State for decades. Really it goes back it feels 
like almost over a century. Through years of hard work, 
sometimes tough negotiations, we are very close to bringing 
certainty to tribal and non-tribal water users all across 
Montana.
    Without finalized settlements, our farmers, our ranchers, 
our water users are left in limbo. If Congress doesn't act, 
then these issues will play out in the courts, where no one is 
a winner except for lawyers and everybody is harmed.
    We can and we must get the Fort Belknap Indian Community 
water rights settlement to the President's desk this year. I 
will be working very hard every day to make sure that happens.
    Assistant Secretary Newland, the Senate has already 
included the Fort Belknap settlement in this year's NDAA. The 
settlement was a negotiation between the States, the Federal 
Government, and the tribe. Do you agree it is important to 
finalize this agreement?
    Mr. Newland. I do, Senator, thank you for the question. As 
you will recall, I was able to testify in support of that bill 
earlier this year.
    Senator Daines. We appreciate that. That was a part of 
continuing the momentum forward to get a bipartisan agreement 
here through and finalized.
    This probably is an easy question, I am going to ask it 
anyway. Will you commit to working with us to ensure that this 
bill stays in the NDAA and is signed into law this year?
    Mr. Newland. Yes, Senator, we will continue to work with 
you and others interested in this bill.
    Senator Daines. I appreciate it.
    Speaker Curley, as a leader of the Navajo Nation, you know 
first-hand the importance of finalizing water settlements. Can 
you explain what it means for tribal and non-tribal 
stakeholders to have the certainty that water settlements bring 
and the importance of working this out to the settlement 
process versus the courts?
    Ms. Curley. Thank you, Senator Daines. Nice to see you as 
well. Thank you for that question.
    Overall, completing water compact agreements with tribes, 
including the Navajo Nation, is important for several reasons. 
First, number one, protecting our water rights. Water compacts 
provide a legal framework to protect and secure water rights 
for tribal communities and also promoting economic development.
    Access to water is crucial for economic activities, such as 
agriculture, industry and tourism. Water impact enables tribes 
to have certainty and control over their water resources, which 
leads to job creation, increased revenues and improved living 
standards.
    Another reason is supporting environmental stewardship. 
Water compacts allow tribes to participate in the management 
and preservation of water resources, promoting sustainable 
practices and protecting ecosystems. Most importantly, 
upholding tribal sovereignty.
    Competing water compacts is a crucial step in recognizing 
tribal sovereignty and self-governance, and it grants tribes 
the authority to manage their water resources and make 
decisions that best serve their communities.
    For the Navajo Nation specifically, our water impacts are 
crucial due to our historical water shortages, our geographical 
location and the need to address water scarcity, infrastructure 
development and most importantly, health disparities. Thank 
you, Senator, for that question.
    Senator Daines. It is really dry in northern Montana, but 
it is a lot drier in Arizona. So I know you understand the 
importance of water very, very well.
    Mr. Chairman, thank you.
    The Chairman. Vice Chair Murkowski?
    Senator Murkowski. Thank you, Mr. Chairman.
    This is probably one last question for you, Deputy Director 
Smith. There has been conversation about workforce, there has 
been conversation about increased costs due to supply chain 
issues, and just the cost of labor overall. You have indicated 
that we got some newly identified sanitation deficiencies, and 
to update the cost estimates due to increases in all these 
various costs that I mentioned.
    This $65.5 million that has been announced, how much of 
this is tied to inflation? Where I am going with the question 
is whether or not you are going to need to expand this funding 
for project shortfalls in future years? I am wondering, is this 
going to be adequate to get you where you need to get or 
because of all of these other factors that are out there, are 
you worried about a shortfall?
    Mr. Smith. Thank you, Senator Murkowski, for the question. 
If I understand your question, it relates to maybe how we are 
managing cost overruns and shortfalls in some of the projects.
    Senator Murkowski. Right.
    Mr. Smith. Yes, we have been learning a lot, I think just 
like anybody else who is doing any construction these days, 
that prices have changed, we are confronting supply challenges 
just to complete anything or with workforce.
    What we have been doing based on our projections is that we 
have identified an amount and are retaining approximately $65 
million at our headquarters to address these project 
shortfalls. So this amount is retained at our headquarters and 
it is based on projections and information that we are 
receiving from the areas, all 12 IHS areas, based on Fiscal 
Year 2022.
    What that amounts to is looking at the information around 
the time when contract documents were completed and bids were 
able to go out, and some of the changes in price, whether it is 
a result of inflation, material costs, fuel costs, labor costs, 
there are multiple factors that play into this. So that helps 
us identify the initial amount.
    So in Fiscal Year 2022, we retained $21.6 million for cost 
overruns and experienced about a 30 to 40 percent change in 
some of the projects. What we are doing within the current need 
of $43.7 million that has been projected is that we are 
evaluating and distributing on a needed basis. So to date, we 
have distributed about $28.5 million to over half of our IHS 
areas. We are going to continue to monitor projects and 
requests from our areas to have updated data to make the needed 
adjustments.
    Senator Murkowski. Good. It sounds like you have concerns 
about shortfalls that you may anticipate. We are all watching 
what is happening with higher prices of oil and what that means 
for fuel costs. I know that certainly factors into everything 
that we are trying to do in Alaska, because of course, 
everything needs to be flown up, it is either flown up or 
barged in the case of Alaska or Hawaii. So that is going to 
increase our costs.
    You also said something in both your written and your 
stated testimony about the limitation through the 
infrastructure funds. You stated that it is possible the 
average project duration could be greater than the current 
average project duration of 3.6 years. The Infrastructure Bill 
restricts program support funding to Federal activities, which 
means the tribes that operate there, the projects directly, 
can't access this.
    I am trying to understand what that means for a State like 
Alaska, where oh, my goodness, my soul, if we could finish a 
project in three years, we would be happy. It just doesn't 
happen when your building season is really like three months 
long.
    So is there a time limitation here that we should be 
worried about where because of, again, either supply chain 
issues where you can't get the materials necessary, everyone is 
looking for pipe, everyone is looking for plumbing stuff, or 
you have construction issues in a place like Alaska, where we 
are not going to be able to access the monies that we think we 
are going to be able to access because we have a time limit 
here?
    Mr. Smith. Absolutely. I think all of those factors play 
in. When you talk about average, some projects can be completed 
super quick, others are going to be longer. So I think it 
really depends on the type of projects that are at play.
    Part of the correlation with the infusion of additional 
funds, which we are very thankful for, also increases the 
workload.
    Senator Murkowski. And if you can't get the workforce, 
which Ms. Tanana has mentioned, and in some cases, you can't 
get the materials, because we are just not manufacturing them 
like we need to, what do we do?
    Mr. Smith. Right. So what we have done is taken an approach 
that--we are looking at all sources. So we know that tribal 
health programs, for example, have access to their own 
architectural engineering firms. We are encouraging procurement 
through that means. We have been working with our colleagues at 
Interior and the Bureau of Reclamation to see what types of 
activities can be completed with them, as well as the Army 
Corps of Engineers.
    It is really looking at every opportunity possible to 
maximize one, the engineering capacity, but then two, the 
acquisition components to procure these activities.
    I would like to give you a more detailed response, if we 
could provide you updates.
    Senator Murkowski. Better than that, I would like it if you 
and your team could meet with our folks, maybe we could get 
some of the folks from ANTHC, with Ms. Davidson. I am trying to 
map out and understand, because we just have a lot of 
variables, a lot of factors that are coming into play that when 
we started this whole thing out a few years ago, on paper it 
all looked good.
    But I don't want to be in a position where we have finally 
answered people's prayers by saying, you are going to get all 
this Federal money, there is a lot in the pipeline, but then we 
just can't stuff it into the limited capacity pie that we have 
here. I think this is something we all need to be working on.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Vice Chair.
    If there are no more questions for our witnesses, members 
may also submit follow-up written questions for the record.
    The hearing record will be open for two weeks. I want to 
thank all of the witnesses for their time and their testimony 
today.
    This hearing is adjourned.
    [Whereupon, at 4:07 p.m., the hearing was adjourned.]

                            A P P E N D I X

  Prepared Statement of the Ute Indian Tribe of the Uintah and Ouray 
                              Reservation
Introduction
    Chairman Brian Schatz, Vice Chairman Lisa Murkowski, and Members of 
the Committee thank you for the opportunity to submit testimony for the 
record as a part of the Senate Committee on Indian Affairs' September 
27, 2023, Legislative Hearing on ``Water as a Trust Resource: Examining 
Access in Native Communities.'' The Ute Indian Tribe (``Tribe'') 
strongly supports Congressional action to confirm and uphold Indian 
reserved water rights. Our testimony includes a legislative proposal 
that Congress should pass to affirm and protect Indian reserved water 
rights.
    Congress cannot and should not stand by as the United States heads 
down another path of broken treaties, agreements, and trust 
responsibilities to Indian tribes. We can see the writing on the wall--
first, they came for our lands, then they came for our resources, and 
now they want our water. As we face increasing droughts and competition 
over water resources, it is time for Congress to pass legislation to 
affirmatively protect Indian reserved water rights.
    The Ute Indian Tribe has fought for more than a century to protect 
our water rights and resources. Some of the earliest court decisions 
protecting Indian reserved water rights come from our Uintah and Ouray 
Reservation (``Reservation''). Soon after Indian reserved water rights 
were upheld in the seminal United States Supreme Court decision, 
Winters v. United States, 207 U.S. 564 (1908), the federal courts in 
Utah issued decrees protecting our water rights in 1923. We were forced 
to take action in court to prevent encroachment on the very water we 
reserved to sustain our members, provide a homeland, and transition our 
economy.
    Indian tribes need Congress to recognize what we all agreed to in 
treaties, agreements, and acts of Congress reserving our lands. We 
agreed that our reserved lands include enforceable water rights, and 
early on, the United States took steps in court to protect those 
rights. There is no other possible conclusion under federal Indian law. 
However, as water resources become scarce, the Biden Administration 
argued against protecting and accounting for Indian reserved water 
rights. And, as suggested in the Supreme Court's recent Arizona v. 
Navajo Nation, 599 U.S.___ (2023) decision, our waters can go 
unaccounted for or taken by others with no recourse.
    Congress should follow the direction set out by Justice Neil 
Gorsuch's dissent in the Arizona v. Navajo Nation case, affirm more 
than 100 years of federal Indian law, and pass legislation that will 
protect Indian reserved water rights and ensure that those rights are 
enforceable. This is much more than a funding problem. This is a 
problem with the United States failing to comply with the Supreme Law 
of the Land and the contracts and agreements negotiated upon the 
founding of the United States.
Failure to Protect our Indian Reserved Water Rights
    Our Reservation is located in northeastern Utah and lies within the 
Upper Colorado River Basin. Our Reservation is the second largest 
Indian reservation in the United States, covering more than 4.5 million 
acres. We have about three thousand members, and a majority live within 
the exterior boundaries of our Reservation.
    Water is critical to our survival. The State of Utah is recognized 
as the second most arid State in the United States. In his 1905 Annual 
Report, the Commissioner of Indian Affairs described the conditions on 
our Reservation and bluntly stated, ``The future of these Indians 
depends upon [water]. . .for without water their lands are valueless, 
and starvation or extermination will be their fate.'' Despite the clear 
acknowledgement of the importance of water to our survival, the United 
States has failed time and time again to protect and uphold our water 
rights. We include a few important examples here.
    First, the United States has failed a number of times to properly 
maintain our irrigation project. On June 21, 1906, the United States 
Congress authorized the construction of the Uintah Indian Irrigation 
Project. The Bureau of Indian Affairs (BIA) constructed a system to 
irrigate 78,950 acres of allotted land via an extensive system of 
canals and ditches to convey water from three river drainages: the 
Strawberry-Duchesne, Lake Fork-Yellowstone, and the Uintah-Whiterocks 
Rivers.
    Most recently, a report issued by the BIA in 2008 asserted, ``The 
Uintah Irrigation Project has deferred maintenance needs in excess of 
$86.1 million to bring the aging, deteriorated infrastructure up to 
current standards.'' The majority of our diversion structures lack any 
safety features to keep personnel safe while operating gates and 
cleaning debris for the upstream side of the structures. There is no 
fencing or gates to prevent the general public from getting on any of 
our structures or safety features. The Tribe has yet to see the 
comprehensive rehabilitation of the Project promised by the Government.
    The United States has also refused to uphold and enforce our water 
rights agreements. A portion of our Indian reserved water rights was 
recognized through two federal court decrees in 1923 for our reserved 
water rights on the Lake Fork and Uintah Rivers and their territories, 
where the majority of Tribal members reside. Agreement on the remaining 
portion of our Indian water rights was reached under a 1965 Deferral 
Agreement between the Tribe, State, and Federal government. We agreed 
to temporarily defer the use of a portion of our Indian water rights in 
the Duchesne River in the Uinta Basin.
    This allowed Utah to proceed with development of the Central Utah 
Project (CUP) because they could certify to Congress that the State had 
uncontested water rights in the Uinta Basin. The CUP is a massive 
federal project that diverts and stores water from our region and our 
Reservation to provide water to the Wasatch Front, including Salt Lake 
City and Provo. As a part of this Project, the government promised to 
construct a water storage facility in the Uinta Basin that would 
provide the Tribe with the necessary water resources to develop and use 
our Reserved Water Rights on our Reservation. This storage still has 
not been built.
    Now the State of Utah is looking to the water rights that we 
deferred to the Green River as a source of water for its Lake Powell 
Pipeline Project (``Pipeline Project''). The Project is a proposed 
water delivery pipeline that would begin at Lake Powell near Glen 
Canyon Dam in Page, Arizona, and end at Sand Hollow Reservoir near St. 
George, Utah. The Tribe is concerned that the Project is being 
developed without any consideration of the Tribe's Indian reserved 
water rights.
    To provide water for the Pipeline Project, on September 7, 2018, 
the Utah Board proposed a draft water exchange contract with the Bureau 
of Reclamation (``Reclamation''). The water exchange contract proposes 
that the Utah Board will forbear its right to divert a portion of the 
Colorado (Green) River natural flows. Instead of diverting these flows, 
they would be left instream to contribute to meeting requirements of 
the Endangered Species Act and Upper Colorado River Recovery 
Implementation Program, currently required in the Green River. In 
exchange, the Utah Board would be permitted to deplete an equal amount 
of water, i.e., 86,249 acre-feet annually, which would be released from 
the Flaming Gorge Dam throughout the year and available at Lake Powell 
for transfer through the Pipeline Project to the Lower Colorado River 
Basin at St. George.
    This proposed action conflicts with the Tribe's ongoing interest in 
storing a portion of its Green River Indian reserved water rights in 
the Flaming Gorge Reservoir. Reclamation and the State promised that 
this storage would be made available to the Tribe and negotiations 
occurred for over ten years, stalling when Reclamation began working 
with the State on its proposed Green River water exchange contract. In 
fact, Reclamation and the State have given no consideration for how the 
Pipeline Project and the water exchange contract will adversely impact 
the Tribe's senior Indian reserved water rights and development of its 
use.
    At the same time the Utah Board proposed the Pipeline Project water 
exchange contract, in 2018 the State Legislature approved a ``Revised 
1990 Water Compact'' that proposed to transfer a substantial amount of 
Tribal water rights from the Duchesne River to the Green River for the 
Tribe's use to the benefit of State water users in the Uinta Basin. The 
State cannot have it both ways--transfer the Tribal water rights out of 
the Uinta Basin to the Green River and tie up the Green River water in 
contracts and agreements for the State's use and federal environmental 
compliance requirements.
    These are just a few examples. Time and time again, the Federal 
government continues to act unfairly and without honor toward our Tribe 
and our Treaty reserved water rights, even after entering into numerous 
agreements. Assistant Secretary for Indian Affairs Bryan Newland 
testified that ``[t]he United States acts as a trustee for the land and 
water rights of Tribes. . .a trust responsibility to Indian Tribes and 
Indian people and consistent with that has charged itself with moral 
obligations of the highest responsibility and trust. The Administration 
strongly supports the resolution of Indian reserved water rights claims 
through negotiated settlements.'' These promises and commitments are 
meaningless. Despite our senior water rights and the United States' 
commitments to protect and uphold our water rights, our waters are the 
last to be secured and the last to be developed--if at all.
Legislation to Affirm Indian Reserved Water Rights
    Congress must take action to address the Administration's failure 
to protect and uphold our Indian reserved water rights. Congress should 
pass legislation following the standards and guidelines set out in 
Justice Gorsuch's dissent in Arizona v. Navajo Nation to protect and 
uphold Indian reserved water rights. While we appreciate Senator 
Michael Bennet's efforts to take on this issue through S. Res. 355, 
entitled ``Recognizing the critical importance of access to reliable, 
clean drinking water for Native Americans and affirming the 
responsibility of the Federal Government to ensure such water access,'' 
much more is needed.
    Congress should pass legislation that requires the Federal 
government be held to the most exacting fiduciary standards in 
accounting, implementing, and protecting Indian reserved water rights. 
The Federal government has failed to carry out its fiduciary trust 
obligations to Indian tribes whether those obligations were established 
by treaties, acts of Congress, Executive orders, or agreements. Those 
failures include a long-standing, systematic taking of water rights and 
resources reserved by Indian tribes.
    Legislation would help put an end to the history of broken treaties 
and agreements. Legislation would allow tribes to seek individual 
enforcement of their water rights. This vehicle is needed to address 
the ongoing failures of the United States to uphold and protect Indian 
reserved water rights. The Tribe proposes the following legislation to 
require the Federal government be held to the most exacting fiduciary 
standards in accounting, implementing, and protecting Indian reserved 
water rights:

   T2Section 1. Short Title.

    This Act may be cited as the ``Indian Reserved Water Rights Act.''

   T2Section 2. Findings.

    (a)Congress finds that--

         (1) Indian tribes are distinct sovereigns that have a 
        government-to-government relationship with the Federal 
        government;

         (2) the Federal government has trust and treaty obligations to 
        Indian tribes that are established in treaties, acts of 
        Congress, Executive orders, and agreements, recognized in court 
        decisions, and federal policies and regulations;

         (3) the Federal government has historically failed to carry 
        out its fiduciary trust obligations to Indian tribes whether 
        those obligations were established by treaties, acts of 
        Congress, Executive orders, or agreements;

         (4) those failures include a long-standing, systematic taking 
        of water rights and resources reserved by Indian tribes through 
        treaties and agreements, and affirmed in acts of Congress, 
        Executive orders, and court decisions;

         (5) they also include failing to protect, secure, and ensure 
        the water resources necessary for Indian tribes to sustain and 
        develop homelands reserved and established in treaties, 
        agreements, acts of Congress, Executive orders, and court 
        decisions;

         (6) the failure to protect and secure the water rights and 
        resources of Indian tribes has resulted in the violation of 
        Indian reserved water rights as well as an environmental 
        justice and civil rights crisis across Indian Country;

         (7) the fulfillment of Indian reserved water rights and 
        providing the water resources reserved by Indian tribes to 
        sustain and develop their reservation homelands requires that 
        Congress take action to affirm such rights and define and 
        establish the requirements for accounting, implementing, and 
        protecting those Indian reserved water rights; and

         (8) the requirements set out in this Act are intended to 
        establish a specific fiduciary duty of the Federal government 
        to account for, implement, and protect Indian reserved water 
        rights according to the most exacting standards, and that shall 
        be enforceable in court.

   T2Section 2. Definitions.

     (1) The term ``Indian tribe'' means the governing body of any 
individually identified and federally recognized Indian or Alaska 
Native tribe, band, nation, pueblo, village, community, affiliated 
tribal group, or component reservation included on the list published 
pursuant to section 104(a) of the Federally Recognized Indian Tribe 
List Act of 1994 (25 U.S.C. 5131(a)).

     (2) The term ``Indian reserved water rights'' means a federal, 
presently perfected property right to water impliedly reserved and 
necessary to fulfill the purposes of a tribal reservation, recognized 
with a priority date as of the date the reservation was established or 
time immemorial.

   T2Section 3. Standards for Accounting, Implementing, and 
        Protecting Indian Reserved Water Rights.

    (a) The Federal government shall apply the following standards in 
accounting for, implementing, managing, and protecting Indian reserved 
water rights:

         (1) Under the United States Constitution, Art. VI, cl. 2, all 
        treaties are the Supreme Law of the Land;

         (2) Over the course of the United States' government-to-
        government relationship with Indian tribes, commitments once 
        expressed in treaties have also been expressed in agreements 
        ratified by Congress; and

         (3) The United States holds Indian reserved water rights in 
        trust creating enduring and enforceable Federal obligations and 
        duty to manage the water it holds for tribes in a legally 
        responsible manner.

         (4) Treaties and agreements ratified by Congress establish a 
        contract between two sovereign nations, which in this case is 
        between Indian tribes and the Federal government, and such 
        contracts shall be implemented and enforced by:

           (A) determining the parties' intent, determining the shared 
        expectations of the contracting parties, and ensuring that both 
        sides receive the benefit of their bargain;

           (B) ensuring the utmost good faith and fair dealings between 
        parties, construing any uncertainty against the drafting party; 
        and, if two parties understand a key provision differently, the 
        controlling meaning shall be the one held by the party that 
        could not have anticipated the different meaning attached by 
        the other party;

           (C) by applying a higher degree of scrutiny on contracts 
        made between parties sharing a fiduciary relationship that 
        reflects the Federal government's role as the trustee and 
        fiduciary for the interests, lands, waters, and other resources 
        of Indian tribes;

           (D) construing such treaties and agreements as upholding and 
        protecting the interests of an Indian tribe and shall be 
        implemented and interpreted to generously recognize the full 
        obligation of the United States;

           (E) giving effect to the terms and conditions of treaties 
        and agreements as would have been understood by the Indian 
        tribe;

           (F) reviewing and considering the larger context and 
        historical background that frame the written words of such 
        treaties and agreements;

           (G) treaties and agreements ratified by Congress that 
        establish a reservation for an Indian tribe includes the water 
        rights and water resources necessary for a permanent homeland;

           (H) the Federal government would not establish an Indian 
        reservation as a permanent homeland without intending to 
        reserve the water resources necessary for an Indian tribe to 
        sustain and develop its homeland; and

           (I) the Federal government shall manage Indian reserved 
        water rights and water resources of an Indian tribe according 
        to the most exacting fiduciary standards.

    (b) An Indian tribe may bring an action in equity against the 
United States for failing to apply the requirements set out in 
subsection (a) related to:

           (1) providing an accurate accounting of the Indian reserved 
        water rights and water resources held by the United States in 
        trust for an Indian tribe;

           (2) implementing the development and use of Indian reserved 
        water rights and water resources held by the United States in 
        trust for an Indian tribe by failing to construct, maintain, or 
        otherwise fund the necessary infrastructure needed by an Indian 
        tribe to utilize its water rights or water resources to sustain 
        and develop its reserved homelands; and

           (3) protecting and enforcing the Indian reserved water 
        rights and water resources held by the United States in trust 
        for an Indian tribe from use by others against the interests of 
        an Indian tribe or without the tribe's consent and compensation 
        to the Indian tribe.

   T2Section 4. Applicability.

    (a) The requirements set out in this Act shall apply to all Indian 
reserved water rights regardless of whether such rights are subject to 
a court decree, adjudication, settlement, or agreement, unless the 
requirements of this Act conflict with a specific term or requirement 
of a court decree, adjudication, settlement, or agreement.

Failure to Adequately Fund Tribal Water Infrastructure
    Once our water rights and sources of water are protected and 
secure, the United States must also address the chronic underfunding of 
tribal water infrastructure. The vast majority of our members live on 
the Reservation and are provided with water for domestic, commercial, 
municipal, and industrial (DCMI) purposes by our Ute Tribal Water 
System (UTWS). Our UTWS service area covers roughly 175 square miles, 
including the towns of Whiterocks, Fort Duchesne, Randlett, Ouray, and 
other rural areas. We also operate a high school for our Tribal members 
in Fort Duchesne. Through external connections, our UTWS is also the 
sole water supplier to the Ballard Water Improvement District, the 
Ouray Park Improvement District, and the Independence region of the 
Johnson Water Improvement District.
    Our UTWS diverts and treats water from Whiterocks and Uriah Heap 
Springs, which is delivered by gravity through nearly 60 miles of 
pipelines and numerous valves, hydrants, and water meters. Each spring 
subsystem on the UTWS has its own water treatment facility. Whiterocks 
typically takes 100 gpm through treatment, while Uriah Heap takes about 
700 gpm through its system. Whiterocks Springs subsystem serves 115 
connections with an average daily demand of 63 gpm. Uriah Heap has 815 
connections and an average daily demand of 700 gpm.
    In 2010, we asked an engineering firm to evaluate the conditions of 
the water collection systems at Whiterocks River and Uriah Heap 
Springs. They found that multiple improvements for environmental health 
and better water management within our UTWS were needed. Deteriorated 
conditions included vegetation growth and poor surface drainage in the 
spring areas, root intrusion, sediments, and cracking in collection 
pipes, a lack of water meters in the system, a need for increased water 
quality monitoring in the system, and unmonitored spillage of untreated 
spring water into local canals. Though customer water meters have since 
been installed and a new Uriah Heap treatment plant was built, not all 
recommended improvements have been fully implemented.
    In 2014, another engineering firm observed or was made aware of the 
following concerns related to our UTWS:

    continued poor surface drainage and vegetation in spring 
        collection fields;

    insufficient fencing around springs that could allow 
        livestock to contaminate water sources;

    rusted, leaking, or overflowing water storage tanks;

    freezing or burst water pipes in the winter throughout the 
        system;

    vandalism of UTWS structures; and

    a strong need for a hydraulic model to understand water 
        flow within the system.

    Despite these issues and our requests for support, the Indian 
Health Service (IHS) has not been able to fund and install spillage 
meters needed at both springs for several years, and individual water 
meters are not read; as a result, both users and external connections 
pay only a flat monthly water rate regardless of use. Although we 
appreciate the technical support that IHS has been able to provide, 
most of its limited infrastructure or construction funding goes towards 
drilling domestic water wells for individual Tribal members. As a 
result, our UTWS has continued to suffer from a lack of maintenance, 
rehabilitation, and expansion funding.
    Due to chronic underfunding for our UTWS, we have had difficulty 
maintaining, providing, and ensuring that our Tribal members have 
access to safe drinking water. Since 2018, we have made a concerted 
effort to improve our internal monitoring and auditing procedures 
related to the quality of the water delivered by our UTWS. However, the 
lack of consistent and available funding sources to rehabilitate, 
improve, and expand access to our UTWS remains a significant and 
serious issue for the majority of our Tribal members. And some of our 
Tribal members must rely on relatively shallow individual wells or 
developed springs for their water supply. It is time for the United 
States to adequately fund tribal water infrastructure.
Conclusion
    The time is now for Congress to pass legislation to uphold and 
protect our reserved water rights. The United States has repeatedly 
failed to uphold its commitments in treaties, agreements, and acts of 
Congress to protect and enforce our Indian reserved water rights. Even 
worse, in the Arizona v. Navajo Nation case, the United States argued 
before the Supreme Court that it was not required to fulfill its 
obligations to protect and uphold Indian reserved water rights.
    The burden for upholding Indian reserved water rights and funding 
tribal water infrastructure cannot fall completely on the negotiation 
and settlement of our water rights. The history of each tribe is 
different, the history of our waters is different, and not every tribe 
will have the same opportunity to negotiate a water rights settlement 
agreement that is ratified by Congress. In addition, in the past 45 
years, the Federal government has only managed to negotiate 35 Indian 
water rights settlements. At this rate, it will take more than 700 
years to negotiate settlements with the remaining tribes.
    In contrast, every Indian tribe would benefit from legislation that 
sets clear standards for holding and managing Indian reserved water 
rights as a trust resource. Our proposed legislation is based on 
standards developed over more than 100 years of federal Indian law. 
These are standards that derive from our government-to-government, 
treaty, and trust relationship, and that the United States must uphold 
as the Supreme Law of the Land. Under our proposed legislation 
individual Indian tribes could seek enforcement of these standards and 
finally turn their paper water rights into wet water rights that will 
ensure our homelands can continue to sustain our members.
                                 ______
                                 
                     Prepared Statement of DIGDEEP
    The United States has a hidden water crisis: over 2.2 million 
people across America lack running water or proper sanitation. This is 
the water access gap, where people in all 50 states are forced to 
ration their water supplies, families must haul water from distant 
sources, and children cannot play in their wastewater-flooded yards.
    The water access gap disproportionately impacts Tribal communities; 
Native American households are 19 times more likely to live without 
water than white households. An estimated one in 10 Native Americans 
lack access to safe drinking water or sanitation. \1\ For so many, 
accessing clean water is a costly, daily struggle that negatively 
impacts their mental and physical health and takes time away from 
school and work.
---------------------------------------------------------------------------
    \1\1ALakhani, Nina. ``Tribes Without Clean Water Demand an End to 
Decades of US Government Neglect.'' The Guardian, 28 Apr. 2021, 
www.theguardian.com/us-news/2021/apr/28/indigenous-americans-drinking-
water-navajo-nation.
---------------------------------------------------------------------------
    Across Alaska, thawing permafrost and sinking land routinely 
threaten infrastructure in Alaska Native communities, fundamentally 
changing where people can live, and how they can access water. In 
Montana, many Tribal wells are contaminated, causing greater rates of 
chronic diseases. \2\ At the height of the COVID-19 pandemic, the rate 
of COVID-19 cases for American Indian and Alaska Natives was 3.5 times 
higher than the rest of the nation, as water access is fundamental to 
basic hygiene and disease and virus prevention. \3\
---------------------------------------------------------------------------
    \2\ ``Reviving Traditional Aps alooke Water Sources.'' High Country 
News, www.hcn.org/issues/53.8/north-water-reviving-
traditionalapsaalooke-water-sources.
    \3\ ``The COVID-19 Outbreak in the Navajo Nation--NMAI Magazine.'' 
NMAI Magazine, www.americanindianmagazine.org/story/the-covid-19-
outbreak-in-the-navajo-nation.
---------------------------------------------------------------------------
    We live in the richest country on the planet, yet over 25 percent 
of Native Americans live in poverty. \4\ Without sustained access to 
water, families will continue to be stuck in a cycle of poverty, as 
they are forced to make unreasonable choices for water allocation and 
household spending. Without basic access to clean water, it is 
impossible for a person to live in dignity.
---------------------------------------------------------------------------
    \4\ Tec, Dedrick Asante-Muhammad Esha Kamra, Connor Sanchez, Kathy 
Ramirez and Rogelio. ``Racial Wealth Snapshot: Native Americans; 
NCRC.'' NCRC, 7 Apr. 2022, ncrc.org/racial-wealth-snapshot-native-
americans.
---------------------------------------------------------------------------
The Water Access Gap
   At least 2.2 million people across the U.S. have no regular 
        access to running water or flush toilets. \5\
---------------------------------------------------------------------------
    \5\ ''Close the Water Access Gap.'' DIGDEEP, www.digdeep.org/close-
the-water-gap. Accessed 18 Sept. 2023.

   Native American households are 19 times more likely to live 
---------------------------------------------------------------------------
        without water than white households.

   Black and Latino households are twice as likely to lack 
        running water and flush toilets than white households.

   44 million Americans are served by water systems that have 
        had a recent health-based Safe Drinking Water Act violation.

   Water insecurity is increasing nationwide.

    A recent study by DigDeep, Draining: The Economic Impact of 
America's Hidden Water Crisis, finds that the U.S. economy loses a 
staggering $8.58 billion every year in decreased household earnings, 
higher healthcare costs, lost tax revenues, and labor market 
disruptions because of the water access gap. The federal government 
must intervene to close the water access gap in order to rectify 
historic imbalances related to water quality, infrastructure and 
funding, address the racial and Tribal access gap, and ensure that the 
basic standard of living enjoyed by most Americans is available to all.
    The water access gap has rippling effects on our economy, health, 
labor market, and justice for disaffected communities. Each year that 
this gap remains open, every household loses an average of $15,800 per 
year. \6\ Past investments in water infrastructure excluded many Tribal 
Nations, communities of color, immigrant communities, low-income 
communities, and rural areas.
---------------------------------------------------------------------------
    \6\ ``Draining--DIGDEEP.'' DIGDEEP, digdeep.org/draining.
---------------------------------------------------------------------------
    Funding in the Bipartisan Infrastructure Law is an incredible 
start, but it will not close the water access gap on its own. Congress 
needs to develop more targeted programs to address remaining 
infrastructure and access needs or the gap will remain open and may 
continue to widen. Federal investment will benefit regions in dire 
need--often places facing decline, fiscal shortfalls, and loss of 
financial opportunities- allowing them to reinvest in their broader 
communities and local economies.
Effects On Tribal Communities
    As documented above, the water access gap has impacts across the 
United States, with Tribal communities taking a disproportionate 
effect. For many Tribal Nations, a lack of investment in infrastructure 
has had significant consequences in the ability for households to 
access safe and reliable water. Decades of disinvestment or lack of 
investment is a lead driver of infrastructure disrepair. As an example, 
Alaska has the highest proportion of the U.S. population that lacks 
access to adequate water infrastructure. There are more than 30 
unserved communities where 45 percent or more homes are not served by 
piped, septic tanks and wells, or covered haul systems. These unserved 
communities are largely located in rural areas that house mostly 
American Indian/Alaska Native populations. \7\ Such gaps in service 
lead to extreme water conservation and water quality issues, 
exacerbating existing health disparities in Native communities.
---------------------------------------------------------------------------
    \7\ Spearing, Lauryn A., et al. ``What Impacts Water Services in 
Rural Alaska? Identifying Vulnerabilities at the Intersection of 
Technical, Natural, Human, and Financial Systems.'' Journal of Cleaner 
Production, vol. 379, Elsevier BV, Dec. 2022, p. 134596. https://
doi.org/10.1016/j.jclepro.2022.134596.
---------------------------------------------------------------------------
    Contaminated water sources on Tribal lands continue to be a major 
concern for public health and adequate access. On the Crow Reservation 
in Montana, local water sources are contaminated with feces, heavy 
metals, nitrates, and E. coli. \8\ Crow Tribal members, along with 
health researchers, have identified a connection between uranium 
contamination and diabetes, a growing health crisis on the Reservation. 
In New Mexico, around the San Juan Basin (the state's largest oil and 
gas region), there are an estimated 40,000 wells, thousands of which 
are likely neglected, abandoned, or orphaned. Orphaned oil and gas 
wells leak methane into the air and groundwater that pose serious 
public health risks to rural and Tribal homes, as well as communities 
of color. It is estimated that 1,700 wells are orphaned and abandoned 
on state and private land. \9\
---------------------------------------------------------------------------
    \8\ Bienkowski, Brian. ``Part 1: Tainted Water Imperils Health, 
Traditions for Montana Tribe.'' EHN, 8 July 2020,www.ehn.org/
part_1_tainted_water_imperils_health_traditions_for_
montana_tribe-2497203331.html.
    \9\ Gilbert, Samuel. ``To Understand the Orphan Well Problem in NM, 
Someone's Going to Have to Count Them.'' Source New Mexico, May 2022, 
sourcenm.com/2022/05/31/to-understand-the-orphan-well-problem-in-nm-
someones-going-to-have-to-count-them.
---------------------------------------------------------------------------
    The Environmental Protection Agency recorded 187 health-based 
violations in public water systems serving Native American communities 
in Nevada between 2005 and 2020. \10\ Similar trends are apparent in 
other communities, with traditionally reliable systems in the Cheyenne 
and Arapaho Tribal jurisdictional area in Oklahoma registering high 
concentrations of nitrates exceeding EPA standards. \11\
---------------------------------------------------------------------------
    \10\ https://www.nevadacurrent.com/2022/09/08/nevadas-native-
communities-face-worsening-access-to-clean-water-plumbing/
    \11\ Becker, Carol J., and Matthew S. Varonka. ``Water Resources in 
the Cheyenne and Arapaho Tribal Jurisdictional Area, West-central 
Oklahoma, With an Analysis of Data Gaps Through 2015.'' Scientific 
Investigations Report, United States Geological Survey, Jan. 2020, 
https://doi.org/10.3133/sir20205105.
---------------------------------------------------------------------------
    Climate change has also ravaged water supplies and changed the 
nature of how people collect it. There is a unique threat to Indigenous 
communities: contamination of water supplies is rampant on Tribal 
lands, traditional water sources are depleting, and issues such as 
drought and wildfires continue to threaten Native communities. For 
example, rising temperatures and declining rainfall have made 
groundwater the principal drinking water sources, as surface water on 
Navajo Nation is estimated to have decreased by 98 percent of the 
twentieth century. \12\ Limited water resources in Hawaii are 
disproportionately used by the tourist industry (i.e., water resources 
are diverted to hotels), which, in conjunction with the recent 
wildfires devastating Maui, will directly impact permanent residents, 
including Native Hawaiians.
---------------------------------------------------------------------------
    \12\ ``Navajo Women Struggle to Preserve Traditions as Climate 
Change.'' The World From PRX, 25 May 2018, theworld.org/stories/2018-
05-25/navajo-women-struggle-preserve-traditions-climate-change-
intensifies.
---------------------------------------------------------------------------
    Additionally, data continues to result in less attention and 
infrastructure investment for Tribal homes. It is well documented that 
survey data has repeatedly undercounted Native Americans, particularly 
the U.S. Census. \13\ Insufficient data has inevitably led to 
diminished investment in water access for Indigenous communities; for 
other fundamental issues, including housing grants and other federal 
assistance, undercounting communities severely reduces funding 
allocations for Tribal governments. \14\ The few entities having better 
data collection and analysis (i.e., the Indian Health Services' 
Sanitation Facilities Deficiency List \15\), however, have been able to 
justify and obtain higher funding levels.
---------------------------------------------------------------------------
    \13\ ``The US Government Has Always Undercounted Native Americans. 
But COVID-19 Could Make the 2020 Census a Disaster.'' Mother Jones, 
www.motherjones.com/politics/2020/06/census-coronavirus-native-
americans.
    \14\ Udall, Senators Press for Accurate 2020 Census Count for 
Native Communities--the United States Senate Committee on Indian 
Affairs. www.indian.senate.gov/news/press-release/udall-senators-press-
accurate-2020-census-count-native-communities.
    \15\1Afound at https://www.ihs.gov/sites/dsfc/themes/
responsive2017/display_objects/documents/
FY_2021_Appendix_Project_Listing.pdf
---------------------------------------------------------------------------
Impact On The Navajo Nation
    Water insecurity is prevalent throughout the Navajo Nation. Roughly 
30 percent of families are forced to purchase bottled water, haul water 
long distances, or use contaminated water to meet their basic needs. 
Some individuals survive on as few as two to three gallons of water per 
day, as compared to the average American's eighty-eight gallons--an 
incredibly difficult standard of living. Many people must depend on 
thousands of unregulated wells, livestock troughs, or other sources to 
meet their daily needs. The EPA recorded that these sources may contain 
bacterial or fecal contaminants, along with unsafe levels of arsenic 
and uranium--caused by long-term mining on Navajo land. \16\ The number 
of unregulated water sources on the Navajo Nation is estimated to be in 
the low thousands. \17\
---------------------------------------------------------------------------
    \16\ Bourzac, Katherine. ``Arsenic and Other Metals Contaminate 
Navajo Nation and Alaska Native Wells.'' Chemical & Engineering News, 
Aug. 2019, cen.acs.org/content/cen/articles/97/web/2019/08/Arsenic-
metals-contaminate-Navajo-Nation.html.
    \17\ ``Providing Safe Drinking Water in Areas With Abandoned 
Uranium Mines--US EPA.'' US EPA, 16 May 2023, www.epa.gov/navajo-
nationuranium-cleanup/providing-safe-drinking-water-areas-abandoned-
uranium-mines.
---------------------------------------------------------------------------
    On the Navajo Nation, and for many Native Americans nationwide, 
this lack of water access is a public health crisis. It is required for 
human survival and critical in ensuring effective healthcare. Lack of 
access to clean water contributes to high morbidity and mortality 
rates, the spread of waterborne illness, and lower mental and social 
development in children. \18\ Furthermore, the lack of access to clean, 
reliable drinking water is a direct threat to the Navajo Nation's well-
being and ability to thrive on their ancestral homelands.
---------------------------------------------------------------------------
    \18\ Supreme Court of the United States. Department of the Interior 
v. Navajo Nation. 20 March 2023. https://www.supremecourt.gov/
DocketPDF/21/21-1484/254361/20230208163233914
_DigDeep%20UTRF%20Amicus%20Brief%20-%20final.pdf
---------------------------------------------------------------------------
    Since 2013, DigDeep's Navajo Water Project \19\ has brought clean, 
running water and sanitation to hundreds of families on the Navajo 
Nation, where many live without basic access as a result of prolonged 
drought, groundwater contamination, and lack of infrastructure.
---------------------------------------------------------------------------
    \19\ DigDeep. ``Navajo Water Project--DIGDEEP.'' DIGDEEP, July 2023 
www.digdeep.org/our-works/navajo-water-project.
---------------------------------------------------------------------------
    As noted in DigDeep's and the US Water Alliance's 2019 report, 
Closing the Water Access Gap in the United States:

         Many households on the Navajo Nation are not good candidates 
        for centralized water systems because extending lines to low-
        density, mountainous areas is expensive. Some Navajo instead 
        rely on unregulated wells, springs, or livestock troughs to 
        meet their daily needs, which can be unsafe because groundwater 
        is contaminated by some 521 abandoned uranium mines. Gastric 
        cancer rates doubled in the 1990s in some areas where uranium 
        mining occurred. At the same time, rising temperatures and 
        declining rainfall have made groundwater the principal drinking 
        water source, as surface water on the Navajo Nation is 
        estimated to have decreased by 98 percent over the course of 
        the twentieth century. According to EPA, unregulated drinking 
        water sources are the greatest public health risk on the Navajo 
        Nation. Another public health impact of water access challenges 
        is the Navajo Nation's high rate of diabetes, due to the fact 
        that for many inhabitants, sugary beverages are more readily 
        available than clean water. Navajo are two to four times more 
        likely to have Type-2 diabetes than whites.

    DigDeep calculated that the economy loses nearly $15,800 for each 
household without access to running water each year. Considering the 
number of households without piped water on the Navajo Nation, water 
insecurity may cost the Navajo Nation and the broader U.S. economy as 
much as $152.5 million each year. \20\
---------------------------------------------------------------------------
    \20\ Supreme Court of the United States. Department of the Interior 
v. Navajo Nation. 20 March 2023. https://www.supremecourt.gov/
DocketPDF/21/21-1484/254361/
20230208163233914_DigDeep%20UTRF%20Amicus%20Brief%20-%20final.pdf
---------------------------------------------------------------------------
Solutions
    Closing the water access gap will create health, happiness, and 
economic prosperity in Tribal communities. However, we cannot 
effectively close this gap without an accurate understanding of every 
household facing water insecurity. The U.S. needs better data to 
understand the full scope of economic and health-related impacts of the 
water access gap. We need more actionable data-for example, information 
showing the location and nature of infrastructure deficits--to help 
government, the private sector, and nonprofits prioritize and plan 
infrastructure projects more effectively. Without this data, it is 
impossible to measure the effectiveness of costly interventions such as 
the recent Bipartisan Infrastructure Law.
    A lack of flexible, targeted federal funding is one of the key 
barriers to solving this problem once and for all. As discussed below, 
especially for low-income communities facing the most acute challenges 
regarding running water and sanitation, federal funding flexible enough 
to support the work of nonprofits would make an enormous difference. 
New technology is making it possible to build decentralized systems 
that, once installed, are affordable to operate and maintain. 
Decentralized systems have the potential to provide water and 
sanitation access to thousands of communities--and dedicated operation 
and maintenance will ensure sustained access for years to come.
    Greater investment into long-term operations and maintenance 
infrastructure will be critical to ensuring sustained water access 
forever. \21\ When a water system falls into disrepair, more people are 
susceptible to falling into the water access gap. Investments do not go 
far enough, as many decentralized and Tribal communities may not be 
able to access O&M investments effectively. \22\ Targeted investments 
in operations and maintenance are key solutions to preventing problems. 
Replenishing the fledgling workforce in maintaining water systems will 
be instrumental in ensuring people do not lose access to water and 
sanitation over time.
---------------------------------------------------------------------------
    \21\ https://www.epa.gov/sites/default/files/2015-07/documents/
meeting-the-access-goal-strategies-for-increasing-access-to-safe-
drinking-waterand- wastewater-treatment-american-indian-alaska-native-
villages.pdf
    \22\ ``Draining--DIGDEEP.'' DIGDEEP, digdeep.org/draining.
---------------------------------------------------------------------------
    Finally, there are no one-size-fits-all technologies; expanding 
options for decentralized water service infrastructure will be critical 
in expanding access for many families. Many Native households are 
decentralized, particularly in Alaska, on the Navajo Nation, and across 
the United States. As it stands, there are not sufficient financial 
assistance options to install water service and delivery infrastructure 
for communities in need of decentralized water infrastructure. 
Alternative technologies-including rainwater harvesting systems, local 
water reuse systems, or central wells-are needed in certain communities 
where neither connecting to the municipal utility service nor 
installing an individual household well is feasible. Without investment 
and flexible funding access for these communities, some folks will be 
stuck in the water access gap for longer periods of time.
Closing
    Everyone deserves a human right to water and sanitation. For far 
too long, Native Americans have faced disproportionate levels of water 
insecurity, poverty, and health disparities. For too many Tribal 
families, water has become a privilege and not a right; the richest 
democracy in the world has more to prove by eliminating this water 
access gap, once and for all. Providing this basic human right will 
unlock change for Tribal communities for generations to come.
                                 ______
                                 
  Prepared Statement of Hon. Meryl Picard, Chairwoman, Bishop Paiute 
                                 Tribe
    My name is Meryl Picard, and I am the Chairwoman of the Bishop 
Paiute Tribe (Bishop Paiute). The Bishop Paiute tribe is just one of 
many Nuumu (Paiute) that call the Payahuunadu (the land of flowing 
water) the Owens Valley home. The Bishop Paiute is the fifth largest 
tribe in California, with over 2,000 enrolled members and one of the 
smallest land bases in the state. Although I will testify on the 
history of the Nuumu in the Payahuunadu, I only speak for the Bishop 
Paiute. Thank you for holding this important hearing on ``Water as a 
Trust Resource.''
    The United States has a trust responsibility to Indian Tribes and 
Indian people. Water is among the most sacred and valuable resources 
for Tribal nations. Although the United States is tasked as the trustee 
for the land and water rights of Tribes, American Indians, and Alaska 
Natives, the United States continues to fail to uphold its promises.
The Land of Flowing Water
    The Paiute are peoples whose ways of being and knowing are 
intricately and intimately tied to water. Since time immemorial, the 
Paiute have lived and thrived in the Owens Valley, managing water 
resources across the land to sustain the plants and animals that 
sustain our community. Irrigation, utilizing water from the streams 
that descend from the Sierra Nevada, was practiced in the Owens Valley 
for millennia before contact with settlers. The Paiute people stewarded 
the Valley's resources and carefully harvested abundant seed to nourish 
our people and to sow for future generations. Our practice was a 
longstanding, ecologically sustainable means of agricultural 
production.
    Today, our people have been stripped of much of our water 
resources; we have limited federal reserved water rights inaccessible 
to our people due to the Federal Government's failed trust 
responsibility on behalf of the Bishop Paiute people.
Background of Owens Valley Water
    The delicate balance we maintained in our water and land was 
interrupted when settlers entered the Valley in the 19th century. 
Settlers did not recognize the form of agriculture practiced by our 
ancestors and only saw land available for the taking. In 1870, an 
article in the Inyo Independent noted the fertile nature of the soil in 
the Valley, giving no credit to the Paiute, who had nourished and built 
that soil by Paiute irrigation practices over many years.
    The article claimed that settlers would quickly transform the land 
into ``luxuriant gardens, orchards, and green fields. \1\'' Settlers 
were quick to harness the existing irrigation networks built by Paiute 
hands for their canal infrastructure, and within 50 years of contact 
with settlers, the distribution of water across Payahuunadu had changed 
forever. \2\
---------------------------------------------------------------------------
    \1\ Chalfant, Story of Inyo, 1922, pp. 210, 212, 304, 314, and 
Homes for Settlers, p. 5
    \2\ Id.
---------------------------------------------------------------------------
    To make matters worse, the City of Los Angeles (City) would soon 
repeat the same pattern of displacement, theft, and coercion to strip 
our ancestral water source for the City's growing population (300+ 
miles to the south) via the Owens Valley aqueduct project. This time, 
Paiute and non-Indians were displaced and stripped of their water 
rights by the City.
    The City purchased land and water rights throughout the Valley, 
employing coercive methods with Paiute people and non-Indians alike. 
Much of the landownership of the Valley was transferred to the City, 
which authorized the removal of mass amounts of water from the 
landscape so that by the end of the 1920s, the City-owned 95 percent of 
the Valley's private land and water rights. Soon, surface water alone 
was not enough to sustain the booming expansion of Los Angeles, so the 
City also began groundwater pumping.
    Next, the City turned to the lands held in trust for the Paiute by 
the federal government. In 1912, President Taft originally reserved a 
67,120-acre tract of land for the allotment of Paiute Homeless Indians, 
known as the Casa Diablo Reservation. Between 1875 and 1930, at least 
70 Indian allotments of roughly 6,000 acres were established in the 
Owens Valley, with more around Mono Lake and Benton. By 1933, the City 
had purchased 78 percent of the Indian allotments in the Owens Valley, 
adding up to more than 4,400 acres (three times the combined acreage of 
the Bishop, Big Pine, and Lone Pine reservations in the Owens Valley 
today). Many of the allotments the City purchased had valuable water 
rights, strategic riparian lands, or access to springs.
    Ironically, despite this, these lands were often assessed as 
wasteland, and Paiute landholders often received about one-fourth of 
what non-Indian landholders were paid. The final blow against the 
Paiute people came when, in 1932, the City lobbied President Hoover to 
remove these trust lands to be designated as watershed protection for 
the City of Los Angeles and other towns in California. \3\
---------------------------------------------------------------------------
    \3\ Owens Valley Indian Water Commission, Summary of Payahuunadu 
Water & Land History. 10.06.23. www.oviwc.org
---------------------------------------------------------------------------
Land Exchange
    Meanwhile, between 1920 and 1930, as agricultural activities in 
Owens Valley decreased due to land sales, many Paiute who had turned to 
wage labor for survival were left without work. The City of Los Angeles 
issued multiple reports between 1930 and 1936, calling them the 
``Indian problem'' in the Owens Valley, and demanded that the federal 
government either remove the Paiute from the Valley altogether or 
relocate them to centralized reservations out of the way of their new 
export operations.
    Various factors influenced the City's interest in a land exchange 
between the City and the United States Government that was ultimately 
authorized by the Land Exchange Act of 1937 \4\ (Land Exchange). One of 
the primary factors was the City's observation that all water expended 
upon agriculture in the Valley limited water available for export. It 
was thus in the City's interest to consolidate the Owens Valley Paiute 
on three (3) reservations (Bishop, Big Pine, and Lone Pine) and 
exchange its lands with lands held by the federal government.
---------------------------------------------------------------------------
    \4\ Act of April 20, 1937 (50 Stat. 70).
---------------------------------------------------------------------------
    In the 1937 Land Exchange, the Federal Government exchanged 2,913.5 
acres of land reserved for Paiute Indians for 1,391.48 acres of land 
owned by the City without water rights. This land exchange resulted in 
the establishment of the current-day reservation lands for the Bishop, 
Big Pine, and Lone Pine Tribes. This occurred with little or no 
consultation or approval from Paiute residing on the land. \5\
---------------------------------------------------------------------------
    \5\ The Grant Deed of June 29, 1939, Exchange Agreement between the 
United States of American and the City of Los Angeles.
---------------------------------------------------------------------------
Owens Valley Paiute Water Rights
    In 1937, when U.S. Congress authorized the land exchange, the 
exchange was to be for ``land, water, and mineral rights.'' However, 
just weeks after Congress approved the land exchange, City officials 
announced that they could not transfer the water rights without 
approval from two-thirds of City voters. This was the source of great 
surprise and dismay among the Indian Service officials who were 
involved in the exchange. It was deemed that obtaining a two-thirds 
vote would ``unduly delay consummation of the exchange,'' so the land 
exchange went forward.
    The land exchange did not include any water rights that remain with 
the original 2,913.5 acres of land previously held in trust for the 
Owens Valley Paiute. Today, the water the tribes receive and use for 
irrigation is only a contractual water right guaranteeing delivery by 
the City.
Conclusion
    The United States has a trust responsibility to Indian Tribes and 
Indian people, yet today, our Federal Reserved Indian Water Rights 
remain unresolved. We ask this Committee to work with the 
Administration to implement and resolve the Water rights owed to the 
Paiute of the Owens Valley. Water is among the most sacred and valuable 
resources for Tribal nations, and Indian County's water crises continue 
to undermine public health and economic development in Indian Country.
    We look forward to working with Congress, the Administration, and 
our partners to finally resolve the water rights owed to the Bishop 
Paiute Tribe and the Paiute of the Owens Valley. I am available for any 
questions; thank you for your time and consideration.

                                  [all]