[Senate Hearing 118-23]
[From the U.S. Government Publishing Office]
S. Hrg. 118-23
DRINKING WATER INFRASTRUCTURE
AND TRIBAL COMMUNITIES
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON FISHERIES,
WATER, AND WILDLIFE
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 20, 2023
__________
Printed for the use of the Committee on Environment and Public Works
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
55-108 PDF WASHINGTON : 2024
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
THOMAS R. CARPER, Delaware, Chairman
SHELLEY MOORE CAPITO, West Virginia, Ranking Member
BENJAMIN L. CARDIN, Maryland KEVIN CRAMER, North Dakota
BERNARD SANDERS, Vermont CYNTHIA M. LUMMIS, Wyoming
SHELDON WHITEHOUSE, Rhode Island MARKWAYNE MULLIN, Oklahoma
JEFF MERKLEY, Oregon PETE RICKETTS, Nebraska
EDWARD J. MARKEY, Massachusetts JOHN BOOZMAN, Arkansas
DEBBIE STABENOW, Michigan ROGER WICKER, Mississippi
MARK KELLY, Arizona DAN SULLIVAN, Alaska
ALEX PADILLA, California LINDSEY O. GRAHAM, South Carolina
JOHN FETTERMAN, Pennsylvania
Courtney Taylor, Democratic Staff Director
Adam Tomlinson, Republican Staff Director
----------
Subcommittee on Fisheries, Water, and Wildlife
ALEX PADILLA, California, Chairman
CYNTHIA M. LUMMIS, Wyoming, Ranking Member
BENJAMIN L. CARDIN, Maryland KEVIN CRAMER, North Dakota
SHELDON WHITEHOUSE, Rhode Island PETE RICKETTS, Nebraska
EDWARD J. MARKEY, Massachusetts JOHN BOOZMAN, Arkansas
DEBBIE STABENOW, Michigan DAN SULLIVAN, Alaska
MARK KELLY, Arizona SHELLEY MOORE CAPITO, West
THOMAS R. CARPER, Delaware (ex Virginia (ex officio)
officio)
C O N T E N T S
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Page
SEPTEMBER 20, 2023
OPENING STATEMENTS
Padilla, Hon. Alex, U.S. Senator from the State of California.... 1
Lummis, Hon. Cynthia M., U.S. Senator from the State of Wyoming.. 3
WITNESSES
Norton, Ken, Chair, National Tribal Water Council, Director,
Hoopa Valley Tribal Environmental Protection Agency............ 5
Prepared statement........................................... 7
Bennon, Brian, Tribal Water Systems Program Manager, Inter Tribal
Council of Arizona, Inc........................................ 11
Prepared statement........................................... 13
WallowingBull, Jola, Director, Northern Arapaho Tribal
Engineering Department......................................... 31
Prepared statement........................................... 33
ADDITIONAL MATERIAL
Statement of the Tule River Indian Tribe......................... 54
Letter to Senator Carper, et al. from the Rural Community
Assistance Partnership, September 20, 2023..................... 59
DRINKING WATER INFRASTRUCTURE
AND TRIBAL COMMUNITIES
----------
WEDNESDAY, SEPTEMBER 20, 2023
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Fisheries, Water, and Wildlife,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:33 p.m. in
room 406, Dirksen Senate Office Building, Hon. Alex Padilla
(Chairman of the Subcommittee) presiding.
Present: Senators Padilla, Lummis, Carper, Kelly, Ricketts,
and Sullivan.
OPENING STATEMENT OF HON. ALEX PADILLA,
U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Padilla. This hearing will come to order.
Good afternoon, everyone, and thank you all for joining us
today for our second hearing this Congress of the Senate
Environment and Public Works Subcommittee on Fisheries, Water,
and Wildlife.
Not only are we set to discuss drinking water and
wastewater infrastructure in tribal communities here in EPW,
but I am happy to share that as we speak, subcommittee chairman
Wyden of the Energy and Natural Resources Committee is also
holding a hearing on water access in underserved communities.
And next week, Chairman Schatz will join us by holding a
hearing of the Indian Affairs Committee on related issues as
well.
So there is a growing consensus here, which is encouraging
news. Ensuring tribal access to water and sanitation is a
multi-jurisdictional, multi-committee, multi-agency problem.
And I am proud that there is a commitment amongst my Senate
colleagues to tackle it.
As we will hear from our witnesses today, this is an often
overlooked and underfunded area with serious impacts on the
health and well being of countless Native American communities.
I want to thank Chairman Carper and Ranking Member Capito as
well as my Subcommittee Ranking Member, Senator Lummis, for
prioritizing this issue.
Senator Lummis is on the way; she will be joining us in a
few minutes. And we expect Chairman Carper and other members of
the Committee as well.
I also want to take a moment to thank all of our witnesses
for joining us to help convey the challenges that Indian
Country still faces, in the year 2023, the challenges still
faced in securing adequate water infrastructure for their
communities.
As I mentioned, we are here today to learn more about the
current state of drinking and wastewater infrastructure in
Indian Country. In 2023, there is no reason why any person in
America should lack clean and affordable water in their taps
and in their showers and reliable plumbing in their homes. Yet
far too many tribal communities across the country, for too
many of them, reliable and affordable water infrastructure has
become a privilege, and not a right.
Native American households are 19 times more likely than
white households to lack indoor pipes for running water and
sanitation. Let me emphasize that statistic a little bit. Not
19 percent more likely, 19 times more likely. And even that
stat on the shortage of physical infrastructure doesn't begin
to capture the gap in water quality for Native Americans.
Inadequate water supply and deteriorating pipes can impact
the public health, education, and economic development of
tribal communities. And it is easy to see why. If you can't
trust the water you are drinking, or the plumbing that keeps
your home sanitary, it harms your quality of life.
On top of that, tribal communities' water systems are
almost all small or rural as well as understaffed, often with
only one person dedicated to transportation infrastructure and
energy infrastructure and water services and more. Unlike State
and local governments, tribal governments lack the tax base for
infrastructure improvement and staff, often exacerbating water
access issues and leading to higher water bills for tribal
homes.
I know we have seen these problems in California, where for
example the Tule River Tribe, like so many others, was forced
onto a reservation without the irrigation and water storage
facilities that the Federal Government promised. The Tule River
Tribe faces a constant battle to access clean water. Families
are forced to haul in water by truck for their own daily
hygiene or for their children to drink.
On days when water is too tough to get, some simply go
without. And when disaster strikes, as it did last month when a
stray lightning bolt knocked out power, hundreds lose access to
clean water in an instant.
So this must be an urgent priority for the Federal
Government, which, I will remind us, has a moral and legal
trust responsibility to act. Of course, last year, after
decades of neglect, Congress did step up to make
transformational investments in tribal infrastructure through
the Bipartisan Infrastructure Law, which will bring nearly $870
million to the EPA for tribal infrastructure construction and
$3.5 billion to the Indian Health Service for tribal
sanitation.
That is good news. But for as much good as that funding
will do, the need in tribal communities is even greater. They
need not just an initial surge of funding for new projects, but
sustained funding for securing the long term stability of the
water systems.
That could mean new and continued funding for operations
and maintenance, so that even without tax revenues, Tribes have
a reliable stream of funding to prepare and maintain water
infrastructure when needed after the initial investments dry
up.
That could mean improved technical assistance to better
support the design of tribal projects that will receive Federal
funding. That could mean increased work force development for
understaffed water managers and tailored certification training
for tribal operators whom hundreds of people might rely on to
stay safe.
And as we focused on in my first Subcommittee hearing, that
could mean finally funding a permanent water rate assistance
program like we have for energy assistance, with LIHEAP, to
ensure that Native American households aren't saddled with high
water bills that they can't afford.
So there is a lot on the table today, and I am looking
forward to hearing from each of our witnesses about what you
are seeing on the ground and what you see as the most direct
solutions to getting tribal communities the support that they
need.
With that, I will introduce and turn it over to Ranking
Member Lummis for her opening statement.
OPENING STATEMENT OF HON. CYNTHIA M. LUMMIS,
U.S. SENATOR FROM THE STATE OF WYOMING
Senator Lummis. Thank you, Mr. Chairman. It is a pleasure
to serve with you, and your interest in this subject and mine
dovetail tremendously.
We are grateful to our witnesses for being here today.
I especially want to extend a warm welcome to Jola
WallowingBull, who has taken time to travel from the Wind River
Reservation to be here with us today.
Jola, thank you so much for coming.
Having access to both clean drinking water and wastewater
infrastructure is a necessity for communities in this day and
age. It is what keeps our children safe as they develop, what
keeps communities strong and bound together, and what allows
economic growth to occur. Without access to adequate drinking
water and wastewater infrastructure, a community will
oftentimes struggle to survive.
Unfortunately, far too many communities lack access to this
basic infrastructure, and too many of those communities are
those of our tribal neighbors. It is my hope that this hearing
today will give the members of this Committee greater insight
into the unique challenges that Tribes face when providing safe
and affordable drinking water and wastewater services.
The EPA can and must do better when it comes to
prioritizing funding decision timing for Tribes. This includes
prioritizing tribal communities within the Small and
Disadvantaged Grant program.
I am also particularly interested to hear how effective EPA
is in communicating the regulatory requirements that Tribes
must meet under the Clean Water Act and Safe Drinking Water
Act. So I hope we will hear something about that from our
witnesses.
EPA's decision to move forward with a national primary
drinking water standard for certain PFAS compounds will mean
that Tribes will need to install expensive treatment technology
in order to maintain compliance. The installation, operation,
and maintenance costs will ultimately be borne by members of
the Tribe.
I will be interested to also hear from the witnesses about
how they plan to keep water rates affordable if they are forced
to install these new technologies. I would also be remiss if I
did not reiterate my concern with EPA's proposal to list PFAS
compounds under CERCLA.
The liability costs that small, rural, and tribal water
systems would face if this rule is finalized could be crushing
and would be crushing for some Tribes. This Committee must
thoroughly address passive receiver liability issues at the
earliest possible time so that small system operators have the
regulatory certainty they need to continue to provide clean
drinking water.
Thank you again for calling this hearing, Mr. Chairman.
Thanks again to our witnesses. I look forward to hearing
your opening statements, and I look forward to our discussion
afterwards.
Thanks, Mr. Chairman.
Senator Padilla. Thank you very much.
Before we hear from our witnesses, let me offer them a very
proper introduction. We are joined by Ken Norton, who serves
not only as Director of the Hoopa Valley Tribal Environmental
Protection Agency in California, but also chairs the National
Tribal Water Council, which advocates for the best interests of
Native American and Alaska Native Tribes on water.
Specifically, they assist the USEPA with research and
information for decisionmaking on water issues. So I know Mr.
Norton will be a great resources to the Subcommittee on how we
can bolster EPA's tribal water programs.
I would also like to introduce Mr. Brian Bennon, who is the
Tribal Water Systems Department Director at the Inter Tribal
Council of Arizona, which is an inter-tribal consortium of 21
Tribes in Arizona. Mr. Bennon oversees the Council's National
Training Certification and Technical Assistance Services for
Drinking Water and Wastewater Operator Personnel.
Last but not least, I will turn it over to Senator Lummis
to introduce our third witness.
Senator Lummis. Thanks so much.
Jola WallowingBull is the Director of the Northern Arapaho
Tribal Engineering Department. She is an enrolled member of the
Northern Arapaho Tribe from the Wind River Indian Reservation.
She graduated from the University of Wyoming in 2006 with a
Bachelor of Science degree in architectural engineering. She
was also recognized as the first American Indian woman to
receive a degree in architectural engineering from the
University of Wyoming.
Jola is currently the Director for the Northern Arapaho
Tribal Engineering Department, where she works with State and
Federal funding agencies to improve the water and wastewater
systems for the Northern Arapaho communities. She has worked in
this position since 2016, and has established a solid
foundation for the department.
Mr. Chairman, I would be remiss in not having you notice
the beautiful skirt that she is wearing. A friend of hers on
the reservation made the skirt particularly for her visit today
to Washington. It is stunning. I hope everyone will take
advantage of seeing that fabulous work of art that she is
wearing.
Thanks, Mr. Chairman.
Senator Padilla. Thank you very much.
Welcome to all three witnesses.
Mr. Norton, we will begin with you.
STATEMENT OF KEN NORTON, CHAIR, NATIONAL TRIBAL WATER COUNCIL,
DIRECTOR, HOOPA VALLEY TRIBAL ENVIRONMENTAL PROTECTION AGENCY
Mr. Norton. Thank you.
My purpose for speaking before the Committee today is to
raise awareness and understanding about the immediate need to
support the operation and maintenance of tribal drinking water
systems in addressing public health inequalities and the
fulfillment of trust to provide safe and clean water to our
tribal nations.
Over the past several decades, many Tribes have developed
the necessary infrastructure to bring piped water to their
community households. However, for a variety of reasons, some
of these tribal water systems have struggled with providing
suitable water for human consumption to the communities they
serve. The physical condition and the operation and maintenance
of these systems influences the extent to which these
communities are at risk of contamination and illness.
The Environmental Protection Agency is directly responsible
for overseeing the monitoring and reporting about the water
quality delivered by public water systems for most Native
American Tribes. According to EPA's Safe Drinking Water
Information System, it indicates that there are a total of 835
public water systems that are owned by tribal governments.
These systems serve an estimated 1.4 million people who are
at a higher risk when compared to consumers served by public
water systems with State oversight. Many tribal water systems
serve water that exceeds health based standards, and have not
been monitored in accordance with the Safe Drinking Water Act.
In addition to the health based violations, the EPA also
monitors non-health based violations. These occur when a public
water system owner fails to monitor or report any of the 90
contaminants required as part of the Safe Drinking Water Act.
The most recent compliance data compiled from the EPA indicates
that 404 of the 835 tribally owned water systems regulated by
EPA had one or more non-health based violation.
The Indian Health Service and the EPA are the primary
Federal agencies responsible for working collaboratively with
Tribes to ensure they have access to safe drinking water and
basic sanitation. These agencies have pointed out that an
important root cause of the non-compliance problem is the lack
of operation and maintenance capacity. Without additional
resources, the leadership from these agencies concluded that
EPA simply imposing additional enforcement actions will not
likely result in improving drinking water quality compliance.
The Indian Health Service under the Indian Health Care
Improvement Act since 1992 has had the authority to provide
funds to support the cost of operating, managing, and
maintaining tribal water and wastewater facilities. However,
IHS has never requested funding for this purpose, and Congress
has not appropriated these funds to IHS.
In order to improve the operation and maintenance capacity
of tribal water systems, the National Tribal Water Council
recommends, one, Congress direct EPA, in collaboration with the
IHS, to evaluate all tribally owned water systems to estimate
the annual cost associated with operating and maintaining these
facilities. And two, Congress appropriate $600 million over a 5
year period to be utilized by IHS in collaboration with EPA to
develop and implement a pilot program that directly supports
the operation and maintenance of these public water systems.
And finally, three, Congress direct IHS to utilize the
assessments completed in Recommendation 1 and the data compiled
in Recommendation 2 to develop a budget request that can be
considered by Congress for funding appropriation to support all
tribal water systems needing operation and maintenance support.
Thank you for allowing me to address the Committee today on
our recommendations. Thank you.
[The prepared statement of Mr. Norton follows:]
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Senator Padilla. Thank you, Mr. Norton.
Mr. Bennon.
STATEMENT OF BRIAN BENNON, TRIBAL WATER SYSTEMS PROGRAM
MANAGER, INTER TRIBAL COUNCIL OF ARIZONA, INC.
Mr. Bennon. Chairman Padilla, Ranking Member Lummis, and
Committee members, I am Brian Bennon, Director of the National
Tribal Water Systems Program at the Inter Tribal Council of
Arizona, an inter-tribal consortium of 21 federally recognized
Tribes.
The ITCA program provides technical assistance, training,
and operator certification services to tribal water utilities
located across six EPA regions and over 200 tribal nations.
Proper sanitation services are the cornerstone of modern public
health and economic development. However, the rural, poverty
stricken conditions of most reservations commonly result in
under-resourced drinking water and wastewater facilities.
According to the Indian Health Service, 22 percent of
tribal homes are without access to adequate sanitation. The
word adequate, meaning in compliance with all applicable health
and environmental regulations. According to Environmental
Protection Agency data, over 90 percent of tribal public water
systems are classified as small or very small systems, serving
3,300 or fewer customers.
EPA data averaged from the last 10 years identifies
significant compliance disparities under the Safe Drinking
Water Act. Tribal public water systems have two times more
violations and over three times more priority violations
compared to non-tribal systems. Similar compliance disparities
exist for tribal wastewater facility discharges to surface
water bodies regulated under the Clean Water Act.
Federal agencies annually spend hundreds of millions of
taxpayers' dollars on infrastructure construction to improve
tribal community access to safe drinking water and sanitation.
However, infrastructure construction alone cannot solve this
access crisis. Infrastructure construction must be balanced
with the building of managerial, financial, and technical
capacity of the utilities to properly operate and maintain the
water infrastructure investments.
One major concern area is the financial viability of
operations and maintenance. The water industry prescribes that
utilities function as a business where operations and
maintenance costs are distributed across the customer base
through water service rates. However, scales of economy cause
this business model to fail when there are too few customers
and when communities are geographically isolated with limited
economic means to pay for such services.
Such conditions additionally create work force barriers.
Rural, small, tribal water utilities are challenged in
attracting qualified personnel. Once trained and certified,
operators often leave to work at bigger utilities that offer
higher salaries and more benefits.
Based on these observations, the following recommendations
may be offered. A funding mechanism in parity with the States
is needed for tribally led, by Tribes for Tribes organizations,
for capacity development and operator certification programs.
EPA needs to engage in public meetings with two existing
tribally led, by Tribes for Tribes capacity development and
operator certification programs for ongoing dialogue and
strategic planning for future program improvements.
Create a Federal funding program that provides revolving
operations and maintenance grants for small, tribal drinking
water and wastewater utilities that have implemented all
possible components of sustainable operations and maintenance,
but whose scales of economies cause a financial viability
shortfall gap.
Expand the EPA and IHS facilitated technical assistance
provider coordination meetings initiative to additional areas
in Indian Country. The Federal Infrastructure Task Force should
return to conducting periodic publicly accessible meetings for
discussions on compliance disparities, regional rural water
supply systems, and funding for operations and maintenance.
Thank you for the opportunity to provide this testimony.
[The prepared statement of Mr. Bennon follows:]
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Senator Padilla. Thank you very much.
Ms. WallowingBull.
STATEMENT OF JOLA WALLOWINGBULL, DIRECTOR, NORTHERN ARAPAHO
TRIBAL ENGINEERING DEPARTMENT
Ms. WallowingBull. Chairman Padilla, Ranking Member Lummis,
members of the Subcommittee, thank you for holding this hearing
and giving me an opportunity to speak on behalf of the Northern
Arapaho Tribe.
[Phrase in Native tongue.] I am Singing Cedar Woman. My
name is Jola WallowingBull. I have been the Director for the
Tribal Engineering Department for 7 years.
As Director, I work with the State and Federal agencies to
maintain and help improve the Tribe's water and wastewater
systems. We have three water systems located in Ethete and
Arapaho, Wyoming, and we have five wastewater systems between
both communities.
I appreciate the opportunity to share with you some
information about how these systems operate and serve our
people, how we obtain funds for operations and improvements to
our systems, the regulatory and work force issues we face, and
the role Federal funding plays in the delivery of clean, safe
water to our members and their families.
Currently the Tribe receives Federal funding from the
Department of Agricultural Development Office, and from the
Indian Health Service, or IHS, for water projects. The
Environmental Protection Agency also provides funding through
IHS.
Funding practices are often demanding and time consuming.
Each agency has a different application process, and after
submitting applications, it often takes a long time to receive
funding and put it to use.
While we wait for applications to be approved, our work
cannot and does not wait. Leaks and other issues continue while
our requests slowly move through the approval process. We plug
holes as best we can, but the review system ensures that we are
always addressing emergencies rather than allocating our
resources to planning future development.
To be clear, the Tribe and Federal agencies have developed
a great working relationship over the years. And I look forward
to building on our success in the future. In addition to what
has already been accomplished, I hope we are able to shift our
focus to securing funding for future expansion and not only
focusing on existing facilities.
The Tribe also faces regulatory issues with the right of
way process. Even after securing funding, the right of way
process can delay the implementation of necessary projects by
years. An example of this is the Ethete Wellfield. The project
was originally funded in 2014, but is still incomplete because
it took approximately 5 years to get a land lease on the tribal
trust land.
The effects of that delay, compounded by inflation, means
that every dollar we receive loses its buying power over time.
We frequently run out of money for projects because of
inflation driven increased costs. Streamlining the right of way
process will ensure that we can start projects faster, and the
dollars will go further.
The Tribe also faces problems when it comes to hiring and
retaining workers. Currently, the Tribe has six water and
wastewater operators. Only two of them are certified, Harold
Little Bear and Floyd Addison. To effectively operate and
maintain our systems, we need 12 certified operators.
A major obstacle preventing us from hiring and retaining
staff is low pay. Our operators make under the State average
compared to other professionals in their position. Increased
pay and benefits would entice high quality candidates and
retain high quality staff like Harold Little Bear and Floyd
Addison. A Federal subsidy to increase wages for these
positions would bolster these work force efforts.
The water and wastewater systems for the Northern Arapaho
Tribe are underfunded, outdated, and at capacity. Many lines
are undersized and made from substandard materials, such as
thin walled PVC and asbestos concrete. Water breaks are
frequent, and repair supplies are increasingly difficult to
find.
Our goal is to continue to provide safe water for our
people. And we will fulfill our mission. But we cannot do
everything with the limited resources we have. As it stands
now, we are unable to focus on tomorrow's growth and developing
a master plan for the future because too many of our resources
go toward the emergencies of today.
We remain passionate about our job, because of its
importance to the community. Our grandparents fought to provide
a brighter future for our generation. Now I look at my nieces
and my nephews and their kids, and I want a brighter future for
them, too.
For the longevity of the Tribe, we must have the
opportunity to create a path forward and work toward a new
chapter where we may proactively plan for our future as a Tribe
and as a people.
[Phrase in Native tongue]. Thank you, and I look forward to
your questions.
[The prepared statement of Ms. WallowingBull follows:]
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Senator Padilla. Thank you very much.
Thank you to all three of you.
We will now turn to questions from the Committee. I get to
begin.
Thanks to the work of the bipartisan members of this
Committee, Congress provided over $4 billion for tribal
sanitation over the next 5 years via the Bipartisan
Infrastructure Law. This is transformative funding that will
improve lives in Indian Country, but based on the testimony we
have just heard, this funding should be viewed as just the
start.
Mr. Norton, can you talk more about how the Bipartisan
Infrastructure Law funding is only half of the puzzle, given
the difficulties tribal water systems typically face with
operations and maintenance?
Mr. Norton. Thank you.
First, I would like to say that the Bipartisan
Infrastructure Law is greatly appreciated from Tribes and the
Alaska Native villages across the Nation. It actually changes
lives, providing access to drinking water and basic sanitation.
But as we heard, it addresses minimally the violations that
exist under the Safe Drinking Water Act. We need operations and
maintenance dollars to address those, especially as new systems
come aboard. These are highly technical systems that are going
into our tribal nations, and that have a high capital cost. It
is prudent that we as Tribes have the appropriate people to run
those and the tools and the funding.
Senator Padilla. So let me ask a very blunt question. Will
the projects that are now funded because of the Bipartisan
Infrastructure Law, will they be successful without funding
operations and maintenance?
Mr. Norton. Senator, I have to speak truthfully. The
violations will increase, because we need certified operators
and experienced operators to run these systems. As my
colleagues pointed out, having the ability to maintain those
certified operators is a difficult process. It has to do with
the funding, salary adjustments, it has to do with competitive
401(k)s, retirements. And if there are opportunities for tribal
members to move on, they certainly will, because of the very
low payments or salaries.
Senator Padilla. I know the State of California has tried
to fill gaps for operations and maintenance through the SAFER
program.
Mr. Norton. That is a very good program.
Senator Padilla. But this is really, in my opinion, an
interim State solution to what is fundamentally a Federal
problem and responsibility. So a follow up question for you,
not from an engineering perspective, not from a technical
perspective, but can you talk about the Federal trust
responsibility and whether we are living up to it if we fail to
fund operations and maintenance?
Mr. Norton. Thank you, Senator.
The Federal trust obligation to Tribes is failing in regard
to providing safe access to drinking water to our communities.
I base this on the observations of both my testimony and my
colleague, Mr. Bennon, in regard to the high violation rates of
both health based violations and non-health based violations.
We need to fix this problem, putting more money into the
systems so we can have proper operations of these facilities.
Senator Padilla. I think you have given some indicators to
my following question, but I want to ask it for the record.
Your testimony suggests that Congress should direct the EPA, in
collaboration with the IHS, to evaluate all American Indian
owned water systems regulated by the EPA to include estimating
the annual costs associated with operation and maintenance of
facilities.
What do you expect this report would uncover?
Mr. Norton. The IHS has completed an initial investigation
of operation and maintenance. That investigation identified
core cost needs for the different sizes of utilities, both
wastewater and drinking water, from about $40 million for the
lowest to $200,000 annually for the larger facilities. What we
need is a follow up, more detailed investigation that looks at
the costs and how to pay for these improvements, how to pay for
the operation and maintenance and the cost of operating your
facility, electrical costs, and having that not passed onto the
consumer where we already have poverty rates in most of our
reservations as high as 80 percent.
Senator Padilla. Thank you.
Mr. Bennon, Ms. WallowingBull, I have not forgotten you. I
do have some additional questions, but at this point, let me
recognize Senator Lummis for her first round of questions.
Senator Lummis. Thank you, Mr. Chairman.
Ms. WallowingBull, I understand that there are regulatory
requirements that cause difficulty for Tribes meeting their
obligations under the Safe Drinking Water Act. One of the
things we have heard is that the tight timeframe to have water
on the reservation sampled in an approved lab can be a
struggle.
Have you had that problem? If so, how can we address this?
Ms. WallowingBull. Thank you, Senator Lummis.
Yes, we face those same issues. Part of it is because the
lab, as I stated before, the lab locations where we have, where
we take the sampling are in the local communities which are in
Lander and Riverton. That is where we submit our sampling.
One of the sampling places closed. So it is hard to, that
timeline, it is expensive. So I think just allowing us a little
more time to get the sampling in, because I know that is a
violation when we are late for turning in sampling. But we are
such a rural location, it is hard to meet those demands all the
time.
Senator Lummis. One of the sites closed. Do you know the
reason it closed?
Ms. WallowingBull. No, I am not sure.
Senator Lummis. I might look into that.
When it comes to Tribes utilizing the funding Congress has
set up, I sort of get the sense that you are spending a lot of
time filling out paperwork for grant programs. Can Congress do
a better job of streamlining the grant application process? Do
you have any recommendations for us in doing so?
Ms. WallowingBull. When you are talking about the EPA
funding, I believe that EPA should be working with the Tribes
directly. I know that their funding is funneled through IHS
currently. And the process for applying for grants through IHS
can be time consuming and tedious. They have a scoring system,
so you have to score really well. Your projects are, you have
got to meet different areas of criteria. As I said, it is
different agencies. But I think when you are dealing with
bigger projects in EPA, I think EPA should be responsible for
working with the Tribe directly, not funneling the funding
through other agencies.
Senator Lummis. That is really good advice. That is just
red tape upon red tape. It hurts the Tribes as much as anybody,
perhaps more than anybody, who is dealing with compliance
issues.
Mr. Norton, we have talked about the struggle to find
trained and certified work forces. Who sets those salaries? Why
is this an area that is so underpaid?
Mr. Norton. It is based upon the hookups; it is based upon
the services to the community. When you have a rural community
like Hoopa, the reservation I am from, there are 800 hookups
that are extended over long pipelines. And the cost and
maintenance of those providing water to our tribal households
is costly.
So we have to look at other subsidies for paying a
competitive wage. And if I may, we just had a tribal operator
leave our reservation because he was making a substandard
salary. He has the educational background, but he moved to
Sacramento and is making three times the amount.
It is not because he wants to leave the reservation. Our
ancestors have been there for thousands of years, our families
are there. It is the difficulty of meeting the salaries, of
having experienced and qualified, certified operators for our
wastewater and drinking water systems.
Senator Lummis. So when Ms. WallowingBull said that there
are five systems among the two communities, Ethete and Arapaho,
so those are spread out as well. Is that the big problem?
Ms. WallowingBull. Yes, as I stated, in Ethete we have a
water system, but in Arapaho, we have two water systems. But we
have five lagoons between both communities. So both communities
are separate, so the water line ends. So the areas in between
those communities are on wells.
Senator Lummis. Thank you. I appreciate it.
Mr. Chairman, I yield back.
Senator Padilla. Thank you.
We have been joined by the EPW Chairman, Senator Carper.
Let me recognize him for any statement and questions of the
witnesses. Senator Ricketts will be next.
Senator Carper. Thanks, Mr. Chairman.
Let me just say as an aside, my staff have been watching
how well the two of you work together, and your staffs. One of
the things we try to do on this Committee is we want to get
good stuff done for our planet, for our environment. We also
try to build bipartisan support for a lot of the initiatives we
take up. You set a good example for us. I just want to say that
to begin with.
Welcome to all of you.
Ken Norton, did you fight Muhammad Ali, how many, three
times?
Mr. Norton. A couple of times, yes.
[Laughter.]
Senator Carper. I watched two of those fights. You look
great for a guy who went 15 rounds with Muhammad Ali three
times.
[Laughter.]
Senator Carper. For those in the audience wondering, what
is he talking about, another Ken Norton did fight Muhammad Ali
I think three times. Ken won one, and Muhammad won two.
Anyway, we welcome you, and Mr. Bennon, and Ms.
WallowingBull.
Where are you from?
Ms. WallowingBull. Wyoming.
Senator Carper. And Mr. Bennon?
Mr. Bennon. Phoenix, Arizona.
Senator Carper. OK.
Mr. Norton. Northern California, Hoopa.
Senator Carper. OK, good. We are happy to see you all.
Thanks again for helping us for helping us. This is an
important issue, we care about these issues a lot, and I know
you do too, so thank you.
I think it was in April of this year, the Environmental
Protection Agency released its latest drinking water needs
survey and assessment. It revealed that the Native American
Tribes and Indian Native villages would need over $4 billion, I
think it was over $4 billion in investment to fully meet their
drinking water infrastructure needs, which is a staggering,
staggering unmet need.
Mr. Bennon and Mr. Norton, how do your organizations work
with EPA and other Federal partners to identify and prioritize
drinking water and wastewater infrastructure projects on tribal
lands?
Mr. Bennon. Chairman Carper, the Inter Tribal Council of
Arizona works very closely with EPA and IHS. We try to support
the dialogue between the Tribes, the tribal utilities, and the
Federal agencies. But it is pretty primarily that dialogue that
generates the understanding of need.
What we do see directly working with the operators is that
this is just a constant problem, because of the lack of
operations and maintenance funding. We keep building
infrastructure, and it is just like a car that ages that has to
be maintained and kept up. If it doesn't, then we have to go
buy another car. That is the same deal with the infrastructure.
Then of course, the remote geographic isolation of a lot of
these rural tribal systems, the economics of the typical model
for operations just doesn't really fit. So I think that is the
piece that is missing. Infrastructure is needed, yes, but the
other side of the coin is needed as well, operations and
maintenance.
Senator Carper. All right, thank you.
Mr. Norton.
Mr. Norton. Yes, I echo Mr. Bennon's thoughts. The National
Tribal Water Council has representatives from all the regions,
tribal representatives and from the State of Alaska. What we
are hearing is the state of the art technology is being
implemented in Indian Country, but we need the capacity to
maintain those systems over the long term, so these highly
technical and costly investments from the American public are
maintained over time and the operation and maintenance of those
systems is essential to do so.
Senator Carper. All right, thank you for that.
I have one more question for you, ma'am. Earlier this
summer, the Environmental Protection Agency announced that
over, I want to say almost $240 million in funding would be
made available to Tribes during fiscal year 2023 for drinking
water and wastewater projects. Much of this funding was made
possible by the Bipartisan Infrastructure Law, which really has
its roots right here in this room, this Committee. We reported
it out unanimously to pass on the floor, I think by 89 to 2.
Just an amazingly strong vote.
But while this is a meaningful investment, we know that
projects on tribal lands often face unique challenges and may
cost more on average than other water systems. You have alluded
to that already.
Ms. WallowingBull, would you please explain for us some of
the unique challenges that you have seen tribal communities
experience when building drinking water and wastewater systems?
As a corollary to this, part of that question would be, how
might the Federal Government work alongside State and local
partners to help address or alleviate some of those obstacles?
Ms. WallowingBull. Yes. As stated in my testimony, the
biggest roadblock we face in any of our projects is the right
of way process.
Senator Carper. The right of way?
Ms. WallowingBull. The right of way process. As I have
stated, it has been an issue for us on every single project
that we have. I know the regulations were updated in 2016, the
C.F.R. regulations for the right of way process. However, it
still continues to be an issue for a lot of the projects when
we can get State and Federal funds obligated for any project.
And once it is obligated, we are always just holding, just
waiting it out, the project, because of the right of way
approval.
So that is always the main issue that we face. But just
this year, we have had more meetings and more relationships
with EPA, which I think we are headed in the right direction.
We have a better working relationship with EPA. I think it is
just the beginning. We still have a lot of issues and problems
that they haven't seen, or we can identify them. But it is just
the beginning of them getting involved with a lot of the work
that we have going on.
Senator Carper. All right, thanks.
My time is expired, Mr. Chairman. I would just like to
briefly read a sentence or two of my next question, and then
ask our witnesses to answer for the record. We don't have to do
it here today. Could I do that, just very briefly?
Senator Padilla. Go ahead.
Senator Carper. I want to ask, and we will follow up after
the hearing with requests in writing, and ask each of you to
share with us your experience supporting tribal communities
that lack access to safe, reliable water, and how that affects
public health and a community's general welfare. We will send
that to you in writing and ask you to respond to it in writing.
Thank you very much for joining us today. Nice to see you.
Senator Padilla. Thank you very much.
Senator Ricketts.
Senator Ricketts. Thank you very much, Chairman Padilla,
and Ranking Member Lummis, for holding this important hearing
today. Thank you to our witnesses for coming here today and
talking about your perspectives. I think it is a great
opportunity to be able to share some of the challenges that we
have in our tribal communities with regard to drinking water.
I would like to take this opportunity to discuss the EPA's
proposed rule for the Federal baseline Water Quality Standards,
the WQS, for Indian reservations. I recognize the importance to
tribal communities in developing water quality standards within
the Clean Water Act. I have several concerns with the proposed
rule, only that all tribal nations should have to treat to
State designations prior to the application for the water
quality standards, and the EPA should also hold the Tribes to
the same water quality standards process as the States under
the Clean Water Act. This process should include public
participation and comments when reviewing water quality
standards. I think that is actually one of the things that, Ms.
WallowingBull, you were talking about, just having that full
blown EPA participation.
Tribes must also equally prove proficient in technical and
managerial skills for adoption and implementation. To boost
coordination there should be consultation with the delegate
State agency as well as data transparency. EPA has two roles
within the Water Quality Standards. One is to intervene only
when a State or Tribe is failing to meet the requirements of
the Clean Water Act, and two is to provide technical services
like nationally recommended water quality criteria to States
and Tribes when setting Water Quality Standards.
This role for States to lead in protecting water quality
while considering other implications to communities is
important, and the EPA's proposed rule undermines this division
of responsibility.
So Ms. WallowingBull, can you speak to the importance,
because you talked a little bit about dealing directly with EPA
rather than IHS, can you talk about the importance of Tribes
being allowed to take the lead in water quality plans and
criteria?
Ms. WallowingBull. If we were responsible for taking the
lead?
Senator Ricketts. Yes, the importance, right. Again, the
point I am trying to make here is that we ought to allow States
and Tribes to be able to take the lead in this because they
know the local situations the best.
Ms. WallowingBull. Yes.
Senator Ricketts. You talked about, for example, the right
of way issues. Can you talk about the importance of having
Tribes take the lead when it comes to creating water quality
standards with the EPA?
Ms. WallowingBull. Yes, definitely. We are a sovereign
nation, but we do work well with the State. We get State
funding from Wyoming Water Development for water projects. So
we do work well with them when it comes to funding for
projects. They understand our systems.
But as you said, we know our systems. We have an
engineering firm that we currently consult with which has
worked with us for 9 years. So we have knowledgeable people. As
a Tribe, we know how we want to move forward. But again, it is
always down to the funding issue.
But it is not, as we said, the funding issue, the right of
way process, everything is timely because as we said, we have a
water break every week. We are constantly fixing those issues.
But yet we are still trying to look at the bigger picture. Our
goal is to create a master plan. But again, that goes back to
who is going to fund that.
Senator Ricketts. Did you say you just were starting to
begin conversations with the EPA? Does that indicate you hadn't
had direct contact with EPA in the past?
Ms. WallowingBull. The working relationship was not that
great in the past. So we are working closely with them now. We
actually are working, for our wastewater systems, we are on a
compliance action plan. So they are working with us for our
wastewater systems. They regulate our water.
But this year alone, we have met with several different
committees from EPA, or several different groups of people from
EPA. So they are trying to improve the working relationship
with the Tribe, so they are making that effort to come to the
reservation and assist us. They are aware of the issues we
have.
Senator Ricketts. Good. I think that is always going to be
the best regulatory environment, is when the EPA allows the
local people to take the lead and supplies that supporting
authority, whether it is technical assistance, and of course,
you are talking about not only the infrastructure dollars but
also the maintenance and operation dollars as well going
forward.
Thank you again to all of our witnesses for being here
today and describing some of the challenges to making sure we
are providing safe, high quality drinking water on our tribal
reservations.
Mr. Chairman, I yield back.
Senator Padilla. Thank you very much.
We have been joined by Senator Kelly.
Senator Kelly. Thank you, Mr. Chairman.
Let me first say thank you for holding this hearing. Water
is a critical issue in Arizona, especially for our 22 federally
recognized Tribes, and especially as this drought worsens. It
has been going on for now over 20 years.
I am really glad we have the opportunity to be joined today
by Brian Bennon from the Inter Tribal Council for Arizona, or
ITCA. Brian has worked for Tribes for nearly 30 years. I think
you have been with ITCA since 2010. In his role, he provides
training certification and technical assistance services for
drinking water and wastewater operating personnel, working with
Tribes in Arizona and throughout the western part of the United
States.
So I am really glad you could join us today, Brian. Thank
you, and thank you to the other folks for being here.
My first question is for Brian. As I noted, you have worked
with Tribes on tribal water issues for a long time. As Arizona
and much of the United States has struggled with these long
term drought conditions, the needs of tribal communities seem
to have changed over the length of your career.
Are the needs of tribal communities and tribal water
systems different now than they were 20 years ago? If so, can
you explain what the differences are?
Mr. Bennon. Senator Kelly, thank you very much for that
question.
Yes, I would say that they have changed, but they have
gotten more complex. A lot of the same issues exist that we had
decades ago, but there are now all kinds of factors.
Variability has directly increased in hydrology. We are working
with many Tribes on developing drought contingency plans and
looking at emergency response planning for the drinking water
and wastewater utilities, tribal utilities that we wouldn't
have expected to have these types of issues, for example,
Tribes in Alaska or Tribes in Montana, also Tribes in the
Southwest.
But this is starting to become a very complex, widespread
phenomenon of trying to develop resiliency. Of course, EPA has
the resiliency program for water and wastewater utilities.
Those resources are being utilized right now. But we have a lot
more work to do in Indian Country to help build resiliency.
Senator Kelly. Brian, I am curious, I was looking at the
poster board up here that says Native American households are
19 times more likely to lack indoor pipes for running water and
sanitation. That number, I might be wrong about this, that
actually struck me for Arizona as probably being low. I am
trying to get your sense, in the State of Arizona, what do you
think that number would be?
Mr. Bennon. Senator Kelly, this is a really tricky thing to
try to get numbers on. I can tell you first hand that we have
had many, many staff members come through ITCA and many
operators that we work with that personally have this situation
in their upbringing of not having plumbing in their homes as
they were growing up.
This is an issue of not only bringing pipes to the homes,
bringing these services, but also operations and maintenance.
These systems, once you build them, they need long term
sustainability of operations and maintenance. That is the key
issue that this panel is bringing forward today.
Senator Kelly. Last year, I spent some time with an Arizona
family who lacked running water in their home for decades.
Recently, through some programs they were able to get access to
running water in their home. It is such a challenge for Native
American communities in our State.
In the remaining time, are there any lessons learned that
some of the relevant Federal agencies like the EPA, maybe the
Indian Health Service, and others should learn to respond to
some of these changing needs of tribal communities?
Mr. Bennon. Senator Kelly, yes, I think one of the
recommendations that we have in our testimony is increased
coordination amongst the different Federal agencies. A lot of
entities or agencies are working on these problems, but there
seems to be a need for more communication and coordination
directly with Tribes and amongst the agencies themselves.
Senator Kelly. How do we make that happen?
Mr. Bennon. I think there are a couple of mechanisms
already in place. There has been the Federal Infrastructure
Task Force, which has been a great mechanism. But there is a
lack of tribal participation, tribal community participation in
that dialogue.
Then more on the local level, EPA and IHS have a model in
place of technical assistance providers coordination meetings.
They call them TAPs. These TAP meetings do happen in certain
areas, but there are other areas in Indian Country where TAPS
don't exist. And I think expansion of that model would be very
helpful for Indian Country.
Senator Kelly. Thank you.
Thank you, Mr. Chairman.
Senator Padilla. Thank you, Senator Kelly.
Senator Sullivan.
Senator Sullivan. Thank you, Mr. Chairman.
I want to thank the witnesses here. I am a big fan of our
Native American communities, Alaska Native communities. One
thing I always like to brag about for our Alaska Native and
Lower 48 Indian communities is the patriotism, special
patriotism. Alaska Natives and Lower 48 Indians serve at higher
rates in the military than any other ethnic group in the
country. That is very special.
So to all your members and tribal members, tell them thank
you. It is not noticed enough. It is remarkable, because let's
face it, during a lot of our country's history, our Native
people were discriminated against and all kinds of horrible
atrocities. Yet generation after generation, they step up and
serve America in the military. It is remarkable. So thank you
for that.
I also think it is outrageous that we have, whether it is
reservations or over 30 communities in Alaska that don't have
running water or flush toilets. The richest country in the
world, some of the most patriotic communities in the world, and
we can't get running water or flush toilets to them. So this is
a passion of mine. It is a passion of mine, especially in
Alaska, where we have so many communities, I was just out in a
number of our Alaska Native communities, rural communities that
don't have running water and flush toilets. We need to do more.
Can I just get very quickly from the witnesses your sense
on, is there enough funding to address these basic needs?
During COVID, they told many Alaska Native communities to wash
your hands five times a day. Oh, wait, you don't have running
water. How are you going to do that?
So what do you think the best way to do it is? I will just
ask each of the witnesses.
But I do want to make one other point, which I do a lot on
this Committee. There is a lot of discussion on racial justice,
environmental equity, the terms the Biden administration puts
out. Unfortunately, for my constituents who are indigenous,
there is a big asterisk with the Biden administration. It is
racial justice, environmental equity, but if you are an Alaska
Native, if you are an Alaska Native, this Administration is out
to get you.
I just sent a text, I hope the news picks up on it, to
Secretary Haaland. I have a group of Alaska Native leaders from
the North Slope of Alaska, elected leaders, they're tribal
leaders, Alaska Native Corporation leaders who have tried to
meet with Deb Haaland six different times. They fly 5,000 miles
to Washington, DC. She and the President are undertaking
policies that are devastating their region. North Slope, that
is the national petroleum reserve Alaska, ANWR. They never get
consulted. They are in town again. Six times Deb Haaland has
said, no, I am not going to meet with you.
So I have sent her a text saying, Madam Secretary, do the
right thing, damn it, and meet with my constituents, please.
Alaska Natives, please. OK? We will see what she does. Pretty
sure she is going to ignore them. Sorry, I had to vent on that.
But to the point on where we should be, what is the most
effective way, I know we have different Tribes, different
reservations, to make sure people get basic running water and
flush toilets? Is that to much to ask in America? I will go to
each of the witnesses.
Mr. Norton. I can start, thank you, Senator Sullivan.
As we heard before, the EPA just completed the drinking
water infrastructure needs assessment. That identified a need
of $4 billion.
Senator Sullivan. OK. For all of Indian Country?
Mr. Norton. For Indian Country, yes, including Alaska
Natives.
Senator Sullivan. Oh, OK. They think that would be enough
to get everybody running water and flush toilets?
Mr. Norton. The issue at hand is, providing access is one
part of the puzzle. Providing the sanitation and the drinking
water facilities. It is the operation and maintaining those
systems that is the difficulty.
Senator Sullivan. Oh, right.
Mr. Norton. So once you have a start of the facility, do
you have the operators, do you have the people to maintain
those? And the American public significantly put their
investment into these systems. And we as Native people want to
make sure they are operated over a long period of time, and
serve our communities.
Senator Sullivan. Does the $4 billion cover that, or is
that in addition?
Mr. Norton. I believe it is a, it only deals with the
construction.
Senator Sullivan. OK, right.
Mr. Norton. It doesn't deal with the operation and
maintenance component.
Senator Sullivan. OK. Thank you. That operation and
maintenance issue is a giant issue we see in Alaska all the
time.
Mr. Bennon. Senator Sullivan, this is a very interesting
situation that Alaska Natives have. We have been providing
training courses, this gets back to the operations and
maintenance side of things. Operators need to get trained, and
then they go through the certification process. The trainings
that we have had for Alaska Native villages have been some of
the most heavily attended, standing room only, types of
situations. The scenarios that were described by the operators
were remarkable, having literally sled dogs and snowmobiles to
get to the various communities.
I understand that the engineering side of things is very
unique and specialized. But the situations are the same.
Infrastructure construction, the dollar amounts I have no idea.
But it is going to be very expensive. And then to maintain
those systems, operations and maintenance.
So the process is all the same. It is just, is it being
addressed adequately for Alaska Natives? I suspect definitely
not.
Senator Sullivan. No, it is not. It is not. Thank you.
Ms. WallowingBull.
Ms. WallowingBull. Senator Sullivan, I agree with my
colleagues here. The operation and maintenance has always been
an issue. We face the same thing. I stated in my testimony, all
of our water and sewer are not certified. So we face those same
issues.
But I don't think, just looking at when you were mentioning
dollars, I know that we did a cost estimate for our systems
alone. We have two systems, with three water systems and five
lagoons, which is totally different from all the other
reservations.
Just the cost estimate for 2017 was $30 million. That has
tripled now. But that wasn't just for fixing what we think
needs to be fixed, because our system is not uniform. Our
lines, as we said, are undersized, but we go from a 4 inch to
12 inch. It is not a uniform system.
So we, the supplies we need, we have to go 2 hours away,
because our local businesses do not carry any of the supplies
to fix our pipelines anymore.
Senator Sullivan. Every place is unique. But to me, Mr.
Chairman, this is an issue that I think should unite Democrats
and Republicans on getting our First Peoples the ability to
have clean water. It shouldn't be that hard.
So I am a big advocate for this, particularly in my State.
But in all the reservations in America, again, some of the most
patriotic Americans in the country have to use honey buckets,
what we call honey buckets in Alaska. Well, they are not sweet
smelling, I will tell you that.
So we will keep working this. I appreciate the witnesses
being here on a really important topic for my State, certainly.
Thank you, Mr. Chairman.
Senator Padilla. Thank you, Senator Sullivan. I appreciate
your comments. I am sensing bipartisan support building for
this effort to prioritize investing in operations and
maintenance, not just the initial construction. It only makes
sense for the Federal Government to financially support the
longer term viability of significant initial investments.
I want to ask some additional questions on some additional
issues. I want to turn back to work force and work force
development. Last week, the EPA released its seventh Drinking
Water Infrastructure Needs Survey and Assessment in which
State, local, and tribal water systems reported that hiring
difficulties will increase over the next decade. I think we
have already acknowledged the current challenges. These
difficulties will increase over the next decade. Small water
systems specifically cited their inability to hire full time
employees and offer competitive benefits.
We know that this is a national challenge. We also know
that tribal water systems face their own unique issues with
work force and credentialing.
Mr. Norton, you were asked about this earlier, so I will
afford Mr. Bennon and Ms. WallowingBull an opportunity to weigh
in here.
We will start with you, Ms. WallowingBull. Can you speak to
the unique challenges of hiring and retaining staff?
Ms. WallowingBull. Yes. As I stated, we have six water and
wastewater operators. It is a different, demanding job for our
systems, because we have water breaks every week. The rigorous
hours and the demand, once somebody in our system is without
water, it is complete chaos.
As I said, our system is not uniform. So when we have a
water break, half of the town is out, because we can't isolate
fixing that water break. It is always, once there is a water
break, a big part of the community is going to be without
water.
It is hard finding those dedicated individuals, especially
within our community, to want to become certified, just because
of the backlash they do get for just not being able to provide,
especially when there are water breaks, it is always an issue.
We are working with Wyoming Rural Water on an
apprenticeship program to start certifying more of our water
operators. So they are committed to a 2 year program to become
level one certification. So that is a positive step forward for
our community and Wyoming Rural Water. That is something we are
working on right now. They haven't started it yet, but that is
something new.
Senator Padilla. Good. I do have questions about
certification. That is an important piece here.
First, I want to ask Mr. Bennon to chime in. Do you have
any suggested strategies for increasing the number and the work
force, number of operators needed to run these systems?
Mr. Bennon. Chairman Padilla, yes, thank you very much for
this question.
I recommend a three pronged approach. The first is, you
have to have viable wages and benefits at a utility to attract
the talent that is needed to operate these systems. The only
way to do that is to have financial viability for operations
and maintenance. Because that is where the salaries are
supported to have the finances for the utility. That is No. 1.
The second is, and it is not just specific to Indian
Country, this is for the entire water industry in general. We
have to have a top down and a bottom up approach of changing
perceptions about the important role of the water operators. So
many people just take it for granted, we turn on the tap or use
the restroom, it just happens. Nobody understands that there
are teams of people, or should be teams of people working
behind the scenes to make that happen.
So we are talking about public service announcements,
getting the general public, getting decisionmakers to
understand that very important role of these men and women that
operate the water systems.
Then the third point goes back to the fundamentals,
operator certification. We really need to take another look at
the credentialing industry. It is kind of a mixed bag across
the country of the way primacy agencies handle it. There is a
lack of consistency. But we are seeing, unfortunately, the
Inter Tribal Council of Arizona, the operator certification
program, the passing rates for the certification exams are
dropping. The exams get more and more complex as the industry
gets more complex.
We are dealing with individuals entering into this work
field that, some of them have college degrees but most of them
have just high school or GEDs. You look at the Department of
Labor competency model for water and wastewater operators,
there is this pyramid with all these bricks of all those
domains of knowledge. It is astonishing what they have to know,
what is on the certification exams. Then the years of
experience of putting it into practice.
We have to be careful with where the barriers are. We want
folks to enter into this career field. And if there are too
many barriers in place, which I think they are, maybe we should
look at it again. I think the infrastructure task force is a
great starting point for looking at that.
Senator Padilla. Thank you.
Ms. WallowingBull referenced being on the verge of a
partnership between Tribes and other water agencies in Wyoming.
There is both official and unofficial in California.
Mr. Bennon, can you tell us why there are no Federal
guidelines for tribal wastewater operator certification?
Mr. Bennon. Chairman Padilla, I couldn't tell you the
reason why. I can tell you that it doesn't exist. I know that
EPA is aware of the situation and that there needs to be some
desire or will or impetus to create such a thing like exists in
drinking water. For Indian Country, we don't have such
guidance. What that means is we don't have a way of classifying
wastewater infrastructure. It begins with classifying the
facility, and then the level determines what level of
certification is needed.
That doesn't exist right now. We don't have methodologies
for operator certification for wastewater. And that needs to be
created.
Senator Padilla. So yes or no, would there be value in
establishing that?
Mr. Bennon. Absolutely, it is needed.
Senator Padilla. Is it an ``and'' or an ``or'' value added
by reciprocity of certification between different States to
help tribal systems?
Mr. Bennon. Reciprocity is the process of equivalency from
one jurisdiction to another. So because tribal boundaries don't
coincide with State boundaries, we do have operators where this
is a very significant situation.
Career mobility, we talk about operators leaving to take
careers elsewhere, but the fundamental issue of reciprocity for
tribal operators is who is the primacy agency for their
facility, and what regulations are applicable for their
utility. That is what there is a lot of, it is gray. Nobody
really, it is hard to figure that out, especially when primacy
agencies have varying degrees of regulations.
So figuring out what regulations are applicable to their
utility and what type of training and certification is needed,
that is where reciprocity comes in. Having a clear distinction
about the primacy agencies and regulations that are applicable
to them, that is the issue.
Senator Padilla. Thank you.
We have spent time on the need to invest in operations and
maintenance. We have talked about some of the work force
difficulties and challenges. I want to spend a few minutes
talking about water quality. A statistic that many of us are
focused on today is that Native American households are 19
times more likely than white households to lack indoor
plumbing. It is so shocking, we made a poster.
But the reality is that even this devastating statistic
doesn't capture water quality, whether that indoor plumbing is
actually delivering clean, safe drinking water and water for
sanitation.
Mr. Norton, your written testimony notes that health based
drinking water violation rates for tribal water facilities are
higher than the rates for water systems regulated by States.
Why is that? And what can we do to improve not only water
access, but also water quality in tribal systems?
Mr. Norton. Thank you for the question, Senator Padilla.
It comes down to having experience and certified operators.
And what we see in Indian Country is the difficulty of
maintaining these operators over time, longevity. Our State
counterparts, they have multiple operators that specialize in
certain aspects of the drinking water facility and the
wastewater facility. What we have in Indian Country is an
operator that wears multiple hats. It has to do multiple tasks
at multiple times. When this operator is down or has to do
other personal business, the utility suffers, or the person
leaves due to salary inequalities.
And the replacement, what we see in Indian Country when we
replace the immediate need and addressing those health based
violations, Tribes are forced to hire consultants at at least
four times, three times or four times the cost, Senator. It is
another burden on the Tribe that is unable to pay for the
operation and maintenance. And it can't be passed on to the
consumer.
Those are probably the main reasons why we start seeing
health based violations in Indian Country. It has to do with
the operation and maintenance of those facilities.
Senator Padilla. Thank you.
Mr. Bennon, I see you are nodding quite a bit. Is there
anything you would like to add?
Mr. Bennon. Chairman Padilla, yes. Definitely operations
and maintenance is a major contributing factor. Most operators
understand that it is all about protecting public health. It is
the No. 1 priority mission of being a water and wastewater
operator.
The issue also is that these are designed to protect public
health, but they are very complicated and take years to
understand. So things are not helped when the certification
process does not cover or does not measure operators' knowledge
of the regulations. And it falls on local jurisdictions to
measure that.
ITCA just got through the process of creating an assessment
for tribal operators on the regulations that EPA implements on
reservation lands. And the only way we could do it is to have
the regulations at the fingertips of the operators on
electronic tablets that they take out into the field. You can
do a word search. If you were to print these things out, we
tried, it is over 2,500 pages. But to have that as a tool for
the operators is something that we just started this year. We
are hoping over time this will start to help.
Senator Padilla. Question for you. Is there something about
the nature, the fundamental nature of the different types of
water agencies that impacts for better or worse access to safe,
clean drinking water by the different types of agencies, tribal
versus other public versus private water systems?
Mr. Bennon. Yes, Chairman Padilla. The 1,044 public water
systems in Indian Country, according to EPA's data base, the
majority are tribally owned but there are significant numbers
also that have different types of ownership. We see differences
according to the different types of ownership. For example, the
casinos, they have a lot of resources. So we see well staffed,
well operated utilities.
On the other side of things, we see these public-private,
public water systems at schools, whether they are tribally
controlled schools or federally controlled schools. But a lot
of these schools in these very geographically remote locations
have their own water systems. Those are the ones that have very
limited resources. They are typically, the operators are
typically the custodial staff of the school, and they are
handling the maintenance of the grounds and everything. And
they have practically no budgets whatsoever.
We see huge needs there. We see private enterprises in
Indian Country that have water systems, such as mobile home
parks and that type of thing. And we do see very significant
issues with some of those types of ownership, public water
systems.
Senator Padilla. Thank you.
There are a few more issues I would like to cover, but in
the interest of time, we will also offer questions for the
record after the hearing and provide some time for you to
respond.
The last issue I do want to raise for today has to do with
water affordability. Different than access and quality,
affordability. I mentioned earlier that in the first
Subcommittee hearing, we focused on the issue of water
affordability and small water system assistance, because unlike
other forms of infrastructure, like bridges and roads, clean
drinking water isn't primarily funded by taxes. Instead, more
than 90 percent of the average utility's revenues comes
directly from ratepayers.
But unlike State and local governments, who can also use
tax revenue to supplement revenue from water bills, tribal
governments don't have such a tax base and instead rely on
essential government services like drinking water and
wastewater for Federal support.
Mr. Bennon, your written testimony notes that over 90
percent of tribal public water systems are classified as small
or very small systems, serving 3,300 or fewer customers. So not
a big customer base to spread capital costs across. This
obviously presents challenges when structuring rates.
How helpful would a permanent water rate assistance program
be, whether it be LIHWAP or an EPA program?
Mr. Bennon. Mr. Chairman, the need for some type of a
subsidy to help bridge this gap, where the scales of economy of
the water utility model starts to fail, there needs to be some
type of funding mechanism to help utilities bridge that
difference there.
The LIHWAP program has been hugely successful, but focuses
narrowly just on the one aspect of the utility revenues, and
that is the ratepayer. So if you have a very small population,
trying to figure out where that sweet spot is of setting the
rates to cover all the costs, we do have technical assistance
support out there to help utilities do that.
But my suggestion is that there should be another funding
mechanism to bridge that difference, to work hand in hand with
LIHWAP, but also primarily looking at the very technical side
of things, not the economics so much side of things of the
customer, but of what the community and the utility unique
needs are.
It is a very technical process of establishing rate
structure. There is definitely a need for an additional funding
mechanism to assist small, rural Tribes with that.
Senator Padilla. Ms. WallowingBull, will you share a little
bit about your utility's experience with LIHWAP, and whether
you think Congress should fund a permanent water rate
assistance program?
Ms. WallowingBull. Chairman Padilla, yes. Actually we
received LIHWAP funding for water assistance this year, or last
year. I know it has been a big thing for our Tribe. Our water
billing currently is not in a great situation. Our water
billing system is not enforced, so it is difficult to get
everybody on the system. We are a flat rate, but even if
everybody was to pay, that wouldn't even sustain our system. It
would just cover the operation, barely. It wouldn't even
supplement salaries or anything else.
So the operation and maintenance is continuously an issue.
But the LIHWAP actually did assist a lot of individuals, as the
funding goes back to the Tribe, which helps us. So I think
continuously providing that funding would be beneficial. We
also, because we are billing, and we work with USDA Rural
Development, they also have a program that assists with low
income for water bills.
Senator Padilla. Thank you.
Mr. Norton.
Mr. Norton. Thank you.
The LIHWAP program was very successful for the Hoopa Valley
Indian Reservation. It was based upon an annual income and the
majority of the annual income in Hoopa is below poverty level
at 80 percent.
Having the LIHWAP program continue is essential in our
Native American communities. As my colleague Mr. Bennon pointed
out, if we can bridge that gap somehow where we can have the
assistance of these to the ratepayer and then have the
assistance from the Indian Health Service through their statute
of O&M and helping offset those costs, it would be a mutually
acceptable program that the Tribes would embrace.
Senator Padilla. Wonderful.
Before we conclude the hearing, I do want to take a moment
to once again thank Chairman Carper and Ranking Member Capito
and the Subcommittee Ranking Member Lummis for making today's
hearing possible. I appreciate the efforts of our collective
staff as well.
I especially want to thank our witness for your thoughtful
testimony and your ongoing efforts to improve the state of
tribal water in this country. As I mentioned earlier, today's
hearing is about more than just the transformational
investments we are making in water infrastructure. It is about
fulfilling our Federal trust responsibilities to Tribes that
deserve a guarantee from the Federal Government to a safe,
healthy, and prosperous life. Those responsibilities don't end
after the enactment of one historic infrastructure bill, and
they are not fulfilled by periodic check ins just to say we
have done our job. This is a constant and growing nation to
nation relationship that goes both ways.
And yes, we have a moral responsibility to continue to
serve Native American Tribes who were forcibly displaced from
their homelands. I want to make clear for folks back home: The
problems discussed today, this isn't a matter of technical
infrastructure jargon or policy speak. This is about making
sure that a parent in Indian Country can turn on the tap and
not fear they will get their child sick by giving them a glass
of water, to making sure a family on a reservation doesn't have
to conserve every last drop of water to bathe themselves
because they are not sure when the next shipment of water will
come in. It is about making sure an entire community doesn't
have to worry about one lightning strike or one burst pipe or
extreme weather, what that could mean to the loss of all clean
water. And of course, for countless Native Americans, it is
about knowing that the U.S. Government values you and your
family's health enough to invest in the resources that will
keep you safe.
So I take this responsibility seriously, and clearly, with
multiple hearings this week and next, the U.S. Senate is
demonstrating that we all take this issue seriously.
Now it is time to move beyond the initial excitement over
an influx of funding to tribal communities through the
Bipartisan Infrastructure Law and follow it up to make sure it
is accessible and implemented thoughtfully. Because we have got
to make sure we are making long term, sustained investments in
water systems throughout the country.
Once again, I thank our witnesses today for helping us to
better understand some of the potential next steps we can take
to bolster tribal communities' water systems. As Mr. Norton
pointed out, that could include directing the EPA and the
Indian Health Service to evaluate the specific needs of all
tribal public water systems to determine what it would take to
fund a Federal operations and maintenance program. Or as Mr.
Bennon pointed out, that could include improving work force
development, so that Tribes have access to water and wastewater
system operators that can provide safe drinking water and
adequate sanitation services.
And as I called for in the first Subcommittee hearing, we
need to fund a permanent water rate assistance program akin to
LIHEAP for energy assistance to ensure that Native American
households can afford water bills. We need a whole of
government approach to fully funding Federal programs related
to tribal drinking water and wastewater, including the programs
in the Bipartisan Infrastructure Law that we authorized but
didn't fund.
So I look forward to advancing legislation in the months
ahead that lives up to our trust responsibility to provide
clean water throughout Indian Country. I want to thank you all
again for being here. I look forward to the follow up.
With that, this hearing is adjourned.
[Whereupon, at 4:02 p.m., the hearing was adjourned.]
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