Witness Panel 2

• Jim T. Dunlap

  Mr.

  Read statement

  Witness Panel 2

  Jim T. Dunlap

  Statement of Jim Dunlap

  on behalf of the

  New Mexico Rural Water Association

  Upper La Plata Water Users, and the

  National Rural Water Association

  before the Committee on Energy and Natural Resource

  U.S. Senate, Washington, DC

  May 11, 2005

  __________________________________

   

  Mr. Chairman, Members of the Committee - my name is Jim Dunlap, I am President of the Upper La Plata Water District in New Mexico.  I am a rancher, farm equipment business owner and I am currently the Chairman of the Interstate Stream Commission for the state of New Mexico.  All of these organizations and every state rural water association join me in thanking you and this Committee for your support for rural and small communities in our efforts to improve and protect our drinking water – and for the opportunity to testify before the Committee on your bill; S. 895.

   

  Before discussing the details of the bill, let me say how happy I am to have New Mexico’s two Senators, with separate party affiliations, holding the chair and ranking positions on this Committee - working to better rural America’s water and looking at the Bureau as an agency to do it.  I may be out of my league on how to express my appreciation to both of you simultaneously, but it is an understatement to say all of rural New Mexico and all rural Americans are very appreciative for your efforts.  In addition to being supportive of the legislation, I am also relieved that Senators Domenici and Bingaman worked out their differences in their bills from last year – before having me here on the record to testify.

   

  Many western rural areas have never had adequate water supplies and have a need for a reliable water supply to attract and maintain rural economic and public health.  The nexus of three trends or realities is resulting in a problem that merits additional federal water development assistance.  These realities include: many U.S. rural households don’t have decent, if any water service.  Second, that unfunded mandates disproportionately impact rural households and these mandates are increasing.  The third is quantity – many rural areas in the west never had adequate water supplies.  Expanding the Bureau’s mission to develop rural water supplies is the right step toward a solution to the water problems facing the rural west.  To broaden the scope of the Bureau to drinking water is a bold and dramatic new initiative for western American – and one that is sincerely supported and welcomed by rural communities and families.  Here to fore, the Bureau of Reclamation has made water development, and the corollary human progress, of western American one of the unique enterprises of modern civilization; reordering the understating of society’s interaction with its natural environmental. 

   

  Senators Domemici and Bingaman are now compelled to try to evolve the Bureau into meeting the west’s future rural water supply needs.  Currently there is no governmental instrument assessing the long-term needs and planning of western states’ rural water supply.  This is happening at the same time that development is advancing in many western states.  If we want to “do it right” – be the most effective, far-sighted, and at the same time limit and unintended consequences – we need the comprehensive, long-term and locally supported planning effort that is proposed in S. 895.  Such a new direction for the Bureau will result in improvements for western rural water supplies in the coming decades that will compare to the Bureau’s historical advances in water development for energy, agriculture and commercial development.

   

  Mr. Chairman, allow me to give you a brief example of what is commonplace in the west.  I am currently working to develop a means to regionalize the growing city of Durango, Colorado and 2 large unincorporated areas, one in Colorado and one adjacent to it in New Mexico.  Residents of both of these rural areas (one up on Red Mesa) are either hauling water or have an extremely limited supply.  That’s right, they fill up their trucks to drive (haul) water to their houses to drink and use for cooking.  Due to the complexity and variety of the problems in each of these communities – the only real solution is a regional cooperative effort.  In this example, it is critical to note that the unused municipal and industrial water rights held by the Conservancy District could be used by the other communities if there was a large distribution system to move the drinking water.  This is just the type of situation that could be solved by your legislation.

   

  One of the main concerns in our testimony last year was to include an independent process of submitting projects to the Bureau to serve as an incentive for timely analysis and completion of projects.  I would like to thank the authors for including such a provision in the bill.  My written testimony includes a few suggestions for enhancing the legislation including technical assistance, independent engineering, annexation protection, etc.  However they are minor and should prove to be non-controversial.  I will only briefly mention them here to put them into the record - not diverting attention away from our overwhelming support and appreciation of this legislation.

   

  I would like to acknowledge that small and rural communities sincerely appreciate the thought that went into the bill.  If this legislation is enacted, the Bureau will come to be known as a solution to immediate and long-term western rural water challenges.  We will see dramatic public health improvements; farm families receiving clean water for the first time, entire regions that have been out of compliance with drinking water regulations for years developing solutions, and intractable western water arguments being settled with communities moving forward.  We encourage the committee and the Congress to make the Bureau a permanent and recognized solution to some of the county’s most challenging water issues. 

   

  Mr. Chairman, I strongly support the objective of having the Bureau fund more rural water development.  The key points I want to make today with regard S.895 are:

   

  • There is a great need for public health, economic viability, and compliance for additional financial resources for rural water development.
  • In certain circumstances, it is more cost-effective to develop large region water supplies as opposed to multiple local supplies.
  • The Bureau of Reclamation should get into rural water development as they have a unique mission not accomplished by other federal agencies (namely the U.S. Department of Agriculture and the U.S. Environmental Protection Agency).
  • The unique situation of rural communities should make them the priority for federal assistance for drinking water.
  • We support the bill’s provision for a local or independent process that could determine cost, feasibility, coordination and planning in the legislation.
  • Due to the unique federal mission proposed in the bill, any new water initiative within the Bureau of Reclamation should include significant annual appropriations – comparable to EPA’s approximately $800 million state revolving fund and USDA’s approximately $700 million loan and grant effort.
  • The west has changed since the passage of the original authorizing statutes for the Bureau of Reclamation.  Currently we are faced with new challenges including the growing need for municipal and industrial (M&I) water.  We may need to modify the mission of the Bureau and its ability to assist in providing M&I water.

   

  There is a great need for public health, economic viability, and compliance for additional financial resources for rural water development.

   

  The nexus of federal unfunded mandates, the fact that many rural areas have never had adequate water supplies, the shortage of local water supplies in the west, and need for a reliable water supply to attract and maintain any rural economic health reflects the great need for additional rural water development.

   

  According to the USDA at least 2.2 million rural Americans live with critical quality and accessibility problems with their drinking water, including an estimated 730,000 people who have no running water in their homes (USDA study available on the internet at www.ruralwater.org/water2000.pdf).  About five million more rural residents are affected by less critical, but still significant, water problems, as defined by the federal Safe Drinking Water Act. These problems include undersized or poorly protected water sources, a lack of adequate storage facilities, and antiquated distribution systems.  Today, many rural families are still hauling water to their homes and farms.  In La Plata County, Colorado – an area near my home that we are trying to organize into a rural water district, lack of water is forcing hundreds of families to haul water for their home use and their livestock.  Their wells and springs are drying up due to the drought.  The results of the U.S. Department of Agriculture’s (USDA) six-month assessment of the nation’s most critical safe drinking water investment needs show that as many as eight million people have critical or serious drinking water quality problems.  According to the 1990 Census, there are about 1.1 million people without indoor plumbing (RUS).

   

  Rural Americans have been living with inadequate water conditions that large communities could never imagine.  For example: the Village of Hatch, New Mexico is located on the west side of the Rio Grande River in Dona Ana County.  The County, in southern New Mexico borders both the State of Texas and the Republic of Mexico.  Hatch is in northern Dona Ana County approximately 40 miles north of Las Cruces, the county seat and a community of over 130,000.  The large metropolitan area of El Paso, TX – Juarez, Mexico lies 80 miles to the south.

   

  Hatch is an incorporated community with a population of 1,136.  However, due to the seasonal nature of agriculture, the main economic base, the population fluctuates as migrant laborers move in and out.  The Village operates a community water system serving the Village and outlying rural areas including approximately 799 residents residing in the two “Colonias” known as Rodey and Placitas.  The total population served by the water system is estimated at 2500.  More than 75% of the population consists of minorities, primarily Hispanics.  Projected population in the service area by the year 2010 is 3570.  There is one health clinic, funded by the former Farmers Home Administration, two grocery stores, seven restaurants, a post office, two bank branch offices, two convenience stores, one motel, one public laundry, and several other retail and service-related businesses.  Average income is extremely low as the 1990 census shows a Median Household Income (MHI) of $12,975, well below the National Poverty Line of $16,050.  The New Mexico Statewide Non-Metropolitan MHI is $21,656.

   

  Rural Utilities Service (RUS) recently funded a water system improvements project to add additional storage capacity and run transmission lines directly from the storage tanks site to Placitas and Rodey.  Before this project, water ran from the tanks to Hatch’s distribution system, and then back uphill to the two Colonias.  During summer peak usage, the Colonias experienced zero water pressure.  The RUS project corrected this situation.  Hatch, along with the Colonias, received the direct benefit of the additional storage.

   

  Small communities are often in the greatest need, lacking the technical resources to comply with federal mandates because of their limited economies of scale and lack of technical expertise. Of the approximately 54,000 community water systems in the country, more than 50,000 serve populations under 10,000.  Due to a lack of economies of scale, small-town consumers often pay high water and sewer rates. Water bills of more than $50 per month are not uncommon in rural areas. At the same time, the rural areas have a greater percentage of poverty and lower median household income.  This results in a very high compliance cost per household in rural systems coupled with an increased inability to pay.

   

  Drinking water regulatory requirements affecting small drinking water systems have steadily increased since enactment of the Safe Drinking Water Act (SDWA) in 1974.  Not only has the number of regulated contaminants increased, but regulations have also increased in complexity.  Small communities are facing a compounding effect from each new regulation implemented by EPA.  That is, compliance with one particular regulation may be much more difficult as a result of one or more prior regulations, or one or more future regulations.  Currently, National Primary Drinking Water Regulations are set for 92 contaminants. These include turbidity, 8 microbials or indicator organisms, 4 radionuclides, 19 inorganic contaminants, and 60 organic contaminants. Maximum contaminant levels have been set for 83 contaminants and 9 contaminants have treatment technique requirements.  EPA is currently in the process of developing new regulations as required by the SDWA including Long-Term 1 Enhanced Surface Water Treatment Rule, Long-Term 2, Ground Water Rule, Arsenic, Radon, Stage 2 Disinfection Byproducts, and Candidate Contaminant List.  The EPA list of communities that are likely to be out of compliance with the arsenic rule can be found on the internet at: www.ruralwater.org/arsenicus.xls

   

  In certain circumstances, it is more cost-effective to develop large region water supplies as opposed to multiple local supplies.

   

  The reason -- that over 9 out of every 10 U.S. water supplies serve populations under 10,000 people -- it has historically been more economical to build smaller utilities than expand larger ones.  The cost of running main lines a few miles can be cost prohibitive.  However, in certain circumstances, it is more cost effective (especially over the long-term) to build larger or region water supplies.  The factors that are used in making these complex decisions include future regulations which may require centralized treatment, the need to share one supply that may be far from many of the communities, the need for a distribution system to share water rights, projected growth, economic planning, etc. 

   

  For example, the regional Rocky Boys rural water supply, authorized by Congress for Bureau construction will allow many smaller communities to comply with the EPA’s Surface Water Treatment Rule which they can’t afford on their own, it will ensure long-term supply to numerous communities that currently lack quality supplies, it will provide an economy of scale for future regulations like disinfection by-products, and it will ensure the necessary infrastructure for those local economies.

   

  Another example is the Navajo-Gallup pipeline project in New Mexico.  This is a project to supply much needed drinking water to the Navajo Reservation, parts of the Jicarilla Apache Indian Reservation and to the city of Gallup.  This will involve 41 Chapters in New Mexico and two Chapters in Arizona (a Chapter is similar to county government).  It will involve a population of some 98,000 people utilizing 38,000 acre-feet of surface water and 4,000 acre-feet of ground water.  The project will start from Farmington, NM with a 48-inch pipeline and extend to the community called Yah Ta Hey, which is adjacent to the City of Gallup.  This pipeline will be approximately 520,000 feet with laterals to Window Rock, Arizona and Crownpoint, New Mexico, with lateral extensions of 388,000 feet.  There will be a separate lateral extending from Cutter Dam to Pueblo Contado and Ojo Encino.  This lateral will be approximately 400,000 feet in length.

   

  The Bureau of Reclamation should get into rural water development as they have a unique mission not accomplished by other federal agencies (namely the U.S. Department of Agriculture and the U.S. Environmental Protection Agency).

   

  In the New Mexico-Colorado example provided in the previous section, there is no federal or state agency with the mission of looking at this type of project.  We are organizing the parties as an ad hoc project and using local funds to do the planning.  This project includes two states, multiple communities, conservancy districts, and unincorporated areas.  Such a project does not fall within the USDA’s rural water program guidelines for area and density of users.  The list of communities funded last year by USDA is available on the internet at www.ruralwater.org/report2003.  This program is truly the most successful rural public health and economic development program in the country.  It was the reason piped water came to my community in 1966.   It needs to be continued and funding needs to be increased, however, it has its own mission and it currently cannot meet the demands of the communities that fit into its guidelines.  I believe S. 895 creates a new federal agency mission to assess and fund the type of project needed in New Mexico-Colorado and the rest of the western states.  If projects would better fit in the USDA program or the EPA program then they should be referred to those agencies.   However, it is clear to us working in the western states that there currently is no program to meet many of these pressing water problems.

   

  The unique situation of rural communities should make them the priority for federal assistance for drinking water.

   

  Many water organizations have been petitioning Congress for additional water infrastructure funding through increased authorizations and appropriations in EPA and the Bureau.  However, rural communities face greater economic and often greater public health needs than most of these organizations.  No large community consumer pays $100.00 a month for drinking water service.  However, in the western states, this is not uncommon in rural districts.  Also, compliance costs are typically much higher in smaller utilities.  For example, Desert Sands water district in Anthony, New Mexico formed a water association more than two decades ago that finally provided clean water.  However, to comply with the new arsenic rule, their estimates show customers' monthly water bills would at least triple under the new standard.  The average bill last July was $32.18 per household.  An Associated Press article (www.ruralwater.org/desartsands.htm) showed that one of the district’s wells contained arsenic at 10.4 ppb and that “many Desert Sands customers are factory or farm workers who live in wind-beaten mobile homes or modest frame houses on small, sandy, treeless lots separated by rickety metal fences. The sand that blows across the flat desert is deep enough in some of the area's unpaved roads for cars to get stuck.”  Affording a rate increase of three fold will be dramatic to say the least.

   

  The bill recognizes this unique situation of rural America and the cost of providing safe water service.  We are grateful for this recognition and the bill’s attempt to ameliorate this situation.

   

  Please retain the bill’s local or independent process that could determine cost, feasibility, coordination and planning in the legislation

   

  S. 895 provides for a new authorization for the Bureau to study opportunities to construct rural water projects and report back to Congress on feasible projects for funding – through the Congressional appropriations process.  We think this is the proper way to try to identity feasible projects.  Also, we support the authorization of a new process that would act as an incentive for the Bureau to develop cost-effective projects in a timely manner.  This option for local advocacy would serve as an incentive for the Bureau to work cooperatively with the locals.  If the local organizations and the Bureau had different options on which projects were feasible and how they should be designed, Congress could be provided both options – and the Bureau would be able to comment on any local plan/study submitted to Congress.  This would also serve as an incentive to move projects through the process in a timely manner.

   

  Any new initiative within the Bureau of Reclamation should include significant annual appropriations.

   

  Thank you Senator Domenici and Senator Bingaman for introducing this bill.  Rural America is grateful.  I appreciate the details and thought that went into S. 895 that seeks to find the best ways to divide up the intergovernmental responsibilities to plan, design, build, and fund public drinking water supplies under the federal umbrella.  I have over 30 years of experience dealing with the various levels of government and the various federal funding agencies.  I have learned that it can be a long, complicated and bureaucratic process.  We support the effort to craft legislation that will allow the Bureau to fund the water supplies that evolve from the studies and assessments.  The main ingredient in a successful Bureau of Reclamation drinking water initiative will be a commitment from the federal government to a significant amount of annual appropriations.  When communities see funding available to solve their compliance, supply, and rural public health needs – they will put it to sound use immediately.  The agency will come to be known as a solution to immediate and long-term water challenges.  We will see dramatic public health improvements; farm families receiving clean water for the first time, entire regions that have been out of compliance for years developing solutions, and intractable western water arguments being settled with communities moving forward.  This has happened under the Bureau’s direction in ad hoc manners in some western states.  We encourage the committee to change this and make the Bureau a permanent and recognized solution to some of the county’s most challenging water issues by establishing an authorization for annual funding comparable to the USDA and EPA. 

   

  Background on State Rural Water Associations

   

  Each state rural water association membership is comprised of small non-profit water systems and small towns. All members have water supply operations as their primary daily activity. Membership averages about 400-500 communities per state, with systems from all geographic areas of each state. These are active members - who continuously participate in the training and technical assistance program in an effort to improve their drinking water. This program actively assists all small water systems whether they are members of the state association or not. With a significant turnover in water operators and board members - and the ever-increasing regulatory burden - the need for training and technical assistance remains constant.  The problem with delivering safe drinking water is that improving drinking water in small communities is more of a RESOURCE problem than a REGULATORY problem. Every community wants to provide safe water and meet all drinking water standards. After all, local water systems are operated by people whose families drink the water every day, who are locally elected by their community, and who know, first-hand, how much their community can afford. Without the support of local people, regulations alone won't protect drinking water.  Many small communities rely on volunteers or part-time administrators to operate their local water supplies.

   

  In my personal experience, two teachers, four farmers, one banker, and a group of kids from the Future Farmers of America acted locally to bring the first piped drinking water to my part of San Juan County in 1966. I was one of the two teachers. The community had been relying on ground water from individual shallow wells contaminated with minerals, oil, and methane gas for their farms and some household uses. Safe water used for drinking needed to be hauled in from town. We organized the 175 families in the area to incorporate a small rural water system and accept responsibility for repaying a 420 thousand-dollar start up loan from the U.S. Department of Agriculture's Farmers' Home Administration. At that time we did not have enough people to meet the threshold for population density to repay a loan, so a few of us accepted more than one water meter on our property. It was all the community could do to make the payments on the loans and the operations and maintenance of the systems was taken care of by community volunteers. Today, we have over 2,500 families on the system that has allowed for economic development in the area with over 100 new taxable businesses.

• The Honorable David Lansford

  Eastern New Mexico Rural Water Authority

  Read statement

  Witness Panel 2

  The Honorable David Lansford

  US Senate Committee on Energy and Natural Resources

  Dirksen Senate Office Building, SD-366, May 11, 2005

  Mayor David Lansford’s Testimony

  THANK YOU for the opportunity to appear before you today to comment on Senate Bill 895, the "Rural

  Water Supply Act of 2005".

  My name is David Lansford. I am the Mayor of Clovis, New Mexico, and serve as the Chairman of the

  Eastern NM Rural Water Authority. With me this morning is Orlando Ortega, Mayor of the City of

  Portales, NM, and Vice Chairman of the Water Authority.

  We consider it an honor to be afforded the opportunity to participate in this dialogue.

  Before I continue on with my prepared statement, I would like to make a general comment regarding the

  essence and the significance of the legislation. I believe that this bill is pioneering legislation because it

  lays the groundwork and provides a mechanism for rural economic sustainability and expansion in the

  western United States. Rural communities are eager for growth and are the destination for many in our

  country who are seeking less congestion, less crime and a more traditional lifestyle.

  Some sociologists see a third migratory shift in America. Couple this migration with the natural increase

  in population and we have an enormous opportunity and responsibility all in one. This legislation shows

  great leadership on the part of the U.S. Senate and in years to come will be recognized as the key

  legislation which allowed for economic growth, better quality of life and the tool that eased the burden on

  government services in the population dense cities of our country. I'm more than convinced that countless

  millions will benefit both directly and indirectly from this historic legislation.

  We have taken the opportunity to review SB.895, particularly as it relates to our ongoing efforts in New

  Mexico, and offer the following comments:

  As you know, we are working diligently towards the development of a rural regional water supply project

  for twelve communities and counties in eastern NM, and have been doing so for over six years. In many

  respects, our project closely fits the model envisioned by this legislation. We recognize the need for a

  rural water program and strongly support its implementation.

  Projects like this involve many players. We are fortunate to have a federal partner in the Bureau of

  Reclamation, and the NM Interstate Stream Commission and NM Water Trust Board as our state partners.

  Ours is a unique initiative in NM and we are all learning the ropes and developing processes together.

  Consequently, the past few years have been something of a moving target for us.

  The current initiative for the Eastern NM Rural Water System began over six years ago as a collaboration

  of the 12 community and county members, Reclamation, and the State of New Mexico, but our project

  was first conceived over 40 years ago.

  Positive aspects of the Legislation…

  The legislation recognizes that a national interest exists for a water supply program in the Reclamation

  States to provide clean, safe, affordable and reliable water supplies to rural areas, on a regional basis. In

  particular, these are instances where limited viable options exist for sustainable water supply and where

  the available source of supply is geographically remote from the rural consumers.

  The legislation establishes a framework and a time schedule within which the federal and non-federal

  partners have better-defined roles, eligibility criteria and direction on which to base project development

  decisions.

  The legislation promotes and provides for a regional perspective to water resources management that

  could include elements not traditionally considered. For example, in our case, source water protection of

  both quality and quantity is critical. Authorizing legislation introduced by Senator Bingaman last year, for

  our project, included a wastewater collection and treatment component to assist the region in significantly

  reducing the potential for septic tank leakage into the reservoir which serves as our surface water source.

  This bill requires that eligible projects assess both federal and non-federal resources for capital project

  costs. It also provides for the appropriate level of non-federal cost share be based on an assessment of

  capability to pay by the non-federal entities. In our case, working closely with the 12 member agencies,

  the NM Water Trust Board and the NM Legislature, we are leveraging local, state and federal dollars to

  implement the project.

  The Loan Guarantee provisions of Title II – the Twenty First Century Water Works Act provide a

  powerful tool to assist non-Federal entities with private sector loans or financing, particularly those that

  otherwise may have limited financing options.

  The draft Act includes a provision to scale the level of effort needed to complete appraisal investigations

  and feasibility studies relative to the scope of the project to minimize the costs to the non-Federal entities.

  Concerns that we have with the Legislation…

  The legislation includes a factor that requires the projects be "cost effective" and show a positive

  benefit/cost ratio. These terms needs additional definition or relevance. For example, our project may not

  present well in a benefit/cost analysis without incorporating the detailed "apples to apples" comparison of

  the "no project" alternative -- what is the long-term economic impact on the region if nothing is done to

  develop a sustainable water supply and the deteriorating groundwater conditions persist. This "no project"

  option is a much more difficult and subjective analysis short of years of technical assessment.

  The bill requires a minimum of a 25% non-federal cost share for capital costs if the Secretary deems the

  project eligible for authorization, not withstanding the rural regions’ capability to pay.

  Sec.105 Subsection (a) Part 3.B, on Pg.11, provides for the Secretary to enter into a cooperative

  agreement with a non-federal entity to conduct appraisal investigations and feasibility studies, if the

  Secretary determines that "using the non-Federal project entity to conduct the work is the lowest cost

  alternative for completing the work".

  In our case, finance consultants working on our project since 1999 note that financing through tax exempt

  bonds or the NM Finance Authority may be more advantageous than loan guaranteed private sector

  financing and is typically 1 to 1 ½ % lower than that obtained through private transactions.

  We have found that in many instances there are local resources, experience and knowledge that may be

  more "cost effective" and "timely" while not necessarily the lowest cost. Our project has experienced a

  series of studies over 40+ years that have not necessarily advanced the project.

  ----------------------------------------

  It seems though, that as we progress and get closer to possible authorization, we run up against new

  questions and obstacles that impede our progress. We are very cognizant that time is of the essence for us.

  Not only are our groundwater supplies running out, but our water purchase agreement with the State of

  New Mexico is time sensitive, and construction costs are escalating annually. We understand that steel

  prices alone increased approximately 40% last year due to global demand factors.

  We are encouraged that SB.895 may include flexibility in assessing the non-federal costs, based on

  analysis of capability to pay, rather than application of a "blanket" fixed federal share approach. Much

  discussion has taken place regarding the member agencies ability and willingness to pay for our project.

  Can we afford the cost? The more pressing question is not can we afford to do this project but rather can

  we afford to not do the project.

  We applaud you for taking this initiative to put in place a rural water program that will clarify the federal

  and non-federal roles and requirements, and formally establish a process that will minimize the "moving

  target" syndrome that we have experienced. Though we are considerably well advanced in our

  implementation plan and do not desire to back up several steps, and potentially several years, or to lose

  the momentum we currently have, we feel that this Act will undoubtedly benefit many other projects

  similar to ours that will come before you in the future.

  Thank you again for your time this morning, and we’ll be glad to answer any of your questions.

• Duane Smith

  Vice-Chairman

  Western States Water Council

  Read statement

  Witness Panel 2

  Duane Smith

  Testimony

  presented before the

  Senate Energy and Natural Resources Committee

  regarding S. 895

  the Rural Water Supply Act of 2005

   

   

  Duane A. Smith

  Executive Director

  Oklahoma Water Resources Board

  Vice-Chair

  Western States Water Council

   

   

  May 11, 2005

   

   

   

  Dear Mr. Chairman and Members of the Committee:

   

              My name is Duane Smith and I am the Executive Director of the Oklahoma Water Resources Board.  I am also testifying as Vice-Chairman of the Western States Water Council, representing the Council.  I have also been authorized to provide this testimony on behalf of the Western Governors’ Association, with which the Council is closely affiliated.  The Council is an organization of representatives appointed by the Governors of eighteen states.  The Council is an advisory body made up of experts in water law and policy, water rights administration, water conservation, water quality and water supply.  Rural water issues are important to our members and states, and we applaud you, Mr. Chairman and those that have cosponsored this bill, as a means to address some of the most pressing needs of water users in the West.  Much of the West is characterized by its aridity, and the current drought highlights the fact that water availability continues to define and circumscribe our economic and environmental well being and quality of life.  This is particularly true in many small rural communities.

   

              In a letter last year dated July 16, 2004, we commented on S. 2218, S. 1732 and S. 1085, introduced respectively by Chairman Domenici and Senator Bingaman.  We strongly support federal legislation to provide technical and financial assistance for small rural communities. 

  We appreciate your efforts in this regard, and hope to see appropriate legislation enacted to create a systematic, integrated approach to investigating, authorizing and constructing projects to meet rural western water demands in close cooperation with State, local and regional entities, as well as tribes.  We hope we can work together to ease the burden and improve the lot of many of our rural citizens struggling to ensure that their water supplies meet minimal standards for public health and safety, and are sufficient to carry them through shortages, such as the current drought. 

   

  May I add here, Mr. Chairman, that we also strongly support enactment of S. 802, the National Drought Preparedness Act of 2005 which would establish a National Drought Council, develop a drought preparedness policy, improve the National Integrated Drought Information System (NIDIS) and establish a Drought Assistance Fund.  The bill would provide small rural communities additional technical and financial assistance.

   

              Many of the issues we raised in our July 16 letter have been addressed in S. 895, but we would offer a few additional suggestions.  There is one overriding issue that the Congress must still address, and that is the chronic lack of adequate funding for past and present programs designed to achieve a reasonable degree of security for our water supplies, as it relates to quantity and quality, particularly in the West. 

   

  EPA’s 1999 Drinking Water Infrastructure Needs Survey estimated the total national need for a 20-year period to be $150.9 billion, including $74.5 billion for systems serving less than 50,000 people and another $2.2 billion for American Indian and Alaska Native Village Water Systems.  EPA’s September 2002 Gap Analysis and Needs Survey estimated the 20-year funding gap for Drinking Water (capital and operation and maintenance), given current spending levels, to be $263 billion.  The Safe Drinking Water Act Amendments of 1996 authorized Drinking Water SRF appropriations of $9.6 billion, but actual appropriations through Fiscal Year 2001 totaled $4.4 billion.  The House Appropriations Interior Subcommittee approved $850 million for FY2006, on May 4, which is $7 million more than actually appropriated for FY2005.  The Drinking Water SRF is a principal source of federal assistance for many rural communities.       

   

              Existing authorities and past appropriations are not sufficient to meet the needs of the West and small rural communities, which are facing serious obstacles in securing the resources necessary to ensure an adequate and reliable water supply for their future.  S. 895 could become an important addition to the “tool box” available to rural water users, but the bill provides no new authority, assistance or funding for the construction of projects.  Any future construction assistance would require authorization and the appropriation of funds or application of the new federal loan guarantees.  The authority to provide federal loan guarantees is an important new tool.  However, S. 895 cannot replace adequate appropriations for the current SRF programs, which the Congress and the Administration must continue to support. 

   

  Nor will S. 895 make up for the Congress’ diversion of Reclamation Fund revenues for other unrelated government purposes.  New authority and significant new funding is essential to meeting future western rural water needs.  The Council suggested recently during the Committee’s Water Conference last month that it is past time to consider seriously the use of the unobligated amounts in the Reclamation Fund to support western water supply needs, which would include those of small rural communities. 

   

              That said, there is much to recommend S. 895.  The draft bill would provide for a general assessment of rural water supply needs, existing programs and any gaps.  This assessment would be undertaken in cooperation with various federal agencies.  It should be noted that there are many existing state programs and information compiled by the states that should not be overlooked as part of any assessment.  Examples from several states are included herein.  The bill provides for project appraisal investigations, feasibility reports and recommendations for construction authority (but no construction authority).  It also requires the Secretary to identify what funding sources are available for a proposed project, and the availability of loan guarantees (authorized under Title II).  The Secretary is also to recommend what grants, loan guarantees or combination of both should be used to provide the federal share of project costs. 

   

              Various considerations are listed for appraisal and/or feasibility reports, including whether water rights exist to supply the project.  The availability of water rights and conservation measures are considerations specifically listed.  States must have a say in determining the availability of water rights to support project development and actual water delivery, as well as appropriate water conservation measures.  The states are primarily responsible for water allocation, and the Council appreciates the inclusion of language explicitly stating that nothing in the bill is intended to nor shall be construed to affect any state granted water rights.  The bill states: “Nothing in this title preempts or affects State water law or an interstate compact governing water.”  Further, “The Secretary shall comply with State water laws in carrying out this title.”  The same language is included in Title II.

   

              Numerous other considerations are listed.  The states should have a key role in the development and establishment of guidelines and criteria for determining program eligibility and in selecting project priorities.  There is no apparent provision for establishing priorities among eligible projects in the bill.  Each state has a formula for establishing priorities for allocating SRF money.

   

              It is important to note that rehabilitation and replacement of existing sub-standard rural water supply systems must be an important part of the program.  Some areas depend on water systems that fail to meet Safe Drinking Water Act standards.  The bill directs the Secretary to recommend whether a project should be authorized (with a minimum 25% non-federal cost share).  It also provides for federal loan guarantees or insurance for up to 90% of project costs.  Project operation, maintenance and replacement costs are to be 100% non-federally financed.  The Secretary is to assess the financial capability of each non-federal entity to pay for its share of various study and construction costs as part of the feasibility report – including whether the non-federal entity has an O&M and replacement plan and necessary rates and fees.  Upgrading and replacing antiquated and inadequate systems may require finding new water supplies, which could entail acquiring adequate water rights and building the necessary infrastructure.  But the bill does not authorize construction of any project.  Further, the bill specifically excludes construction of “major impoundment structures” or projects for “commercial” irrigation or livestock watering, although it addresses opportunities to use low-quality water supplies.  There is no discussion of the use of funds to acquire water rights. 

   

              The Council believes any program must be implemented in cooperation with other federal and non-federal programs, including coordinating actions with state and local watershed groups.   The needs and resources assessment is to be undertaken in consultation with other federal agencies, but states and other entities are not mentioned.  Appraisal investigations are to be undertaken in consultation and cooperation with appropriate state, tribal, regional and local authorities.  A project feasibility report is to include the extent to which it involves partnerships with other state, local, tribal and federal government entities (which are also to be consulted during the conduct and development of reports).

   

              Cost sharing and repayment requirements and “capability-to-pay” measures should recognize the potential hardship some rural communities face, and the Secretary should have the flexibility to make appropriate adjustments.  In this regard, the bill is to be commended in providing that the Secretary, in evaluating a proposed project, “shall” consider an entity’s financial capability to pay the capital construction costs and recommend an “appropriate” federal cost share, taking into account a number of listed factors.  In cases of financial hardship, the Secretary may also adjust the federal cost share for feasibility studies. 

   

              It is also important that non-Federal entities retain title to projects.  Importantly, the bill states: “Nothing...authorizes the transfer of pre-existing facilities or...components of any water system from Federal to private ownership or from private to Federal ownership.”  Title to ownership of new facilities is to be held by the non-federal entity.

   

              In determining and allocating project costs among beneficiaries, which federal costs are or are not reimbursable should be clearly defined.  Federal oversight or overhead costs, which are beyond the control of non-Federal project sponsors, should be non-reimbursable.  The bill provides that the first $200,000 of the appraisal investigations would be paid by the federal government, with any additional costs shared on a 50%-50% basis.  Further, the Secretary should be allowed to accept appropriate non-Federal in-kind contributions as part of cost-sharing requirements.  The bill provides that the Secretary may accept in-kind services determined to contribute substantially toward the conduct and completion of feasibility studies.

   

              The balance of this statement underscores the need to address rural water supply needs, and highlights state programs striving to address these needs.

   

              According to EPA’s 1999 Needs Assessment, approximately 45,000 of the Nation’s 55,000 community water systems serve fewer than 3,300 people.  Regardless of their size and configuration, small water systems face many unique challenges in providing safe drinking

  water to consumers.  The substantial capital investments required to rehabilitate, upgrade, or install infrastructure represent one such challenge.  The per-household costs borne by small systems are significantly higher than those of larger systems.  The per-household costs for infrastructure improvements is almost 4-fold higher for small systems than for large systems. Small systems lack the economies of scale that allow larger systems to spread the costs of capital improvements among their many consumers.

   

              In 1996 and 1997, the Council compiled information on states’ views regarding their water problems for the Western Water Policy Review Advisory Commission – created by this Committee.  One of the questions addressed the problems of rural communities related to water supply, potable water treatment and wastewater treatment.  The results were published in a report, Water in the West Today: A States’ Perspective (February 1997), together with appendices detailing individual state responses.  I would like to summarize some of the findings related to a few states, including my state of Oklahoma.

   

              There are a number of state and federal programs that provide some type of technical and/or financial assistance to rural communities in Oklahoma.  The primary source of state financing for water and wastewater programs is the Statewide Water Development Revolving Fund (SWDRF).  The state legislature created the SWDRF in 1979 and the state reaffirmed that action by a popular vote in 1984.  The corpus of the SWDRF provides a reserve for bonds issued by the Oklahoma Water Resources Board (OWRB), on behalf of small borrowers, at lower interest rates than they could otherwise obtain.  Interest earned on the SWDRF provides money for emergency grants.  OWRB also administers the Statewide Rural Energy and Water Conservation Program, which is designed to identify and eliminate energy and water losses from rural systems.  The Oklahoma Rural Water Association coordinates leak detection audits, which has found water losses of up to 51%, and helped finance remedial measures.  The Oklahoma Department of Commerce may also provide grants to communities under 50,000 people.  However, these are very small programs compared to the state and federally capitalized Clean Water and Safe Drinking Water revolving funds, which continue to be the largest source of money for meeting rural water needs in Oklahoma.

   

              In Alaska, reportedly some 40% of rural households lacked safe drinking water and indoor bathrooms.  Water is hauled by hand from a central community spigot, tapping shallow ground water, or walk to and from a nearby river or stream.  Some use an outhouse as a restroom, or many people use a bucket as a toilet and human waste is disposed of directly on the ground outside homes or in unlined sewage pits, allowing wastes to leach into ground water and surface streams – causing public health and safety problems – and contributing to an alarming rate of waterborne disease such as meningitis and Hepatitis A, which is considered endemic in several rural regions.  The state of Alaska provides grants and technical assistance, as well as managerial training to try to help rural communities and utilities meet their public health needs.

   

              Most of California’s small rural communities rely on ground water, and their existing supplies are often limited by the local hydrogeology – such as low-yield wells tapping fractured rock aquifers or small coastal aquifers affected by seawater intrusion.  They are also threatened by increasing population pressures.  Many of California’s fastest growing counties are located along the Sierra Nevada foothills, and rely on limited water supplies.  Further, the scattered pattern of development also limits their ability to join regional consolidated water and wastewater systems.  The state has historically provided financial assistance in the form of various loans and grants, backed by the sale of general obligation bonds – without significant federal assistance.  In its 2000 Critical Water Shortage Contingency Plan, the Governor’s Advisory Drought Planning Panel singled out the unreliability of small, rural water systems as an issue requiring special attention, noting that “small water users bore the brunt of the actual public health and safety impacts – lack of water for basic domestic, sanitation, and firefighting purposes – felt during recent droughts”.

   

              Water quantity and water quality problems afflict several rural areas in Colorado.  Drought has accentuated supply problems that are growing with rural populations.  Nitrates and dissolved solids affect surface and ground waters, which are also impacted by naturally occurring uranium, radon, arsenic, salinity and heavy metals.  The Safe Drinking Water Act (SDWA) and its testing and treatment requirements are too costly for many rural communities.  Further, they face an additional financial burden related to replacing aging infrastructure and filtration systems.  Many will not be able to make the improvements needed without assistance.  The state provides technical assistance and provides some loans, grants or a combination of both.

   

              In Idaho, the drought has highlighted the interconnected nature of the state’s surface and ground water resources, particularly across the Eastern Snake Plain Aquifer.  Ground water pumping is having a serious impact on surface flows, and the state is struggling to balance the impact on rural water supplies and rural economies.  Many supply problems also involve water quality and treatment requirements.  Many rural communities lack the financial resources and technical expertise to address their problems in an acceptable fashion.  There are a number of state programs that provide some planning and financial assistance, including loans and grants.

   

              Montana faces many challenges in meeting competing demands for consumptive uses and instream flows, particularly during drought, when surface waters are low.  Rural communities with inadequate infrastructure face poor water quality in some areas, and expensive changes to bring their drinking water systems up to SDWA compliance standards.  The costs often exceed the water users’ ability to pay.

   

              For many rural communities in New Mexico, limited ground water and surface water resources are or will become a problem.  Often the infrastructure necessary to tap distant water supplies is too costly for rural communities.  Two examples are the Eastern New Mexico Pipeline serving communities from Ute Lake, and the proposed Navajo-Gallup pipeline, included in the recent Navajo Water Settlement, to serve both Indian and non-Indian communities.  The state provides some assistance in the form of grants for improving water supply or wastewater treatment facilities, and the state legislature has on occasion directly appropriated money for communities to improve their systems and/or buy water rights.  New Mexico has also received federal assistance from a variety of sources in an attempt to meet its rural water needs, including the needs of a number of Indian tribes and pueblos.  The Bureau of Reclamation has helped in assessing the needs of rural water users in eastern, southwest and northwest New Mexico and is working with state and local water agencies to develop plans to bring renewable surface water supplies to rural areas, including the large Navajo reservation.  The state and federal government are also working together to clean up Superfund sites that threaten wells in a rural area south of Albuquerque.

   

              Rural communities in North Dakota find it increasingly difficult to comply with Environmental Protection Agency (EPA) drinking water standards for fluoride, nitrates, lead and copper.  Many communities have had to change their treatment processes in order to comply with the Surface Water Treatment Rule and requirements for ground water sources that require they be evaluated to determine if the ground water is directly influenced by surface water.  State resources are limited, and are not sufficient to undertake the projects required to provide adequate and safe drinking water for North Dakota’s rural communities.  The Congress recognized this, and its prior promises in authorizing the Garrison Project, when it created a program to provide municipal and industrial water (in lieu of irrigation) for North Dakota and authorized the Southwest Pipeline Project and Northwest Area Water Supply Project to bring Missouri River water to scores of rural communities.

   

              In Oregon there are some 800 small community water systems that serve less than 3,300 people, and most of these are in rural areas.  The Oregon Water Resources Department offers limited technical assistance to these communities, which face the duel challenge of growing demands due to an increasing population, while their aging infrastructure can no longer be maintained in a manner to ensure water is delivered efficiently.  Further, rural communities face significant expenses for monitoring and treatment of their water supplies.

   

              South Dakota has found that the quality of ground water in rural areas typically meets state and federal drinking water requirements, but its high mineral content often makes it undesirable for drinking and other household uses.  With the exception of the Missouri River, finding adequate quantities of both surface and groundwater can be a struggle in many parts of the state.  Most rural communities have limited financial resources or lack the expertise necessary to maintain and improve their infrastructure adequately.  South Dakota provides some help through the state’s dedicated water funding program which awards state grants and loans to small communities.  However, the state relies heavily on federal grants such as EPA’s Drinking Water Revolving Fund grants to capitalize the state’s Drinking Water State Revolving Fund (SRF) Program.  The federal SRF programs are the primary source of funding for many small communities’ water and wastewater needs.

   

              The Utah Board of Water Resources administers three small revolving loan programs that provide low cost financing for water development and water treatment facilities and technical assistance, including special studies and investigations.  Project sponsors are required to develop and implement a water management and conservation plan.  The Utah Department of Environmental Quality’s Division of Drinking Water also provides some technical and financial assistance to rural communities through its State Drinking Water Program, including limited money for infrastructure repairs and upgrades.  The Rural Water Association of Utah also provides training and other managerial assistance to small water systems.  Often, in rural areas, the operator of the water system may also have to operate the wastewater system and maintain the cemetery, etc.   Since 1972, EPA’s Construction Grants Program and subsequently the Clean Water and Safe Drinking Water SRFs have been invaluable in assisting small rural communities meet minimum public health and safety requirements. 

   

              Washington State has nearly 20,000 small water systems and the vast majority serve fewer than 15 hookups and generally lack the professional expertise and financial resources to adequately monitor water quality and maintain their systems in compliance with state and federal requirements.  The state has taken some important steps to require operator certification, deny proliferation of small systems where an existing system is viable, and clarify receivership for failing systems.  Still major challenges remain, not the least of which is the current drought that is straining surface and ground water supplies.

   

              Expensive water supply and treatment facilities are often beyond the reach of many of Wyoming’s small rural communities.  Fortunately, there are many high quality supplies available to small towns.  Unfortunately, federal regulations sometimes force treatment requirements upon communities in a one-size-fits-all fashion.  Many rural communities also lack the resources to employ a full-time system operator, water testing laboratories can be far away and monitoring can be expensive.  Towns are sometimes frustrated when they are required to test for contaminants that are unlikely to be found in their area.  Water and wastewater assistance is available from the Water Development Commission, the Farm Loan Board and Wyoming Association of Rural Water Systems.  These provide technical and some financial assistance, including well-head protection advice on recognizing activities that could potentially put their water supplies at risk.  The Department of Environmental Quality administers the federal SRF grants to help communities build and upgrade treatment facilities.

   

              I appreciate the opportunity to testify on behalf of the Western Governors’ Association and the Western States Water Council and we hope to be able to work with the Committee as it strives to find ways to assist rural areas meet their growing water demands.

   

   

• Harold Frazier

  Chairman

  Cheyenne River Sioux Tribe

  Read statement

  Witness Panel 2

  Harold Frazier

   

  Testimony of Harold Frazier

  Chairman, Cheyenne River Sioux Tribe

  On S. 895, the Rural Water Supply Act of 2005

  Presented to the Senate Committee on Energy and Natural Resources

  May 11, 2005

   

              Chairman Domenici, Senator Bingaman and honorable members of the Energy and Natural Resources Committee.  My name is Harold Frazier, and I am the Chairman of the Cheyenne River Sioux Tribe located in South Dakota. I want to extend my sincere appreciation to Senators Domenici and Bingaman for taking the lead and introducing this extremely important bill and I wish to thank Senators Bennett, Murkowski and our own Tim Johnson for co-sponsoring the Rural Water Supply Act of 2005. It is certainly legislation that is needed in the western United States.

   

              Before discussing details, I want to tell you about my homeland as it relates to S. 895.   Through federal actions over a period of about 150 years millions of acres were taken from the Sioux Nation by the United States, often without compensation of any kind. Many people are aware of that aspect of US history. What many are not familiar with is the astonishing degree of land that was subsequently taken from us WITHIN the boundaries of our reservations via the Indian Allotment Act of the late 1800s and the forced fee patenting of our lands.  It is a history that should be shocking to members of this Committee but unfortunately it does not stop even there.

   

              In 1944 Congress passed the Pick Sloan Act to build dams on the Missouri River including the Oahe Dam.  This Project resulted in the flooding of 104,000 acres of land at Cheyenne River and the dislocation of the largest settlement of people on the Missouri.  In the flooding, Cheyenne River lost 90 percent of its timber and over 75 percent of its wildlife habitat.  The entire Cheyenne River Agency was moved to Eagle Butte, over 40 miles from the Missouri River, instead of our preferred location at Swiftbird right next to the River.  The Tribe was not even informed of the Oahe project until 1947 – three years after Congress authorized it. The Project was called a “balanced project” by the Corps and Congress, because, in exchange for the flooding of the best farmlands, irrigation projects would be built to make the arid plains farmable.  Not one irrigation project was ever built by the Corps of Engineers on Indian lands at Cheyenne River.  The economic loss of the best 104,000 acres of Cheyenne River lands is still being felt today.

   

              That it is even possible for 104,000 acres of the Cheyenne River Sioux Reservation to have been flooded by Lake Oahe and that my people TODAY do not have enough water to drink, much less thrive, is to me one of the darkest chapters in the history of the United States. That the United States government spent hundreds of billions of dollars in the “greening of the West” through BOR and Corps Projects but managed to bypass Indian country is nothing short of disgraceful. Our lands were taken and they were flooded .  But water supply for our people was not built so that the people whose lands were flooded could benefit like our non-Indian neighbors from clean water.  Neither the BOR nor the Corps of Engineers ever built a water supply system at Cheyenne River, despite repeated requests to Congress and these agencies.  The Tribe and surrounding communities cobbled together funds from HUD, IHS, BIA, and FMHA to build a small water system which is now breaking down and wholly inadequate.  

   

              The water intake in the Cheyenne River Arm of the Oahe Reservoir that serves Dewey and Ziebach Counties on our reservation, as well parts of northeastern Meade County off our reservation, may very well stop working this August. This is due to the drought and scheduled draw downs of the Missouri River for down state barge traffic. At that point, 14,000 people - Indian and non-Indian alike - in an area the size of Connecticut, will be without water. All businesses will be affected, as will our schools, our health clinics and the only hospital within 100 miles.  16 communities will be without water!

   

              Today, as I sit here, even with the intake under water, we have serious problems with a lack of water quantity and quality.  Last year, we ran out of water in fighting a house fire. Four children died in that fire. Last year, we ran out of water and had to pump water out of a sewage lagoon to fight a prairie fire that threatened Eagle Butte – the headquarters of the Tribe. With the severe drought continuing, this fire protection problem will worsen this year.

   

              We have a severe housing shortage and overcrowded homes where as many as 20 people live under the same roof. The shortage is not due solely to a lack of money to construct homes; we actually have funds from HUD and are ready to construct new homes. Senators, we can’t build another home because we have no water available to send to a new home. The only way we can get water to a new home is to take an existing home off the water system.

   

              The Banner Engineering firm of Brookings, South Dakota has completed a technical engineering study that indicates that we need a water system capable of processing 13.5 million gallons of water a day. Our present water treatment plant has a maximum capacity of 1.2 million gallons a day.

   

              As if this isn’t serious enough, our water intake is in the Cheyenne River Arm of the Oahe Reservoir and the Cheyenne River has at least two serious problems. The first is that it is silting in fast. We can’t lower the intake any more.  Secondly, the Cheyenne River has millions of tons of mine tailings in it including heavy metals, arsenic and mercury.  On our reservation, we have had 18 cases of brain cancers since 1996 in a service population of 11,583.  Eleven of those 18 are now dead. The national incidence of brain cancers ranges from 3.5 to 6 per 100,000 according to the National Cancer Institute.  There have also been 7 cases of Scleroderma including four deaths on the reservation since 1996 whereas the incidence of those cases in the US population is 1 in 100,000.  There are high rates of other auto-immune diseases as well.

   

              Right now, there are over 30 tribal members from Cheyenne River in active military service, and many more veterans of foreign wars at home.  Some served in Iraq and Afghanistan and participated in rebuilding vital infrastructure in those nations.  Yet, they are coming home, after proudly serving this Nation, to a lack of that same infrastructure they built for other nations. Something is very wrong with that picture.  

   

              We have an emergency Mr. Chairman and we hope that when you are wearing your other hat, as Chairman of the Appropriations Subcommittee on Energy and Water, that you will direct the Corps of Engineers to use any and all funds they have available to assist us in securing good quality water. .

   

              Senator Domenici, when you introduced this bill, your introductory remarks in the Congressional Record indicated that the deteriorating water infrastructure combined with the inability to raise the capital necessary to build new water systems was leading to “substantial want” and leaving a number of western communities in a “dire situation.” It pains me to say that the Cheyenne River Sioux Tribe is probably the poster child for the situation you describe – a situation worse than anything most Americans could envision.

             

              We view S. 895 as a wake up call to the nation and we also view it as a very good start. This bill essentially does three or four things. First it creates an important authorization for a rural water program at BOR. It expedites authorizations and non-reimbursable appropriations for appraisals and feasibility studies. It also allows the BOR to accept private studies that communities have undertaken on their own (or funds such studies) and it creates a federal loan guarantee program for the construction of rural water systems.  Ziebach County, wholly enclosed in the Reservation, is the fifth poorest county in the entire United States.  The unemployment rate at Cheyenne River is 78% with 96% of families working living below the national poverty level according to BIA 2000 Reports.  We are therefore somewhat concerned as to how we or the other impoverished Sioux Tribes – including those desperately in need of rural water systems - could qualify for loans even with low interest federal loan guarantees authorized in this bill. We ask the Committee to consider working with my Tribe and others and with the Senate Indian Affairs Committee to consider amendments that might authorize BOR programs to provide direct assistance to tribes in need or water systems. We will check with other tribes in the Dakotas and solicit their input and endeavor to get back to you on this question within the next two weeks.

   

              Additionally, and while we understand that this may be outside the jurisdiction of the Energy Committee, we think the bill should be amended to include a role for the Army Corps of Engineers. We have just begun working with the Corps on the crisis surrounding our water intake and have found them to be extremely professional and very helpful. The total need in the west for rural water projects is simply too large for the Bureau of Reclamation to handle this problem on its own. This is going to take a multi-agency approach and we believe the Corps has significant expertise in this area and could be most helpful to Indian reservations. I don’t mean to be cynical, but since the Corps did such an effective job flooding lands on a number of reservations, the least they could do now would be to help tribes put all that water to good use and restore the Pick Sloan Project to the balanced project it was intended to be!  Again I would think in the case of impoverished Indian reservations, the Corps and the BOR should be authorized and funded to directly do the work. Many Indian Tribes may not be able to participate in this program if they have to repay millions of dollars in loans even at low interest rates.

   

              There are some provisions in S. 895 that require the Secretary to consider how a project may affect Indian trust responsibilities but we think it needs to go further and ensure that Indian treaty rights are protected and fulfilled.  The language in the bill discusses Indian trust responsibility as if it is merely one factor for the Secretary to take into account and that consideration of it is discretionary. The trust responsibility of the United States to protect tribal water rights and tribal lands is not discretionary and should not be lumped together with other sections as merely one of many factors to weigh. 

   

              Other sections of the bill reference the fact that nothing in the bill is intended to preempt or affect State water rights and stipulate that State water law must be complied with in carrying out the bill. That does not protect our water rights which are not founded in state water law.  In fact, it may be harmful to tribal water rights as this language grants primacy to state water law and rights.   We have federally reserved rights recognized through federal court cases, treaties, statutes and executive orders. A similar savings clause should be added to the bill, as Congress has done in many other statutes, ensuring that nothing in the bill will diminish, divest, alter, or be contrary to any Indian reserved water rights, treaties or statutory obligations.

   

              Again Senators, thank you for the opportunity to talk with you today and to offer our support for expanding access to vital water resources in the West.  We appreciated the numerous provisions in the legislation where the sponsors have clearly endeavored to include Indian reservations in the scope of the bill.

   

  The Lakota people say “Mni Wiconi” which means “Water is Life.”  We must have water to complete a new hospital and nursing home already ready to construct that will bring good health care to our people for the first time in the history of our Nation and over 200 new jobs with them.  We must have access to water for our planned economic development projects and new businesses that cannot open their doors without water.  We must have water if we are to become economically self-sufficient.  And soon, we must have water just to drink for survival.  We hope that you are successful in your efforts to secure access to the water that is needed to allow the people of Cheyenne River, and all communities and peoples of the West to live.