While the water protectors directed a spotlight to the threat of pollution of the Ogallala Aquifer by the Dakota Access Pipeline project, Congress focused on cleaning up the already-polluted water in Flint, Michigan. But the complex legislation that addressed toxic water in Flint also carried huge and important improvements for water in Indian country.
When Congress debates infrastructure issues, the talk is usually about roads and bridges. The toxic water system in Flint, Michigan, however, brought Congress’s attention to the structures we don’t see – pipelines and storage facilities. So while the water protectors directed a spotlight to the threat of pollution of the Ogallala Aquifer by the Dakota Pipeline project, Congress continued to push for a response that would clean up the already-polluted water in Flint.
The energy around the immediate crisis in Michigan drove Congress to complete a complex package of legislation – the Water Infrastructure bill-S.612 – but the bill itself carried much more than a Flint response. The literal weight of the bill – about 40 percent of the text – focuses on Native water rights, land transfers, dam safety, and other water and land issues that deeply affect Indian country.
Tribal Consultation
The new law (Section 1120) requires the Secretary of the Army to report to relevant House and Senate committees on how the Army Corps of Engineers is implementing its Tribal Consultation Policy, and how this consultation affects the approval of permits that may have an impact on tribal cultural or natural resources. The Secretary of the Army is required to provide public and private meetings with Indian tribes and other stakeholders in carrying out the review, and to ensure that “all existing consultation polices, regulations, and guidance” continue to be implemented. The law also describes a cost-sharing partnership that the Secretary of the Army may enter into upon the request of a tribe.
Water and Land Settlements
The new law also includes water and land settlements for eight tribes: the Blackfeet Tribe in Montana, and Choctaw Nation of Oklahoma and the Chickasaw Nation, the Muscogee (Creek) Nation in Oklahoma, and four tribal entities in California — the Pechanga Band, the Tule River Indian Tribe, Tuolumne Band of Me-Wuk Indians, and the Morongo Band of Mission Indians. The bill also spells out implementation language for the 1988 settlement with the San Luis Rey Tribal Development Fund (an intertribal Indian entity established by the La Jolla, Rincon, San Pasqual, Pauma and Pala Bands of Mission Indians.)
Tribal Enforcement of Safe Drinking Water Requirements
Under the Safe Drinking Water Act, the bill authorizes grants to tribal governments and organizations for “operations and maintenance training and operator certification services” to enable tribes to maintain compliance with national primary drinking water regulations in their public water systems.
Columbia River Fishing Camps
Two bills, S 3222 and HR 5811, would have given the Department of the Interior (instead of the Army Corps of Engineers) authority over the renovation and improvement of the fishing camps set up for tribes along the Columbia River, in lieu of the lands flooded by the construction of dams. The camps, originally provided under a 1988 law, are in need of repair. (See Columbia River Fishing Rights.)
Congress did not approve that legislation transferring responsibility for the camps, but in the Water Infrastructure bill, Congress authorized the Secretary of the Army, “upon the request of the Secretary of the Interior,” to assist with such renovations for tribes displaced specifically by the construction of the Bonneville Dam. One strange sentence provides that the Secretary of the Army should provide assistance based only on studies and information that he already has in hand before this law was passed. He may undertake further studies (or, presumably, consult Department of Interior studies), but he is only authorized to act on information already known.
Indian Dam Safety
The Water Infrastructure law includes authorization of about $33 million per year over the next six years to improve the safety of dams in Indian country. These funds will be available to address both major current problems (“high hazard potential”) dams and deferred maintenance on dams classified as “low hazard potential.” The dams that qualify for funding are owned by the Federal government and operated by the Bureau of Indian Affairs or by a tribal entity under a self-determination contract. The law specifies consultation with tribes and criteria for prioritizing projects.
Irrigation Projects
The law authorizes a similar amount for the repair and maintenance of irrigation projects in Indian country, as described in Chairman Barrasso’s S. 438, the Irrigation Rehabilitation and Renovation for Indian Tribal Governments and their Economies (IRRIGATE) Act.
Update: Water is Life – In Maine
The Environmental Protection Agency has now issued a final rule that applies federal Water Quality Standards to waters in Maine, including waters within Indian Country. The standards specifically apply human health criteria to waters used for the exercise of sustenance fishing rights under the 1982 Maine Implementing Act, and six additional standards for waters in Indian lands in Maine.
Return to [December 2016 Native American Legislative Update] (https://www.fcnl.org/updates/native-american-legislative-update-518)
Background
