Trump administration won't commit to permanent funding for tribal water rights

Thursday, July 19, 2018  

A tribal water rights fund is due to run out of money but the Trump administration isn't ready to support a permanent fix despite billions of dollars of settlements in the pipeline.

The remaining balance in the Reclamation Water Settlements Fund is already "spoken for," a key lawmaker said. Sen. Tom Udall (D-New Mexico), the vice chairman of the Senate Committee on Indian Affairs, has introduced a bill to make sure tribes who are still negotiating aren't left behind.

"It's all spoken for and we don't have a good plan for moving forward, that's basically what you're saying," Udall told a senior Trump administration official at a hearing on Wednesday.

"I'm not asking for a response there," Udall said.

Alan Mikkelsen, the deputy commissioner at the Bureau of Reclamation, confirmed that the fund will run out of money in 2029. The money is supposed to be used to implement existing settlements, to the tune of about $1.6 billion, he said.

But Mikkelsen also said the Department of the Interior is working on an additional 22 water settlements. Those deals are estimated to cost "roughly" $5 billion, he told the committee.

"We’re going to have a have a discussion with the committee, with the Hill here, on where we are going in the future to fund all these settlements," Mikkelsen asserted.

Yet when asked whether S.3168, the Indian Water Rights Settlement Extension Act, represents a solution to the looming problem, Mikkelsen visibly struggled to come up with an answer.

"I would say that we are looking forward to the opportunity that this bill affords us, to discuss how to address the issue in the future, and we do look forward to working with you on this," Mikkelsen said in his wordy response to Udall.

Trump administration throws up hurdles for first new tribal water rights settlements #Arizona #Utah https://t.co/qGuK9bO1ff pic.twitter.com/gNjZ4qbglg

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Mikkelsen, whose position did not require Senate confirmation was more direct about another bill before the committee. S.2154, the Kickapoo Tribe in Kansas Water Rights Settlement Agreement Act, aims to resolve a long-running water crisis affecting the Kickapoo Tribe and its neighbors in northeastern Kansas.

Despite having a federal negotiating team in place, Mikkelsen said the tribe and the state went off on their own to finalize a settlement with an infrastructure component that may not fix the problem. That's why the Trump administration "cannot support the bill as introduced" and is instead urging further talks, the committee was told.

But the prospect of further negotiations was troublesome to Sen. Jerry Moran (R-Kansas), the sponsor of S.2154. The November election will bring in a new slate of officials who have to be brought up to speed on the settlement, he said. They may take a different view of the agreement.

And Rep. Lynn Jenkins (R-Kansas), who has worked with the tribe for 20 years, is retiring at the end of the current session of Congress, he pointed out.

"We'll have elections in Kansas and there'll be another set of public officials in dealing with an issue that has been unresolved for decades," Moran said.

Chairman Lester Randall also stressed the need for action as soon as possible. With drought conditions plaguing the tribe and its non-Indian neighbors on and off for years, a permanent water supply is crucial for the community, he said.

"Water is life," Randall told the committee. "Water is sacred to us."

And even though the Kickapoo settlement bill does not include a monetary component, Randall endorsed S.3168 after learning about it at the hearing.

"Without the funding, funding for the water settlements, it would be detrimental to all of the tribes," Randall said.

John Tubbs, the director of the Montana Department of Natural Resources, pushed strongly for S.3168 as well. Tribes need to know they are not negotiating in vain with the federal government, their trustee, he said.

"The tribal governments are competing with each other for a deadline of 2029 ... and the money runs out," Tubbs testified on behalf of Montana and the Western States Water Council, which has endorsed a permanent settlement fund. "You're actually pitting tribes against tribes."

Water rights are the cornerstone of the agricultural economy in Montana. That's why farmers and ranchers are supporting a water compact for the Confederated Salish and Kootenai Tribes. https://t.co/FNNxwSAbZN

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Tribal water settlements are funded at about $120 million a year. In fiscal year 2019, that money will go toward nearly a dozen agreements, according to the Bureau of Reclamation.

Overall, Congress has ratified 32 tribal agreements and has provided about $1 billion so far to implement them, Mikkelsen said. Another $1.6 billion is needed for them be considered complete.

At the rate of $120 million a year, the Reclamation Water Settlements Fund will be out of commission for just the existing settlements alone.

Of the future settlements, Mikkelsen's $5 billion figure includes a big one from Montana that's already before Congress. The deal with the Confederated Salish and Kootenai Tribes is projected to cost $2.3 billion, a price tag the Obama administration refused to accept because it was deemed too high.

And the $5 billion amount might not even be adequate, Mikkelsen conceded.

"Your estimate doesn't even include cost overruns or inflation, correct?" Udall asked.

"That is correct," Mikkelsen responded.

Congress created the Reclamation Water Settlements Fund with the Omnibus Public Land Management Act of 2009. The federal law contains the 2029 deadline, which Udall's bill would eliminate and extend permanently.

Indian Country is largely standing behind Udall's efforts.

"Water is a precious resource, and tribes with states, local water users, and the federal government need long-term tools to secure certainty of their water resources," President Jefferson Keel of the National Congress of American Indians said after the hearing.

"We are pleased that Senator Udall’s bill would permanently extend the Reclamation Water Settlements Fund, which would ensure water users will continue to benefit from Indian water settlements now and well into the future," Keel added.

The Native American Rights Fund, which has represented the Kickapoo Tribe and countless others in water rights negotiations, is also endorsing the measure.

"We have worked with tribes for decades on water rights negotiations and settlements, and ultimately the biggest stumbling block has always been getting the Congress to fund their fair share of the settlement costs," said John Echohawk, NARF's executive director. "Continued access to the Reclamation Fund for this purpose through S. 3168 would be of great assistance in addressing this on-going issue."

Senate Committee on Indian Affairs Notice:
Legislative Hearing to receive testimony on S. 2154, S. 3060 and S. 3168 (July 18, 2018)

Senate Committee on Indian Affairs takes up three bills at hearing (July 17, 2018)
Trump administration throws up hurdles for first new tribal water rights settlements (December 7, 2017)