Department of the Interior Support for Tribal Water Projects

Department of the Interior Support for Tribal Water Projects

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Updated May 10, 2024
Department of the Interior Support for Tribal Water Projects
Congress regulates tribal affairs, including tribal access to
Congress passed authorizing legislation that has directed
water resources, pursuant to its constitutional authority. In
the federal government—in concert with tribal
addition, the federal government has a federal trust
stakeholders—to implement various activities and
responsibility to protect tribal treaty rights, lands, assets,
infrastructure specific to (and deemed appropriate for)
and water resources on behalf of federally recognized
individual IWRS. This includes funding and support for
Tribes (hereinafter Tribes) and tribal members. The
major water storage and conveyance infrastructure,
Department of the Interior (DOI) supports water projects
groundwater management, irrigation projects, and
and activities for Tribes through multiple departmental
municipal water systems, among other things. Congress
agencies and programs, including the Bureau of
also has approved funding for the ongoing operation and
Reclamation (BOR) and the Bureau of Indian Affairs
maintenance (O&M) of some tribal water systems.
(BIA). This In Focus discusses major DOI efforts to support
tribal water projects, including Indian water rights
In authorizing legislation Congress has, in some cases,
settlements (IWRS), Indian irrigation projects, and rural
included permanent (mandatory) funding for selected
water projects.
activities and projects associated with individual
settlements. Congress also has approved broader mandatory
Indian Water Rights Settlements
funds available to fund enacted IWRS, subject to specific
Since a 1908 Supreme Court ruling (Winters v. United
criteria. Major mandatory funding sources for IWRS are
States, 207 U.S. 564, 575-77), courts generally have held
depicted below in Figure 1. The Reclamation Water
that many Tribes have a reserved right to water sufficient to
Settlements Fund (enacted in 2010 in P.L. 111-11), is
fulfill the purpose of their reservations and that this right
available to fund certain priority IWRS, and the Indian
took effect on the date the reservations were established.
Water Rights Settlement Completion Fund (P.L. 117-58) is
This means that, in the context of a state water law system
available to fund all 35 settlements approved as of the date
of prior appropriation (common in many U.S. western
of that bill’s enactment (November 15, 2021).
states), many Tribes have priority water rights over non-
tribal users with water rights established subsequent to the
Figure 1. Mandatory Appropriations for IWRS
reservations’ creation. The quantification of these rights in
(nominal $ in millions)
many cases remains subject to state legal processes.
IWRS are a means of dispute resolution that allow Tribes to
quantify their unresolved water rights, while also procuring
access to water through infrastructure and other related
expenses. In exchange, non-tribal users gain assurances
related to water rights and potential litigation.
The federal government, through the Secretary of the
Interior’s Indian Water Rights Office, takes a leadership
role in coordinating the negotiation and implementation of

individual settlements. In addition to Tribes and federal
Source: Congressional Research Service.
government representatives, settlement negotiations may
Notes: Settlements general y receive “no-year” funding, meaning it
involve states, water districts, and private water users (i.e.,
remains available until expended, without limitation as to fiscal year.
water rights holders), among others. Although IWRS are a
As of FY2024, much of these funds has not been obligated. Congress
popular approach to solving Indian water rights disputes,
may supplement these funds in future legislation.
disagreements may arise regarding specific compromises in
individual settlements that are deemed unacceptable by one
Federal funding outside of these sources is typically
or more parties.
provided through annual discretionary appropriations for
the BOR or BIA. For example, BIA’s Indian Land and
Approval and implementation of IWRS typically require
Water Claim Settlements and Miscellaneous Payments to
federal action—often in the form of congressional approval
Indians (ILWC) account includes funding to implement
in enacting legislation. As of early 2024, Congress had
IWRS. The BOR also funds individual settlements through
enacted 35 such settlements. Of these, the federal
discretionary funding for its Water and Related Resources
government currently has an active implementation role in
Account. For more information, see CRS Report R44148,
19 settlements. Another 20 settlements are currently in the
Indian Water Rights Settlements, by Charles V. Stern; and
negotiation phase.
CRS Report R47723, Bureau of Indian Affairs: Overview of
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Department of the Interior Support for Tribal Water Projects
Budget Issues and Options for Congress, by Mariel J.
construct authorized rural water projects and to provide
Murray.
O&M assistance for tribal components. For more
information, see CRS Report R46308, Bureau of
BIA Tribal Water and Indian Irrigation
Reclamation Rural Water Projects, by Anna E. Normand.
The Snyder Act of 1921 authorized BIA to operate
programs and spend federal funds for the benefit and
Section 50231 of P.L. 117-169, commonly known as the
assistance of Tribes and tribal members, including for water
Inflation Reduction Act (IRA), appropriated $550 million,
resources. The act specifically directed BIA to operate and
available through FY2031, for BOR to provide up to 100%
spend funds for the extension, improvement, and O&M of
of the cost for the planning, design, and construction of
existing tribal agricultural irrigation systems, as well as to
water projects where the primary purpose is to provide
provide for the development of tribal water supplies. BIA’s
domestic water supplies to disadvantaged communities or
Water Resources Program helps Tribes protect and manage
households. Under this authority, BOR announced $320
tribal water resources. For example, BIA performs technical
million to assist Tribes under a new Tribal Domestic Water
studies to help Tribes gather hydrology data and develop
Supplies Program. Funding is limited to up to $3 million for
best practices for water use. In addition, BIA helps Tribes
planning studies, up to $5 million for design projects, and
create drought management plans that include water
up to $50 million for construction projects.
conservation techniques and undertakes projects to support
Indian water rights.
BOR also operates a Native American Affairs Technical
Assistance Program that, among other things, helps Tribes
Since the late 1800s, DOI has provided irrigation for tribal
develop, manage and protect their water and related
lands through the Indian Irrigation Service. Most Indian
resources. Program activities include assisting Tribes to
irrigation construction activities ended in the 1940s, when
better understand their water-related needs and to develop
the Indian Irrigation Service ceased to exist and DOI
water resources on tribal reservations through traditional
transferred project O&M to BIA. BIA currently has 15
and innovative technologies. These funds are made
irrigation projects across 780,000 acres in 10 western states,
available through contracts, financial assistance
mostly on tribal reservations. These projects serve 25,000
agreements, or direct services. In Section 80004 of the IRA,
tribal and non-tribal water users.
Congress supplemented this program’s annual funding by
including $12.5 million for near-term relief actions to
Congress funds BIA’s Water Resources Program and
mitigate drought for Indian tribes “impacted by the
Indian irrigation facilities within BIA’s Operation of Indian
operation of a Reclamation project.” BOR announced this
Programs (OIP) account, in annual discretionary
funding opportunity in December 2023.
appropriations acts for the Department of the Interior,
Environment, and Related Agencies. Congress also has
Issues for Congress
provided supplemental appropriations for these activities.
The 118th Congress may continue its involvement in tribal
For example, the Infrastructure Investment and Jobs Act
water resource issues, including through legislation and
(IIJA; P.L. 117-58) provided $250 million over five years
oversight of DOI’s water resources, irrigation, and dam
to the BIA Construction account, including at least $50
programs and funding for these programs. Congress also
million to address irrigation and power systems and $200
may consider funding and oversight efforts for various
million to address safety of dams, water sanitation, and
other related water resource activities (e.g., ongoing IWRS
other facilities.
projects), as well as issues related to recent funding, such as
IIJA and IRA funding.
In addition, the Water Infrastructure Improvements for the
Nation Act of 2016 (P.L. 114-332), as amended, established
In addition to oversight and funding of ongoing tribal water
an Indian Irrigation Fund to repair, replace, modernize, or
resources activities, Congress may consider proposals to
perform maintenance on certain Indian irrigation projects.
increase tribal participation in broader water infrastructure
The act, as amended, directed the Department of the
financial assistance programs. Tribal representatives have
Treasury to deposit $35 million in the fund annually
asserted that high cost-share requirements of some water
through FY2028.
infrastructure financial support programs create a barrier to
entry. Some have proposed altering the cost-share
Selected BOR Programs
requirements for Tribes from these programs. The 118th
Since 1980, Congress has authorized BOR to undertake the
Congress is also considering new IWRS (e.g., H.R. 5088, S.
design and construction, and sometimes O&M, of
1987, S. 306). The related issue of extending mandatory
specific rural water supply projects intended to deliver
funding mechanisms for existing settlements and/or
potable water supplies to rural communities in western
authorizing such mechanisms for newly enacted settlements
states, largely in North Dakota, South Dakota, Montana,
also may be of interest to Congress.
and New Mexico. These projects serve tribal reservations
and non-tribal rural communities with nonexistent,
Charles V. Stern, Specialist in Natural Resources Policy
substandard, or declining water supply or water quality. The
Mariel J. Murray, Specialist in Natural Resources Policy
federal government pays up to 100% of the costs for tribal
Anna E. Normand, Specialist in Natural Resources Policy
rural water supply projects, including O&M. Five BOR
rural water projects or their components benefit tribal
IF12616
communities. Utilizing annual appropriations and $1 billion
from the IIJA for rural water projects, BOR continues to
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Department of the Interior Support for Tribal Water Projects

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