II 117th CONGRESS 1st Session S. 2369 IN THE SENATE OF THE UNITED STATES July 15, 2021 Mr. Bennet (for himself and Mr. Heinrich ) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs A BILL To provide access to reliable, clean, and drinkable water on Tribal lands, and for other purposes.

1. Short title This Act may be cited as the Tribal Access to Clean Water Act of 2021 . 2. Findings Congress finds that— (1) access to reliable, clean, and drinkable water is an essential human need and critical to the public health, well-being, educational attainment, and economic development of all communities in the United States; (2) many countries, along with the United Nations, have recognized the urgency of the need to access reliable, clean, and drinkable water by passing laws or resolutions relating to the human right to water and sanitation, including— (A) recognizing these water and sanitation needs exist among Indigenous peoples; and (B) establishing aggressive targets for achieving universal access to those basic services; (3) in the United States, access to reliable, clean, and drinkable water has long been a significant problem in many Native communities, such that nearly half of all households in those communities do not have access to reliable water sources, clean drinking water, or basic sanitation, and are significantly more likely than White households to lack indoor plumbing; (4) the trust responsibility of the Federal Government to Indian Tribes requires the Federal Government to ensure the survival and welfare of Indian Tribes, and the failure to provide basic water service cannot be reconciled with that trust responsibility; (5) the ongoing COVID–19 pandemic has had a disproportionate impact on Native communities due to a multitude of factors, including— (A) persistent economic disadvantages; (B) racial inequity; and (C) lack of public health infrastructure, including access to running water; (6) on January 27, 2021, President Biden issued Executive Order 14008 (86 Fed. Reg. 7619 (February 1, 2021)), which provides that it is the policy of the Biden Administration to secure environmental justice and spur economic opportunity for disadvantaged communities that have been historically marginalized and overburdened by pollution and underinvestment in housing, transportation, water and wastewater infrastructure, and health care; (7) advances in water technology, including treatment, sensors, and innovative pipeline materials, can assist in— (A) accelerating efforts to provide universal access to reliable, clean, and drinkable water for all Native communities; and (B) enhancing resilience in the face of climate change; (8) the COVID–19 pandemic has been a stark reminder that access to reliable, clean, and drinkable water to support basic hygiene is a matter of life or death for all individuals in the United States; (9) it is in the interest of the United States, and it is the policy of the United States, that all existing Native communities be provided with safe and adequate water supply systems as soon as practicable; and (10) both appropriate funding at the level of unmet need and a whole of government approach among all Federal agencies are essential to provide a meaningful solution to the lack of access to clean water on Tribal lands. 3. Definitions In this Act: (1) Director The term Director means the Director of the Indian Health Service. (2) Indian Tribe The term Indian Tribe has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act ( 25 U.S.C. 5304 ). (3) Native community The term Native community means— (A) an Indian Tribe; and (B) a Native Hawaiian (as defined in section 801 of the Native American Housing Assistance and Self-Determination Act of 1996 ( 25 U.S.C. 4221 )) community. (4) Report The term Report means the most recent annual report required to be submitted by the Secretary of Health and Human Services to the President under section 302(g) of the Indian Health Care Improvement Act ( 25 U.S.C. 1632(g) ). (5) Tribal land The term Tribal land means— (A) any land located within the boundaries of— (i) an Indian reservation, pueblo, or rancheria; or (ii) a former reservation within Oklahoma; (B) any land not located within the boundaries of an Indian reservation, pueblo, or rancheria, the title to which is held— (i) in trust by the United States for the benefit of an Indian Tribe or an individual Indian; (ii) by an Indian Tribe or an individual Indian, subject to restriction against alienation under laws of the United States; or (iii) by a dependent Indian community; (C) any land located within a region established pursuant to section 7(a) of the Alaska Native Claims Settlement Act ( 43 U.S.C. 1606(a) ); (D) Hawaiian Home Lands (as defined in section 801 of the Native American Housing Assistance and Self-Determination Act of 1996 ( 25 U.S.C. 4221 )); and (E) those areas or communities designated by the Assistant Secretary of Indian Affairs of the Department of the Interior that are near, adjacent, or contiguous to reservations where financial assistance and social service programs are provided to Indians because of their status as Indians. 4. Indian Health Service (a) Sanitation Facilities Construction Program funding (1) Appropriation In addition to amounts otherwise available, there is appropriated to the Secretary of Health and Human Services, acting through the Director (referred to in this section as the Secretary ), out of amounts in the Treasury not otherwise appropriated, $3,410,000,000 for the fiscal year ending September 30, 2021, to remain available until expended, for all activities authorized under section 302(b)(1) of the Indian Health Care Improvement Act ( 25 U.S.C. 1632(b)(1) ), including the planning, design, construction, modernization, improvement, and renovation of water, sewer, and solid waste sanitation facilities: Provided, That the Secretary may retain up to 10 percent of the amounts appropriated under this paragraph for administration of the Sanitation Facilities Construction Program and related management and staffing purposes. (2) Priority for funding In awarding funding for the planning, design, construction, modernization, improvement, and renovation of water, sewer, and solid waste sanitation facilities under paragraph (1), the Secretary shall prioritize sanitation facilities with the highest deficiency level, as established in the Report. (b) Technical assistance funding In addition to amounts otherwise available, there is appropriated to the Secretary, out of amounts in the Treasury not otherwise appropriated, $150,000,000 for the fiscal year ending September 30, 2021, to remain available until expended, for technical assistance support in Native communities and for other activities authorized under section 302(b)(2) of the Indian Health Care Improvement Act ( 25 U.S.C. 1632(b)(2) ). (c) Operation and Maintenance funding (1) Appropriation In addition to amounts otherwise available, there is appropriated to the Secretary, out of amounts in the Treasury not otherwise appropriated, $500,000,000 for the fiscal year ending September 30, 2021, to remain available until expended, for the operation and maintenance of water facilities serving Native communities. (2) Priority for funding In awarding funding for the operation and maintenance of water facilities under paragraph (1), the Secretary shall prioritize water facilities the most in need of assistance, as identified by the Operation and Maintenance Capability Ratings of the Indian Health Service. (3) Future funding On completion of an operation and maintenance of water facilities project described in paragraph (1), the Secretary shall, for not less than 5 years after the date on which the project is completed and to the extent to which annual appropriations are available, include the completed project as eligible for sustained funding support and guidance to ensure that the investments in the water facilities are adequately maintained and operated for the health and welfare of Native communities served, ensuring that the infrastructure investment is protected and the intended economic benefit is realized. 5. Department of Agriculture rural development (a) Appropriation In addition to amounts otherwise available, there is appropriated to the Secretary of Agriculture (referred to in this section as the Secretary ), out of amounts in the Treasury not otherwise appropriated, $500,000,000 to make grants under sections 306C and 306D of the Consolidated Farm and Rural Development Act ( 7 U.S.C. 1926c , 1926d) to eligible entities described in subsection (b) to provide for the development, use, and control of water (including the extension or improvement of existing water supply systems) in eligible entities the residents of which face significant health risks, as determined by the Secretary, due to a significant proportion of the residents of the eligible entity not having access to, or not being served by, an adequate affordable water supply system. (b) Eligible entities An entity eligible to receive a grant using amounts appropriated by subsection (a)— (1) is a Native community; and (2) in the case of a grant under section 306D of the Consolidated Farm and Rural Development Act ( 7 U.S.C. 1926d ), includes a consortium formed pursuant to section 325 of Public Law 105–83 (111 Stat. 1597). (c) No matching contribution An eligible entity shall not be required to provide any matching contribution otherwise required by any other provision of law (including regulations) with respect to a grant received by the eligible entity from amounts appropriated by subsection (a). (d) Priority for funding In awarding grants to eligible entities using amounts appropriated by subsection (a), the Secretary shall— (1) treat members of an eligible entity in the same manner as individuals who reside in a colonia for purposes of subsections (a)(2)(B) and (c)(2) of section 306C of the Consolidated Farm and Rural Development Act ( 7 U.S.C. 1926c ); and (2) award the grants without requiring an eligible entity or the members of an eligible entity to demonstrate an inability to finance the proposed project— (A) from the resources of the eligible entity or members; or (B) through commercial credit. (e) Interagency collaboration The Secretary shall consult with the Director of the Indian Health Service regarding agency collaboration, project prioritization, and staffing needs to ensure the amounts made available under this section are used in the most effective manner to promote access to water and sanitation. 6. Bureau of Reclamation (a) Rural water supply program reauthorization (1) Authorization of appropriations Section 109(a) of the Rural Water Supply Act of 2006 ( 43 U.S.C. 2408(a) ) is amended by striking 2016 and inserting 2031 . (2) Termination of authority Section 110 of the Rural Water Supply Act of 2006 ( 43 U.S.C. 2409 ) is amended by striking 2016 and inserting 2031 . (b) Bureau of reclamation rural water supply program (1) Definitions In this subsection: (A) Reclamation state The term Reclamation State means a State described in the first section of the Act of June 17, 1902 ( 43 U.S.C. 391 ; 32 Stat. 388, chapter 1093). (B) Secretary The term Secretary means the Secretary of the Interior, acting through the Commissioner of Reclamation. (2) Competitive grant program for tribal clean water access projects (A) Establishment In accordance with section 103 of the Rural Water Supply Act of 2006 ( 43 U.S.C. 2402 ), the Secretary shall establish a competitive grant program under which an Indian Tribe shall be eligible to apply for a grant from the Secretary in an amount not to exceed 100 percent of the cost of planning, design, and construction of a project determined by the Secretary to be eligible for funding under subparagraph (B). (B) Eligibility To be eligible for a grant under subparagraph (A), a project shall, as determined by the Secretary— (i) (I) provide, increase, or enhance access to safe drinking water for communities and households on Tribal land; or (II) address public health and safety concerns associated with access to safe drinking water; and (ii) be carried out in a Reclamation State. (C) Priority (i) In general In providing grants under subparagraph (A), the Secretary shall give priority to projects that meet 1 or more of the following criteria: (I) A project that would provide potable water supplies to communities or households on Tribal land that do not have access to running water as of the date of the project application. (II) A project that would address an urgent and compelling public health or safety concern relating to access to safe drinking water for residents on Tribal land. (III) A project that would address needs identified in the Report. (IV) A project that is closer to being completed, or farther along in planning, design, or construction, as compared to other projects being considered for funding. (V) A project that would take advantage of the experience and technical expertise of the Bureau of Reclamation in the planning, design, and construction of rural water projects, particularly with respect to a project that takes advantage of economies of scale. (VI) A project that would take advantage of local or regional partnerships that complement related efforts by Tribal, State, or Federal agencies to enhance access to drinking water or water sanitation services on Tribal land. (VII) A project that would leverage the resources or capabilities of other Tribal, State, or Federal agencies to accelerate planning, design, and construction. (VIII) A project that would provide multiple benefits, including— (aa) improved water supply reliability; (bb) public health improvements; (cc) ecosystem benefits; (dd) groundwater management and enhancements; and (ee) water quality improvements. (ii) Consultation In prioritizing projects for funding under clause (i), the Secretary— (I) shall consult with the Director; and (II) may coordinate funding of projects under this paragraph with the Director, the Administrator of the Environmental Protection Agency, the Secretary of Agriculture, and the head of any other Federal agency in any manner that the Secretary determines would— (aa) accelerate project planning, design, or construction; or (bb) otherwise take advantage of the capabilities of, and resources potentially available from, other Federal sources. (3) Funding (A) In general In addition to amounts otherwise available, there is appropriated to the Secretary, out of amounts in the Treasury not otherwise appropriated, $2,000,000,000 to carry out this subsection. (B) Administrative expenses; use of funds Of the amounts made available under subparagraph (A), the Secretary— (i) may use up to 2 percent for— (I) the administration of the rural water supply program established under section 103 of the Rural Water Supply Act of 2006 ( 43 U.S.C. 2402 ); and (II) related management and staffing expenses; and (ii) of the remaining amounts, shall make available— (I) 50 percent for the rural water supply projects described in the report of the Bureau of Reclamation entitled Assessment of Reclamation’s Rural Water Activities and Other Federal Programs That Provide Support on Potable Water Supplies to Rural Communities in the Western United States and dated October 7, 2014, to remain available until expended; and (II) 50 percent to carry out the competitive grant program established under paragraph (2), to remain available until expended. (c) Funding for native american affairs technical assistance program of the bureau of reclamation In addition to amounts otherwise available, there is appropriated to the Secretary of the Interior, out of amounts in the Treasury not otherwise appropriated, $90,000,000 for use, in accordance with section 201 of the Energy and Water Development Appropriations Act, 2003 ( 43 U.S.C. 373d ), for the Native American Affairs Technical Assistance Program of the Bureau of Reclamation for the fiscal year ending September 30, 2021, to remain available until expended. 7. Drinking water and clean water State revolving funds (a) Appropriation Notwithstanding any amounts reserved under section 518(c) of the Federal Water Pollution Control Act ( 33 U.S.C. 1377(c) ) or section 1452(i)(1) of the Safe Drinking Water Act ( 42 U.S.C. 300j–12(i)(1) ) and in addition to amounts otherwise made available, there is appropriated to the Administrator of the Environmental Protection Agency (referred to in this section as the Administrator ) for the fiscal year ending September 30, 2021, out of any amounts in the Treasury not otherwise appropriated, to remain available until expended— (1) $100,000,000 for the purposes described in section 518(c)(3) of the Federal Water Pollution Control Act ( 33 U.S.C. 1377(c)(3) ); and (2) $100,000,000 for the purposes described in section 1452(i) of the Safe Drinking Water Act ( 42 U.S.C. 300j–12(i) ). (b) Use of funds (1) Technical assistance Of the amounts made available under subsection (a), the Administrator may use $5,000,000 to provide training, technical assistance, and educational programs to Native communities with respect to the operation and maintenance of treatment works (as defined in section 212 of the Federal Water Pollution Control Act ( 33 U.S.C. 1292 )) and public water systems (as defined in section 1401 of the Safe Drinking Water Act ( 42 U.S.C. 300f )). (2) Management and oversight costs Of the amounts made available under subsection (a), the Administrator may use 2 percent for the management and oversight of Native community projects carried out using funds made available under that subsection. (c) Requirements (1) Outreach The Administrator shall increase efforts to promote Native community access to drinking water and wastewater services to ensure the most effective use of amounts made available under subsection (a), including by— (A) increasing direct communication with Native communities to better assess the needs of those Native communities; (B) providing clear information to Native communities with respect to funding availability; and (C) providing an option to receive funding under this section through a direct grant using the amounts made available under subsection (a) or through an interagency agreement with the Indian Health Service. (2) Interagency collaboration In carrying out this section, the Administrator shall consult with the Director regarding agency collaboration, project prioritization, and staffing needs to ensure that amounts made available under subsection (a) are used in the most effective manner to promote Native community access to drinking water and wastewater services. (d) Transfer of funds Nothing in this section affects the authority of the Administrator to transfer funds made available under subsection (a) among the accounts for— (1) the program established under section 518 of the Federal Water Pollution Control Act ( 33 U.S.C. 1377 ); and (2) the program established under section 1452(i) of the Safe Drinking Water Act ( 42 U.S.C. 300j–12(i) ).