Navajo Nation president and residents want to use federal Covid-19 funds on water infrastructure. Is that allowed?

A water tank on the Navajo Nation. Photo courtesy of Flickr/Creative Commons user CEBImagery

By Brett Walton, Circle of Blue

The Navajo Nation, one of the U.S. populations hardest hit by Covid-19, will receive at least $600 million in emergency funding from the CARES Act to respond to the coronavirus pandemic.

It’s an enormous amount of money for the tribe, amounting to about half of the Navajo Nation’s $1.3 billion budget for 2020. But the country’s second-most populous tribal nation might not be authorized to use the funds for one of its greatest needs, which is clean water.

The CARES Act, which was signed by President Trump on March 27, provided $8 billion to tribal governments. Three-fifths of that amount ($4.8 billion) has been allocated so far. Because of its size, the Navajo Nation will receive a large portion of that sum.

Speaking via Facebook Live on May 19, Jonathan Nez, president of the Navajo Nation, reiterated the depth of the tribe’s clean-water challenge, noting that 30 to 40 percent of people living on the reservation do not have running water. Then he made a promise.

“We’re going to be addressing that through the $600 million dollars,” Nez said, referring to the lack of running water in so many homes.

“We need to get water to all those citizens just in case of another bug, another pandemic in the future,”Jonathan Nez, president of the Navajo Nation.

The statement echoed comments that Nez made in another livestreamed speech a few days earlier. Nez connected the fact that many of his constituents do not have running water to the public and personal health crisis unfolding around him. “We need to get water to all those citizens just in case of another bug, another pandemic in the future,” Nez said.

Nez suggested that half of the CARES Act money — some $300 million — be spent on water projects. Certainly, such an expenditure would be an enormous benefit to the tribe. But legal experts are less confident that the funds can be put toward the Navajo Nation’s chronic water infrastructure deficit.

“It would be hard to use CARES Act funding for large infrastructure projects, because of course the deadline to expend the funds is so short,” a lawyer who works on tribal water issues in Arizona told Circle of Blue. The lawyer did not want to be named because it might compromise their work with tribes.

There is less flexibility in the act than tribes would like, another lawyer who works on tribal issues told Circle of Blue. Deliveries of bottled water or use of tanker trucks to visit homes without running water would probably qualify under the personal and public health provisions, this person said. But extending water lines to communities or drilling wells — options that would provide a long-term water supply — probably would not.

The CARES Act places three restrictions on the emergency funds. The funds must be used for “necessary expenditures” in response to the coronavirus pandemic, they must not have been accounted for in the tribal government’s most recent budget, and they must be spent by December 30, 2020.

According to the act, funds used for ineligible purposes become a debt that must be repaid to the Treasury Department.

Chronic Ills in an Emergency Response

The Navajo Nation extends over 27,425 square miles of territory, into Arizona, New Mexico, and Utah. Ranked by land area, it is by far the largest reservation in the United States, larger even than ten states. There are about 173,000 people living on the reservation, according to the 2010 Census.

Washing hands is one line of defense against the virus, but getting enough water to do that is not easy for many on the Navajo reservation.

Across this sprawling geography unfolds a coronavirus hot spot. As of May 20, there were 4,253 confirmed Covid-19 cases on the reservation, and 146 deaths.

Washing hands is one line of defense against the virus, but getting enough water to do that is not easy for many on the Navajo reservation.

For them, water is a chore, said Byron Shorty, a spokesperson for the Navajo Nation Council. And in the pandemic it is a chore with added health risks. People must leave home and travel to haul water by the tank or bottle. What water they do have, they must use sparingly, being careful of waste, he said.

“At the end of the day, this is a public health priority,” Shorty told Circle of Blue.

A U.S. Water Alliance report noted that some residents drive up to 40 miles to haul water to their homes from larger towns with piped supplies. One resident said that her trips to acquire water cost $200 a month in gas.

The CARES Act funding could address immediate needs and help with water distribution in the emergency period. But first, politics internal to the Navajo Nation must be sorted out.

“At the end of the day, this is a public health priority,”Byron Shorty, a spokesperson for the Navajo Nation Council.

On May 15, the Navajo Nation Council passed a bill by a vote of 19 to 4 that establishes a legal framework for spending the $600 million. The bill does not allocate money to specific programs. Rather, it deals with the procurement process and contracts, and it streamlines spending procedures that Shorty said were too drawn out.

President Nez, who must sign the bill into law, is promoting an alternative version that has not yet been acted on in the Council.

Once the procedural legislation is settled, Navajo government committees will have to determine spending plans. That process could take two weeks or so, Shorty said.

Whatever the funding vehicle, it is clear that Navajo residents want CARES Act funding to address the lack of running water in so many homes. Many of the hundreds of residents who submitted comments on the Council’s legislation mentioned water infrastructure.

In addition to healthcare, “I plead with you to utilize the funding for plumbing projects and home improvement projects,” wrote Thorielyia Curley. “I speak with experience. My family does not have indoor plumbing. We have to haul water weekly, we still utilize outhouses, and in addition we need housing improvements.”

“I believe that the most important element is WATER,” wrote Seraphine Yazzie. “To fight COVID-19, Navajos on the reservation need water to combat the virus.”

Sophia Eriacho-Campbell spoke of a history of wanting: “We desperately need water, my family has been hauling water for decades. My parents suffered through many health problems and have since passed. I know many of their health problems could of been prevented if they would have had running water in the home.”

The Missing Piece

In the broader view, though, where will the home for these homes come from? Sarah Porter, director of the Kyl Center for Water Policy at Arizona State University, said that there are larger water supply questions that factor into the Navajo Nation’s infrastructure deficit.

First among them is the right to draw water from the region’s few rivers and aquifers. The Navajo Nation settled claims to the San Juan River with the state of New Mexico in 2005, and a settlement with the state of Utah that is pending in Congress.

But in Arizona, where its land holdings are largest, the tribe has not settled potentially substantial claims to the Little Colorado River, the mainstem Colorado River, and various aquifers. A proposed agreement fell apart in 2012.

Settlements often are packaged as a swap: tribes give up a portion of their water claims in exchange for federal funding — sometimes hundreds of millions of dollars — to build the infrastructure that will deliver water to towns and homes.

“If you don’t know what your secure water supply is, how are you going to make decisions about infrastructure without that clarity?” Sarah Porter, director of the Kyl Center for Water Policy at Arizona State University.

Without settlements and the legal certainty they provide, water supply projects have no firm foundation, Porter said.

“If you don’t know what your secure water supply is, how are you going to make decisions about infrastructure without that clarity?” Porter told Circle of Blue.

Clarity is something that the Navajo would like regarding the CARES Act, too.

Shorty said that the council is working with the offices of Sen. Martha McSally, a Republican from Arizona, and Sen. Martin Heinrich, a Democrat representing New Mexico, on two key issues.

One is whether the deadline for spending CARES Act funds can be extended for tribes because the Treasury Department was late in distributing money. The act was signed on March 27, but funding was not allocated until early May, some six weeks later.

The second is clarification on what expenditures are allowable. The tribe, and residents, would like some money to be allocated to water projects that are a long-term public health necessity, but might not meet the constraints of the CARES Act.