By Emma Whitford

Law360 (May 22, 2020, 5:24 PM EDT) -- Darrell Begay estimates that he spends at least 12 hours each week hauling water to his mother's house in Oaksprings, New Mexico, on the Navajo Nation reservation. He has 20 five-gallon jugs for drinking and washing, and plastic tanks for the family's sheep and cattle.

Weekend lockdowns on the reservation — part of the Nation's effort to combat a serious outbreak of the novel coronavirus — have only complicated matters for the estimated 30% of Navajo Nation homes that lack piped water. Extra hand washing is difficult.

"We don't have hot water," Begay told Law360. "So we actually have to put the water on the stove."

While the local government and Indian Health Service set up emergency hand-washing stations and water points — and deliver bottled water to remote homes — experts say that structural changes are needed to solve the Nation's water shortage. Beyond increased federal funding for water lines, they envision a major shift toward dense residential living on the reservation.

Since 1959, an office within IHS, the Division of Sanitation Facilities Construction, has built and repaired water infrastructure for tribal homes across the country.

But the program doesn't serve all households. Last year, IHS estimated the total cost of outstanding sanitation projects on the Navajo reservation to be $520 million. Of that total, only $133 million worth are considered "economically feasible," according to an IHS report shared with Law360.

IHS chooses projects based on criteria including scope — from minor repairs to water line installation — and factors like the cost per home for installation and maintenance.

A Law360 analysis of 2019 project data compiled by IHS revealed more than 2,700 homes that don't meet the agency's feasibility criteria, even though they lack safe water, a sewage system, or both.

This is troubling for Navajo Council Delegate Amber Crotty, who represents several communities in the northeast part of the reservation spanning Arizona and New Mexico.

Crotty has spent much of the pandemic delivering water to her constituents, including in the Cove, Arizona, area where the U.S. Environmental Protection Agency has identified elevated levels of uranium in the watershed from 42 abandoned mines, according to its website.

"IHS has a funding formula that doesn't work for Navajo," Crotty told Law360.

Dr. Loretta Christensen, chief medical officer of the Navajo Area Indian Health Service, acknowledges the limitations of IHS' sanitation program.

"While we certainly recognize that there is a mission there to get the water and sanitation services throughout Navajo Nation, it has been a challenge, and especially noticed during this time," she told Law360.

IHS has established a COVID-19 water task force for the Navajo Nation and is working to repair and establish water points in coordination with the Nation government, a spokesperson added.

Crotty signed on to an April letter to Congress, calling on the federal government to close IHS' funding gap for water projects. To date, the Navajo region accounts for nearly 60% of IHS' tribal COVID-19 cases nationally.

"Without access to clean water and adequate sanitation facilities, the Navajo Nation and tribes throughout the country will continue to struggle and be more susceptible to illnesses like COVID-19," the letter states.

But some Navajo experts think IHS' current approach — running water lines out to far-flung private homes — is futile for economic and geographic reasons. Greater population density is needed, they say.

"In the widespread areas where people are rural, it takes long line extensions to serve them as individuals, and the cost is high to keep those lines running," said Rex Kontz, deputy manager of the Navajo Tribal Utility Authority.

According to Begay, his family hit a wall with IHS several years ago for this reason. "They just said we're too far away, the water will get stagnant in the lines, and they pretty much shut everything down," he said.

Ronson Chee is a civil engineer who sits on the board of directors for the Navajo Engineering and Construction Authority. Like Kontz, he believes economic development could draw families into denser areas.

"Right now if you keep doing things the way they are, you're trying to serve all these off-grid users, and you'll never reach them," Chee told Law360. "I've been trying to advocate for this revised planning for years ... and now I think the [Navajo] leaders are finally going to be willing to hear it."

He added that density will require major investments in housing, amenities and businesses on-reservation. "We have this larger issue of people leaving the reservation because there's no opportunity," he said. "I'm an example of that."

Navajo Nation President Jonathan Nez has said he hopes to use part of an allotted $600 million in federal Coronavirus Aid, Relief and Economic Security Act funds for water infrastructure and to bolster the local economy, but that it will be difficult to allocate the money by a Dec. 31 deadline.

--Editing by Orlando Lorenzo.

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