Tribal Water Infrastructure Bill AB 2877 Signed Into Law

10.10.2022

With the close of the 2022 legislative session bringing an influx of new bills across Governor Gavin Newsom’s desk, Assemblymember Eduardo Garcia’s (D-Coachella) AB 2877 was officially approved and signed into law in late September.

In 2019, SB 200 established the Safe and Affordable Drinking Water Fund (Fund), which was designed to help water systems provide adequate and affordable short- and long-term supply of safe drinking water. While California Native American tribes, and certain nonfederally recognized Native American tribes, were eligible for aid under SB 200, the Fund had difficulties in its implementation which limited the accessibility for tribal communities. AB 2877 seeks to alleviate some of those difficulties.

First and foremost, AB 2877 will require the State Water Resources Control Board (State Water Board) to include its tribal liaison or a tribal liaison designee in all discussions with eligible tribe-recipients under the Fund. With this requirement, the State Water Board hopes to improve coordination between tribes and the State Water Board, but the new legislation also includes an opt out provision allowing eligible tribe recipients to excuse the State Water Board’s tribal liaison or designee.

AB 2877 further specifies that in situations where a limited waiver of tribal sovereignty is required by the State Water Board for a tribe that is an eligible recipient to access funding, the waiver must be narrowly drafted to serve both the individual needs of the tribe and make the funding agreement enforceable. AB 2877 further clarifies that any such waiver of sovereign immunity must be negotiated with the direct involvement and assistance of the State Water Board’s tribal liaison or designee.

In conjunction with these new provisions, AB 2877 also mandates a higher level of active monitoring and diligence in ensuring the distribution of funds to eligible tribes. Specifically, the new legislation will require the State Water Board to post annual updates to its website indicating the number of inquiries for funding received from tribes, the number of applications for funding received from tribes, and the total amount of funding granted to tribes each year.

Finally, if the State Water Board finds itself in a position where it is consistently unable to process and approve funding applications from eligible tribes in a timely manner, AB 2877 requires the State Water Board to identify barriers hindering otherwise eligible tribes’ abilities to receive funding and to propose possible solutions in the Fund’s expenditure plan.

Please contact the authors of this alert or your usual AALRR counsel with any questions regarding AB 2877.