CQ WEEKLY – IN FOCUS
Oct. 20, 2012 – 1:05 p.m.

Keeping the Water Bill Afloat Without Earmarks

By Nathan Hurst, CQ Staff

Senate Environment and Public Works Chairwoman Barbara Boxer has set herself an ambitious — many would say unrealistic — goal. The California Democrat wants to write and mark up a multibillion-dollar water resources authorization by the end of this year.

That would be hard enough in the best of circumstances. It took Congress seven long years of negotiations to produce the last law authorizing flood-control, navigation and environmental restoration projects in 2007 — and even that was accomplished only after lawmakers secured hundreds of earmarks.

NAVIGABLE: The water resources bill is for projects in harbors and along 12,000 miles of waterways. (KAREN BLEIER / AFP / GETTY IMAGES)

Since then, Congress has sworn off earmarks, which only makes the task more difficult. Because previous water resources bills were essentially laundry lists of lawmaker-designated projects, producing one now will force Congress to face the dilemma of abandoning — or at least redefining — its earmark moratorium. That, or it has to devise a radically new framework to pay for waterway improvements.

Boxer says she has created a formula that would spell out the criteria that the Army Corps of Engineers would consider in selecting water projects to be carried out. House authorizers are dubious about that approach and are quietly urging their leaders to revisit the earmark ban, according to lobbyists and legislative aides.

“We’re having those discussions about what is an earmark and whether it really makes sense to leave project selection up to bureaucrats,” a House aide says.

For her part, Boxer calls the earmark ban “ridiculous” — even as she tries to adapt to it.

“I think as a result of that, you have the administration with all the power, whether it’s this one or a Romney one or a Bush one,” she said at a committee hearing last month. “I believe it’s our job.”

Without earmarks, Boxer says she will establish “standards for projects,” although lobbyists following the issue say the plan is to sidestep the earmark ban by issuing a committee report to accompany the legislation that would identify specific projects meeting those new standards.

Boxer has promised a markup before the end of the year, underscoring the sense of urgency among Senate authorizers who want a bargaining chip for post-election negotiations on the deficit and tax-reduction. The aim is to have legislative language ready in case there is an opportunity to attach it to a broader tax overhaul or deficit reduction deal that might emerge at the end of this year or early in the next Congress. “We see that as a positive,” says David B. Sanford II, director of navigation policy and legislation at the American Association of Port Authorities. “If you get to a full committee markup on a bill before the end of the year, that’s huge. It tees the issue up nicely for immediate action next year.”

Revisiting Earmarks

Even the 2007 Water Resources Development Act, with 93 pages authorizing more than 800 lawmaker-designated projects and studies, would not have run afoul of a ban on earmarks as they were long understood. The term “earmark” was commonly used to describe specific expenditures on projects selected by individual lawmakers. While previous water bills identified the projects eligible for funding, it was still up to appropriators to provide the money.

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Keeping the Water Bill Afloat Without Earmarks

But the earmark ban that House Republicans put in place upon taking control in the 112th Congress went beyond appropriations to include provisions or committee reports “authorizing” specific activities.

House Republicans are beginning to see that such a broad definition of an earmark ties their hands, particularly in trying to write ambitious authorizing legislation like a water bill.

A lobbyist in close contact with party leaders on the issue says there is a “widespread feeling on the House side” that a water bill needs to get done, “but a lot of concern about how you get an effective one done without naming the projects folks need.”

Lobbyists and House aides say Speaker John A. Boehner of Ohio and Majority Leader Eric Cantor of Virginia have told colleagues and transportation industry lobbyists that they will review the moratorium — but not until after the election.

Even some congressional champions of earmark restrictions have been open to considering an exception for spending on transportation infrastructure — and especially water projects. For example, Sen. Saxby Chambliss, a Georgia Republican, issued a news release after the 2010 midterm election saying he would support an earmark moratorium with exceptions for matters of critical importance to his state, such as dredging to prepare the port of Savannah to accommodate the larger ships that will soon be passing through an expanded Panama Canal.

Senators are already lining up to make sure water projects important to their states are not left out of the next water resources bill.

This month, for example, California’s other Democrat senator, Dianne Feinstein, wrote to Boxer and the Environment panel’s ranking Republican, James M. Inhofe of Oklahoma, seeking authorization for nine flood control, harbor dredging and conservation projects in her state.

And last month, a bipartisan group of six Midwestern senators led by Majority Whip Richard J. Durbin of Illinois sent a letter bemoaning a “troubling lack of upkeep” of upper Mississippi River locks and dams and urging action to “expedite the construction and operation of these critical projects.”

Looking After Home

Other senators promoted their wish lists at the committee hearing last month. Maryland Democrat Benjamin L. Cardin touted maintenance at the port of Baltimore and beach replenishment at Ocean City, while Rhode Island Democrat Sheldon Whitehouse requested support for shoreline rehabilitation at Port Judith in his state. Boxer told her colleagues she was sympathetic to their requests.

“I trust the senators and members of Congress who know the ground on which they live to make these decisions,” she said. “That’s the reason it’s frustrating to all of us.”

Beyond parochial interests, authorizers see a potential opportunity in the debt-reduction talks to address concerns about the fund that pays for harbor maintenance and dredging.

The Harbor Maintenance Trust Fund, which is supported by a tax of $1.25 per $1,000 on imported and domestic cargo, has a surplus that exceeds $7 billion. But expenditures are set by appropriators and subject to Army Corps of Engineers budget ceilings, and shippers complain that much of the user fees they contribute are not being spent.

Keeping the Water Bill Afloat Without Earmarks

“Port and harbor users are paying for 100 percent of maintenance dredging and getting half in return,” Henry Bridges, chairman of the American Association of Port Authorities, told Boxer’s committee last month.

Bills introduced in both chambers would require all the money contributed to the fund each year to be spent on harbor maintenance and dredging. Efforts to attach the legislation to the surface transportation authorization enacted this summer were rejected in conference, in part because budget rules would require the spending to be offset.

Republican Sens. Lindsey Graham of South Carolina and Lamar Alexander of Tennessee are among a bipartisan group quietly working on an amendment that could be added to any deficit bargain, according to lobbyists. The amendment probably would incorporate the bill designed to spend down the harbor fund.

The amendment also is expected to include a version of House legislation to boost funding for inland and intracoastal waterways. A bill by Kentucky Republican Rep. Edward Whitfield would raise the user fee that shippers pay on fuel purchases by 6 cents per gallon, require the Corps of Engineers to produce a 20-year capital improvement plan for waterways and revamp the agency’s operations.

Supporters hope these issues can be addressed in any deficit reduction deal that might emerge after the election to avoid automatic spending cuts and tax increases.

“If there’s already momentum building toward fixing a lot of other issues, we want to be part of that,” says Michael Toohey, president and chief executive of the Virginia-based Waterways Council.

John D. Boyd contributed to this story.

FOR FURTHER READING: Harbor maintenance funding, CQ Weekly, p. 1252; 2007 Water Resources Development Act (PL 110-114), 2007 Almanac, p. 18-3. Harbor Maintenance Trust Fund bills are S 412 and HR 104; inland waterways bill is HR 4342.