For years, Congress’ self-imposed ban on earmarks appeared to deliver a death blow to lawmakers’ say on water resources.
To fiscal conservatives, the Water Resources Development Act epitomized pork-barrel politics, with long lists of pricey, local projects for authorization that gathered votes by piling on something for everyone.
But the earmark ban didn’t remove parochial interest from the Army Corps of Engineers, lobbyists and staffers argue, it just shifted the power — and politics — from Congress to the executive branch.
The ban boxed in appropriators who have been able to specifically direct funds only to levees, ports and navigation projects that the administration names in its budget. Meanwhile, congressional authorizing committees have been stacking up requests for new projects with no way of advancing them.
When lawmakers began work on the first WRDA since 2007 last session, they said it was about retaking their rightful role.
Passing a WRDA without earmarks was not only possible, it was essential to reasserting Congress’ constitutional authority, House Transportation and Infrastructure Chairman Bill Shuster (R-Pa.) told members of his caucus.
Shuster proudly added the word "reform" to the title of the bill — Water Resources Reform and Development Act, or WRRDA — that was signed into law last June, arguably one of the most substantive acts of Congress that session. The measure authorized 34 new port, levee, lock and dam, and ecosystem projects and mandated a series of reforms at the Army Corps.
But whether the new law reasserts Congress’ voice on water resources remains to be seen.
The first clue came in President Obama’s fiscal 2016 budget proposal for the corps and a work plan laying out how the administration intends to spend the extra money Congress gave it in fiscal 2015.
The take-away from the budget proposal, experts say: same old, same old.
The administration’s fiscal 2016 budget request ignored several high-profile provisions of the 2014 WRRDA bill and proposed moving forward with only a handful of the newly authorized projects.
Instead, the budget blueprint would level a roughly 15 percent cut on the Army Corps at a time when demand for water resources projects is high among communities and their congressional representatives.
Not that this comes as a surprise to anyone who watches the process closely.
Low-balled budget requests for the corps have become the first step in a routine dance for both Democratic and Republican administrations.
Knowing that lawmakers will be eager to beef up the agency’s budget, administrations regularly propose cuts to the Army Corps’ budget so they can direct additional funds to priorities elsewhere in the budget.
But this year’s budget request was particularly stark with Congress having spoken so recently, stakeholders say.
"Congress set some new directions as to how things ought to be done, and the president sort of sent a business-as-usual budget for the agency," said John Anderson, a former staff director for T&I’s Water Resources and Environment Subcommittee. Anderson had a hand in every WRDA since 1990, including the 2014 bill, before he left for the private sector at the end of last year.
‘Nothing in the hopper’
It’s too early to tell how the administration will respond to WRRDA’s reform provisions, since the corps is still hammering out implementation guidance and working on required reports.
But for many lawmakers and local officials, the main question is what will happen to their priority projects.
Passage of the final WRRDA bill last May set off a deluge of news releases from members of Congress trumpeting approval for local projects. But WRRDA simply authorized projects — it did nothing to guarantee they would receive funding.
Indeed, with the corps’ annual construction budget hovering at about $2 billion, competition among projects is fierce, and many approved projects languish for years without funding.
Under the Obama budget, newly authorized ecosystem restoration projects fared well. All four of the new Everglades projects that received congressional approval in WRRDA would move ahead under the budget blueprint, and a marsh restoration project in Minnesota aimed at providing habitat to migratory birds and fish would receive coveted construction dollars.
But few of the newly authorized projects in the corps’ other mission areas would advance under the Obama proposal, according to outside groups tracking the corps’ complex budgeting process.
Two of the eight coastal navigation projects authorized in WRRDA would move forward — harbor expansions at Boston and Savannah, Ga. — according to the American Association of Port Authorities. Save for a flood protection project near the river commerce hub of Paducah, Ky., levee and hurricane protection projects were almost entirely overlooked.
Indeed, the pipeline for new projects is drying up, argued Jim Durkay, senior adviser at the Washington, D.C., firm Dawson & Associates.
The next step for most new projects after they are authorized is engineering and design work, but Durkay said the corps budget request would have a pair of projects’ design work completed without adding any new ones.
"They really have nothing in the hopper for work where they have not already had a presence," Durkay said, noting that new components of large, ongoing efforts like Everglades restoration and work along the Mississippi River would move more smoothly into pre-construction planning.
But Joshua Sewell, senior policy analyst for Taxpayers for Common Sense, said the slim number of new projects the Obama administration is proposing to move forward says less about the administration’s respect for congressional direction than it does about Congress’ unwillingness to provide direction about priorities.
The 34 new projects in WRRDA 2014 were added to a long list of projects that had already received congressional go-ahead. Before the newest WRRDA, the corps was believed to have a roughly $60 billion backlog.
"Congress is not asserting the role that they claim that they want to assert, which is prioritizing," Sewell said. "I think the budget is really a statement about when you have so many mouths to feed and so many projects that you need funding, you can’t turn the corps on a dime and start all these new priorities."
Dredging shipping lanes
Perhaps clearer in the Obama budget is the message the administration is sending about several overarching policy provisions in the new law.
The latest WRRDA was particularly focused on navigation, but the interest groups that stood to benefit from policy changes enacted through the measure are now frustrated with what they say is a lack of follow-through from the White House.
One of their top priorities was ramping up dredging and channel maintenance.
The country’s ports and harbors are silting in thanks to inadequate dredging. The 59 busiest shipping channels in the United States operate at their authorized width and depth only 30 percent of the time, according to the corps.
The irony: There’s actually plenty of money tagged for maintenance. Shippers pay into the Harbor Maintenance Trust Fund through a 0.125 percent ad valorem tax on goods that arrive on U.S. docks. But only about half the fund’s revenues have been put to use for their intended purpose in recent years, with the balance being used to offset federal spending elsewhere in the budget.
Appropriators and authorizers hammered out a plan for ramping up the spending from the fund that was codified in last year’s WRRDA. Under that schedule, $1.32 billion should be spent from the fund this year, but the fiscal 2016 Obama budget ignores the target, proposing instead the same level of spending that the administration asked for last year.
To be sure, congressional appropriators didn’t hit the WRRDA target for fiscal 2015 themselves, but the Obama request — $915 million – is 16 percent less than even this year’s enacted levels.
Jim Walker, director of navigation policy for the American Association of Port Authorities, who previously led the corps’ navigation program, said this was particularly disappointing given the emphasis the Obama administration has been putting on transportation in general and on ports in particular. Just Wednesday, Vice President Joe Biden was at the Port of Charleston in South Carolina as part of an infrastructure tour.
"While I appreciate the president mentioning in the State of the Union and ports visits the need for investment, the administration just really didn’t walk the talk when it came to this budget," Walker said.
Proponents of the country’s inland waterways system also won key gains in the 2014 WRRDA bill, only to be disappointed by the president’s budget.
The cost of new lock and dam projects, as well as major repairs, is split 50-50 by the federal government and the barge industry, which pays its share through a diesel fuel tax that goes into the Inland Waterways Trust Fund.
With the majority of the nation’s locks well past their 50-year design lives, the system has a long list of needed upgrades and new projects. But with a flat fuel tax that had been overtaken by inflation and the lion’s share of the trust fund’s expenditures being sent to a massively over-budget and over-schedule lock and dam project on the Ohio River, little progress was being made.
So industry came up with a suite of moves to fix the problem and went about systematically getting them enacted.
WRRDA shifted a greater share of the Ohio River project’s costs to the federal government, freeing up money in the Inland Waterways Trust Fund for other projects. The law also set a path to prioritizing projects so that elements of the system would not be competing with each other and individual projects could get the buy-in needed to move them to completion swiftly.
Meanwhile, the barge industry also successfully lobbied for an increase to its own gas tax to beef up the trust fund.
But the Obama budget would give industry only a partial payoff for all the changes it won last year. While the budget proposal would fully fund the federal government’s share of the Ohio River project and would send $52 million to industry’s next-highest-priority project, it would leave more than $100 million sitting in the trust fund.
"It’s disappointing to me and hard to go back to the people whose taxes we raised and say, ‘We took your money, but we’re just going to put it on the shelf for a while,’" Sen. Lamar Alexander (R-Tenn.), chairman of the Senate Energy and Water Development Appropriations Subcommittee, told Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy at a budget hearing last week (E&E Daily, Feb. 12).
The issue driving both the ports and the inland waterways funding proposals is the corps’ low overall budget number.
"Their defense of the budget is built around the notion that the corps funding is a zero-sum game, that if you plus up one program it has to come at the expense of another, because $4.7 billion is all the corps is going to get," said Mike Toohey, president and CEO of the Waterways Council Inc.
Congressional appropriators have a similar challenge. Subcommittee chairmen are given overall spending caps and are left only with the option of shifting funds around within that. That leaves corps projects competing with each other and with Energy Department programs since the agency is handled under the same spending measure. So increased spending on harbor maintenance or inland waterways systems would mean less money spent somewhere else.
At the corps’ budget hearings in the House and Senate last week, appropriators indicated they have little intention of taking most of the administration’s suggestions.
But lawmakers are severely hindered in what they can do about it.
Unable to direct additional funds to specific projects, Congress has in recent years created a series of restricted funding pots for the corps in its appropriations bills. Each fund comes with a series of directions that point the corps toward how Congress wants the money used (Greenwire, Feb. 8, 2012).
But the administration still gets to decide which projects gets money, and even whether to use it. The corps’ fiscal 2015 work plan leaves some of that extra money unused, although Darcy said last week that the corps is still looking for places to spend those funds.
Ultimately, some argue that Congress is only going to be able to reassert power over the corps with a change in the earmark ban.
"I’m one that thinks we ought to be able to do limited earmarks for things like water projects, because the Army Corps of Engineers’ budget is nothing but earmarks," House Energy and Water Development Appropriations Subcommittee Chairman Mike Simpson (R-Idaho) said in an interview last week.
"I think for Congress to be on at least an equal footing with the administration, it needs to be able to do earmarks within water projects."
But others argue the issue isn’t earmarks — it’s Congress’ unwillingness to say no to projects.
Sewell, the analyst for Taxpayers for Common Sense, argues that both Congress and the administration need to find a way of deciding which projects have the greatest national interest.
"What we need is to have a better dialogue between the administration, the corps and Congress and come up with a system that will get the best projects done quicker," he said.
Last year’s WRRDA offered some progress, he said, but ultimately it didn’t live up to its "reform" moniker.
"Again this year, we saw that WRDAs are good for press releases, but they’re not good for bringing home actual projects," he said.