November 23, 2016

Behind-the-scenes negotiations continue on the water resources development authorization (WRDA) legislation (H.R. 5303/S. 2848) continue, with the aim of sending legislation to the President’s desk by December 9.

Finalization of legislation this year is contingent on deals being reached on a handful of outstanding issues. Number one (with a bullet) is emergency aid to alleviate the drinking water crisis in Flint, Michigan. The Flint issue is being handled at the leadership level (Speaker Ryan, Majority Leader McConnell, etc.), not by the Congressional committees negotiating the rest of the WRDA bill.

The Flint issue may be resolved with funding contained in the continuing appropriations resolution (CR) and with related authorization language to be inserted in the WRDA bill.

There are other issues outstanding, but we don’t know what they are or how big they are (the House-Senate negotiations are not public and are “close hold”). But a lot of it may have to do with the Senate bill’s expansion of the traditional scope of the WRDA bill from the navigation and flood control functions carried out by the Army Corps of Engineers. The Senate bill would broaden WRDA to include the drinking water safety functions of the Environmental Protection Agency (and setting a precedent that would perhaps be irreversible).

This is easier to do in the Senate, where the Corps and the EPA are both under the jurisdiction of the Environment and Public Works Committee, than in the House where the Corps is under Transportation and Infrastructure but the Safe Drinking Water Act side of the EPA is under the Energy and Commerce Committee.

If an agreement can be reached, the plan is for the House to take up the Senate-passed WRDA bill (S. 2848), strike out the text of Senate bill, replace it with the text of the negotiated compromise, pass the amended bill, and send it back to the Senate. This avoids the need for the formal appointment of a House-Senate conference committee, but also allows the Senate to take up the House-passed compromise immediately, without the need for a “motion to proceed” or a 60-vote cloture process just to bring up the bill – it will be a privileged “amendment between the houses.” Majority Leader Mitch McConnell (R-KY) could simply call up the House amendment to S. 2848, move to concur in the amendment, file cloture on his motion, wait two days for the cloture petition to “ripen,” get 60 votes on cloture, and then wait for Senators to yield back the 30 hours of post-cloture debate.

McConnell will be trying procedures this on up to three major bills between now and December 8 – the appropriations CR, the national defense authorization bill, and the WRDA bill. Obviously, in the remaining two weeks of session, there is a limited amount of time to pass controversial bills that require cloture votes and post-cloture debate in the Senate. This also makes each of the must-pass bills valuable as a vehicle for other, unrelated items that leaders don’t want to kick into next year…