September 14, 2016

The U.S. Senate has just voted, 94 to 3, to bring to an end debate on the Water Resources Development Act of 2016, ensuring that the bill will come up for a vote on final passage by tomorrow morning if not sooner. And since the bill got 94 votes on cloture, a simple majority on final passage is assured.

The version of the bill to be passed by the Senate is not the version originally reported from committee – rather, it is a bipartisan substitute (text here, section-by-section summary here, summary of changes from reported version here) that was then heavily modified on the floor by a manager’s amendment (text here, summary of changes here).

Budget battle. The chairman of the Senate Budget Committee, Mike Enzi (R-WY), took to the floor this afternoon to waive a budget point of order against the substitute amendment #4979. Enzi applauded the bill, but said that the inclusion of direct (mandatory) spending for in title VII of the legislation for Flint, Michigan and other areas does not comply with budget rules. (A WRDA bill can authorize all the discretionary projects it wants, because it is up to the Appropriations Committees to find the money to pay for those projects later on out of their own budget allocations.)

Enzi said title VII authorizes $100 million in direct spending for State Revolving Funds, $70 million to support WIFIA loans, and $100m for lead exposure programs. In addition, the increase in issuance of tax-exempt bonds under the bill will lead to $53m million in lost federal tax revenue. The new direct spending is offset by a new prohibition in any new loans form the Advanced Technology Vehicle Manufacturers program after 2020, but Enzi noted that this program was an emergency when created in 2008 – and under budget rules, an emergency is strictly defined as “sudden and unforeseen circumstances”. Budget rules do not allow cancelation of future spending of emergency money to be used to offset non-emergency money. Enzi summed up this budget rule as “if it didn’t count going out, it doesn’t count going in.”

Senator Inhofe said he agrees the Senate should not consider bills that are not paid for but this is not the case with the WRDA bill. He called the issue of counting emergency pay-fors for non-emergency spending a dispute between the Senate and the Congressional Budget Office.

Enzi raised his point of order under the Senate’s PAYGO budget rule, and Inhofe made a motion to waive all budget rules relating to the WRDA substitute. The Senate sided with Inhofe by a roll call vote of 85 to 12, well more than the 60 necessary.

The next step was for the bipartisan substitute bill, as amended, to be adopted by voice vote. Then, the Senate voted to invoke cloture and limit debate on the underlying bill (S. 2848) by a roll call vote of 94 to 3, again well over the needed 60.

Under Senate rule XXII, there are now up to 30 hours of debate in order on the underlying bill, as amended, during which no more amendments can be offered. Unless the Senate agrees by unanimous consent to give that time back, the vote on final passage will occur immediately after the Senate convenes Thursday morning (an earlier 30-hour clock on cloture on the substitute amendment would have required a vote at 12:45 a.m. this morning, but no one wanted to do that, so the Senate agreed that if cloture is invoked on S. 2848, the 30 hours be deemed to have started at 1 a.m. this morning, allowing 30 hours to expire at 7 a.m. Thursday, so whenever the Senate comes in tomorrow morning it can vote to pass the bill.

New projects. While S. 2848 was under amendment on the Senate floor, the dollar value of the projects authorized under title VI of the bill increased from $10.4 billion (53 percent of which will be federal money) to $16.8 billion (55 percent of which will be federal). The difference relates to the House and Senate earmark bans that were instituted in 2011.

Under the Congressional earmark rules, a project does not count as an earmark if it is requested by the Administration. Congress can fail to fund a project requested by the Administration, but cannot add a new project not requested by the Administration. Accordingly, the timing of the consideration of the 2014 and 2016 water resources bills by Congress were largely determined by the progress the Corps of Engineers was making in submitting “Chief’s reports” (which function as project authorization requests) to Congress.

In 2014, the House and Senate had passed their differing versions of the water resources bill, appointed conferees, and gone to conference by November 14, 2013. But the bill sat in conference for six full months – an incredibly long time by Congressinoal standards – and a conference report was not filed until May 15, 2013. The delay turned out to be cause by the need to wait around for the Corps to submit the Chief’s reports for projects in Sutter Basin, California on March 12 (for Senator Barbara Boxer, D-CA), for Truckee, Nevada on April 11 (for Senator Harry Reid, D-NV) and for Jacksonville, Florida on April 14 (for Rep. Corrine Brown, D-FL).

Similarly, after the Senate Environment and Public Works Committee reported the bill in April, the Corps submitted more Chief’s reports, including a mammoth one on July 29, 2016 for a $3.1 billion southwest Louisiana project for Sen. David Vitter (R-LA), and another one just this week, on September 12, for a $2.6 billion project on the Upper Ohio River at Pittsburgh, Pennsylvania, for which the press release was co-sponsored by Rep. Bill Shuster (R-PA)).

All of the legislators mentioned above are either party leaders or else senior leaders of the authorizing committees and subcommittees that oversee the Corps of Engineers.

The submission of the Pittsburgh Chief’s report may help spur House floor action on that chamber’s WRDA bill, which was approved by the Transportation and Infrastructure Committee months ago but which has never gone to the floor for unnamed reasons. The T&I panel is holding a hearing tomorrow on the Chief’s reports that have been submitted since the last water bill was enacted.

(The other main reason the House WRDA bill has been delayed is a dispute with the Congressional Budget Office over how to score the too-clever provision in the House bill that would release all balances in the Harbor Maintenance Trust Fund for immediate spending outside the appropriations process on October 1, 2027, outside the ten-year budget scoring window. Evidently CBO has had a hard time working with the Corps to figure out how fast a hypothetical flood of free money starting in 2027 would score.)

Chairman Shuster and other House T&I members have, in the last 24 hours, been talking about having the House WRDA bill come before the chamber next week. But opponents of the post-2026 mandatory HMTF spending provision are confident that the only way the bill can come before the House is if that provision is removed. It has still not been decided if the House WRDA bill will come up under “suspension of the rules” (40 minutes of debate, no amendments from the floor, two-thirds vote required) or else through a slower process via the Rules Committee that allows a more open amendment process.

The table below shows all the projects currently authorized in title VI of the Senate WRDA bill and whether or not they were added on the Senate floor.