Earmark Ban Leaves Lock and Dam Projects Up for Infighting

Lock and dam projects at one time were favorites for congressional earmarks, prizes for lawmakers to snag and brag about back home.

But with an earmark ban instituted five years ago, funding decisions about water projects have been left up to the administration to lay out in its annual budget, a practice President Barack Obama followed in proposing the fiscal 2017 budget for the Army Corps of Engineers.

The result? In recent history, the administration and top appropriators from both parties have butted heads when it comes to funding priorities for repairing the nation’s aging locks and dams. On top of that, the executive branch traditionally lowballs the funding for projects and Congress adds the money back, which some see as a budget sleight-of-hand.

“I think that’s part of the challenge, that the president can identify, but members of Congress can’t,” said House Appropriations Committee ranking member Nita M. Lowey , D-N.Y.

Lowey confirmed she’s heard frustration from Democrats about appropriators’ lack of control over which water projects get funded. But she conceded there seems to be little ability for them to make a change.

“There are many who would like to bring back earmarks, including the chairman of the committee, but that doesn’t seem to be doable,” she added.

Advocates say it’s a process fraught with problems. “What Congress has done is transfer the decision-making and authority to pick the projects from the legislative branch to the executive branch,” said Mike Toohey, president and CEO of the Waterways Council, Inc., an inland waterways advocacy group.

Earmark Reliance

The earmark ban has been particularly disruptive to water projects because the Army Corps, the agency responsible for overseeing lock and dam improvements, traditionally relied on a significant portion of its funding through earmarks.

Roughly 85 percent of the Corps’ budget typically has gone to geographically specified studies or projects, according to the Congressional Research Service.

Low budget requests from the administration complicate the problem, but this practice isn’t new. Funding for the water projects historically hasn’t been as high a priority for the executive branch as it is for members of Congress.

Following that tradition, the president’s Feb. 9 budget request for the Army Corps for fiscal 2017, at $4.6 billion, is 23 percent less than the estimated level of almost $6 billion that Congress enacted in fiscal 2016 in the omnibus spending bill.

Appropriators can boost funding for individual projects named by the administration, but by their own rules, they can’t name additional projects that aren’t included in the president’s request. That would be an earmark.

The CRS has traced a trend over the past decade of administrations issuing budget requests lower than what appropriators eventually enact. Toohey tracks the practice as far back as the Carter administration.

“It’s part of the annual charade where every administration, not just this one, sends up a budget which severely cuts the Corps, knowing Congress will restore the funding,” Toohey said. “This allows them to transfer the spending to other administration priorities.”

Water Resources Bill

The disconnect between appropriators and the administration comes as authorizers prepare this year to pass another water resources authorization bill, which separately from the appropriations process grants the go-ahead for lock and dam projects. But advocates are still unclear how appropriations for past authorized projects will actually shake out in fiscal 2017.

Without earmarks, appropriators have employed another method to fund more projects than those the president identifies.

CRS noted that for several years appropriators have given the Corps extra funding for other projects — without those lawmakers explicitly saying which other projects — through an “additional funding” category, with some limitations and guidance on where to spend the money in report language. CRS notes that in fiscal 2016, Congress appropriated more than $1.3 billion in additional funding.

“It’s a way to get more projects under construction without naming the specifics,” Toohey said. The decision on who gets more money is up to the Army Corps, though lawmakers have been known to exhibit a keen interest in the process.

Senate Energy-Water Chairman Lamar Alexander, R-Tenn., blasted the Obama administration for its spending priorities in the Corps budget at a hearing in February 2015.

“An important example of the administration’s failure to set priorities is in my home state of Tennessee: the lack of any funds in the president’s budget request to restart replacement of Chickamauga lock,” Alexander said. “Congress has done its job to move ahead promptly on replacing Chickamauga lock, and it’s disappointing the Obama administration has failed to do its job.”

The Chickamauga lock is located seven miles upstream of Chattanooga and acts as a gateway for shipping goods upstream on the Tennessee River to Oak Ridge National Laboratory, nuclear facilities and manufacturing plants.

The Corps announced Feb. 9 it would use $29.9 million in additional funding Congress provided in fiscal 2016 to do work on replacing the aging lock. But it didn’t request any funds for the lock in its fiscal 2017 budget.

House Energy-Water Chairman Mike Simpson, R-Idaho, said as with last year’s request, appropriators plan to add dollars back where the president skimped.

“You can’t do more than the president names, but what you can do is appropriate more money and then it goes down the list. It’s just that we can’t identify what those are,” Simpson said. The list to which he refers is kept by the Corps.

He expects a similar move this year.

“We can appropriate, as we did last year, a lot more money to the Army Corps of Engineers to meet” funding targets for water projects set out by authorizers in an authorization bill passed in 2014, Simpson said.

“Which is what we will do again this year, I think. We hope we will anyway,” Simpson added.

Big Backlog

It’s clear that authorizers, the White House and appropriators haven’t always been in line about what projects should move forward. CRS estimated in July 2015 that a backlog exists of more than 1,000 authorized studies and construction projects that are still waiting in line for money.

In the long run, it’s unclear whether lawmakers will ever lift their moratorium on earmarks, despite the problems it creates for water projects, among other issues.

But Simpson said many Republicans appear more willing to soften their stance on earmarks when it comes to locks and dams and transportation.

“If there’s been any talk at all about re- instituting or eliminating the earmark ban, the one that’s gotten the most weight probably in conference among the greatest number of members ... is on water projects,” Simpson said.

He conceded that Republicans, in general, are still against earmarks.

“But if you talk about water projects, you talk about transportation projects, those two have more support within our conference,” he said.

Simpson said the House Energy-Water Subcommittee plans a hearing on the Army Corps budget on Feb. 26.