The Senate left town for the August break without approving the conference report for the Water Resources Development Act, but legislation the Senate did pass may make it harder to clear WRDA when Congress returns.

The recently approved ethics bill, which is awaiting the president’s signature, includes a provision prohibiting the Senate from approving conference reports that contain earmarks that were not included in the bills passed in the House or Senate. The White House has expressed concerns that the ethics bill does not take a strict enough stance against earmarks. White House spokeswoman Emily Lawrimore said last week that the president “is continuing to review the bill” and has not made a decision whether to sign it, but he is widely expected to do so.

Assuming the ethics bill becomes law, the WRDA bill may be the first piece of legislation to test the new prohibition on “airdropped earmarks.” The WRDA conference report includes a host of provisions that were not included in either the House or Senate bill, some of which add millions of dollars to the cost of the measure.

An earmark added by Sen. Dick Lugar (R-Ind.) provides $11 million for ecosystem restoration in Cedar Lake, Ind.; Stamford, Conn., received $10 million for the Mill River and Long Island Sound revitalization project at the request of Sen. Joe Lieberman (ID-Conn.); and Sen. Johnny Isakson (R-Ga.) added $10 million for similar work on the Savannah Riverfront.

The conference report includes a new provision requested by Environment and Public Works Chairwoman Barbara Boxer (D- Calif.) to increase funding for flood control on the Santa Ana River from the $1.1 billion originally earmarked in the 1986 WRDA bill to $1.8 billion.

The final version of the bill also contains myriad projects where instead of splitting the difference between the House and the Senate proposal, the conferees simply added them together. For instance, the House bill awarded $8 million for “environmental infrastructure, including ocean outfalls” in Myrtle Beach, S.C.; the Senate offered $10 million for the same project, and the conferees settled on $18 million in the final bill. The earmark is credited to Sen. Lindsey Graham (R-S.C.) and Rep. Henry Brown (R-S.C.).

Other projects increased without any conflict between the House and Senate bills. Senate Majority Leader Harry Reid (D-Nev.) had a $20 million earmark in the Senate bill for water infrastructure around Las Vegas being developed by the “Clean Water Coalition.” That provision blossomed to $50 million in the conference report.

The White House has promised to veto the WRDA bill in stark, and sometimes sarcastic, terms. In an Aug. 1 letter, outgoing Office of Management and Budget Director Rob Portman and Assistant Secretary of the Army John Paul Woodley wrote that “it seems a $14 billion Senate bill went into conference with the House’s $15 billion bill and somehow emerged costing approximately $20 billion.”

Had the Senate approved the WRDA conference report before leaving for recess, the earmarks would not have posed a problem, because the president had not yet signed the ethics bill. Once that bill is signed into law, it will empower earmark opponents to raise a point of order against the provisions that were added in conference.

While the WRDA bill has broad bipartisan support, and managers may not have to struggle to find the 60 votes to overcome the point of order, opponents say it offers an opportunity to point out how weak the earmark reforms in the ethics bill really were, and perhaps build momentum to sustain a Bush veto.

John Hart, spokesman for Sen. Tom Coburn (R-Okla.), said: “While Democrat leaders were drafting a sham earmark ‘reform’ bill behind closed doors, they were also secretly stuffing earmarks into a bill meant to rehabilitate New Orleans levees. … This is further confirmation that the true culture of corruption in Congress — misplaced priorities — was unaffected by ‘ethics reform.’”

Boxer and Environment and Public Works ranking member James Inhofe (R-Okla.) both vigorously defended the bill, arguing that it represents a critical and overdue investment in infrastructure — an issue made more relevant by the collapse of the Interstate 35 bridge in Minnesota.

“America has been waiting seven years for this bill, which will bring restoration and storm protection to the Gulf Coast in the aftermath of Hurricane Katrina, provide flood control for communities like Sacramento, restore vital wetlands, and maintain the flow of commerce and the jobs that go with it,” Boxer said before the recess. “If the president chooses to veto this bill, I expect we will override that veto in the Senate.”

Inhofe agreed. “If the president does indeed veto this bill, I am committed to working to override the president’s veto,” he said. The WRDA bill, “while not perfect, has received overwhelming bipartisan support in Congress and goes a long way towards addressing our nation’s water resource needs.”

Steve Ellis, vice president of Taxpayers for Common Sense and a strong opponent of earmarks, said the I-35 bridge collapse highlights the fact that Congress has rejected amendments to rank projects on the basis of importance, so there is “no method to prioritize the spending” between infrastructure that is a critical national need and earmarks simply meant to draw federal money to one Congressional district.