April 15, 2016

On April 13, the House Energy and Water (E&W) Development Appropriations Subcommittee approved its draft fiscal year 2017 spending legislation.  The bill, which funds the Department of Energy, the U.S. Army Corps of Engineers, the Bureau of Reclamation, and several independent agencies, was cleared on a voice vote.

All told, the measure proposes to spend $37.4 billion, or $259 million above the fiscal year 2016 enacted level.  While Army Corps programs would see an increase of $100 million, funding for the Bureau of Reclamation would be reduced by $131 million. 

It should be noted that House appropriators included in the draft bill several provisions designed to send additional water deliveries to California’s Central Valley.  The language – which largely tracks drought legislation passed by the House in 2015 (HR 2898) – would require the Department of the Interior to increase Delta pumping under certain conditions.  The provisions are strongly supported by Central Valley Republicans but have drawn fire from members of the state’s Democratic congressional delegation.

The House bill also includes several policy riders, including language that would prohibit the Army Corps from spending any funds to implement the Obama administration’s controversial “Waters of the United States” (WOTUS) regulation.  The rule, which was finalized by the Environmental Protection Agency and the Corps in 2015, has been tied up in the courts and is awaiting further legal action.  The House bill also includes language that would prevent any changes to the definition of “fill material” for purposes of the Clean Water Act (CWA) and restricts application of the law in certain agricultural areas, such as ponds and irrigation ditches.

Looking ahead, the full House Appropriations Committee has scheduled a markup of the E&W bill for April 19.

For its part, the Senate Appropriations Committee approved its E&W spending measure (S 2804) on Thursday, April 14.  The $37.5 billion package cleared the panel on a 30-0 vote and is expected to be considered on the floor sometime next week.

Unlike the House measure, the Senate legislation includes $100 million for various Western drought-relief programs and activities.  Championed by Senator Dianne Feinstein (D-CA), the funds would build upon the $100 million that was included for drought-response programs as part of the fiscal year 2016 omnibus spending law.

In another break from the House legislation, S 2804 does not include legislative language that would mandate increased Delta pumping levels.  However, the Committee Report accompanying the bill (S Rept. 114-236) directs the Bureau of Reclamation and the Department of the Interior to use all of the flexibility at their disposal to mitigate the impacts of the drought.  Specifically, the Report directs Reclamation to work with the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and relevant state agencies to undertake comprehensive, real-time monitoring of drought conditions and their impact on endangered species and rely upon the best available science when managing export pumping rates.  The Report also directs Reclamation to work with the U.S. Department of Agriculture to expand efforts to supply small rural communities with water during the current drought.

Finally, the Senate bill would prohibit the Corps from making any changes to the definition of “fill material” and “discharge of fill material” for the purposes of the CWA; the legislation does not, however, include language preventing the Agency from implementing its WOTUS rule.   Senator John Hoeven (R-ND), who withdrew an amendment to defund any activities related to WOTUS, has nevertheless indicated that he will offer the proposal on the floor of the Senate.