Statement of Administration Policy: H.R. 2427 - Energy and Water Development Appropriations Bill, FY 1992

(Senate Floor)
(Sponsors: Byrd (D), West Virginia; Johnston (D), Louisiana)

This Statement of Administration Policy expresses the Administration's views on the Energy and Water Development Appropriations Bill, FY 1992, as reported by the Senate Appropriations Committee.

On the basis of OMB's initial scoring of the bill, the Administration finds that the Committee recommendations exceed the Senate 602(b) allocations for domestic discretionary budget authority and outlays. This results from bill language that would give the Secretary of Energy the authority to use funds from the Nuclear Waste Fund — without further appropriation — to pay utilities for past overcharges. The Department of Energy has estimated the total amount required for these payments to be at least $300 million. The Administration urges the Senate to delete this language and to adopt the language of the House- passed bill. In addition, the Committee bill exceeds the Senate 602(b) allocation for defense outlays by $26 million.

The Administration is pleased that the Committee restored $75 million of the $100 million reduction that the House made to the requested funding for the Superconducting Super Collider (SSC). The Committee's recommended funding for the Fermilab Main Injector for high energy physics research, while $15 million above the amount provided by the House, is still $18 million below the President's request. Both SSC and the Fermilab Main Injector represent crucial investments in the nation's science infrastructure and are needed to ensure America's competitive position in research and development.

Funding provided by the Committee for Army Corps of Engineers water projects and studies is excessive — $l42 million over the President's request. The majority of these projects and studies — including 10 unrequested new construction starts — are uneconomical, do not meet cost-sharing requirements, or are generally of low priority.

Additional Administration concerns are outlined in the attachment.

Attachment

June 19, 1991
(Senate Floor)

H.R. 2427—ENERGY AND WATER DEVELOPMENT APPROPRIATIOMS BILL, FY 1992

ADDITIONAL PROVISIONS OPPOSED BY THE ADMINISTRATION

A. Funding Levels

Department of Defense — Civil: Army Corps of Engineers

— The Administration objects to the net increase in funding for the FY 1992 Army Corps of Engineers program of $142 million over the President's request. The Committee bill funds unrequested projects and studies, including mandates to initiate or continue construction of 21 unrequested projects, funding for about 50 unrequested studies, and requirements to take over non-Federal maintenance responsibilities at certain projects. The majority of these projects and studies — including 10 unrequested new construction starts —- are uneconomical, do not meet cost-sharing requirements, or are generally of low priority. These projects and studies are funded by a combination of new funds, unjustified levels of savings and slippage (-$54 million), and elimination of the President's proposed high priority major rehabilitation projects (-$36 million).

Department of the Interior: Bureau of Reclamation

— The Administration objects to the Committee's failure to fund the proposed transfer of oversight responsibility for the Bureau of Indian Affairs (BIA) dam safety program to the Bureau of Reclamation. A report by the Department of the Interior Inspector General found that BIA had not effectively managed the program from either an engineering or financial standpoint. BIA has not adequately addressed the serious threats to life and property posed by unsafe dams since issuance of the report in 1989. The Administration proposes to use the technical and management expertise of the Bureau of Reclamation to ensure the timely correction of serious safety deficiencies at a number of high-hazard BIA dams. Indian tribes would participate in implementing corrective actions on reservation dams, including provision for contracting with tribes.

-- The Administration objects to the addition of funds for several projects in the construction program that are a low priority, are not a Federal responsibility, or are inconsistent with costsharing requirements.

The Department of Energy

—   The Administration is concerned that the Committee bill would shift $65 million in requested funding for important Environmental Restoration activities to nuclear weapons productions and related activities. While the funds can be productively spent as the Committee intends, in the current climate, these funds could be better spent cleaning up contaminated facilities.

—   The Committee has disregarded the Administration's priorities within the Energy supply, research and development account. The Administration has requested $28 million for activities related to shutting down the Fast Flux Test Facility (FFTF) reactor in Hanford, Washington. This reactor serves no programmatic purpose, and this is the second year that the Administration has proposed closing the facility. Instead, the Committee has made reductions to other nuclear programs in order to provide $79 million to keep the FFTF reactor running for another year.

Other Independent Agencies

— Tennessee Valley Authority. The Committee bill would increase funding by 48 percent over the Administration's request. The increase would continue rural development activities that should be conducted by State or local governments. Further, this unwarranted substantial increase in funding would maintain some fertilizer activities that should be made self-supporting and would increase natural resource activities that, in part, duplicate the responsibility of other Federal, State, and local jurisdictions.

B. Language Provisions

Department of Defense — Civil: Army Corps of Engineers

— Section 107 would prohibit the Army Corps of Engineers from using appropriated funds for the recommendation of closure or realignment, or for termination, merging, or reduction of the work force of any Corps office prior to Congressional enactment of authorizing legislation. While the Administration understands the provision's intent to prohibit the implementation of any plan for Corps-wide reorganization until Congress has addressed such a plan, the Committee bill would preclude some of Army's routine operations and normal management processes, such as the closure of a project construction office upon completion of work.

— The Administration objects to language prohibiting the Army Corps of Engineers from using appropriated funds for regulatory actions on lands previously delineated as wetlands under the January 1989 Federal Manual for Identifying and Delineating Jurisdictional Wetlands, because such a prohibition would result in unnecessary delays in permit decisions. Many wetlands delineations would be the same whether made under the 1989 manual or the 1987 Corps manual. Therefore, the applicant should be given the option to proceed with a permit application based on a delineation under the 1989 manual.

Department of Energy

—   Energy Supply. Research and Development Activities. The Committee bill earmarks funds to specific institutions, thereby circumventing the normal proposal, competition, and review process.

—   Minority Participation in the Superconducting Super Collider. Section 304 of the Committee bill would require that the Secretary of Energy ensure "to the fullest extent possible" that at least 10 percent of the funds for the Superconducting Super Collider go to socially and economically disadvantaged individuals within the meaning of the Small Business Act and to universities and colleges with student bodies that are more than 20 percent Hispanic or Native American. This provision does not appear to constitute a rigid set-aside; however, it does direct the Secretary to make an effort to distribute funds to specified individuals and groups and is objectionable.

The distribution of Federal funds based solely on the racial composition of an institution's student body is inconsistent with the equal protection component of the Fifth Amendment to the Constitution. Under existing case law, racial or ethnic characteristics justify disparate treatment only in extremely tare situations, and such situations must be clearly identified and unquestionably legitimate. The Administration is not aware of any such justification to support this set-aside and therefore recommends its deletion.

General Provisions

— Limitation on Studies Concerning Hydroelectric Power Rates. Section 506 of the Committee bill would bar the use of appropriated funds to conduct certain studies concerning the pricing of hydroelectric power. The Administration objected to identical language in the FY 1991 appropriation, and the President included in his signing statement the following remarks on the subject:

Section 506 of the Act provides that none of the funds appropriated by [the Energy and Water Development Appropriations Act] or any other legislation may be used to conduct studies concerning "the possibility of changing from the currently required 'at cost' to a 'market rate' or any other noncost-based method for the pricing of hydroelectric power" by Federal power authorities. Article II, Section 3 of the Constitution grants the President authority to recommend to the Congress any legislative measures considered "necessary and expedient." Accordingly, in keeping with the well-settled obligation to construe ambiguous statutory provisions to avoid constitutional questions, I will interpret section 506 so as not to infringe on the Executive's authority to conduct studies that might assist in the evaluation and preparation of such measures.

If section 506 of the current bill were enacted in its current form, the Administration would interpret it in an identical fashion.