Originally Published: November 23, 2010 9:58 p.m.
WASHINGTON - Senate Republicans' ban on earmarks - money included in a bill by a lawmaker to benefit a home-state project or interest - was short-lived.
Only three days after GOP senators and senators-elect renounced earmarks, Arizona Sen. Jon Kyl, the No. 2 Senate Republican, got himself a whopping $200 million to settle an Arizona Indian tribe's water rights claim against the government.
Kyl slipped the measure into a larger bill sought by President Barack Obama and passed by the Senate on Friday to settle claims by black farmers and American Indians against the federal government. Kyl's office insists the measure is not an earmark, and the House didn't deem it one when it considered a version earlier this year.
But it meets the know-it-when-you-see-it test, critics say. Under Senate rules, an earmark is a spending item inserted "primarily at the request of a senator" that goes "to an entity, or (is) targeted to a specific state."
Earmarking allows lawmakers to steer federal spending to pet projects in their states and districts. Earmarks take many forms, including road projects, improvements to home district military bases, sewer projects, economic development projects. A key trait is that they are projects that haven't been sought by the administration in power.
The money for the 15,000-member White Mountain Apache Tribe was one of four tribal water rights claims totaling almost $570 million that was added to the $5 billion-plus bill. Black farmers will get about $1.2 billion to settle claims that the Agriculture Department's local offices discriminated against them in awarding loans and other aid. Another $3.4 billion goes to American Indians who say the Interior Department swindled them out of oil, gas and other royalties.
The House still has to act on the total package, and likely will after Congress reconvenes Nov. 29 for the continuation of a postelection, lame duck session.
Sens. Max Baucus, D-Mont., and Jeff Bingaman, D-N.M., also got in on the bargain, adding measures benefiting their states to the black farmers-tribal royalty settlements. The two senators obtained almost $370 million for projects in their states to implement water settlements.
Baucus and Bingaman make no bones about their support for earmarks, but Kyl is a recent convert to the anti-earmark crusade of home state GOP colleague Sen. John McCain, who's railed against them for years. The Interior Department sought only $56 million for Indian land and water claims in Obama's proposed budget for this year and no money for Kyl's project, or those wanted by Baucus and Bingaman.
The $200 million in Kyl's measure would be used to construct and maintain a drinking water project on the Fort Apache Indian Reservation, including a dam, reservoir, treatment plant and delivery pipelines.
The water system is settlement compensation for numerous abuses by the federal government, which included clearing trees and other vegetation from thousands of acres of tribal lands in order to increase runoff into the Salt River, a source of water for the cities of Phoenix, Scottsdale, Tempe, Mesa and other communities. The tribe also would waive a half-dozen other claims against the government.
A top Democrat scornfully pointed out that the project is going to a state whose GOP lawmakers claim to oppose earmarks.
"I do know an earmark when I see it. And this, my friends, is an earmark," Sen. Patrick Leahy, D-Vt., said in a prepared floor statement. He said Kyl's project would help the White Mountain Apaches "make snow at their ski resort, improve water flow to their casino and build fish hatcheries to improve local fish production."
Those projects don't appear to be directly funded by the bill, though the measure's wording is confusing.
There's no question, however, that the measure is vitally important to Arizona, where water is a scarce and precious resource.
"It addresses a fundamental need on the White Mountain Apache Reservation and provides certainty to the tribe, to Phoenix and to other water users" in the area, Michael Conner, commissioner of the Bureau of Reclamation, said in an interview.
Conner is a former top aide to Bingaman, who obtained $148 million to implement water rights claims of the Taos Pueblo, along with those of several other New Mexico tribes.
Kyl's office declined a request for an interview with the senator.
The costs of the water claims settlements will be offset by cuts to other government programs, including $562 million in overbudgeted 2010 funding for the federal nutrition program for women, infants and children. Either way, the government is on the hook to settle the water claims or risk larger losses in court.
"You have to do these water settlements or allow the courts to simply award damages," said Rep. Jeff Flake, R-Ariz., perhaps the most anti-earmark member of Congress. "An earmark is something when an individual gets a goodie for their district outside of the regular legislative process."
Typically, Congress "authorizes" big water projects in policy-setting bills that promise funding in future legislation. Kyl's measure started out that way but it morphed behind closed doors into a bill that actually provides the money.
The bill, passed unanimously on a voice vote Friday after most senators had left Washington for the week, vaults his, Baucus' and Bingaman's projects to the front of the line instead of having to compete with other projects for limited Interior Department funds.