ICPI Government Affairs Update

Infrastructure:  possible recent progress after a difficult start; possible positive movement on permeable pavements and stormwater mitigation issues supported by ICPI

The Biden Administration opened its infrastructure initiative by proposing a massive multi-$trillion bill that has failed to achieve bipartisan support in the Senate or the House.

All GOP Members on both sides of the Hill declared the proposal a non-starter that probably would not gain a single GOP vote.

This has rekindled the possibility that the Senate might once again try to use the Budget Reconciliation rules to avoid a Senate filibuster, or even rewrite the Senate rules to neutralize the Senate filibuster, something several key Democrats do not wish to do.

In recent days, it seems that White House and Senate negotiators have moved closer to a possible deal, at least in terms of the funding size.  Controversial riders remain an issue, but it seems there is genuine interest among both the President and Senate GOP leaders on infrastructure to continue discussing a consensus package of something akin to one.

Meanwhile, the Senate Environment and Public Works Committee (EPW) has recently released a more limited and bipartisan Transportation bill that contains features that ICPI strongly supports. The size of the bill is attractive to many because it would provide a substantial increase in Transportation funding compared to existing law, but is less costly than the figure associated with the Biden Administration’s initial infrastructure proposal.

From ICPI’s perspective, the Senate draft contains elements that ICPI has been advocating to Members of the House and Senate because they would provide important public policy advancements on stormwater mitigation and permeable pavements.

The Senate EPW Committee marked up its bill in the last week of May. It contains the provisions calling for stormwater best management practices studies and reports in FHWA.

Further, it contains the following provision relating directly to permeable pavements:

SEC. 1518. PERMEABLE PAVEMENTS STUDY.

(a) IN GENERAL.—Not later than 1 year after the date of enactment of this Act, the Secretary shall carry out a study—

(1) to gather existing information on the effects of permeable pavements on flood control in different contexts, including in urban areas, and over the lifetime of the permeable pavement;

(2) to perform research to fill gaps in the existing information gathered under paragraph (1); and

(3) to develop—

(A) models for the performance of permeable pavements in flood control; and

(B) best practices for designing permeable pavement to meet flood control requirements.

(b) DATA SURVEY.—In carrying out the study under subsection (a), the Secretary shall develop—

(1) a summary, based on available literature and models, of localized flood control capabilities of permeable pavement that considers long-term performance and cost information; and

(2) best practices for the design of localized flood control using permeable pavement that considers long-term performance and cost information.

(c) PUBLICATION.—The Secretary shall make a report describing the results of the study under subsection (a) publicly available.

At this writing, the appropriations committees are working on their drafts for markup, so we cannot refer to appropriations language that has been accepted and finalized.  But we feel the discussions are going well with respect to permeable pavements and stormwater mitigation and infusing these concepts into the USDOT/FHWA thinking and mission.

If the language we hope for is included in a bill that is enacted, this will be an opportunity for ICPI.  In fact, there may be multiple bills and multiple opportunities for ICPI to provide information, technical guidance and the like to agencies that will be tasked with upgrading their knowledge base with respect to stormwater mitigation and interaction with the permeability of pavements.  ICPI can help lead as a subject matter expert in providing technical information for use in such studies and fact-gathering.

Meanwhile, ICPI continues the consistent drumbeat to help the Hill build the record in favor of integrating permeable pavements in federal policy.  In testimony submitted to the House Subcommittee on Economic Development, Public Buildings, and Emergency Management, ICPI requested consideration for expanding research on and deployment of permeable pavements that can be achieved through integrated transportation infrastructure, environmental, and homeland security legislation.  ICPI stated that this would support the following public policy and national objectives:

· Resilient and sustainable pavements programs within DOT/FHWA

· Reduced water pollution from stormwater runoff with increased compliance to NPDES objectives as administered by the US Environmental Protection Agency and States

· Disaster and flood mitigation programs as administered by FEMA

Timing on infrastructure bills:  floor action on the Senate EPW Committee bill is unknown.  The House Appropriations Committee hopes to issue most of its FY22 appropriations bills by the 4th of July recess.

More action on infrastructure, wastewater:  the House Transportation and Infrastructure Committee (T&I) hopes to move a water/wastewater bill this summer.  This bipartisan legislation would authorize $50 billion in direct infrastructure investment over the next five years to address wastewater infrastructure and local water quality challenges, including $40 billion for the Clean Water State Revolving Fund (SRF) program.  The bill as introduced would address stormwater reuse municipal grants, and add “stormwater” in a section of the Federal Water Pollution Control Act.  ICPI supports the legislation.

USDHS and USDOL allow an additional 22,000 H-2B worker visas

(Jointly from the agencies:) USDHS and USDOL have issued a joint temporary final rule making available an additional 22,000 H-2B temporary nonagricultural guest worker visas for fiscal year (FY) 2021 to employers who are likely to suffer irreparable harm without these additional workers. Of the supplemental visas, 6,000 are reserved for nationals of the Northern Triangle countries of Honduras, El Salvador, and Guatemala.

DHS first announced the planned supplemental increase of 22,000 visas for the H-2B Temporary Non-Agricultural Worker program on April 20, 2021. The supplemental H-2B visa allocation consists of 16,000 visas available only to returning H-2B workers from one of the last three fiscal years (FY 2018, 2019, or 2020), and 6,000 visas for Northern Triangle nationals, which are exempt from the returning worker requirement.

“[This] joint rule helps American businesses and addresses the need for robust worker protections,” said Secretary of Homeland Security Alejandro N. Mayorkas. “For the first time, we are setting aside supplemental visas for noncitizens from Northern Triangle countries, in furtherance of President Biden’s and Vice President Harris’ direction to expand legal pathways for protection and opportunity for individuals from those countries.”

“The temporary final rule is designed to prevent permanent and severe financial loss to U.S. employers by supplementing the congressionally mandated H-2B visa cap, takes into account feedback from American businesses, employer organizations, and labor representatives, and is one piece of the administration’s broader comprehensive framework for managing migration throughout North and Central America,” said USCIS Acting Director Tracy L. Renaud. “This rule incorporates several key provisions to ensure adequate safeguards for U.S. workers and H-2B workers. The rule requires that employers take additional steps to recruit U.S. workers, and provides for “portability,” which allows H-2B workers already in the United States to begin employment with a new H-2B employer or agent once USCIS receives a timely filed, non-frivolous H-2B petition, but before the petition is approved. Portability enables H-2B workers to change employers more quickly if they encounter unsafe or abusive working conditions. DHS and DOL will also conduct a significant number of post-adjudication reviews to ensure compliance with the program’s requirements.”

Starting May 25, eligible employers who have already completed a test of the U.S. labor market to verify that there are no U.S. workers who are willing, qualified, and able to perform the seasonal nonagricultural work can file Form I-129, Petition for a Nonimmigrant Worker, to seek additional H-2B workers. They must submit an attestation with their petition to demonstrate their business is likely to suffer irreparable harm without a supplemental workforce. Additional details on eligibility and filing requirements are available in the temporary final rule and the Temporary Increase in H-2B Nonimmigrant Visas for FY2021 webpage. 

ICPI has a history of supporting greater numbers of H-2B worker visas and easing procedural roadblocks in using the program. ICPI remains a member of the H-2B Coalition and has already cosigned multiple Coalition letters in 2021 in support of expanded releases of H-2B worker visas.

Brief updates on other issues:

WOTUS: the nomination of U.S. EPA’s new Administrator under the Biden Administration, Michael Regan, has been confirmed by the Senate. We expect that Administrator Regan will undertake a rewrite of the WOTUS rule promulgated in the previous administration, re-expanding its application to smaller waterways. There is no definite timeline on such action.

Corporate tax/corporate tax rate reform: President Biden has recommended an increase in the corporate tax to 28%. The increase has been suggested as one means for helping pay for infrastructure development and perhaps other uses. We think it highly unlikely that legislation containing such a provision could garner any GOP votes in either the House or the Senate, and might not attract the requisite support of all the Democrats in the Senate, with or without using the Budget Reconciliation rules. There has been some indication that the White House might entertain a counter proposal to increase the corporate tax rate to 25% rather than 28%, but it is unclear whether this modification would impact vote dynamics. At any figure, an increase in the corporate tax rate would be a difficult vote for all Republicans and several key Democrats.

Meanwhile, Treasury Secretary Yellen has voice support for an international accord calling for a worldwide minimum corporate tax rate of 15%. There seems to be some favorable reaction from some finance leaders in other countries, but the concept is a trial balloon at this juncture, a work in progress.

Climate change: climate change remains a core value of the current Administration and the progressive wing of the Democratic Party.  More moderate elements may not embrace all aspects of climate change but may generally support action to combat climate change.  We note this because if policy recommendations can feasibly and accurately make a positive link to mitigating climate change, we think it useful to include such a statement among the list of valid public policy benefits that policymakers should consider.

The PRO Act (Protecting the Right to Organize Act): was reintroduced in the current 117th Congress and has already passed the House.  The PRO Act is one of the top legislative priorities of the labor union community, perhaps the top priority. It is an assemblage of union-organizing proposals sought by the labor community.

ICPI opposes the PRO Act.

While the PRO Act has passed the House, its chances in the Senate seem dim at the moment, unless some means emerges to use Budget Reconciliation to avert an otherwise inevitable filibuster. It seems unlikely that the PRO Act would qualify under existing Senate rules to be included in any bill that would qualify for the special Budget Reconciliation treatment.