How the COVID Relief Bill Affects Members, PPP and Other ICPI Advocacy Issues
Late Sunday night, December 27, the President signed the massive end-of-year Comprehensive COVID-19/federal funding package into law.
This action completes the legislative process, without more, and the package is now law.
Going forward in this article, we will refer to the legislation simply as “the bill.”
The bill is a massive, multi-$trillion effort that enacts the latest round of COVID-19 relief. But it also provides funding for the entire federal government through September 30, 2021. And it includes several pieces of legislation that are normally stand-alone measures but which Congress has been unable to find a vehicle for passage until this year-ending legislation.
Given the extreme massive length, subject matter breadth, and funding provided in the bill, this article will provide brief highlights on a selection of issues that we have written previously for ICPI member interests. Members are encouraged to review the full legislation for a more expansive and complete rendering of these issues or others that are available in that text.
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Permeable Pavements:
The bill sweeps in ICPI-supported permeable pavements report language that we have written on extensively.
The language was originally included in the House Appropriations Committee Report 116-432 (on Page 41 as it appears in the committee print). This is the House report to accompany the House FY21 THUD (Transportation, HUD and other agencies) funding bill that was approved in the summer of 2020.
THUD funding is addressed in Division L of the bill.
Under the terms of the bill's Joint Explanatory Statement for Division L, the JES declares that unless otherwise noted in the bill, the language in House Report 116-432 (paraphrasing for the rest of this sentence) should be the guiding language used to interpret Division L.
The permeable pavements language appears as follows:
Permeable pavements.—The Committee encourages the Secretary to accelerate research, demonstration, and deployment of permeable pavements to achieve flood mitigation, pollutant reduction, stormwater runoff reduction, environmental conservation, and resilience for new road construction and retrofit of existing roads. The Committee encourages the Secretary to conduct structural evaluations of flood-damaged pavements, with emphasis on local roads and highways subject to flooding and extended periods of inundation. Such evaluations will contribute to understanding the mechanisms of flood damage and how permeable pavements might be used to prevent or reduce damage from future flooding.
The bill is now the law of the land. At this writing, ICPI intends to engage USDOT/FHWA staff to discuss the language, which expresses the intent of Congress on permeable pavements, for planning and implementation.
Water Resources Development Act (“WRDA 2020”):
The House and Senate worked on a bipartisan basis to draft WRDA 2020.
It was unable to pass both Houses earlier in the session, and thus it was included in the bill. It is Division AA in the bill.
WRDA 2020 is a massive piece of legislation in it own right. Here are selected highlights reprinted from the House WRDA 2020 summary and applicable to Division AA in the bill:
Sec. 105. Construction of Water Resources Development Projects by Non-Federal Interests. This section amends the authority for the Corps to assume operation and maintenance responsibilities for projects carried out by non-Federal interests to include navigation projects constructed to the locally preferred option. This section also authorizes non-Federal interests to submit to the Corps a report with necessary information related to the details and justifications for projects constructed by non-Federal interests.
Sec. 109. Inland Waterways Projects. This section modifies the cost share for construction or major rehabilitation of a project on the inland waterways to 65 percent from the general fund of the Treasury and 35 percent from the Inland Waterways Trust Fund (IWTF). This modified cost-share is eligible for any inland waterways projects that receives construction funding through fiscal year 2031.
Sec. 111. Resiliency Planning Assistance. This section emphasizes the need for the Corps to provide technical assistance to nonFederal interests for greater resiliency planning and directs the Corps to prioritize resiliency planning assistance to economically disadvantaged communities and communities subject to repetitive flooding.
Sec. 114. Small Flood Control Projects. This section authorizes the Corps to incorporate, where appropriate, natural or nature-based features in carrying out its continuing authorities program for small flood risk management projects.
Sec. 116. Feasibility Studies; Review of Natural and Nature-Based Features. This section directs the Corps to document the consideration of natural and nature-based alternatives in the study of flood risk management and hurricane and storm damage reduction projects, including estimates of long-term costs and benefits of such alternatives.
Sec. 118. Pilot Programs in the Formulation of Corps of Engineers Projects in Rural Communities and Economically disadvantaged Communities. This section establishes pilot programs for the Corps to evaluate opportunities to address the flood risk reduction and hurricane and storm damage reduction needs for economically disadvantaged communities and rural communities.
Sec. 119. Permanent Measures to Reduce Emergency Flood Fighting Needs for Communities Subject to Repetitive Flooding. This section authorizes a new program for the Corps to study, design, and construct water resources projects for communities that have experienced repetitive flooding events and have received emergency flood fighting assistance.
Sec. 120. Emergency Response to Natural Disasters. This section authorizes the Corps to work with communities with deficient flood protection projects to recommend proposals to the Corps to increase the level of protection for projects.
Sec. 124. Sense of Congress on Multipurpose Projects. This section provides a Sense of Congress that the Corps should maximize the consideration and evaluation of projects with multiple project benefits.
Sec. 134. Non-Federal Project Implementation Pilot Program. This section reauthorizes the pilot program for non-Federal project implementation (authorized by section 1043(b) of WRRDA 2014) through fiscal year 2026 and directs the Corps to issue new implementation guidance for the program. This section also clarifies the eligibility of the Comprehensive Everglades Restoration Plan projects for the pilot program.
Sec. 155. Small Water Storage Projects. This section authorizes the Corps to carry out a program to study and construct new small water storage projects or enlarge existing projects that provide flood risk management benefits, ecological benefits, water management or conservation benefits, or water supply benefits.
Sec. 159. Inland Waterways Pilot Program. This section authorizes the Corps to carry out a pilot program for modernization activities on the inland waterways system. Additionally, this section allows the Corps to accept and expend funds from non-Federal interests to carry out modernization activities or allow the non-Federal interest to carry out such activities, subject to certain conditions.
The remainder of Division AA addresses specific projects authorizations, deauthorizations and modifications, as well as invasive species provisions.
Here are excerpts from the bipartisan House press release to accompany WRDA 2020’s inclusion in the bill:
DeFazio, Graves, Napolitano, and Westerman Applaud Passage of Bipartisan Water Resources Development Act of 2020 in Omnibus Legislation
WRDA 2020 was approved by the House as part of the year-end legislative package...
Washington, D.C. – Tonight [December 21, 2020], Chair of the House Committee on Transportation and Infrastructure Peter DeFazio (D-OR), Ranking Member Sam Graves (R-MO), Chair of the Subcommittee on Water Resources and Environment Grace F. Napolitano (D-CA), and Subcommittee Ranking Member Bruce Westerman (R-AR) applauded the House for approving the Water Resources Development Act of 2020 (WRDA) as part of the year-end omnibus and COVID relief legislative package.
This bipartisan legislation, which the House Transportation and Infrastructure Committee has developed and passed on a biennial basis since 2014, is essential to our country’s ports, harbors, and inland waterways, as well as ecosystem restoration and flood mitigation in both rural and urban communities. The language approved today is the result of negotiations with the Senate since House passage of H.R. 7575 in late July and S. 1811 in early December.
“The bipartisan legislation approved today is critical to communities across all 50 states, and includes key provisions to invest in our ports, harbors and inland waterways; build more resilient communities; and ensure that the U.S. Army Corps of Engineers carries out projects in an economically and environmentally responsible manner,” Chair DeFazio said. “I am particularly proud that this legislation achieves my decades-long mission to unlock the Harbor Maintenance Trust Fund by allowing billions of dollars in already-collected HMTF fees to be used for their intended purpose—ensuring that maintenance needs of U.S. ports and harbors are met. In addition to our Senate partners, I thank Subcommittee Chair Napolitano and Ranking Members Graves and Westerman for their continued efforts to push this legislation forward and send it to the president’s desk for his signature.”
“WRDA 2020 will help strengthen the Nation’s global competitiveness, grow the economy, protect our communities, and create jobs. In particular, the vital flood control and risk reduction improvements in this bill will help safeguard communities throughout North Missouri and around the country. In working to finalize this critical water resources legislation, I want to thank my colleagues in both the House and Senate. It’s important that Congress is maintaining its regular oversight of the Corps of Engineers and continuing consideration of WRDA every two years. This bipartisan, bicameral legislation remains a model for how Congress can work together to address our Nation’s infrastructure needs,” Ranking Member Graves said.
“Our bipartisan Water Resources Development Act will create much needed American jobs and boost our economic recovery, while upgrading our nation’s water infrastructure and safeguarding our environment,” Subcommittee Chair Napolitano said. “I am pleased it dramatically increases funding to the Ports of Los Angeles and Long Beach for dredging, cleanup, and maintenance, something for which I have fought for many years. This bill also includes the language necessary for my district and other wildfire prone regions of the country to improve efforts by the Army Corps of Engineers to remove unauthorized, human-made flammable equipment and materials from Corps property. As we in the West are in a continuous fight against drought, I am proud to have secured provisions to give the Corps more ability to focus on long-term water reliability of arid communities and local water supply. I thank Chairman DeFazio, Ranking Member Graves, Subcommittee Ranking Member Westerman, and all of the members of the Transportation and Infrastructure Committee for their important work over the past two years on this bill, which will benefit communities in every corner of the nation.”
“WRDA is commonsense, bipartisan legislation that should have been passed into law months ago. It’s high time we get these resources out to state and local governments so they can implement essential water infrastructure changes. I’m glad it’ll finally be signed into law as part of this year-end funding package,” Subcommittee Ranking Member Westerman said.
Paycheck Protection Program:
The bill modifies and extends the Paycheck Protection Program, PPP.
Here are brief selected highlights of the PPP section:
PPP is extended using both previously authorized but unspent funds and $284 billion in new funding through March 31, 2021. It improves business-friendly business payroll conditions for forgiven PPP loans (consult your tax advisor), provides increased latitude to select a covered period for PPP loans, and allows more types of business expenses to be covered by PPP loans.
Second draw PPP loans are allowed in some circumstances and loan forgiveness continues to be an option.
Also in the bill, the CARES Act Employee Retention Tax Credit is expanded and extended.
The applicability of any or all of these provisions depends upon the unique circumstances of each individual business. With this in mind, we recommend that ICPI members interested in the Paycheck Protection Program and related tax provisions closely monitor the Small Business Administration and U.S. Treasury websites for guidance, and consult with their financial advisors and local lenders participating in the PPP program, as well as their tax advisors.
The SBA website for COVID-19 relief material is
Coronavirus (COVID-19): Small Business Guidance & Loan Resources (sba.gov)
H-2B Worker Visa provisions:
The bill does include the current H-2B worker visa provisions in law.
The following details are as shared among the H-2B Coalition, of which ICPI is a member:
The bill provides authority for the Department of Homeland Security, in consultation with the Department of Labor, to increase the H-2B cap for Fiscal 2021 by up to approximately 69,000 visas if it determines that the needs of seasonal businesses cannot be met with U.S. workers. It provides for the use of private wage surveys. It prohibits DOL from enforcing the corresponding employment and ¾ guarantee provisions of its H-2B regulations. And it provides for a maximum season of up to 10 months, as opposed the 9-months in current DOL regulations.
Various miscellaneous details:
The bill does not include a long-term extension or reauthorization of the federal highway authorization, as was suggested at times in the months leading up to this point. Instead, the current deadline for a new massive highway reauthorization is October of 2021. In the meantime, the bill did include $10 billion to aid state departments of transportation dealing with the effects of the pandemic.
The large infusion of state and local funding that had been sought by some bill negotiators for months as part of the next COVID-19 bill was not included in the bill. The same result occurred for a proposed section addressing employer protections related to the pandemic. Both of these provisions were omitted. The omissions were a decisive factor in the passage of the bill in both the House and the Senate.