Update on ICPI Government Relations Initiatives

January 15, 2018

Update on of ICPI Government Relations

a. Year 1 of the Trump Administration and the 115th Congress

With GOP control of the White House and both Houses of Congress, many held expectations that Year 1 of the Trump Administration could see passage of several landmark legislative initiatives suggested during the 2016 campaign. 

However, the unified opposition of the Democrats, the ongoing divides within the GOP itself, the low approval ratings for the President amid multiple distractions and the filibuster rules in the Senate thwarted a broad legislative output on Capitol Hill.    

At press time, the major legislative accomplishment has been the tax reform bill, which contains many features very attractive for the business community.  But work is proceeding behind the scenes for important legislative work in 2018.  Discussions continue on several issues of relevance to ICPI:  a Budget agreement, FY18 appropriations, a major infrastructure bill, DACA and broader immigration reform to name a few.  ICPI is poised to participate in these opportunities if they materialize.

b. ICPI PICP Demonstration for Congressman David Price (D-NC)

On November 20, 2017, sixty ICPI members, local design professionals and government officials, participated in a demonstration for Cong. David Price (D-NC) of how permeable interlocking concrete pavement (PICP) can help mitigate stormwater and reduce flooding.

The demonstration was held at The Greens at Centennial Campus at North Carolina State University.  It was led by Fred Adams and Dr. Bill Hunt, a William Neal Reynolds Distinguished University Professor and Extension Specialist North Carolina State University’s Department of Biological and Agricultural Engineering.

Congressman Price is a key Member of the U.S. House Appropriations Committee.  He is the Ranking Member of the Transportation, Housing and Urban Development Appropriations Subcommittee.  In this post, he is one of the most important leaders on Capitol Hill with respect to transportation and housing policy and funding. 

Cong. Price has been a prominent supporter of FHWA work to reduce barriers to adoption that inhibit state and local officials from using stormwater mitigation technology like PICP to address stormwater runoff, flooding and water quality issues. 

During his work with ICPI on these issues, the Congressman indicated a strong interest in attending a real-world demonstration of PICP capability to absorb stormwater in situ and help mitigate the damage and negative environmental impacts of stormwater runoff. 

The demonstration consumed all of the Congressman’s time allocated for the November 20 event because he asked many questions and showed clear interest and enthusiasm in learning how PICP mitigates stormwater, how it can benefit communities. 

“For people in our state, particularly in this part of the state where we have been growing so much, the words permeable and impermeable have been in our vocabulary for quite some time,” said Congressman Price. “We think of them every storm, particularly in my case when I look out my door and see the creek swelling and know that it has to do with the impermeable pavement upstream and the way development has proceeded for many, many years.”

“There is a need for a better way. Not only to mitigate damage from a particular storm, but also to build to better standards to mitigate damage in the future. This (permeable pavement) is part of a bigger picture that has to do with everything from the way we pave, to the way we construct housing, to where we put our wetlands and parks. But, it (permeable pavement) is a big part of the picture.”

ICPI applauds Cong. Price for his seriousness and interest in learning about emerging technologies that can not only provide jobs for his constituents but also address important issues such as water quality and stormwater mitigation. 

ICPI would like to extend special thanks to Fred Adams and all the ICPI members who helped make this event a complete success.  

c. Congress Adopts Appropriations Report Language Suggested by ICPI

ICPI continues to build upon the paver authorization language passed on the MAP-21 bill which and remains in the U.S. Code.  ICPI has been working with the THUD Appropriations Subcommittees in both the House and the Senate to include congressional report language encouraging FHWA to conduct work designed to advance the adoption of PICP by state and local governments. 

Congress did include such appropriations language for both the FY17 THUD Appropriations and the FY18 Appropriations. 

At press time, the U.S. government is operating on a Continuing Resolution of FY17 appropriations.  This language includes the ICPI-suggested PICP language.  ICPI expects this legislation to remain in effect until Congress passes a Budget and related omnibus appropriation that will put the succeeding FY18 THUD language into effect. 

ICPI would like to thank the Members of both the House and Senate THUD Appropriations Subcommittees for including the ICPI-suggested language into their respective reports for both FY17 and FY18. 

ICPI would further thank all of its members who contacted their Members of Congress to express support for the ICPI language.  This advocacy element is particularly important under the current operating rules of the House Appropriations Committee.   

The language suggested by ICPI, and adopted by the House Appropriations Committee, is 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, and conservation.  Projects may include roadway shoulder load testing and documenting lifecycle cost efficiency. 

The language highlights roadway shoulder testing and life cycle cost efficiency, two specific items identified by ICPI to help overcome barriers to adoption cited by the staff and membership. 

Talks continue at press time to reach a bipartisan funding agreement that will allow all the FY18 Appropriations bills to be passed into law. 

d. Sea Change in the Regulatory Arena

Without question, the greatest immediate impact of the new Administration has been in reversing, withdrawing or halting development of regulations.   The President has reversed direction on a plethora of regulatory efforts from actions in the early planning stages to completed rules, including reversals for labor unionization issues under USDOL and the NLRB and environmental issues and permitting requirements under EPA. 

Congress did successfully invoke the Congressional Review Act (CRA) fourteen times to overturn fourteen late-term regulations finalized under the previous Administration, a profound legislative impact that has not been widely recognized as such.    

The Administration is not done revamping the regulatory law of the U.S.  The Administration released a Unified Agenda which gave notice that up to 860 other regulations may be pulled back in some manner.  Many of the completed rules will require new rulemakings to eliminate or amend them, but the Administration appears fully committed to such efforts and is moving forward as quickly as agency staff can be re-assigned to execute on these efforts.

In addition to the regulatory reversals, the new Administration is downsizing several federal offices and agencies in terms of staffing.  For example, EPA announced recently that its staffing is now below Reagan era levels. 

The regulatory impacts, both on policy and personnel, could prove to be among the most durable impacts of the Trump Administration.

e. Linking Federal Disaster Funding to Resilient Construction

The resilient construction issue had its most momentous year thus far in 2017, beginning with a major White House conference, and ending with a precedent-setting chapter included in an emergency disaster appropriation bill that passed the House in December.   

The federal costs of post-disaster mitigation are becoming too enormous and too frequent for policy-makers to ignore.  The Federal Emergency Management Agency (FEMA), which leads and coordinates the federal emergency response, has reported a lofty trend line on post-disaster funding that is alarming and unsustainable. 

In 2017, there was an important shift in thinking that the federal government must take action to promote state and local pre-disaster mitigation in order to reduce the federal post-disaster clean-up bill.

The shift was accelerated by the sobering conclusion that the 2017 hurricanes and wildfires alone would require at least $130 billion in emergency federal appropriations.  That figure is for 2017 alone, and does not take into account dynamic economic impacts such as loss of revenue from economic disruption, nor state and local emergency response costs. 

The milestone result was the drafting and introduction of the DRRA, the Disaster Recovery Reform Act.  Among other things, DRRA would, for the first time, provide financial incentives to encourage states to adopt modern model building codes and other pre-disaster mitigation measures. 

For states that adopt such measures and others set forth in the legislation, the President would be authorized to increase a state’s federal disaster cost share opportunity up to 85%.    

Within days of the introduction of DRRA in the House, the bill’s components were attached as amendments to the larger emergency disaster supplemental bill, which will provide the final round of federal disaster relief for the 2017 hurricanes and wild fires. 

The speed of these successive legislative events, and the tethering the never-seen-before resilience provisions to the disaster supplemental as a required codicil to the federal funding, sends clear signals about a new direction and an emerging priority in infrastructure policy. 

At press time, the emergency disaster supplemental –with the DRRA language included -- has been passed by the House.  It awaits action in the Senate.    

Driven by a host of catastrophic weather events accompanied by equally catastrophic federal costs, the resilient construction issue is moving more quickly than many might have expected.  With the precedent set by DRRA provisions in the emergency disaster supplemental, and next gen legislation that may follow DRRA, we anticipate that businesses with products brand-able as benefitting resilience will see advantages to do so.   

f. Tax Reform Act

As widely reported, Congress did pass and the President did sign the tax reform bill immediately prior to the end of 2017.  With the possible exception of confirming a Supreme Court Justice, it is the single-most noteworthy legislative action of the President and the 115th Congress.

As expected, the Act does reduce the number of tax rates, limit the state and local income and property tax deduction, dramatically reduce corporate rates, enact new tax rates and provisions for pass-through entities, and accelerate cost recovery and expensing.  These may be the provisions of greatest interest to the most ICPI members.    

Because the bill is now final and it has passed beyond the advocacy realm into implementation, we would refer ICPI members to their tax professionals for discussion and tax strategy.  Clearly the impact of the bill will be based on the specific circumstances of each taxpayer. 

We would note that IRS will be working as quickly as possible to prepare and release guidance and other materials required as a result of the massive change in tax law.   

g. Silica Regulation

ICPI, as a member of CISC, the Construction Industry Safety Coalition, challenged the final silica regulation in federal court. 

Unfortunately, on December 22, 2017, the DC Circuit Court denied the CISC petition for review. 

At the moment, it would seem that any legal action to overturn the regulation would be foreclosed and unavailable.  CISC continues to review the ruling.    

Regardless of the ruling, CISC may continue to work with OSHA staff on a DOL request for information and preparation of FAQs.   

h. Immigration and the H-2B Worker Visa Program

At press time, the White House and Congress are debating a Continuing Resolution to continue funding the federal government, with the DACA immigration issue yet to be resolved as part of that agreement.  There has been some discussion that any resolution on DACA might lead to a subsequent engagement to draft a comprehensive immigration bill.  Such a comprehensive bill might serve as vehicle to make improvements to the H-2B worker visa program.  ICPI has been a consistent supporter of the H-2B worker visa program and regards the issue as a priority,   

In 2017, the Administration increased the cap of 66,000 H-2B visas, a cap which had existed for several years, by an additional 15,000 visas for the remainder of FY16.  These visas were available only to American businesses that attested they would likely suffer irreparable harm without the ability to employ all the H-2B workers requested in their petition. 

DOL declared it was a one-time increase based on a time-limited statutory authority and it would not affect the H-2B program in future fiscal years or be repeated.  It expired on Sept. 30, 2017.  It remains to be seen if the increase might be repeated.

Nonetheless, it was the first positive development for the H-2B visa program in years and, hopefully, will lead to other changes that will allow U.S. employers to use the program more effectively.

i. WOTUS Rule Withdrawal, Subsequent Action

In 2017, the Administration proposed and formally began the process to repeal the WOTUS rule that redefined and expanded federal jurisdiction under the Clean Water Act.

Thus, the extensive geographic jurisdictional expansion that was anticipated under WOTUS is nullified.  However, this does not mean that WOTUS, and a redefinition of EPA and Corps of Engineers jurisdiction under the Clean Water Act is dead.  In fact, it will continue in 2018 another direction.  Some redefinition of WOTUS is required by prior court order.    

At press time, EPA has announced that a new WOTUS rule will be a priority for the Administration in 2018.  ICPI is positioned to submit comments if a comment period is opened as expected. 

Further, the underlying policy favoring stormwater mitigation remains. 

ICPI has commented in the past that if the jurisdiction of the Clean Water Act is increased by a WOTUS rule, permeable pavements using PICP can play a significant role as a proven, successful, off-the-shelf technology to help mitigate stormwater runoff, improve water quality, reduce flooding and enhance green infrastructure. 

j. Infrastructure Bill

The President campaigned on passing a major job-creating infrastructure bill to pump $1 trillion into the construction economy.  At press time The White House has not released details regarding the projects that would be funded or the means to pay for it.  

The White House has signaled that it would like to follow up its success on tax reform with the long-awaited infrastructure bill.  ICPI would support such an initiative. 

The latest word is that the Administration will make public such a proposal in conjunction with the State of the Union address in late January.

On Capitol Hill, House Transportation and Infrastructure Committee Chairman Bill Shuster (R-PA) has announced that he will not seek re-election in 2018, in part so that he can concentrate on passing a major infrastructure bill. 

The latest new factor is the President’s call for a return to some form of earmarks to help garner floor votes for bill passage.  It is unclear whether any such earmarks system could be engaged in the near term to assist his proposal, but earmarks would help prevent potential ‘nay” votes due to costs or funding source concerns. 

ICPI has been steadfastly in support of an infrastructure bill and eagerly awaits more detail from the White House. 

k. Future of Trade Agreements/NAFTA Talks

The President announced in 2017 his intent to re-open talks with Canada and Mexico regarding NAFTA, with the possibility that the U.S. might withdraw from the pact if it is not satisfied.  The President has said his general concern over NAFTA is that it unfairly encourages jobs to leave the U.S. 

At press time, it is rumored that preliminary NAFTA talks are not resolving the President’s concerns.  There is a growing sense that the U.S. might genuinely withdraw from NAFTA in the foreseeable future. 

ICPI supports a close and productive trade relationship with its border neighbors and would support an amicable solution.  ICPI has supported and continues to support efforts to make it easier for cross-border trade and movement by business executives.