Federal Issues Update 5/19/2014
With the House in recess, all eyes were on the Senate the week of May 12 as the upper chamber worked to advance a number of issues that are of interest to California’s counties. For starters, the Senate Environment and Public Works (EPW) Committee unveiled a $265 billion surface transportation reauthorization bill. The panel cleared the measure by voice vote on Thursday, May 15.
The MAP-21 Reauthorization Act (S 2322) would maintain funding for highways and bridges at current levels – plus inflation – for six years, but stops short of identifying a funding mechanism to pay for authorized obligations not covered by the Highway Trust Fund’s (HTF) fuel and excise taxes. That job will be up to the Senate Finance Committee, which will need to find roughly $18 billion per year to maintain current spending. For additional details on S 2322, please see the transportation section below.
On the appropriations front, the Senate Labor, Health and Human Services (HHS) Appropriations Subcommittee last week received testimony from key Obama administration officials. The hearing marks the beginning of the months-long process to determine fiscal year 2015 funding for the Department and its sub-agencies. The HHS spending legislation, which is typically one of the most contentious appropriations bills, is not expected to be completed until late fall.
Looking ahead, the Senate Military Construction-Veterans Affairs (MilCon-VA) Appropriations Subcommittee plans to mark up its spending bill on May 20, followed by full committee action on May 22. The panel also intends to approve its subcommittee spending levels for fiscal year 2015, known as 302(b) allocations, which set the maximum desired funding for each appropriations bill.
In the House, lawmakers have made measured progress in advancing the 12 annual spending measures. At the committee level, the House Appropriations panel approved May 8 its 302(b) allocations, followed by action on a $51.2 billion Commerce-Justice Science (CJS) spending package. In addition, the House Transportation-Housing and Urban Development (T-HUD) Appropriations Subcommittee cleared its fiscal year 2015 spending legislation, which includes $52 billion ($1.2 billion above the fiscal year 2014 enacted level) in total discretionary funding.
House lawmakers also have approved two of the least controversial spending measures – the MilCon and the Legislative Branch Appropriations bills (HR 4486 and HR 4487). The measures passed the full House by overwhelming bipartisan margins.
In other developments, President Obama’s nominee for Secretary of HHS, Sylvia Mathews Burwell, appeared before the Senate Health, Education, Labor and Pensions (HELP) Committee, as well as the Senate Finance Committee, for confirmation hearings. Under the two-tiered system for evaluating the HHS nominee, only the Senate Finance panel will vote on Burwell’s nomination. There is not expected to be any major opposition to her confirmation.
Finally, and as reported in the lead article of this week’s Legislative Bulletin, lawmakers late last week released the final details of a long-awaited water resources reform package. In a major victory for California’s counties, the final legislation (Conference Report 113-449) includes a section that requires the U.S. Army Corps of Engineers to undertake a comprehensive reexamination of its levee vegetation removal policy. Modifying the Corps’ one-size-fits-all policy – which requires local flood protection districts to remove trees and bushes from levees or risk losing eligibility for federal disaster assistance – has been a top legislative priority for CSAC.
The House is slated to vote on the WRRDA package on Tuesday, May 20. Senate leaders have indicated that the upper chamber will pass the measure later in the week, with President Obama expected to sign the bill into law shortly thereafter.
As reported above, the Senate EPW Committee on May 15 unanimously approved its surface transportation reauthorization bill (S 2322). The legislation – which is cosponsored by EPW Committee Chairwoman Barbara Boxer (D-CA) – would continue the core program structure put into place by MAP-21. This includes the National Highway Performance Program (NHPP), the Surface Transportation Program (STP), the Highway Safety Improvement Program (HSIP), and the Congestion Mitigation and Air Quality Improvement Program (CMAQ). In addition, the measure would create a new National Freight Program.
It should be noted that the EPW bill would only reauthorize the highway title of MAP-21. The Senate Commerce, Science, and Transportation Committee is responsible for provisions related to motor carrier safety; the Banking Committee is in charge of the transit portion of the bill; and, the Finance Committee will face the daunting task of financing the legislation.
The MAP-21 Reauthorization Act would authorize funding for the federal-aid highway program through fiscal year 2020 at current levels, with a modest inflationary adjustment. For fiscal year 2015, the highway obligation limit would be set at roughly $40.91 billion and would gradually increase until it reaches $45.06 billion in fiscal year 2020.
Funds would be distributed to states in the same proportion as in fiscal year 2014, adjusted to ensure that no state will receive less than 95 percent of its contribution to the HTF.
Incidentally, the legislation would require DOT to study/identify three or more sustainable funding alternatives to maintain the solvency of the trust fund. Among other things, the alternatives are intended to address implementation, interoperability, public acceptance, the protection of personal privacy, equity concerns, ease of compliance, and administrative costs. Pursuant to S 2322, the Transportation Department would provide an update to Congress every two years on the progress of this effort.
The legislation would expand eligibility under NHPP to include funding for locally-owned bridges that are on the Federal-aid Highway system. The bill, as introduced, would have capped NHPP funding for such bridges at 10 percent. However, an amendment was accepted during committee consideration that would increase the cap to 15 percent.
In addition, S 2322 would maintain current law’s dedicated federal funding stream for local off-system bridges. Specifically, the measure would continue to require a State to obligate for local bridge projects not less than 15 percent of the funds that were apportioned to the State under the Highway Bridge Program in fiscal year 2009. Should State and local officials determine that the State has inadequate needs to justify the expenditure, the Transportation Secretary can rescind this requirement.
Finally, the bill clarifies the ability of a State DOT to bundle multiple bridge projects together and issue a contract for those bridges as if they were a single project.
High Risk Rural Roads
S 2322 would modify the provisions of current law that trigger mandatory spending on high-risk rural roads. Under MAP-21, construction and operational improvements on rural roads is one of a number of allowable project areas within HSIP, with mandatory spending triggered if the fatality rate on rural roads in a State increased over the most recent two-year period.
Pursuant to S 2322, mandatory spending would be triggered if rural road fatality rates in a state do not decrease over the most recent two-year reporting period and the state’s fatality rate exceeds the national rate. In addition, the bill would reduce the amount of funding states would be required to spend on projects that meet the aforementioned criteria (dropping the threshold from 200 percent of 2009 spending to 150 percent).
It should be noted that the aforementioned provisions are expected to increase the number of states that would need to spend HSIP dollars on high-risk rural roads (from seven to between 12 and 19).
National Freight Program
The MAP-21 Reauthorization Act provides $6 billion over six years for a new, formula-based “National Freight Program” (NFP). Designed to improve goods movement on key freight corridors, funding for the program would need to be directed towards certain eligible highway freight projects on the National Freight Network (NFN), which was initially created and designated under MAP-21.
In addition, the bill would allow state and local governments to designate critical rural and urban freight corridors that match regional goods movement on roads beyond the Primary Freight Highway Network. The legislation also attempts to improve the identification of projects with a high return on investment through state freight plans and advisory committees established under current law.
The EPW Committee’s reauthorization measure would amend the Transportation Alternatives (TA) program – which includes funding for Transportation Enhancements (TE), the Safe Routes to School (SRTS) program, and the Recreational Trails Program (RTP) – to increase the share of funding available to local governments. Specifically, the bill would change the way funds are distributed so that two-thirds of TA funds would be distributed by population to local areas, and one-third would be allocated to the State (compared to a 50/50 split under MAP-21).
With regard to the SRTS program, the measure would allow 100 percent federal funding for such projects. MAP-21 required projects to provide a 20 percent local match. The bill also would allow nonprofit groups responsible for administering local transportation safety programs to be an eligible recipient of TA funding.
Projects of National and Regional Significance (PNRS)
The legislation would establish a competitive grant program — similar to the TIGER grant program —for projects deemed to have a significant impact on a region or the nation. The new $400 million per-year program would support critical high-cost transportation infrastructure projects that are difficult to complete with existing Federal, State, local, and private funds. It should be noted that grant awards would be capped at $50 million and at least 20 percent of the funding would be reserved for projects in rural areas. Unlike TIGER grants, which rely on annual appropriations, the new PNRS program would receive contract authority from the HTF.
In addition, the PNRS program would be subject to added congressional oversight. For instance, the legislation would require DOT to notify Congress 30 days before awarding grantees. Lawmakers could also block funding for projects with a joint resolution of disapproval.
The legislation, as introduced, would have maintained the current funding level of $1 billion per year for the Transportation Infrastructure Finance and Innovation Act (TIFIA) program. However, the program’s funding was reduced to $750 million via an amendment during committee consideration. TIFIA provides direct loans, loan guarantees, and lines of credit to surface transportation projects at favorable terms to leverage private and other non-federal investment in transportation improvements.
The measure also would provide states with the ability to use federal highway funding to capitalize State Infrastructure Banks (SIB) and would allow the DOT Secretary to make TIFIA loans to SIBs. Finally, it would expand program eligibility to public infrastructure projects in transit-oriented developments.
The legislation builds on the environmental streamlining provisions of MAP-21 to further expedite project delivery. Among other things, S 2322 would index the financial thresholds for projects with limited federal assistance that qualify for categorical exclusions. Additionally, the measure would expand the multimodal categorical exclusion established in MAP-21 and would require federal resource agencies to give substantial weight to the recommendations in programmatic mitigation plans when carrying out NEPA responsibilities.
American Transportation Awards
The legislation would establish a new competitive grant program, called American Transportation Awards, to support best practices that promote progress, innovation, and efficiency for surface transportation programs at state DOTs and Metropolitan Planning Organizations (MPO). The program would be funded at $125 million per year.
Transparency and Accountability
The MAP-21 Reauthorization Act would require DOT to provide the public with much more detailed online reports about Highway Trust Fund spending and obligations. The information would include project/summary data and would be organized by state and by program. DOT would also be required to submit a report to Congress about the administrative costs of running the HTF.
CARCIERI V. SALAZAR/INDIAN FEE-TO-TRUST REFORM
On May 7, the Senate Committee on Indian Affairs held a legislative hearing on several bills, including S 2188, which would provide the Secretary of the Interior with authority to take land into trust for all Indian tribes. The legislation, sponsored by Indian Affairs Committee Chairman Jon Tester (R-MT), would overturn the Supreme Court’s Carcieri v. Salazar decision. In Carcieri, the Court ruled that the Secretary’s trust acquisition authority is limited to those tribes that were “under federal jurisdiction” at the time of the enactment of the Indian Reorganization Act of 1934.
As expected, the witness list for the hearing was limited to entities that are in favor of Chairman Tester’s legislation. For his part, Assistant Secretary-Indian Affairs Kevin Washburn continued the Obama administration’s aggressive push for a so-called “clean” Carcieri fix. Such a fix, which is embodied in S 2188, would overturn the Carcieri decision without addressing other issues, such as reforms to the Bureau of Indian Affairs’ (BIA) land-into-trust process.
In addition to Mr. Washburn, the committee heard testimony from several tribal representatives, including National Congress of American Indians (NCAI) President Brian Cladoosby. While President Cladoosby ultimately urged the committee to pass a clean fix – which has been NCAI’s long-standing policy on Carcieri – he did acknowledge the fact that such a bill has not been able to advance through Congress. Accordingly, Cladoosby indicated that conversations within Indian country about how to move forward need to continue to take place.
For its part, CSAC will be submitting a statement for the record to the Indian Affairs Committee as a follow-up to the May 7 hearing. The statement will supplement November 2013 testimony that was delivered to the committee on behalf of CSAC by Napa County Supervisor Diane Dillon. Among other things, CSAC’s statement will reiterate the need for Congress to pass legislation that provides for comprehensive reforms to the BIA’s fee-to-trust process.
STATE CRIMINAL ALIEN ASSISTANCE PROGRAM
As indicated above, the House Appropriations Committee approved on May 8 its fiscal year 2015 CJS spending legislation. Although the measure would cut spending by nearly $400 million compared to current levels – including an overall reduction in investment for state and local justice assistance grant programs – the bill would provide a $30 million funding boost for the State Criminal Alien Assistance Program (SCAAP). The proposed funding increase represents a positive development for CSAC and California’s counties, which have worked with key members of the California congressional delegation and others in an effort to boost SCAAP funding.
During committee markup, Representative Mike Honda (D-CA) spoke in strong support of SCAAP and indicated that jurisdictions are not being adequately reimbursed for the costs that they are incurring. Congressman Honda also signaled his interest in working with the subcommittee’s chairman to increase SCAAP during conference committee negotiations with the Senate.
Across Capitol Hill, the Senate Appropriations Committee has yet to release its draft CJS spending legislation, though is expected to do so shortly.