September 22, 2016

House and Senate lawmakers focused the majority of their attention this week on finalizing a short-term budget deal, known as a continuing resolution (CR).  The CR will be necessary given Congress’ failure to complete action on any of the 12 regular appropriations bills for the new fiscal year that begins on October 1.  While Senate Republican and Democratic lawmakers appeared close to working out a compromise this week, congressional negotiators have been unable to resolve their differences on a number of contentious issues ranging from disaster aid to budget offsets. 

With no agreement in place as of this writing, Majority Leader Mitch McConnell (R-KY) unveiled the latest GOP offer the afternoon of September 22.  According to McConnell, the proposal would continue to fund government operations at current spending levels through December 9.  The measure also includes additional funding to combat the Zika virus, deal with heroin and opioid abuse, and address flooding damage in Louisiana, West Virginia, and Maryland. 

A number of key Democrats have already blasted the Republican offer, with many criticizing its lack of funding to help the residents of Flint, Michigan deal with its lead-tainted water crisis.  This general lack of consensus between the two parties will push Senate consideration of the CR into next week and will force the House to act in short order.  Looking ahead, both parties want to avoid the prospect of a government shutdown, particularly during an election cycle.  Therefore, it is widely expected that an agreement will be reached prior to next Friday’s deadline.

Senator Feinstein Urges USDA and OMB to Address Tree Mortality Crisis in California

On September 7, Senator Dianne Feinstein (D-CA) sent a letter to the U.S. Department of Agriculture (USDA) and the Office of Management and Budget (OMB) regarding the tree mortality crisis in California.  In her letter to USDA Secretary Tom Vilsack, Senator Feinstein urges the Department (which oversees the U.S. Forest Service) to reprogram $38 million in previously-appropriated wildfire prevention funds to remove dead trees in the Stanislaus, Sierra, and Sequoia National Forests.  Specifically, the funding would be used to execute 19 high-priority tree removal projects that have been identified by California’s Tree Mortality Task Force.  These “shovel-ready” projects have received all the required environmental clearances and are simply awaiting the necessary funding.

In her letter to OMB, Senator Feinstein requests that Director Shawn Donovan work with the Forest Service to include a specific and substantial funding request to address the tree mortality crisis as part of the fiscal year 2018 budget proposal.

Senator Feinstein’s letter to USDA Secretary Tom Vilsack can be accessed here, and her letter to OMB Director Shaun Donovan can be found here.

House and Senate Lawmakers Express Support for PILT and SRS Funding

This week, there was a bipartisan effort in both chambers to express support for two key CSAC funding priorities: the Payments-in-Lieu-of-Taxes (PILT) program and the Secure Rural Schools (SRS) program.  As of this writing, 92 members of Congress, including 18 from the California delegation, have agreed to sign onto bipartisan correspondence to House Speaker Paul Ryan (R-OH) and Minority Leader Nancy Pelosi (D-CA) regarding PILT funding. 

The letter – led by Representatives Chris Stewart (R-UT) and Jared Polis (D-CO) – urges House leaders to fully fund PILT in fiscal year 2017 and beyond.  It should be noted that California counties received a combined total of nearly $47.3 million in fiscal year 2016 PILT funding.  While House and Senate appropriators have included $480 million to fully fund PILT in their respective fiscal year 2017 Interior spending bills, Congress has yet to finalize its budget for the new fiscal year.  A similar effort – led by Representatives Paul Gosar (R-AZ), Peter DeFazio (D-OR), Scott Tipton (R-CO), and Jared Huffman (D-CA) – in support of SRS funding has thus far garnered the support of 49 members, including 10 from the California congressional delegation. 

Across Capitol Hill, Senators Feinstein and Barbara Boxer (D-CA) have also agreed to sign onto a bipartisan letter to Senate leaders regarding both PILT and SRS.

Republican EPW Committee Staff Releases Report on Waters of the U.S.

On September 20, the Majority staff of the Senate Environment & Public Works (EPW) Committee released a report on the Obama administration’s Waters of the U.S. (WOTUS) rule titled “From Preventing Pollution of Navigable and Interstate Waters to Regulating Farm Fields, Puddles and Dry Land:  A Senate Report on the Expansion of Jurisdiction Claimed by the Army Corps of Engineers and the U.S. Environmental Protection Agency under the Clean Water Act.”  The report uses case studies that were presented to the committee to demonstrate that the WOTUS rule – if upheld by the Courts – would codify extreme overreaches of federal authority by both the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps).

The report also draws several conclusions from the case studies, including that parties regulated under the Clean Water Act will not be able to rely on current statutory exemptions, or the exemptions delineated in the WOTUS rule, because the agencies have effectively narrowed the exemptions.  Per the report, EPA and the Corps in practice have asserted jurisdictional authority over certain seemingly exempt areas and activities by simply making alternative claims/designations to fit their regulatory agenda.

In addition, EPW Committee Chairman James Inhofe (R-OK) sent a letter to 11 Democratic senators who had previously written to EPA and the Corps outlining their concerns with the WOTUS rule.  In their November 2015 correspondence, the Democratic senators stated that they were reserving the right to support efforts to revise the WOTUS regulation if the EPA fails to provide clarity regarding the scope of the rule or if the rule erodes traditional exemptions.  Inhofe used the staff report as an opportunity to urge his Democratic colleagues to join him in advancing such legislation. 

The report can be accessed here and a copy of Chairman Inhofe’s letter can be accessed here.

Senate Approves WRDA Reauthorization; House Expected to Act Next Week

The Senate last week overwhelmingly approved a Water Resources Development Act (WRDA) reauthorization measure.  The legislation (S 2848) is a follow-up to the Water Resources Reform and Development Act (WRRDA) of 2014 and, if enacted this year, would put Congress back on track in terms of advancing biennial WRDA legislation.

The legislation would authorize new Army Corps projects that have been reviewed by Congress and which have completed reports from the Chief of Engineers.  Among other things, S 2848 would authorize broad federal assistance and support for drinking water and wastewater infrastructure upgrades, drought resilience, green infrastructure, etc.  It also would make several updates to the Water Infrastructure Finance and Innovation Act (WIFIA) program.

In addition, S 2848 would expand the role of local partners in implementation of water resource projects and make it easier for non-Federal partners to carry out portions of a project in advance of the Corps and receive credit for completed work.  The bill also would permit non-Federal interests to provide funding to the Corps to update or modify project operations to improve water supply.

The House is expected to consider its own, albeit less ambitious, WRDA reauthorization measure (HR 5303) next week.  If approved, it would set the stage for conference negotiations to take place during the lame-duck session.  It should be noted that the House bill includes language that would expand the definition of water-resources projects to include “environmental infrastructure” projects.  This would allow the Corps to directly participate in various water supply and water recycling projects.  Additionally, the legislation would allow the Corps to enter into agreements with non-federal sponsors to engage in water conservation, stormwater capture, and groundwater recharge projects.

House to Consider Bipartisan Juvenile Justice Reform Package

The House was slated this week to vote on a long-awaited bipartisan juvenile justice reform package (HR 5963).  The bill, which was approved last week by the House Education and the Workforce Committee, would renew and update programs that were first authorized under the Juvenile Justice and Delinquency Prevention Act of 1974 (JJDPA).  Congress last passed a JJDPA reauthorization and reform measure back in 2002.

All told, HR 5963 would authorize more than $855 million over five years for state, local and Indian tribal efforts aimed at preventing and reducing juvenile delinquency.  Under the bill, over $387 million would be allocated for core JJDPA formula grants, with more than $467 million in funding potentially available for incentive grants and grants to support tribal programs.

The legislation also includes a number programmatic reforms aimed at providing local governments with additional flexibility to serve at-risk youth and juvenile offenders.  Among other things, the bill would restructure an existing delinquency prevention program in order to provide local governments and community-based organizations with tools to better assess and respond to unmet community needs.  The legislation also includes provisions designed to help youth transition out of the juvenile justice system by ensuring that they have access to education and other essential services.

It should be noted that the bill would phase out the use of Valid Court Order (VCO) exceptions (which allow judges to detain non-delinquent juveniles for committing low-level “status offenses,” such as truancy or possession of alcohol).  Specifically, the use of VCOs would need to be eliminated by September 30, 2020, though States would be allowed to apply, on an annual basis, for a hardship exemption.

HR 5963 also would change the definition of adult inmate.  Under the measure, an adult inmate could not include someone who, at the time of his or her offense, is younger than the maximum age at which an individual can be held in a juvenile facility under State law.   Furthermore, the legislation would require states to ensure that, within three years of the bill’s enactment, a young person awaiting trial for prosecution as an adult would not have sight or sound contact with adult inmates or be held in an adult jail.

As the Legislative Bulletin went to press, it appeared as though House leaders would be unable to schedule a final vote on HR 5963 before week’s end.  While the measure – along with a slate of other bills – was originally slated to be considered under expedited procedures on September 22, it appears as though those votes will be held over until next week. 

Finally, across Capitol Hill, it is unclear if a companion juvenile justice bill will receive a vote in the Senate.  While the Judiciary Committee approved a similar JJDPA reauthorization and reform measure last December, the legislation (S 1169) has been held by Senator Tom Cotton (R-AK) due to his concerns with provisions of the bill that would eliminate the use of VCOs.