Advocacy

At this writing, there is a surge on infrastructure bills on both sides of the Hill, in both the authorizing committees in the House and Senate, and in the Appropriations Committee in the House. There are three main infrastructure bills that we highlight in this report, focusing on key provisions affecting permeable pavements and stormwater action.

Authorizations:  the House “Invest in America” Act, HR3684 (aka the House infrastructure bill)

We begin by addressing developments in the two authorizing committees, the House Transportation and Infrastructure Committee (House TIA) and the Senate Environment and Public Works Committees (Senate EPA), the two lead Hill committees on infrastructure policy.  House TIA goes first.

House TIA introduced, and subsequently passed on the House floor, the Invest in American Act, HR3684. Focusing on permeables, this House bill includes a provision that would expand USDOT’s definition of “protective features” for the purposes of relevant USDOT/FHWA programs to include “permeable pavements for stormwater management.”

This “protective features” provision was added to the Invest in America Act subsequent to ICPI’s overtures to House TIA seeking greater direction for USDOT to conduct work on permeable pavements as part of the Department’s overall stormwater authority.  ICPI is hopeful that if permeable pavements are specifically identified in USDOT’s authorization as a protective measure under the Department’s programs, it will elevate the Department’s commitment to involving permeable pavements in USDOT’s plans, programs and grant opportunities.

Next, we point to Section 1604 that would create a (quoting from Invest in America) STORMWATER BEST MANAGEMENT PRACTICES STUDY. Not later than 180 days after enactment, USDOT would be directed to enter into an agreement with the Transportation Research Board of the National Academy of Sciences to under which the TRB would conduct a study to estimate pollutant loads from stormwater runoff from highways and pedestrian facilities eligible for assistance under the U.S. Code, to inform the development of appropriate total maximum daily load requirements; to provide recommendations (including recommended revisions to existing laws and regulations) regarding the evaluation and selection by State departments of transportation of potential stormwater management and total maximum daily load compliance strategies within a watershed, including environmental restoration and pollution abatement carried out under section 328 of title 23, U.S. Code; to examine the potential for the Secretary to assist State departments of transportation in carrying out and communicating stormwater management practices for highways and pedestrian facilities that are eligible for assistance under title 23, U.S. Code, (some elements omitted due to length). The study would include USDOT/FHWA, the Secretary of Agriculture, the Secretary of the Army acting through the Chief of Engineers, State departments of Transportation, with input from stakeholders with experience in implementing stormwater management practices for projects (we would presume ICPI to qualify as such), and educational and technical stormwater management groups. The legislation would further call for a report to be generated to be circulated among the participants as well as the key committees in the House and Senate. Further, the report would be intended to be updated periodically. 

ICPI feels this study can provide a solid and impressive platform to link the importance of stormwater management (for which pavers could provide an important contribution) as a core feature of USDOT/FHWA thinking and its mission. ICPI is in an excellent position to participate as a subject matter expert stakeholder educating USDOT/FHWA on the beneficial role of permeable pavements.

Throughout the Invest in America Act, there is a recurrent supportive theme elevating the importance of stormwater management. Some of the provisions explicitly reference the role of innovative pavement materials in helping achieve stormwater management. We expect pavers to satisfy the congressional intent of these provisions. Many of the thirty-some references to stormwater advance not only the importance of stormwater management as a priority in its own right, but also the direct relationship to pavements that can help address stormwater. ICPI is pleased to see that these policy benefits have achieved widespread recognition and acceptance on the Hill.

To be sure, there are other provisions of interest to ICPI in the House’s Invest in America bill, but these are the most directly related to the advocacy put forth by ICPI.

The House passed Invest in America and sent it to the Senate for consideration.

Authorizations: the Senate “bipartisan infrastructure” bill

We now shift to the U.S. Senate, and its version of an infrastructure bill that is generally referred to as “the bipartisan infrastructure bill”.  As this report is being prepared on August 9, 2021, that bill is on the Senate floor with amendments under consideration. We expect a vote on final passage early August 10. We expect the bill to pass with substantial bipartisan support.

The Senate bill contains not only its own stormwater management study, but also a (quoting from the bill) PERMEABLE PAVEMENTS STUDY. USDOT would be required 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, to perform research to fill gaps in the existing information to develop models for the performance of permeable pavements in flood control; and best practices for designing permeable pavement to meet flood control requirements.

ICPI lauds all efforts by the Hill to direct agency attention to the public policy benefits of permeable pavements.

The Senate bill also contains provisions for detailed stormwater management study quite like what the House requires in its Invest in America.Rather than reprint the Senate language here, we can say the House and Senate provisions are substantively similar.

As we alluded earlier, that there are major other issues (for example, important water resources construction chapters) in both bills with many $billions in funding that may be of interest to ICPI members.  But we focus on ICPI’s efforts on permeables and stormwater.

Status: at this time, the Senate bill remains under floor consideration.  We expect it to pass on the Senate floor on August 10. The House and Senate will next need to convene a House-Senate conference to resolve all the differences between the House Invest in America Act and the Senate “bipartisan infrastructure” version, and then send the identical compromise “conference report” back to both Houses for up-or-down votes on final passage. The House has already adjourned for the August recess, so only negotiations would occur during the remainder of the August recess. After both Houses reconvene in September, and if a final conference report is achieved, we think it highly likely that it would be passed in both Houses of Congress and then sent to the White House to be signed into law. We think it virtually certain that the President would sign such a bill into law.

This concludes the report on infrastructure authorizations. We now shift to appropriations, specifically House THUD Appropriations for USDOT/FHWA in FY22.

Appropriations: the House FY22 THUD Appropriations bill and committee report

The House has indeed passed its FY22 THUD Appropriations as part of a larger package of funding bills and has sent that package to the Senate for consideration.

The House Committee Report to accompany the FY22 THUD Appropriations bill contains language advocated by ICPI in a joint conversation with subcommittee staff. The report language eventually adopted by the Appropriations Committee is as follows:

Permeable pavements. —The Committee continues to encourage 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, to understand the mechanisms of flood damage and how permeable pavements might be used to prevent or reduce damage from future flooding. Furthermore, the Secretary is encouraged to work with the Federal Emergency Management Agency (FEMA) and the Environmental Protection Agency (EPA), as both agencies are also doing work in the area of permeable pavements and a cross-agency collaboration may yield more innovation. As such, the Committee directs the Department to submit a report within 240 days of enactment of this Act to the House and Senate Committees on Appropriations detailing current efforts, utilization, and research within FHWA and efforts made with FEMA and EPA.

ICPI applauds the House interest in a collaboration among USDOT, FEMA and EPA in this regard. ICPI would be happy to offer technical assistance in such a collaboration.

The package of funding bills that includes THUD passed the House and is now in the Senate for consideration after the August recess.  New appropriations bills are required to be enacted by September 30. In recent years, appropriations bills have rarely been enacted without considerable eleventh-hour negotiations, but we do not anticipate a government shutdown at this time. The real issue will be whether the new FY22 appropriations bills will be able to pass, or whether a stopgap Continuing Resolution would be required to continue funding under current appropriations. For obvious reasons, ICPI would prefer passage of the FY22 bill, with the report language reprinted above, rather than a CR.

On the horizon: a highly contentious, fully partisan Budget Reconciliation bill

Up to this point in this report, we have focused on infrastructure items, both authorizations and appropriations, that are, for the most part, bipartisan in nature, or at least sufficiently reconcilable to obtain bipartisan Senate support.

That degree of comity will not be continued with respect to the next bill on the Senate agenda, the FY22 Budget Reconciliation (“the BR”) bill.

The White House and Hill Democratic leaders have settled on a two-bill strategy:  first, the bipartisan infrastructure bill that can attract the GOP support that the White House wants to demonstrate a commitment, or at least desire for, bipartisanship; and second bill, the BR, that will address all the remaining partisan priorities from all sides of the Democratic Party continuum.

The BR addresses issues such as tax increases, global warming/carbon dioxide emissions reductions, labor issues, immigration issues, social issues and more. This list of partisan issues has been looking for a legislative vehicle since the 117th Congress was seated. They are some of the most election-sensitive issues in American politics.

This second bill will need to be put forward as a BR in order to invoke the Budget Reconciliation rules. If the Democratic leadership can successfully invoke the BR rules, it will eliminate the roadblock of a Senate filibuster. Thus, if all the 50 Senate Democrats can support such a BR, they may have the absolute minimum votes necessary to pass such a bill without any GOP support.

There are too many political and mathematical variables to address in this report as to whether such a parliamentary strategy can be successful. There are other roadblocks involving interpretations of the Budget Reconciliation Act, and whether the privileged voting under BR would apply substantively to some of the key issues the Democrats would like to include. ICPI will pay close attention to the BR.

At this writing, the Senate Democratic leadership are introducing the BR and hope to pass it soon after completing work on the bipartisan infrastructure bill and prior to adjourning for the August recess. It appears the Democrats may have the minimum number of votes for passage at this time, but whether unanimous Democratic can be held throughout the BR process is unknown.

H-2B Worker Visa action: increases in visas, a gauntlet of amendments in opposition

There has been considerable recent action regarding the H-2B worker visa program. H-2B remains a priority for ICPI. ICPI is pleased to work with business advocate allies on H-2B and uses material drafted by H-2B allies in this report.

USCIS recently announced that employers may file H-2B petitions for returning workers under the FY21 H-2B supplemental visa temporary final rule. Employers may take this action if they are likely to suffer irreparable harm without these additional workers. Returning workers are defined as workers who were issued an H-2B visa or otherwise granted H-2B status in FY 2018, 2019, or 2020. USCIS will accept petitions for returning workers until Sept. 15, 2021, or until the remainder of the cap is reached, whichever occurs first. Any petitions that arrive after this cap has been reached will be rejected. USCIS previously announced having received enough petitions for the 16,000 visas initially made available for returning workers under the rule. We refer ICPI members to the USCIS website for more information.

During House FY22 Appropriations consideration for USDOL and USDHS funding, appropriators added language to the H-2B worker visa provisions that would further prompt the Secretary to make additional worker visas available during FY22. ICPI supports this language.

Further during the appropriations process in the House, pro-H-2B Members of Congress successfully resisted several proposals that could have effectively gutted the H-2B program. Proposals would-

-Prohibit industries from using the H-2B program if they experienced unemployment

 in any of the previous 12 months over 10%;

-Prohibit construction industries from using the program even in seasonal locations or occupations;

-Increase the baseline for wages to at least 150% of the federal or state minimum wage, whichever is higher;

-Require wage compliance with a collective bargaining agreement for your industry in the area, even if a company is not a party to the agreement;

-Ban participation in the program for labor/workforce related infractions outside of the scope of the H-2B program.

ICPI and other business advocates opposed all these amendments.

The House package of appropriations bills that contains the H-2B provisions has passed the House and awaits Senate action following the August recess.

WOTUS, Waters of the U.S. rule (Clean Water Act): the saga continues

As expected, EPA and the U.S. Corps of Engineers will be commencing efforts soon to replace the Trump Administration version of the Water of the U.S. definition, which defines the waterways subject to the Clean Water Act and related issues such as water quality and stormwater management. Agency listening sessions are expected to begin in August.

During the promulgation of a new version of the rule, the Biden White House has said it intends to temporarily reinstitute the WOTUS rule that existed prior to the Obama Administration changes implemented in 2015.

ICPI will monitor developments.

Labor issues:  the PRO Act, NLRB

The Senate HELP Committee held a hearing on the PRO Act (The People’s Right to Organize Act, S420, in July. Quoting from the bill’s abstract, the bill expands various labor protections related to employees’ rights to organize and collectively bargain in the workplace. Among other things, it revises the definitions of employee, supervisor, and employer to broaden the scope of individuals covered by fair labor standards; permits labor organizations to encourage participation of union members in strikes initiated by employees represented by a different labor organization (i.e., secondary strikes); and prohibits employers from bringing claims against unions that conduct such secondary strikes.

The bill also allows collective bargaining agreements to require all employees represented by the bargaining unit to contribute fees to the labor organization for the cost of such representation, notwithstanding a state law to the contrary; and expands unfair labor practices to include prohibitions against replacement of, or discrimination against, workers who participate in strikes.

The bill makes it an unfair labor practice to require or coerce employees to attend employer meetings designed to discourage union membership and prohibits employers from entering into agreements with employees under which employees waive the right to pursue or a join collective or class-action litigation.

Further, the bill addresses the procedures for union representation elections, modifies the protections against unfair labor practices that result in serious economic harm, and establishes penalties and permits injunctive relief against entities that fail to comply with National Labor Relations Board orders.

ICPI and many other business organizations oppose the PRO Act.  ICPI signed a joint industry letter opposing the PRO Act. The PRO Act’s future remains uncertain, given that it would be nearly certain to draw a filibuster in the Senate.

In another labor development, the Senate recently approved two Democratic nominees to take seats on the National Labor Relations Board. It is widely expected that when these new members are seated, giving Democrats the majority on the Board, there will be a quite significant shift on the Board. ICPI and other business advocates will monitor NLRB developments closely when the new Board is seated.

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.

• The Biden Presidency is seated amid pandemic

• The 117th Congress is seated with narrow, tenuous Democratic majorities in both Houses

The “political math” of the 117th Congress, and its tactical impact on legislation.

At press time, the last House race (New York 22nd District) has been certified as a Republican victory.

This result gives the Democrats a narrow 9-vote majority control in the House, 222-213, in the 117th Congress. Thus, on any given House vote requiring only a bare majority (which is true for most votes on the House floor), if only 5 Democrats vote with the GOP side rather than with their Democratic colleagues, the GOP side will prevail and the Democratic side will lose.

On the Senate side, the Senate is tied at 50-50, with the tie-breaking vote of Vice President Harris giving the Democrats the narrowest possible majority. This means that if even 1 Democrat chooses to vote with the GOP on any floor issue requiring only a bare majority, the Democratic majority side would lose and the GOP side would prevail.

Several centrist Senators’ votes will be courted quite closely on nearly every major contentious issue.

Unless there are new Senate rules changes that are extremely unlikely at this time, we expect the availability of the Senate filibuster to continue without abandonment. Sufficient Democrats have joined all Republicans to ensure that the filibuster will remain an available tactic. So, in addition to the tenuous bare majority votes in a 50-50 Senate, the need for 60 votes to override filibusters means that the Democrats will need to negotiate to bring at least 10 Republicans on board to defeat a filibuster on most important floor votes.

Whip counting (polling Members how they intend to vote before the vote is scheduled) will be as important as it has ever been.

While we expect the Hill to tilt decisively in the direction of the Democratic agenda, we know that narrow majorities can have a tactical/practical moderating effect on legislation, particularly in filtering out some hot-button issues and blurring some of the more controversial fine points of policy. There will be more on this below with respect to certain key legislative proposals.

With the majorities now settled, the House and Senate are organizing their committees in terms of Chairs and Ranking Members, and finalizing committee memberships. Committees are beginning to schedule hearings. ICPI is monitoring these efforts.

Meanwhile, at the White House, the Biden team is settling in and doing what it can to execute a fast start. At press time, several of the Biden Cabinet nominees have either been confirmed by the Senate or are moving normally through the confirmation process. So far there have been no controversies or delays in confirmations.

The first two orders of business have been to quickly ramp up on COVID-19 legislation, and to issue Presidential Executive Orders (EO) to overturn actions of the Trump Administration. Presidential action by EO is immediate and does not require legislation or negotiation with the Hill.

With respect to the COVID-19 $1.9 trillion package sought by President Biden, the President is relying on the Democratic House and Senate majorities, and the filibuster-proof rules of “Budget Reconciliation,” to move this first package.

President Biden has reached out to Senate GOP centrists. Initial talks between the President and GOP Senators have been cordial, businesslike. We expect polite discourse to continue, a mode which we expect may bear fruit on future legislation where the filibuster is possible and inter-party consensus will be required. But in this first bill, addressing the COVID-19 universe of issues on a massive and urgent basis, the President has accessed the rare procedural opportunity allowed under Budget Reconciliation to move the entire legislation without any GOP votes. (Budget Reconciliation is a privileged matter under the Budget Act, thus a Senate filibuster is not allowed.) At press time no Republican Member has signaled support for the massive $1.9 trillion bill wanted by the President.

The COVID-19 bill does not include issues that might have the most direct impact on ICPI interests, such as infrastructure, taxation, immigration or labor. But it does have many elements intended to improve the economy by both rapidly expanding vaccine deployment to quell the human medical impact of COVID-19 and by providing economic rescue to some of the hardest hit sectors in the U.S. economy.

The issues surrounding economic impacts include, for example, a raise in the federal minimum wage, direct payments to people, increases and extensions in the federal unemployment insurance program. Other examples include funding for FAA and the airlines, other transportation and mass transportation sectors, FEMA programs related to vaccine distribution and virus response. Of course it is a huge bill, substantively and in cost. Some economists say a large bill is needed; others express concerns about the cost, possible inflationary effects and the federal deficit. At press time the various Hill committees tasked to construct the final elements are doing so. Given the urgency of the pandemic and the favorable parliamentary circumstances, we expect a large COVID-19 bill to pass in late February/early March.

With respect to the early Biden Administration Executive Orders which might have relevance to ICPI and its members, the following is a brief selection of EOs and what they would do:

-Reverses Trump-era constraints on rulemakings, overturns many rules, and institutes a regulatory freeze on Trump administrative actions that were under development. A key adjunct is that the new Biden EPA counsel has asked DOJ to suspend work on environmental actions prompted under the Trump Administration to give the Biden Administration time to conduct their own reviews and possibly reverse course.

-Directs each federal agency to develop a plan to increase the resilience of its facilities and operations to the impacts of climate change and directs relevant agencies to report on ways to expand and improve climate forecast capabilities – helping facilitate public access to climate related information and assisting governments, communities, and businesses in preparing for and adapting to the impacts of climate change.

-Directs each federal agency to develop a plan to increase the resilience of its facilities and operations to the impacts of climate change.

-Catalyzes the creation of jobs in construction, manufacturing, engineering and the skilled-trades by directing steps to ensure that every federal infrastructure investment reduces climate pollution.

-Commits the U.S. to rejoining the Paris Climate Accord.

-Makes climate change an essential factor of U.S. foreign policy and national security.

-Re-establishes the President’s Council of Advisors on Science and Technology.

-Makes the Director of the Office of Science and Technology Policy responsible for scientific integrity for the federal agencies, and to ensure that sound science is used.

-Directs OSHA to release clear guidance to employers on COVID-19 (at press time this has already been released by OSHA), possibly establish an Emergency Temporary Standard for employers (currently under consideration by OSHA), and directs OSHA to enforce worker health and safety requirements.

-Directs agencies to apply and strictly enforce the prevailing wage and benefit guidelines of Davis Bacon and other acts and encourage Project Labor Agreements. These actions reaffirm that agencies should work to ensure that any jobs created with funds to address the climate crisis are good jobs with a choice to join a union.

-Strengthens Buy America rules affecting federal purchases of goods.

As we close our discussion of the early Biden EOs, we note the clear effort to include the environment and climate change in nearly every major action taken or contemplated by the new Administration. Of course, PICP is a green technology that fits well with any policy that favors green construction, stormwater mitigation, clean water, reduced flooding, water harvesting and more. We think it prudent to highlight, constantly and comprehensively, the substantial positive environmental benefits of PICP, certainly in discussions with any level of government, and probably to private sector elements influenced by government policies.

Specific issues particularly relevant to ICPI and its members

WOTUS, the “Waters of the U.S.” definition of waterways subject to the Clean Water Act (CWA) and related regulation by EPA and the U.S. Army Corps of Engineers: 

The first contemporary movement on WOTUS occurred when the Obama Administration redrafted WOTUS to include many more waterways/types of waterways subject to CWA (and for ICPI’s purposes, stormwater mitigation using permeable pavements). The second movement was the Trump Administration elimination of the Obama WOTUS rule, replacing it with a much narrower definition of waterways subject to CWA.

Now comes the third movement, the effort by the Biden Administration to reverse the Trump action and, presumably, eventually restore much or all of the Obama WOTUS rule.

President Biden included WOTUS in his early regulatory efforts, calling for a review of the Trump rule and a recommendation on how best to proceed.

Environmentalists want Biden to move even further and faster on WOTUS.  House Committee on Transportation and Infrastructure (T&I) Chairman Peter DeFazio and Subcommittee on Water Resources and Environment Chairwoman Grace F. Napolitano have called on President Biden to fully repeal the Trump rule now and immediately engage a new rulemaking to replace it.

Such a rulemaking would take considerable time, as was seen in both the Obama and Trump efforts, each of which took years to complete.  But it would provide the most complete repudiation and replacement of the Trump rule.

During the Obama rulemaking, ICPI provided WOTUS to EPA comments asserting how permeable pavement technology was readily available to help the country meet increased stormwater mitigation requirements with the economical, proven, readily available “off the shelf” technology to do so.  ICPI stands ready to participate in any new rulemaking respecting WOTUS during the Biden Administration. This position comports with ICPI’s effective efforts in branding PICP as a green technology that is fully in synchronization with growing demands for environmentally friendly infrastructure development.

WRDA, the Water Resources Development Act: The WRDA 2020 reauthorization became law late in the immediately preceding 116th  Congress. Now comes the time to implement the new law.  Infrastructure proponents on the Hill are urging the Biden Administration to do so as soon as possible, in large part because it is the infrastructure bill that has already been passed and is available to boost infrastructure activity in the economy.

An interesting recent twist to WRDA is that it is being hailed for its green construction opportunities as much as for construction jobs.  For ICPI, we interpret green construction as opportunities for PICP.

In a recent statement issued by House T&I Chairman DeFazio, he cited key provisions from WRDA 2020 that will help the Biden administration achieve its climate, resiliency, and equity goals:

-Directs final agency procedures for Principles, Requirements, and Guidelines (PR&G). The PR&G ensures that future water resources development projects maximize sustainable development, protect and restore the functions of natural systems, and fully-evaluate environmental, economic, and societal goals (including both monetary and non-monetary effects), in addition to addressing environmental justice concerns and ensuring meaningful participation of locally-affected communities.

-Expands the ability of the Corps of Engineers to provide local governments with direct resiliency planning assistance (at no cost to the local government through the Corps’ Flood Plain Management Services) to avoid repetitive flooding impacts, to prepare and adapt to climate change and extreme weather events, and to quickly recover from flooding events.

-Directs the Corps to prioritize planning assistance to economically disadvantaged communities and communities subject to repetitive flooding events.

-Reaffirms the commitment to greater use of natural and nature-based projects by ensuring natural and nature-based alternatives are fully evaluated in any flood or storm risk-reduction feasibility study carried out by Corps and are provided the same cost-share as structural alternatives.

-Authorizes the Corps to study, design, and construct water resources projects for communities that have been subjected to repetitive flooding events and have received emergency flood assistance, including construction of temporary barriers. This authority is directed at helping repetitive loss communities, especially those in economically disadvantaged communities, obtain critical flood protection.

-Creates additional flexibility for the Corps to address the water resources needs of economically disadvantaged communities, minority communities, and rural communities both through pilot efforts to reduce (or eliminate) the local cost share for partnering with the Corps, or through providing additional resiliency planning or technical assistance, at no cost to the community.

ICPI supports the rapid implementation of WRDA and its growing focus on environmental concerns and combating repetitive flooding.

An “infrastructure package”

While the Biden Administration has not made it a top priority on the same level as COVID-19, an infrastructure package is always mentioned as a priority for action in 2021.

The Biden campaign offered the Build Back Better statement of goals during the 2020 campaign.This was an aspirational campaign document lacking in substantive detail.

President Biden is expected to deliver a speech to Congress on February 23 at which time he is expected to address infrastructure plans in greater detail.

We know that leaders in both parties in House T&I, the Senate Environment and Public Works Committee, and other committees have detailed working drafts ready for consideration. There is strong support for a bill among the business and construction communities.

In days leading up to this writing, President Biden is reported to have said, paraphrasing, he cannot wait to work out an infrastructure package with Chairman DeFazio.

ICPI welcomes those favorable comments and stands ready to offer support and possible permeable pavements language for consideration in such a bill. ICPI will be watching these developments closely as 2021 unfolds.

Immigration, and the H-2B worker visa program      

In 2020, President Trump eliminated issuance of new H-2B visas twice, the latter announcement extending his delay on new visas through March of 2021.

President Biden has issued several early EOs addressing various aspects of immigration. He has proposed a study of the political, economic and societal reasons why citizens of other countries emigrate to the U.S. as a precursor to modify U.S. foreign policy to address those dynamics. He has pledged to pursue legislation to reform the immigration system, including enactment of an eight-year pathway to citizenship.

A comprehensive immigration bill remains a primary means to address the H-2B worker visa issue, though not the only means. Unilateral regulatory action by the Administration, DHS and DOL can and do impact H-2B. Further, in recent years, important H-2B action has originated in the House and Senate Appropriations Committees, with directives and conditions attached to DHS and DOL funding legislation.

ICPI is a member of the H-2B Worker Visa Coalition and supports increases in the annual visa caps and the release of additional visas as allowed in recent appropriations bills. In addition, ICPI supports provisions intended to enable expanded use of the H-2B worker visa program, ease the allowances for returning workers and reduce the procedural and paperwork roadblocks to U.S. companies using the program. H-2B is a priority for ICPI.

ICPI signed letters supporting the Senate confirmations of Marty Walsh as Secretary of Labor and Alejandro Mayorkas as Secretary of Homeland Security. These are the two cabinet positions most closely related to immigration issues and the H-2B worker visa program. (At press time, Mayorkas has been confirmed by the full Senate, and Walsh’s nomination has been approved by the Senate HELP Committee by a vote of 18-4). In expressing these views, ICPI re-stated the importance of H-2B to the paver installation industry.

ICPI cosigned a letter to Secretary Mayorkas urging him to use authority granted by Congress to release more H-2B visas.

During the recent Senate confirmation hearings, Senators Susan Collins and Lisa Murkowski voiced support for the H-2B worker visa program.

ICPI greatly appreciates their favorable comments.

Labor issues/agenda

Given the Democratic control of the House, Senate and White House, the likelihood of labor union-supported legislative and regulatory action in 2021 has increased substantially.

At press time, the Biden labor agenda is yet developing in the wake of the more urgent COVID-19 priorities. We anticipate robust action on the labor issue front.

On the Hill, the PRO Act (Protecting the Right to Organize Act), has been reintroduced. 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.

The following is a selection of elements in the PRO Act gleaned from statements from PRO Act proponents (in the interest of space it is not a complete list):

-Authorizes meaningful penalties for companies and executives for violating workers’ rights. The bill also permits the NLRB to impose personal liability on corporate directors and officers who participate in violations of workers’ rights or have knowledge of and fail to prevent such violations.

-Streamlines access to justice for workers who suffer retaliation for exercising their rights.

-Authorizes a private right of action for violations of workers’ rights.

-Gives workers the power to override so-called “right-to-work” laws that prevent unions from collecting dues from the workers they represent. The PRO Act allows employers and unions to enter into a contract that allows unions to collect fair-share fees that cover the costs of collective bargaining and administering the agreement.

-Enhances workers’ right to support boycotts, strikes, or other acts of solidarity.

-Prevents employers from interfering in union elections. The bill prohibits employers from requiring workers to attend meetings designed to persuade them against voting in favor of a union. If a violation takes place or the employer otherwise interferes with a union representation election, the NLRB will be empowered to issue an order that requires the employer to bargain with the union. The bill also prevents employers from interfering in representation cases, which exist to determine workers’ free choice, not corporations’ preference about how their employees should exercise protected rights.

ICPI opposes the PRO Act.

The PRO Act might become the leading labor bill in the 117th Congress. Its chances for enactment are uncertain. The bill appears likely to face a filibuster if it should reach the Senate floor.

It seems plausible that at some point alternative efforts will be made to break the bill into smaller parts, issue by issue. Some elements might have a greater chance for passage than others. ICPI will be monitoring closely.

Tax reform/tax increase proposals

Some Democrats have urged tax proposals to improve tax equity, generate revenues to offset COVID-19 spending, or address deficit issues.

Such proposals include increasing the corporate income tax rate to circa 27%; increasing taxes on individuals earning more than $400,000 per year; increasing the highest individual income tax bracket rate; increasing capital gains taxes on individuals making more than $1 million per year; enacting “mark to market” proposals to tax capital gains annually for gains not yet realized rather than waiting until assets are sold.

There is no single coherent tax package for consideration at this time. Proposals, rates, percentages and mechanisms are being discussed on a conceptual level.

We do not anticipate early action on tax, for multiple reasons that are mutually reinforcing. First, COVID-19 and jobs recovery take precedence. Second, tax increases might be problematic for moderate and red-state Democrats. Third, the prospect of tax increases during a pandemic and high unemployment seems bad timing.

Thus, there will likely be tax debate, the introduction of bills, hearings held and more; there may be calls from Democratic governors to reinstate the federal tax deduction for state and local taxes. But there are solid reasons to question whether a significant tax reform bill is possible at any early point in 2021. It might be, but it would require a superlative effort.

[Note: at press time, White House and Hill negotiators continue to discuss a next coronavirus bill. There is no agreement yet to include in this report. However, we do expect a bill to be developed, and that it will include elements important to ICPI and its members. This material will be addressed in other ICPI messaging.]    

The impacts of the pandemic on the operational elements of advocacy have been profound. All, or nearly all, of federal advocacy has reverted to remote/virtual mode.

The House and Senate are not taking personal visits by outsiders to congressional offices. Even if personal visits were allowed, visits might be pointless because many personal and committee staff are working at home. Countless meetings, symposia, hearings, markups and more have been postponed or cancelled altogether. The cramped Hill offices, hallways and elevators are simply not compatible with social distancing protocols.

Members of Congress are spending more time at home in their districts and are limiting their physical travel to DC. Procedures are evolving to facilitate it. Committee hearings are being held by the new “hybrid” method (i.e. virtual mode). The House has developed a stop-gap method for voting by proxy not only in committees but also for floor voting. In-person fundraisers have been cancelled; for the time being only virtual options are available.

These developments would have been unthinkable only eight months ago.

In the new era, remote operations have become the only way.

Much of this may not be a temporary aberration that will end with a good COVID-19 vaccine. Much may become permanent, simply the modern way of doing things. The new skills, customs, behaviors and procedures being learned for this pandemic may not be unlearned.

Despite the ongoing coronavirus pandemic, considerable action relevant to ICPI is occurring in the Second Session of the 116th Congress. All action is synergistically impacted by 1) the pandemic, 2) its economic impacts, and 3) the 2020 electoral season. The first two of these factors have not been seen before, and the third is one of the most unique political situations in the recent history of the U.S. For the present, most, not all but most, of the action relevant to ICPI has trended in directions supported by ICPI. ICPI is working to see that continue.

FY21 THUD Appropriations, including Permeable Pavements language. The House Appropriations Committee has adopted language recommended by ICPI in the Committee Report to accompany the House version of the FY21 Transportation, Housing and Urban Development (THUD) Appropriations Bill.

Subsequently the full House of Representatives voted in late July to pass the THUD legislation as part of an appropriations “minibus” combining several appropriations bills. This action follows several months of remote advocacy by ICPI recommending and supporting the language.

The language adopted by the House Appropriations Committee in its Committee Report to accompany the FY21 THUD Appropriations Bill 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, 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. 

ICPI would like to thank the House Appropriations Committee for its continued appreciation of the public policy benefits of permeable pavements and its support for their inclusion to enhance stormwater mitigation, green infrastructure development and water harvesting.

ICPI has provided the same recommendation to the Senate Appropriations Committee, which plans to act later on FY21 appropriations.

The timing for all FY21 appropriations remains unknown given the complicating factors mentioned in the introduction. Several legislative mechanisms are possible, including a Continuing Resolution.  Procedurally, it is important that the House adopted the language reprinted above because it sends a strong favorable message, and because its adoption by the House makes the issue more likely to be included in any House-Senate negotiation. Because ICPI supports the language in the House report, ICPI’s strong preference would be to pass any vehicle that would carry the House report language with it.  ICPI is following developments closely regarding FY21 THUD Appropriations.

A major general infrastructure bill appears unlikely, but a highway reauthorization remains possible. At the beginning of 2020, both parties and both sides of the Hill expressed strong interest in passing a major infrastructure bill. Those prospects appear remote at this time.

However, there remains the possibility that a highway/surface transportation bill might be passed prior to the 2020 elections. A primary reason for this possibility, and distinguishing from a general infrastructure bill, is that the current highway reauthorization is slated to expire on September 30. Some manner of new law, or extension of current law, is needed to avoid a lapse in authority.

There has been Hill action on the issue. The Senate Environment and Public Works Committee passed a bipartisan bill out of committee in 2019.

The House Transportation and Infrastructure Committee introduced and moved a bill this summer. The House bill has features that are of interest to ICPI.

Unfortunately the House legislation is a partisan bill and contains a number of controversial provisions.

The House and Senate bills are far apart, and a compromise does not seem within reach.

ICPI has signed industry letters supporting passage of an infrastructure bill.

Perhaps the most likely outcome given the calendar, the differences between the House and Senate bills, and the lack of movement on some supplemental new source of funding for the Federal Highway Trust Fund, might be a short-term extension of the current highway authorization. While a short-term extension would be preferable to simply allowing existing authority to expire (which would wreak havoc with current highway projects and all who are working on them), ICPI would prefer a new bill.

The looming question for a short-term extension is how short is short-term. This could be a decisive factor, depending on the outcome of the elections. It would determine which White House and Congress would be in control of drafting the next bill.

Under the current political lineup inside the Beltway, no novel breakthrough on highway construction or funding seems likely or even possible. This might change in 2021 depending on the outcome of the elections.

Enactment of a bipartisan Water Resources Development Act Reauthorization, with features of interest to ICPI, is quite possible. The House has passed a 2020 Reauthorization of the Water Resources Development Act. The bill was assembled with bipartisan involvement and has bipartisan support. The committee report to accompany the bill lists many water development projects for which stormwater action is mentioned specifically.

Meanwhile the Senate Environment and Public Works Committee has reported out of Committee its bipartisan bill, America’s Water Infrastructure Act, which would also reauthorize WRDA and could be compatible/conferenceable with the House bill. The Senate bill includes several provisions of interest to ICPI. This bill is now on the Senate Calendar, eligible for floor consideration.

The Committee chairs have expressed an interest in working together to develop a consensus bill. A consensus bill does seem possible in this instance.

ICPI is following progress on the bill with focused interest, and may offer material to the likely conferees who would negotiate a consensus bill.

The Report from the Select Committee on the Climate Crisis, mention of cement and concrete. The House Select Committee on the Climate Crisis has issued a report in which, as expected, cement and concrete are identified as significant contributors to CO2 releases and global warming.

The report recommends, among other things (highly condensed from the lengthy document): that federal procurement for cement, concrete, and other materials for transportation projects should comply with the “Buy Clean” requirements for low-emissions materials; calls for reduction of carbon emissions from building materials; recommends procurement of low-emission materials and products for federally funded projects; recommends establishing tradable performance credits for materials and products; and much more.

The document is a report, not legislation. We expect it may be referred to in political campaigns leading up to the 2020 elections.  For the time being, we expect no near-term impact. However, depending on the outcome of the 2020 elections, it might assume greater policy importance in 2021.

H-2B Worker Visa developments. Leading into June, there had been considerable legislative and regulatory activity affecting the H-2B worker visa issue. ICPI and the H-2B Coalition had been supporting appropriations provisions intended to make additional highly skilled worker H-2B visas available and to curtail some of the bureaucratic impediments in the program.

However, in June, that progress came to an abrupt halt when the President announced suspension of new issuances of most worker visas, including H-2B worker visas, through the end of 2020. The reason given for the suspension was the impact of the pandemic on national unemployment.

ICPI and the H-2B Coalition continue to look for ways to reinvigorate action on the issue, but the outlook is lackluster at best through the end of 2020.