Federal Advocacy Update: Week Ending May 22, 2015

In this issue:

  • NLC and Cities Lead During Infrastructure Week 2015
  • NLC Applauds House Support for Local Concerns in EPA "Waters of the U.S." Rule 
  • House Committee Approves Justice Appropriations Measure 
  • NLC Files Comments with IRS on ACA "Cadillac Tax" 
  • OMB Approves Wireless Siting Rules 
  • Supreme Court Declines to Decide (Most of) Disability Arrest Case 
  • Supreme Court Rules Maryland May Not Double Tax
  • NLC Joins Amicus Brief Supporting Colorado's Effort to Collect Use Tax on Remote Sales

NLC and Cities Lead During Infrastructure Week 2015

Michael Wallace, 202.626.3025, and Angelina Panettieri, 202.626.3196

Becker Infrastructure Week
"Cities are economic engines, and right now our engines ought to be racing. We hope that Members of Congress will understand our participation as a message that when they are finally ready to solve these seemingly intractable challenges to funding our nation's infrastructure, we will have their backs through the tough votes, and we will stand with them in our own hometowns."
-NLC President Ralph Becker, Mayor of Salt Lake City, Utah, speaking at the Kickoff of Infrastructure Week 2015 Advocacy Day

NLC President Ralph Becker led a strike force of local officials into Washington for Infrastructure Week 2015, an annual event that brings together business, labor, and elected officials to highlight the critical importance of investing in and modernizing America's infrastructure systems, and the essential role infrastructure plays in our economy. Among local officials joining Mayor Becker in Washington were the Chairs of four NLC Policy and Advocacy Committee's: Alderman Bob Bauman, Milwaukee, Wis., (Transportation and Infrastructure Services); Mayor Cindy Lerner, Pinecrest, Fla., (Energy, Environment, and Natural Resources); Council Member Mike Wojcik, Rochester, Minn., (Community and Economic Development); and Jeff Moore, Longmont, Colo., (Information Technology and Communications), and Mayor Edna Branch Jackson, Savannah, Ga.

Also on the Hill last week to advocate for a new transportation bill were leaders representing each of NLC's constituency groups. In their time on the Hill, leaders of the Asian Pacific American Municipal Officials; Lesbian, Gay, Bisexual, and Transgender Local Officials; Hispanic Elected Local Officials; National Black Caucus of Local Elected Officials, and Women in Municipal Government organizations met with over thirty congressional offices across twelve states in one day. 

CG Advocacy Group
NLC Constituency Group Leaders Prepare to Go to The Hill, L-R from top: Commissioner Andy Amoroso, Lake Worth, Fla.; Mayor T. Oscar Trevino, North Richland Hills, Texas; Council Member Tom Lombard, North Richland Hills, Texas; Carolyn Coleman, Director of Federal Advocacy, NLC; Council Member Tito Rodriguez, North Richland Hills, Texas; Wesley Young, Vice President Public Affairs, Local Search Association; Council Member Joyce Sheperd, Atlanta, Ga.; Council Member LaWana Mayfield, Charlotte, N.C.; Clarence Anthony, Executive Director and CEO, NLC; Council Member Doris McConnell, Shoreline, Wash.; Rohan Patel, Deputy Director of Intergovernmental Affairs, the White House; Vice Mayor Suzanne Chan, Fremont, Calif.; Council Member Gilbert Wong, Cupertino, Calif.; Angelina Panettieri, Senior Associate Grassroots Advocacy, NLC; Rikka Batulan, Principal Associate Constituency Group Programs, NLC

Throughout the week, city leaders raised their voices in calling for federal infrastructure investments at press conferences, meetings and briefings on Capitol Hill, as well as through social media and in webinars. Importantly, each activity provided an opportunity for local officials and NLC to advocate for our top legislative priorities, including transportation funding and the tax-exemption for municipal bonds.

Briefings and Webinars

On Monday, May 11, NLC 2nd VP Matt Zone, Council Member, Cleveland, Ohio moderated a forum on Solving the Infrastructure Crisis Through Public-Private Partnerships.

On Tuesday, May 12, NLC Community and Economic Development Chair Mike Wojcik, Council Member, Rochester, Minn., joined elected leaders from the National Association of Counties and the Council of State Governments in a Capitol Hill hearing room for a panel discussion on the innovative ways states and local communities are meeting transportation infrastructure needs and to call for immediate congressional action a new transportation bill.

On Wednesday, May 13, NLC President Ralph Becker joined former U.S. Department of Transportation Secretary Ray LaHood and other dignitaries from business and labor organizations who delivered a unified message to Congress on the urgency of solving the federal funding gap for infrastructure maintenance and construction.

Also on Wednesday, May 13, Mayor Becker joined with New York City Mayor Bill DeBlasio and mayors from the across the country to advocate for increased long-term transportation funding that directs more funds to cities and their regions.

The day closed with NLC Transportation and Infrastructure Chair Bob Bauman serving as a panelist for a Capitol Hill briefing on how transit investments affect the nation's competitiveness. Other panelists included the Environmental and Energy Study Institute (EESI) and the American Public Transportation Association (APTA).

On Thursday, May 12, and Friday, May 13, NLC concluded Infrastructure Week with a pair of Webinars: Exploring Local Broadband Initiatives with Robert Wack, City Council President, Westminster, Md. and Innovative Approaches to Infrastructure Funding with Mayor Emmett Jordan, Greenbelt, Md.

Social Media

Lastly, under the hashtag #RebuildRenew, NLC's message was amplified through social media, on twitter and facebook. NLC's facebook page also hosted short videos from staff and local officials including TIS Committee Vice Chair Patrick Wojahn, Council Member, College Park, MD; NLC CED Program Director Mike Wallace; and NLC Senior Associate for Infrastructure Nicole DuPuis.

Advocates outside D.C. and from across the United States also joined in the advocacy effort last week, as they called and emailed members of Congress as part of NLC's Infrastructure Week virtual advocacy day. If you missed the virtual advocacy day, you can still use NLC's online tools to call your members of Congress or send them an email about the need for a new federal transportation program.

CG Advocacy Sheperd
Council Member Joyce Sheperd, Atlanta, Ga. meets with Representative John Lewis (D-GA-5) on Capitol Hill

For more photos from Infrastructure Week, follow NLC on Flickr.

NLC Applauds House Support for Local Concerns in EPA "Waters of the U.S." Rule

Carolyn Berndt, 202.626.3101

Last week, with NLC's support, the House passed the Regulatory Integrity Protection Act (H.R. 1732) by a of voted 261-155 to halt the U.S. Environmental Protection Agency's (EPA) and the U.S. Army Corps of Engineers' (Corps) proposed rule on "waters of the U.S." EPA and the Corps are expected to release a final rule soon.

The bill requires the agencies to withdraw the current proposed rule, and begin again by conducting a federalism consultation with state and local governments as well as a comprehensive cost analysis examining the impact of the proposed rule and all Clean Water Act (CWA) programs.

In the Senate, the Environment and Public Works Committee held a hearing this week on similar bipartisan legislation. The Federal Water Quality Protection Act (S. 1140), sponsored by Senators John Barrasso (R-WY) and Joe Donnelly (D-IN), directs the agencies to issue a revised proposal that adheres to a set of principles, including what types of waterbodies a "waters of the U.S." should and should not include, as well as a process by which the agencies should use to develop the proposal.


EPA and the Corps are developing a rule to change the Clean Water Act definition of "waters of the U.S." The proposed rule, which is currently under review by the Office of Management and Budget, will have broad implications for local governments, including impacts to municipal stormwater and floodwater managements systems. The final rule is expected in the near future.

NLC submitted comments to EPA and the Corps on the proposed rule, raising concerns about further confusion over what waters will fall under federal jurisdiction, leading to unnecessary project delays, added costs to local governments and inconsistency across the country. NLC asked the agencies to clarify language and provide specific exemptions for essential local government systems, such as public safety ditches, water conveyances, stormwater systems, green infrastructure, and more. NLC reiterated concerns about the rulemaking process, including the need for a federalism consultation with state and local governments and a meaningful cost-benefit analysis.

House Committee Approves Justice Appropriations Measure

Yucel Ors, 202.626.3124

The annual appropriations process continues to inch forward with the House Appropriations Committee earlier this week approving the fiscal year 2016 Commerce, Justice, Science (CJS) Appropriations bill on a voice vote. The bill includes $2 billion in funding for several Department of Justice (DOJ) programs important to state and local governments; however, this funding level represents a $334 million decrease over this year's funding levels for these programs. Among the programs funded in the bill are:

  • $409 million for Byrne Justice Assistance Grants (an increase of $33 million)
  • $220 million for the State Criminal Alien Assistance Program
  • $183.5 million for Juvenile Justice Programs (a decrease of $68 million and $156 million below the President's request)
  • $474 million for Violence Against Women programs (an increase of $44 million) of which $25 million is for human trafficking task force activities and for services for victims
  • $235 million for COPS programs (an increase of $27 million and $68.5 million below the President's request) of which $50 million is for a new Community Trust Initiative that will provide $15 million for body camera pilots and research, $30 million for justice reform and collaboration efforts, and $5 million for improved statistics collection.

While the bill supports a broad range of federal programs that are important to the safety of cities and prioritizes law enforcement, counterterrorism and cyber security initiatives, NLC is concerned that bill severely cuts or eliminates funding to important grant programs such as Community Oriented Policing Services (COPS) Hiring Grants and dedicated funding for the Juvenile Justice Delinquency Act (JJDPA). These cuts would result in an estimated 1,300 fewer sworn and non-sworn law enforcement positions safeguarding communities and significantly reduce support for juvenile justice programs. As the legislation advances, NLC will continue to advocate for funding to be restored to these programs.

NLC Files Comments with IRS on ACA "Cadillac Tax"

Carolyn Coleman, 202.626.3023

Last week, NLC, in collaboration with NLC-RISCsubmitted comments in response to IRS Notice 2015-16, which outlined expectations for future guidance on the Affordable Care Act's high value plan excise tax (also known as the "Cadillac Tax". In our comments, we outline key areas of concerns for local governments related to the tax.

Under the ACA, starting in 2018, a 40 percent excise tax will be imposed on the value of health insurance benefits exceeding certain thresholds. For individuals, the threshold will be $10, 200, and for families, the threshold will be $27,500. Once the threshold is crossed, the cost in excess of the threshold will be subject to the tax. All thresholds may be adjusted upwards if the IRS determines that medical inflation rates warrant such a change. The thresholds will be higher for persons in high-risk professions and for employers that have a disproportionate share of older workers or women. These thresholds will be set by the IRS through regulation.) The tax will apply to fully insured and self-funded insurance plans. In the case of fully insured plans, the issuer (insurance company) will be responsible for paying the excise tax; in the case of self-funded plans, the administrator (usually the employer) will be responsible for paying the tax.

In the Notice, the IRS described potential approaches to a number of issues regarding the excise tax , including exclusion of certain benefits from applicable coverage, potential approaches for determining the cost of applicable coverage, application of annual dollar limits when an employee has both self-only coverage and other-than-self-only coverage, and adjustments for high-risk professions, as well as age and gender.

We anticipate that this is the first in a series of potential opportunities to comment on the excise tax and will continue to collaborate with NLC-RISC and keep you posted as we learn more throughout the process.

OMB Approves Wireless Siting Rules

Julia Pulidindi, 202.626.3176

On May 5, 2015, the Office of Management and Budget (OMB) gave its approval to three outstanding information collection requirements associated with the Federal Communications Commission's (FCC) Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies which were adopted by the Commission in October 2014. With publication in the Federal Register on May 18, 2015, the new rules became effective. These newly established requirements are in addition to other wireless siting rules that became effective April 8, 2015. To help local governments comply with the new rules, NLC developed these resources.

The newly approved requirements provide:

  • In order to toll the order's 60-day review timeframe on grounds that an application is incomplete, the reviewing local government must provide written notice to the applicant within 30 days of receipt of the application, clearly and specifically delineating all missing documents or information.
  • Following a supplemental submission from the applicant, the local government will have 10 days to notify the applicant in writing if the supplemental submission did not provide the information identified in the local government's original notice delineating missing information. Second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness.
  • If a request is "deemed granted" because of a failure to timely approve or deny the request, the "deemed granted" remedy does not become effective until the applicant notifies the applicable reviewing authority in writing after the review period has expired that the application has been "deemed granted."

Supreme Court Declines to Decide (Most of) Disability Arrest Case

Carolyn Coleman, 202.626.3013

In a 6-2 decision in City and County of San Francisco v. Sheehan, the Supreme Court declined to decide whether Title II of the Americans with Disabilities Act (ADA) requires police officers to accommodate suspects who are armed, violent, and mentally ill when bringing them into custody. When police officers entered Teresa Sheehan's room in a group home for persons with mental illness she threatened to kill them with a knife she held, so they retreated. The officers reentered her room and she still had the knife in her hand. One officer pepper sprayed Sheehan but she refused to drop the knife so the officers shot her multiple times. San Francisco agreed with Sheehan that Title II of the ADA applies to arrests but argued that Sheehan wasn't a qualified individual with a disability because she was a "direct threat" to the officers. Because the parties agreed that Title II applies to arrests the Court dismissed this issue as improvidently granted. The Court held the officers were entitled to qualified immunity though they reentered her room rather than attempted to accommodate her disability. Even assuming that "any reasonable, competent officer on notice that it is unreasonable to forcibly enter the home of an armed, mentally ill suspect who had been acting irrationally and had threatened anyone who entered when there was no objective need for immediate entry," no precedent clearly establishes there was no objective need for immediate entry here where Sheehan could have gathered more weapons or escaped. The State and Local Legal Center (SLLC) filed an amicus brief, which NLC joined, in this case supporting San Francisco.

Supreme Court Rules Maryland May Not Double Tax

Carolyn Coleman, 202.626.3023

In a 5-4 decision in Comptroller v. Wynne the Supreme Court held that Maryland's failure to offer residents a full credit against income taxes paid to other states violates the dormant Commerce Clause. Maryland taxes residents' income earned in- and out-of-state. If Maryland residents pay income tax to another state for income earned there, Maryland allows them a credit against Maryland's "state" tax but not its "county" tax. Nonresidents who earn income in Maryland pay Maryland "state" tax and a "special nonresident tax" equivalent to Maryland's lowest "county" tax. The problem with Maryland's tax scheme the Court reasoned was that it had the potential to result in double taxation of income earned out-of-state. More specifically, it failed the "internal consistency" test. If all states had a tax scheme like Maryland's "county" and "special nonresident tax" that taxed income residents earned in-state, income residents earned in other jurisdictions, and non-residents income earned in-state, residents who earn income out-of-state would be taxed by their state of residence and the state where they earned the income. The State and Local Legal Center (SLLC)/International Municipal Lawyers Association (IMLA) filed an amicus brief in support of Maryland, which NLC joined.

NLC Joins Amicus Brief Supporting Colorado's Effort to Collect Use Tax on Remote Sales

Priya Ghosh Ahola, 202.626.3015

In Direct Marketing Association v. Brohl the Tenth Circuit will decide whether Colorado's law requiring remote sellers to inform Colorado purchasers annually of their purchases and send the same information to the Colorado Department of Revenue is unconstitutional. In Quill Corp. v. North Dakota, decided in 1992, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect use tax. The Direct Marketing Association argues Colorado's notice and reporting requirements are unconstitutional under Quill. The SLLC filed an amicus brief that discusses the devastating impact Quill has had on state and local governments in light of the rise of internet purchases and states' need to improve use tax collection through statutes like Colorado's. It argues Quill only applies to sales tax collection and should not be extended to apply to notice and reporting requirements when Quill's vitality is in serious question. At least three other states have similar notice and reporting requirements (Oklahoma, South Dakota, and Vermont).

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