Federal Advocacy Update: Week of December 18, 2018

U.S. Capitol Building
U.S. Capitol Building

In this Issue: 


Partial Government Shutdown Both Possible and “Avoidable”

Michael Wallace, 202.626.3025 

This week is the deadline for Congress to pass the seven remaining appropriations spending bills.  The bills must be signed into law by midnight Friday, when the current authorization expires, or funding will lapse for the agencies within those bills. Any lapse in funding would result in a partial government shutdown.

It would be a “partial” shutdown because Congress met the deadline to approve five of the twelve total appropriations bills.  The agencies that would not be affected by the current potential shutdown include Defense, Veterans Affairs and Health and Human Services.  Those agencies are so large that they combine to represent about 75% of total federal discretionary spending.

At the same time, many federal programs at risk of a funding lapse are city priorities, including CDBG.  Agencies at risk of shutdown include Housing and Urban Development, Transportation, Commerce, Agriculture, and Justice.  The seven unpassed appropriations bills also account for over 40% of the federal civilian workforce, which could mean no paycheck for about 800,000 employees.

NLC is staunchly opposed to federal government shutdowns and is urging Congress and the White House to pass and enact the remaining bills before the Friday deadline.  The main point of contention within the spending debate is a White House request for $5 billion to construct a wall on the nation’s southern border.  The request lacks enough support in Congress to advance.

Fortunately, the White House and Congress appear to be coming closer to an agreement that would avoid a shutdown.  On Tuesday, White House spokesman Sarah Sanders told the press that the president would like to avoid a government shutdown, and that the White House could identify other ways to get to $5 billion for border security.

If an agreement to pass the remaining seven bills fails to materialize, shutdown Contingency Plans will take effect for impacted agencies.  The White House Office of Management and Budget maintains a list of each agency’s plans here. Additional contingency information may be posted on individual agency websites as well.

A short shutdown of a week or less would have little to no impact on federal grants for cities.  The effects of a longer shutdown would multiply quickly, including inaccessible federal funding, project delays, and potential layoffs. 

Senate and House Pass Bipartisan Farm Bill 

Carolyn Berndt, 202.626.3101

Last week, the Senate and House passed the Agriculture Improvement Act (H.R. 2), a compromise Farm Bill authorization for U.S. Department of Agriculture (USDA) programs through the end of Fiscal Year (FY) 2023. With broad bipartisan votes in both chambers, President Trump is expected to sign the bill soon. The current Farm Bill authorization expired on September 30.

Conference committee members, led by Sens. Pat Roberts (R-KS) and Debbie Stabenow (D-MI) and Reps. Michael Conaway (R-TX) and Collin Peterson (D-MN), negotiated a bill that largely mirrors the Senate’s own bipartisan bill, foregoing some of the more controversial provisions included in the House bill, including work requirements for Supplement Nutrition Assistance Program (SNAP) recipients. 

Importantly, the final Farm Bill does not include two provisions that NLC opposed that would have preempted local authority to set regulations on agricultural products shipped to their state, as well as to adopt pesticide regulations that are more stringent than federal rules. 

Other local rural development, conservation and nutrition priorities that were included in the final bill are:

  • Increases speed requirements for eligible broadband services and makes “middle mile” broadband infrastructure eligible for subsidies – funded at $10 million per year through FY 2023. 
  • Creates a new USDA broadband grant program to encourage the deployment of high-speed Internet service to rural areas.
  • Increases the maximum amount of financing for water and wastewater from $100,000 to $200,000. The bill, however, decreases the overall authorization of the program from $30 million to $15 million per fiscal year.
  • Strengthens the Rural Utilities Service Technical Assistance and Training Program to enhance the ability of small communities to invest in water infrastructure projects.
  • Creates a federal interagency taskforce to examine drinking water and surface water contamination. 
  • Establishes a Rural Innovation Strong Economy (RISE) Grant program to assist rural communities with accessing seed capital and loans and leverage other rural business programs. 
  • Provides federal funds of up to $2 million per award to develop community-driven initiatives that promote rural entrepreneurship, redevelop Main Streets, and provide essential skills training opportunities for an innovation economy.
  • Creates an Office of Urban Agriculture and Innovative Production at USDA and a competitive grant program to encourage and promote indoor, urban and other emerging agricultural production practices.
  • Increases funding for SNAP job training programs from $90 million to $103.9 million annually.
  • Provides mandatory funding for the Food Insecurity Nutrition Incentives program, a competitive grant program that provides low-income consumers with cash incentives that increase their purchasing power at farmers markets. 
  • Creates the Local Agriculture Market Program that includes streamlining the Farmers Market and Local Food Promotion Program, a competitive grant program aimed at increasing and strengthening direct producer-to-consumer marketing channels. 
  • Reauthorizes the Healthy Food Financing Initiative, which helps eliminate food deserts. 
  • Increases mandatory funding for the Regional Conservation Partnership Program (RCPP), under which state agencies work with farmers to voluntarily reduce nutrient pollution and runoff.

While the legislation does not include the more stringent work requirements for SNAP recipients, it does tighten up how the program is administered at the state level to cut down on inaccurate payments. It also mandates that states give more support to SNAP recipients in work training programs. 

Additionally, the final bill does not include Senate language that would have blocked the Trump administration from cracking down on states’ ability to seek waivers from existing SNAP work requirements for able-bodied adults without dependents. USDA is expected to release a proposed rule on work requirement waivers in the coming weeks.  

Congress Expected to Pass Major Criminal Justice Reform Bill Before Holidays

Yucel Ors, 202.626.3124

With pressure mounting from the White House and other interested organizations, the Senate voted to advance the criminal justice reform bill, also known as the First Step Act on December 17. NLC applauds the Senate for including language in the bill that would reauthorize the Second Chance Act, which supports state, local, and tribal governments and nonprofit organizations in their work to reduce recidivism and improve outcomes for people returning from prisons.

The House and Senate are expected to pass a final bill before leaving for the holidays. However, there are still a few key sticking points that remain which could derail the progress made on reforming the federal criminal justice system. Several senators have opposed provisions in the bill that would allow for early release of non-violent offenders and they have proposed amendments which could threaten the bipartisan support for the bill. 

Lawmakers on both sides of the aisle have been working to make last-minute changes to the bill that are intended to overcome the opposition by addressing concerns that would narrow the discretion of judges to take prior criminal history into account in sentencing non-violent offenders. The changes would also expand the types of offenses that would be ineligible for reduced incarceration time for participation in recidivism reduction programs. NLC is encouraged that the compromises made in the bill continue to seek a balanced approach to reforming the federal criminal justice system. However, NLC believes the bill still does not go far enough to ensure that when people are released from incarceration they can find a job and a place to live. Congress should also consider legislation that would remove barriers that prevent non-violent offenders returning to the community from finding affordable housing and well-paying jobs. 

Also, after 16 years, Congress finally passed a bill reauthorizing the Juvenile Justice and Delinquency Prevention Act (JJDPA) (H.R. 6964) on December 13. The bill aims to reduce the racial inequity within the juvenile justice system, prevent juveniles from being placed in adult jails and safeguard children from being detained for status offenses, such as skipping school. NLC has been working to help cities implement recommendations from The Vera report, From Courts to Communities: The Right Response to Truancy, Running Away, and Other Status Offenses, as a part of the Municipal Leadership for Juvenile Justice Reform project. Click here for more information on NLC’s work on juvenile justice reform.

Integrated Planning Bill Introduced and Set for Vote

Carolyn Berndt, 202.626.3101

Last week, a bipartisan group of lawmakers introduced the Water Infrastructure Improvement Act (H.R. 7279) that would codify the U.S. Environmental Protection Agency’s (EPA) Integrated Municipal Stormwater and Wastewater Planning Approach Framework (Integrated Planning Framework) as a useful tool for local governments to comprehensively deal with wastewater and stormwater investments, as well as unfunded mandates.

The bill is expected to come up for a vote in the House on December 19 and potentially in the Senate before the end of this week.  

Sponsored by Reps. Bob Gibbs (R-OH), Grace Napolitano (D-CA), Marcia Fudge (D-OH), Bob Latta (R-OH), Cheri Bustos (D-IL) and Steve Chabot (R-OH), the bill would allow local governments to work with their state and EPA to prioritize investment in wet weather overflows and flooding collectively, rather than individually.

The legislation would also allow local governments who undertake integrated planning to incorporate green infrastructure components into municipal stormwater, combined sewer overflow (CSO) and other water plans in a more cost-effective way. Together these provisions will help reduce costs for fixed- and low-income citizens who spend a significant portion of their income on water and wastewater bills.

The legislation also establishes an EPA Office of Municipal Ombudsman to work directly with communities in complying with federal environment laws, particularly with regard to the opportunity to prepare integrated plans in the context of consent decrees or administrative orders. 

Codifying the Integrated Planning Framework and incentivizing green infrastructure techniques has been one of NLC’s federal priorities for several years, including as a key component of NLC’s Rebuild With Us campaign. 

President Trump Signs Executive Order on Opportunity Zones

Brian Egan, 202.626.3107; Michael Wallace, 202.626.3025 

On December 12, President Trump signed an Executive Order on Establishing the White House Opportunity and Revitalization Council. The order directs the Secretary of the U.S. Department of Housing and Urban Development (HUD) to form a multi-agency government council dedicated to developing recommendations to better achieve the underlying goal of the program: directing private investment dollars into economically distressed communities. 

The order also directs the council to find ways in which to direct more federal resources to the zones, and to collaborate with state and local governments throughout the process. NLC welcomed the order as a step forward in fostering collaboration between the private sector and all levels of the government. 

Originally authorized through passage of the Tax Cuts and Jobs Act of 2017, the Opportunity Zones program is a “place-based” economic development strategy that provides investors an incentive in the form of a generous capital gains tax deferral for investments made in designated economically distressed areas of the country. Altogether, more than 8,700 census tracts were designated as Opportunity Zones. 

While the program and its potential to tap into the $6 trillion investment market have generated a lot of interest among local leaders, many cities still have questions about the program’s mechanics and how to best optimize the tracts within their boundaries. NLC will continue to update its membership as clarifying guidance is promulgated by the Internal Revenue Service (IRS) and updates from this new Council develop. For more information on Opportunity Zones, visit NLC’s blog CitiesSpeak.

EPA, Army Corps Release New Proposed Rule on “Waters of the U.S.”

Carolyn Berndt, 202.626.3101

Last week, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) released a proposed rule revising the definition of “waters of the United States” to clarify which waterbodies are federally regulated under the Clean Water Act. 

The proposed rule is part of the agencies’ two-step rulemaking process to rescind and revise the 2015 Clean Water Rule. NLC previously raised concerns with the agencies on both of these rulemakings. While litigation on the 2015 rule is ongoing in several district courts across the country, it is also currently in effect in 22 states, plus DC and the territories

The proposed rule aims to help landowners better understand and easily identify which waters require a federal permit. The agencies have proposed to limit where federal regulations apply and, as a result, give states more flexibility to determine how best to manage waters within their borders. Some states, however, have laws prohibiting them from enacting stricter rules than the federal government.

The proposed rule defines six categories of waters that are federally regulated as “waters of the U.S.” and eight categories of exclusions. The six categories that would be considered “waters of the U.S.” are traditional navigable waters, tributaries, certain ditches, certain lakes and ponds, impoundments, and adjacent wetlands. Categories that are not considered “waters of the U.S.” include waters that are not included in the categories above, as well as features that are only wet during rainfall events, groundwater, certain ditches, prior converted cropland, stormwater control features, wastewater recycling structures, waste treatment systems.

The proposed rule also defines several key terms, providing context around which waters are and are not federally regulated as a “waters of the U.S.” NLC is analyzing the definitions to ensure that they are clear and understandable for local governments, one of the concerns raised in our comments on the previous rule. 

The agencies will take comment on the proposal for 60 days after publication in the Federal Register. EPA and the Corps will also hold an informational webcast on January 10 and will host a listening session on the proposed rule in Kansas City, Kansas on January 23. More information including a pre-publication version of the Federal Register notice, the supporting analyses, and fact sheets are available on the EPA’s website.  

FCC Rejects Petition for Stay on Small Cell Order; Effective Date January 14

Angelina Panettieri, 202.626.3196

The Federal Communications Commission (FCC) has rejected a motion for stay submitted by NLC and other local government allies for its recent controversial preemptive small cell wireless facility report and order. The order, which is currently being challenged in court by more than twenty municipalities, a number of state municipal leagues, and wireless providers, is currently set to become effective January 14, 2019, barring a stay from a court. 

As legal challenges proceed, cities should consult with their local counsel to determine the best path forward for their own processes and policies. The FCC stated in its order that it did not intend for the order to preempt state laws with provisions stricter than those set out by the Commission, so implementation of the order will vary from state to state. In addition, enforcement of the order will occur through providers’ exercise of expedited injunctive relief, so cities should be cautious about proactively renegotiating existing agreements with wireless and tower companies, particularly prior to January 14. If they have not already, cities may wish to review and update their own standards and policies regarding small cell installations with a focus on preserving and protecting public assets within the framework of the FCC order. 

NLC plans to support the ongoing legal challenges through the amicus process, along with other local government organization allies. For more information about the FCC’s order, visit NLC’s blog CitiesSpeak. For background information on small cell wireless technology and how your city can prepare for it, download NLC’s Municipal Action Guide: Small Cell Wireless Technology in Cities.

Apply Now for 2019 “Road to Zero” Safe System Innovation Grants

Brittney Kohler, 202.626.3164

This year, NLC joined the national Road to Zero steering group to collaborate with over 800 organizations to work to eliminate death on our nation’s roads. Cities across the country are embracing strategies and projects that can reduce driver, rider and pedestrian fatalities on their roads, and those efforts have not gone unnoticed. The National Safety Council (NSC), in partnership with the Federal Highway Administration (FHWA), Federal Motor Carrier Safety Administration (FMCSA), and National Highway Traffic Safety Administration (NHTSA), will now offer a new round of 2019 “Road to Zero” Safe System Innovation Grants to help cities accomplish their “Vision Zero” projects. 

Each “Road to Zero” Safe System Innovation grant award will be between $50,000 and $200,000 and proposals should advance one of the three pillars identified in the Toward Zero Deaths: A National Strategy on Highway Safety: 1) Double down on what works; 2) Accelerate advanced technology or 3) Prioritize safety. Effective proposals will cite the evidence of effectiveness of the selected countermeasure and describe the innovative implementation approach; link behavioral, roadway and/or vehicle elements will be given special consideration (e.g., incorporating roadway or vehicle strategies to change safety behaviors); have measurable objectives and generalizable results; and demonstrate innovative approaches that could be replicated in other locations. 

Applications are due January 25 and an applicant should make sure they have officially joined Road to Zero as a coalition member. Becoming a coalition member is free and expresses your interest in working with NLC and all our partners to save lives on the nation’s roads. Even if you’re not ready to apply for a grant, joining the coalition as a city is a great step to get involved in this effort. If you’d like to learn more about Road to Zero, click here or if you have any questions about the grants, email RoadToZero@nsc.org.

USDA Announces Rural Broadband Funding Opportunity

Angelina Panettieri, 202.626.3196

The U.S. Department of Agriculture (USDA) announced availability details for the $600 million in rural broadband funds included in the March omnibus spending agreement. The pilot, dubbed the ReConnect Program, will include a mix of grants, grant and loan packages, and low-interest loans for broadband projects serving communities of 20,000 people or fewer. Local governments and electric cooperatives, if allowed by state law to provide retail broadband to customers, may apply for project funding.

Broadband projects eligible for funding must serve communities currently either unserved by broadband providers, or where service is slower than 10 megabits per second (mbps) download and 1 mbps upload. The projects must then provide service of at least 25mbps upload and 3mbps download. Priority will be given to projects that propose connectivity improvements for agricultural business, health care and education facilities, and rural homes.

Applications for the $200 million in grant funding will be due by April 29, for the $200 million in combination loan/grant funding by May 29, and for the $200 million in low-interest loans by June 28. USDA plans to host a series of technical assistance webinars and six in-person workshops for applicants and dates for these events will be announced on reconnect.usda.gov

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