Construction Legislative Week in Review
www.agc.org September 4, 2014
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On the Inside
ENVIRONMENT
TAKE ACTION: Tell Congress to Halt EPA and the Corps’ Overreaching Clean Water Act Regulation
Science Committee Releases EPA State-by-State Maps Showing Potential Extent of Water Rule
APPROPRIATIONS
Congress Returns Next Week to Face a Must-Pass Funding Bill
House Majority Leader Lays Fall Plan
LABOR
AGC Opposes USACE Mandated-PLA
2014 ELECTIONS
Democrats Drop Out to Back Independent Candidates
AGC EVENTS
Early Bird Discount Expires Tomorrow – Don’t Miss Out
ENVIRONMENT
TAKE ACTION: Tell Congress to Halt EPA and the Corps’ Overreaching Clean Water Act Regulation
Comment on Massive Expansion of Federal Jurisdiction in “Waters of the U.S.” Proposed Rule
 

Next week, the House is expected to vote on H.R. 5078, the Waters of the United States Regulatory Overreach Protection Act.  This bill would halt the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers’ (Corps)proposed rulemaking that redefines “waters of the U.S.” under the Clean Water Act (CWA) by preventing the agencies from developing guidance or interpretative rules based on it. The bill also requires the agencies to engage in a federalism consultation with state and local governments to form recommendations for a consensus regulatory proposal. Tell your Representative to vote in support of this important legislation.

The EPA and Corps rule expansively defines waters – claiming traditionally navigable waters, tributaries (including ditches), impoundments, adjacent waters (including waters in the floodplain or riparian areas), and “other waters” all as federally jurisdictional. More projects will have to obtain Section 404 permits, increasing the time and cost of performing construction services. 

In addition to the Section 404 impacts, many other federal permits will be required. Under the proposal, many other parts of the CWA are affected by the definition of “waters of the U.S.,” such as Section 311 Oil Spill Prevention Control and Countermeasures or Section 402 National Pollutant Discharge Elimination System (NPDES) discharge permits, which are triggered by many types of construction activities across the nation and will therefore have a direct and significant impact on construction operations.

EPA also chose to not wait for a final peer review of their Connectivity Report, touted as the basis of the proposed rule, by the EPA’s own Science Advisory Board. The economic analysis that EPA has undertakenseriously underestimates impacted acreage and also completely ignores impacts to non-404 programs.  Recognizing that state and local governments are currently managing water resources that are not under federal control, it is unclear why the agencies rushed through these important procedural steps designed to ensure that construction companies are protected. These state and local governments were also not consulted prior to the rulemaking.

For more information, please contact Scott Berry at berrys@agc.org or (703) 837-5321. Return to Top

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Science Committee Releases EPA State-by-State Maps Showing Potential Extent of Water Rule
 

The House Science Committee has obtained and released maps developed by the United States Geological Survey (USGS) for the Environmental Protection Agency (EPA) that depict water resources on both a national and state scale.  The Science Committee learned that EPA had prepared these maps prior to their July 2014 hearing on the rule proposed by EPA and the U.S. Corps of Engineers (Corps) defining ‘waters of the United States’ (WOTUS). It has become clear that EPA had no plans to release the maps to Congress or the public. This is part of a disturbing trend of EPA tightening its grip on the information released to the public, press, and Congress about the Clean Water Act rulemaking.

The maps themselves are from the National Hydrography Dataset (NHD) and show permanent streams, something less than all intermittent streams (i.e., streams that flow seasonally), and as little as 30 percent of ephemeral streams (i.e., streams that flow only in response to rainfall or snowmelt). It is important to understand that the maps do not show a “before and after” regulatory picture. Some of the features depicted on the maps are already WOTUS; many are not. The maps offer a conservative look at the linear water features that exist in each state. With the proposed rule including tributaries for the first time as WOTUS, and defining tributary as any feature with a bed, bank, and ordinary high water mark, these maps show many of the features that could become federal waters.

Many other features that would be jurisdictional post-rule do not appear on this map, like the networks of roadside, irrigation, and stormwater ditches that crisscrosses urban, suburban, and rural landscapes.  The rule goes beyond what this map shows as well, including waters that are adjacent to jurisdictional waters, such as water features in the ill-defined floodplain and riparian areas. There is also a category of “other waters” that would be jurisdictional on a case-by-case basis wherever EPA determines a significant nexus to jurisdictional waters can be found.

For more information, please contact Scott Berry at (703) 837-5321 or berrys@agc.org. Return to Top

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APPROPRIATIONS
Congress Returns Next Week to Face a Must-Pass Funding Bill
 

The congressional appropriations process for fiscal year 2015 started with a fair share of optimism that Congress could return to a more traditional process as opposed to having to rely on continuing resolutions in the absence of passing annual appropriations bills.  The optimism was as a result of the bipartisan budget deal reached last December by House Budget Chairman Paul Ryan (R-Wis.) and Senate Budget Chairperson Patty Murray (D-Wash.).  That deal set discretionary spending caps for 2015 at $1.014 trillion.  Even with the spending caps in place, Congress failed to send any of their annual appropriations bills for 2015 to the president’s desk for his signature. 

Now, as Congress returns from their five-week August recess next week, they must once again rely on passing a continuing resolution (CR) to keep the government operating beyond the end of the fiscal year, Sept. 30.  Congress needs to act quickly if they are to avoid a government shutdown, which is what happened last year after an impasse on the CR led to a 16-day shutdown.

As with most temporary agency-wide funding extensions, AGC is concerned about the potential adverse impacts on contractors working on federal projects when agencies face funding uncertainty. 

For more information, please contact Sean O’Neill at (202) 547-8892 or oneills@agc.org Return to Top

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House Majority Leader Lays Fall Plan
 

House Republicans today outlined their intended priorities for the pre-election session of Congress. As detailed above, the primary goal of the session is to prevent another government shutdown and keep the government funded until after the election.

 Republicans also want to make sure that the legislation passed during this time focuses on promoting economic growth.  In addition to the legislation to block the vast expansion of EPA regulatory authority of water and wet areas mentioned above, the House plans to address the Affordable Care Act’s 30-hour definition of full-time employment, its grandfathering provisions and modify it to encourage hiring of veterans. They also want to pass legislation to limit unfunded mandates and block regulations that could hamper small business lending.  In addition, they want to pass bills to make the bonus depreciation and expensing provisions permanent. The House will also likely take up legislation on the Keystone XL pipeline and expanding development of U.S. energy resources.

Only a few weeks of legislative action are scheduled between now and the end of the month.  The House looks to be busy for the next few weeks.

For more information, please contact Jeff Shoaf at (202) 547-3350 or shoafj@agc.org.   Return to Top

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LABOR
AGC Opposes USACE Mandated-PLA
 

Recently, AGC sent a letter opposing the possible use of a project labor agreement (PLA) mandate posted by the U.S. Army Corps of Engineers Los Angeles District for a large-scale construction project in Riverside County, California.

AGC has sent over 90 letters to federal agencies opposing PLA mandates and bid preferences during the Obama Administration, most in response to agency announcements that a PLA mandate or preference was under consideration for a particular project or an anticipated set of projects in a particular area. Of those, only one PLA mandate has been issued to date.

AGC neither supports nor opposes contractors’ voluntary use of PLAs on government projects, but strongly opposes any government mandate for contractors’ use of PLAs. AGC is committed to free and open competition for publicly funded work, and believes that the lawful labor relations policies and practices of private construction contractors should not be a factor in a government agency’s selection process. To view AGC efforts opposing government mandated PLAs, click here.

For more information, please contact Jimmy Christianson at (703) 837-5325 or christiansonj@agc.org Return to Top

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2014 ELECTIONS
Democrats Drop Out to Back Independent Candidates
 

Alaska

Alaskan Democrats and Independents just approved a gubernatorial campaign deal that will change the 2014 general election turnout dynamic, and at least indirectly affect the toss-up U.S. Senate campaign between Sen. Mark Begich (D) and former Attorney General and Natural Resources Department director Dan Sullivan (R).

The four Democratic and Independent gubernatorial and Lt. Governor candidates (in Alaska, the candidates for Lt. Governor win individual nominations, but then become part of a party gubernatorial ticket during the general election) have negotiated an arrangement to combine their candidacies.

The agreement means candidate Bill Walker will continue his bid for Governor on the Independent ballot line. The Democratic gubernatorial nominee, former Alaska Permanent Fund director Byron Mallott, agrees to end his campaign and joins the Independent ticket, with the official blessing of the Democratic Party, as the Lt. Governor nominee. Democratic and Independent Lt. Governor nominees Hollis French and Craig Fleener, respectively, are voluntarily terminating their candidacies.

Polling consistently showed that Gov. Sean Parnell (R), whose job approval numbers have lagged, would win a three-way contest against Walker and Mallott, but is essentially even with this new unified Independent ticket.

It's clear the Democratic Party leadership and activists are doing what they can to defeat Gov. Parnell, even to the point of relinquishing their own party candidacy. It remains to be seen if their ploy works, but it does change the political dynamics in Alaska, at least for the short term.

Oklahoma

Yesterday, Kansas Democratic Senatorial nominee Chad Taylor ended his candidacy, thus giving competitive Independent Greg Orman a better chance of unseating Sen. Pat Roberts (R).

Public Policy Polling conducted a post-August 5th primary survey (8/14-17; 903 KS likely voters) and found Mr. Roberts leading a three-way race, but attracting only 32 percent support. More significantly, the incumbent trailed Orman by 10 percentage points, 33-43 percent, when the two were isolated. This, and the results from private internal polling, were key factors in Taylor making his exit decision.

Though the Democrats give up the opportunity of converting the Kansas seat for one of their own party members, they are coalescing with a political soul mate. Orman toyed with the idea of previously entering a Democratic statewide primary, but chose against doing so. Therefore, should he be successful in November and particularly achieving victory with regular party activist and donor help, Orman would certainly join the Senate Democratic caucus to deny the GOP a critical seat and allow his allies to maintain their majority.

The move definitely moves the race closer to toss-up status. The Democrats are now forcing the GOP to spend serious resources to protect a state that should be an easy hold. The move enhances the party's ability to protect its tenuous majority, even though the Democrats have lost their own party nominee.

For more information, please contact David Ashinoff at (202) 547-5013 or ashinoffd@agc.org Return to Top

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AGC EVENTS
Early Bird Discount Expires Tomorrow – Don’t Miss Out
AGC/CFMA Construction Financial Management Conference
 

Jointly sponsored by the Associated General Contractors of America (AGC) and the Construction Financial Management Association (CFMA), theAGC/CFMA Construction Financial Management Conference, held Nov. 5-7, 2014 in Las Vegas, Nev., was developed in response to a need for programs and workshops designed specifically for financial professionals in the construction industry.

The three-day conference is filled with 36 interactive sessions, covering the latest industry issues and their financial implications. Sessions are delivered “group-live” and are at intermediate, overview and update program levels. There are no prerequisites or advanced preparation required.

Information about the conference can be found at meetings.agc.org/agc_cfma.   Return to Top

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