118th Congress Gets Underway: Oversight of IIJA Top of the Agenda

By Zack Perconti

The 118th Congress got off to a slow start, derailed by a historic battle over who would be elected as Speaker of the House. However, after finally rallying around new Speaker Kevin McCarthy (R-CA) Congress has wasted no time pursuing an ambitious agenda, in no small part centered around oversight and implementation of the landmark “Infrastructure Investment and Jobs Act” (IIJA) passed in November 2021.

This is a critical year for IIJA and our industry. The first wave of IIJA dollars will begin to reach the market in the second half of 2023, with much more to follow in early 2024. Rules and guidance that will govern how IIJA and related federal infrastructure policy are implemented are working their way through the notice and comment process, including for new Build America, Buy America Act (BABAA) domestic procurement requirements.

Permit Reforms

There continue to be numerous ongoing conversations about permit reforms. These high-level discussions will include the pending reauthorization of the Pipeline and Hazardous Materials Safety Administration (PHMSA), the USDOT modal which influences damage prevention policies at all levels of government. NUCA will be working with our partners in other associations to promote balanced enforcement, including through implementing some of the national recommendations from the industry’s 2021 IPC study.

NUCA has been working with our Congressional allies in both the House and the Senate, as well as with the Administration to help ensure the success of IIJA. Unfortunately, this has meant pushing back on some federal policies that are likely to cause more harm than good – particularly around the issue of federal permits.

The new EPA rule on Waters of the United States (WOTUS) announced December 30, 2022, by the Biden Administration moves us further from that goal. As written, this broad expansion of federal authority will drastically slow utility construction work, increase costs, and jeopardize the successful implementation of the largest major federal investment in water, broadband, electric, and other underground utility construction in decades. The best way to keep our nation’s water resources healthy is to ensure that our underground infrastructure is up to the task, and that will require major construction to replacing and modernizing water and wastewater systems. The unintended consequence of this rule will be the delay and potential cancellation of millions of dollars in water and other utility infrastructure construction projects all across the United States.

Utility construction projects need predictability to make project deadlines and contain costs. This Administration’s repeal of the long-awaited clean-up of WOTUS rules will add unnecessary confusion and expensive delays to countless underground infrastructure projects. At press time, the WOTUS rules were awaiting a decision in a pending Supreme Court case Sackett v. EPA, leaving contractors in limbo before the expected date of effect of March 20, 2023. A bipartisan House majority passed a Congressional Review Act resolution to overturn the WOTUS rules, and action on this repeal is currently pending in
the Senate.

NUCA is also calling on Congress to pass bipartisan permitting reform, and is encouraged by the recent introduction of H.R. 1 in the House of Representatives. H.R. 1 is a package of reforms that helps promote American energy production as well as streamlining the permitting process – including making critical, NUCA-supported reforms to the National Environmental Policy Act (NEPA) process with the goal of lowering the average approval timeline from five years down to two or less. There is widespread agreement that IIJA needs permit reforms of some sort to be successful, and NUCA hopes that H.R. 1 can be the starting point for a bipartisan agreement.

Labor Actions

NUCA is supporting the Fair and Open Competition Act (FOCA, H.R. 1209), a bill which will prevent the federal government from discriminating against contractors based on labor affiliation and require neutrality on Project Labor Agreements (PLAs) in federal procurement. Our industry already suffers from a skilled employee labor shortage.

The Act protects government construction contracts from project labor agreement mandates and will allow all contractors, including small, women, and minority-owned businesses, to have a fair opportunity at competing to rebuild and improve this nation.

“This industry’s hard-won infrastructure legislation is facing enough implementation challenges this year. Passing the Fair and Open Competition Act will help this industry and its employees equitably compete for the contracts to build and repair America’s neglected underground infrastructure,” said NUCA chief executive officer Doug Carlson in his statement supporting this bill.

NUCA will be more active than ever in Washington this year, and we need our members to stay engaged in order for IIJA to be a success. NUCA’s upcoming Washington Summit in May provides every NUCA member the chance to get involved and tell your own story about permitting delays or workforce shortages directly to your lawmakers. We hope you will join your Chapter’s delegation, and register at WeDigAmerica.org, to be a part of these discussions on May 17.

Our industry has a once in a generation opportunity to transform American underground infrastructure – let’s make sure that Congress and the Administration give us the tools we need to be successful.

Zack Perconti is the vice president of government affairs for NUCA. Tags: Government Relations, Legislation, March/April 2023 Print Issue