Onward to Change and Opportunity in 2020

Capitol building at night

2019 was one for the books, where America began the year dealing with yet another government shutdown and limited expectations for progress on high-profile legislation, and ending with another chapter in the highly partisan debate over whether to impeach a highly controversial president.

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But when it came to issues related to NUCA’s legislative and regulatory agenda, 2019 was a pretty good year. NUCA enjoyed some real progress on Capitol Hill and within the federal regulatory agencies, and certainly set the stage for more progress in 2020 when enactment of “big ticket” items will be challenging but not impossible in the second session of the 116th Congress.

2019 Congressional Wrap-Up

Sticking to “Buy American” Policy

In January, President Trump renewed his commitment to “Buy American” policy by issuing another executive order (EO), where the White House directed federal agencies to maximize the use of American-made materials in federally supported projects. The EO also limited the use of waivers for projects seeking relief from domestic requirements. Buy American is politically popular but not always viable when it comes to building infrastructure, as certain components and products necessary for a project are hard to find in the U.S.

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Clean Water Funding Continues to be Stagnant, but Bipartisan Legislation in Play

In February, an appropriations agreement provided $1.7 billion and $1.2 billion for the Clean Water State Revolving Fund (SRF) and Drinking Water SRF in FY2019, respectfully. These levels were equal to FY2018 and generally consistent with average funding provided to the SRF programs over the last decade. In addition, the agreement allocated $68 million to the Water Infrastructure Financing and Innovation Act (WIFIA) program, reflecting $5 million above WIFIA funding in FY2018.

For the U.S. Department of Agriculture’s Rural Utilities Service (RUS) programs, the appropriations agreement provided $1.45 billion for rural water and waste loans, or approximately $200 million above the 2018 allotment. While this funding level may seem marginal, for low-population areas in rural America, RUS funding serves as the lender of last resort.

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In summer 2019, NUCA completed significant progress in reinvigorating the Clean Water Council (CWC), a coalition of construction contractors, manufacturers, distributors, service providers, and labor unions working to increase financing for badly-needed improvements to America’s water and wastewater infrastructure. The CWC was established decades ago to address this growing problem.

In October, the CWC met at NUCA’s Capitol Hill location to discuss the Water Quality Protection and Job Creation Act (H.R. 1497), which would authorize significant increases in funding for the Clean Water SRF, as well as grants and loans for other water infrastructure improvements.
Among other provisions, H.R. 1497 would authorize:

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  • $14 billion over five years for the Clean Water SRF;
  • $1.125 billion to capture, treat, or reuse combined and sanitary sewer overflows or stormwater;
  • $1.3 billion for States to implement water pollution control programs;
  • $110 million for innovative ways to address wet weather discharges and implementation of stormwater best management practices; and
  • $150 million in grants over five years for alternative water source projects including projects that reuse wastewater or stormwater to augment the existing sources of water.

It’s important to note that the bill includes “set-asides,” including 15 percent for green infrastructure projects and projects to provide energy or water efficiency improvements or other environmentally innovative activities. While set-asides are not popular with construction entities that would rather see federal dollars go toward proven, pipe-and-mortar infrastructure, they were included to allow for bipartisan introduction by both Democratic and Republican leaders, which will help advance the legislation moving forward to a vote in the full House in 2020.

Pipeline Safety Bill

Debate over this year’s pipeline safety reauthorization bill has a strong focus on natural gas distribution systems following a high-profile pipeline incident in Massachusetts last fall. Since then, several pipeline safety bills have been introduced and even approved by oversight committees in the U.S. House and Senate. However, lawmakers on both sides of the aisle have drawn sharp lines in the sand over remaining disputes, with little chance of reaching consensus anytime soon.

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One of the leading “poison pill” issues regards controversial language that would require pipeline operators to implement increased methane control measures. There is strong Republican objection to opening a pipeline safety bill to environmental issues such as methane reduction in pipeline systems.

The good news is we have successfully prevented several potentially harmful provisions from gaining significant support in pipeline legislation coming out of key committees, including:

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  • Language to require accelerated pipe replacement programs. There was talk by some lawmakers to require expedited replacement of cast iron piping in gas distribution system at a time when gas utilities and their contractors are already replacing antiquated piping at a rapid pace. Further acceleration may compromise safety and contractors have made it clear they oppose language that would put their workers at risk.
  • Requirements for professional engineers (PE) approve and sign off on work packages and/or operator qualifications (OQs) related to a gas distribution project. The industry has repeatedly made the point that there simply are not enough PEs to approve all distribution work packages, and that being a PE does not mean one has the experience and expertise to approve these work packages.
  • Mandated implementation of safety management systems (SMS). While the pipeline industry has embraced the top-to-bottom, cyclical approach offered by SMS, we continue to point out that enforcing a “culture of safety” in any company would be very difficult.

Seeking Regulatory Reforms for Commercial Drivers

For the past two years, NUCA has worked with a broad-based coalition of construction associations to mitigate impacts of ‘hours-of-service’ (HOS) regulations. HOS rules are overseen by the Federal Motor Carriers Safety Administration (FMCSA) and are subject to a wide range of industries, although the intent seems focused on reducing highway accidents within the long-haul trucking industry. NUCA has joined a coalition of several construction groups involved in the utility, pipeline and surface transportation industries looking to mitigate the burdens of HOS rules and, in the long term, eliminate them from being subject to drivers in those industries.

In August 2019, FMCSA issued a Notice of Proposed Rulemaking (NPRM) that included several minor “reforms” that the agency says will update HOS rules. Proposed changes include provisions related to the “short-haul” exception, including:

  • lengthening the drivers’ maximum on-duty period from 12 to 14 hours;
  • extending the distance limit within which the driver may operate from 100 air miles to 150 air miles;
  • extending the 14-hour driving window by two hours in adverse conditions; and
  • allowing drivers to be “on duty” during their required 30-minute break (every eight hours) as long as they are not driving, such as when waiting for a commercial vehicle to be loaded with cargo.

The coalition submitted comments to the NPRM, and will be pushing for broader reforms going into 2020.
While most of the focus was on HOS requirements, NUCA also opposed shortsighted legislative proposals that were introduced by an emboldened U.S. House controlled by Democrats. These costly mandates would be devastating to industries using commercial vehicles, such as those who maintain utility fleets (such as NUCA members). Industry was particularly concerned with four bills that would mandate FMCSA to:

  • require the installation of front, side, and rear underride guards on many trucks and trailers exceeding 10,000 pounds;
  • require most commercial motor vehicles over 26,000 pounds to use speed limiting devices set to 65 mph;
  • require certain new commercial motor vehicles over 10,000 pounds to be equipped with and utilize an automatic emergency braking (AEB) system; and
  • increase minimum liability coverage for motor carriers from $750,000 to almost $5 million.

Over the summer, NUCA signed on an industry letter to Congress indicating that these proposals do not consider the diverse operations and working conditions of the industries and would present significant costs without any legitimate safety benefit.

EEIA Weighs in on CWA 401

NUCA has been involved in the Energy Equipment and Infrastructure Alliance (EEIA) since its inception almost 10 years ago. EEIA is a broad-based coalition of stakeholders who make up the ‘supply chain’ of the energy industry.

In fall 2019, NUCA signed on a recent EEIA letter in support of the Environmental Protection Agency’s (EPA) proposed rule that would clarify authority provided under the Clean Water Act Section 401 (CWA 401) allowing states to determine whether any discharges from energy projects are in compliance with state water quality standards. While NUCA believes states have a role to play in ensuring projects comply with their water quality standards, CWA 401 authority has been abused in several states as a way to delay or otherwise obstruct the development of natural gas and other energy projects.

While most of these issues will remain on NUCA’s legislative and regulatory agenda going into 2020, we’re proud of the progress made so far. We’re only at halftime in the 116th Congress, and we’ll need active participation from our network of grassroots members to keep the ball rolling throughout 2020.

The Second Half of the 116th Congress – What it Means for NUCA

As we enter 2020, most news coverage in the nation’s capital will not be on issues included in NUCA’s government relations platform – it will be dominated by the pending impeachment process and what is sure to be a memorable and volatile presidential and Congressional election year. However, several issues of interest to NUCA will remain in play, and new ones are sure to surface.

Fighting for Traditional Water Infrastructure Funding and Opening the Door to Innovation

NUCA and the Clean Water Council (CWC) will continue to lead efforts to restore and increase funding for the EPA’s Clean Water and Drinking Water State Revolving Fund (SRF) programs. We’ll reengage dialogue with supporters of public-private partnerships and other innovative financing.

While passing the Water Quality Protection and Job Creation Act (H.R. 1497) in the House and pushing for introduction and passage of companion legislation in the Senate will continue to be a priority of NUCA and the CWC, other initiatives such as eliminating the state volume cap on private activity bonds (PABs) will be on the agenda. Removing the cap would open the door to virtually unlimited private capital into what continues to be a starving market. The cost would be a marginal loss of tax revenue to the federal government while the benefits have been estimated at tens of billions of private dollars invested towards water and wastewater infrastructure improvements.

Rethinking the Need for HOS Rules in the Construction Industry

As NUCA will continue working with the multi-industry coalition on a range of reforms to hours-of-service (HOS) regulations, most of our work next year will focus on the bigger picture. Specifically, we want to persuade Congress to reevaluate the comprehensive need for HOS requirements on most commercial drivers in the construction industry.

We will argue that policymakers should rethink the need to subject the construction industry to rules that are clearly intended to address fatigue associated with individuals whose sole or primary job function is driving a commercial vehicle. In its comments to FMCSA’s proposed rule earlier this year, our coalition made the point that the current regulatory approach “has led to a patchwork of rules, exceptions and exemptions that vary depending on the type of vehicle operated, the type of property carried, and/or the type of service provided. It is extremely difficult for drivers, company management, and enforcement officials to comprehend the scope and applicability of all of the various permutations of the existing HOS regulations and to implement them in daily operations.”

The coalition will push for a uniform exemption to “include drivers of all property-carrying CMVs engaged in construction, regardless of what they haul (for example, demolition debris, aggregates, water, oil, attenuator, dirt, clay, asphalt, concrete, heavy equipment, pickups hooked to a trailer, pipe, service vehicles, etc.). Also, the exemption would apply regardless of the type of vehicle – rumble strip trucks, grooving, breakers, striping, etc. – as well as any truck hauling construction materials or equipment.”

Because achieving a uniform exemption would be next to impossible via the regulatory process, the coalition is taking our battle to Capitol Hill. Complying with HOS regulations presents unnecessary burdens on construction drivers without any real safety benefit. While much work remains to provide a legislative fix to these unnecessary regulations, it’s a fight worth having on behalf of our members to simplify the time their employees must allocate to follow these rules. NUCA looks forward to contributing to the effort.

Taking a Hard Look at Labor Policy

Over the years, NUCA has participated in the certain efforts led by the Coalition for a Democratic Workplace (CDW), an employer-based group of dozens of national associations interested in promoting sound labor policy and opposing over-the-top legislation such as the “Protecting the Right to Organize (PRO) Act” (H.R. 2474/S. 1306), which was introduced in 2019 in the U.S. House and Senate with significant Democratic support.

The PRO Act would implement several Obama-era policies that would codify the Obama-era “Joint Employer” standard, ban right-to-work laws across the country, force union representation without an election, and undermine options for independent contractor status. Because of the growing number of cosponsors on the bill, the PRO Act will be a priority for many Democrats in 2020, so opposing it needs to be a NUCA priority. While NUCA’s membership includes union and non-union companies, the provisions included in the PRO Act are not in the interest of the vast majority of NUCA members.

Accountability for Facility Locating

NUCA has been an active member of the Common Ground Alliance (CGA) since its formation in 2000, with NUCA members serving on several CGA working committees. Excavators have long suggested that while calling 811 and conducting safe digging practices is imperative to excavation damage prevention, the importance of accurate and timely locating and marking of underground facilities should be held in the same regard.

Over the past several months, certain facility owners/operators have been investigated and fined for missed or blatantly late responses to tens of thousands of locate tickets, and some of these cases have generated local media attention. A prime example was a leading telecom carrier in the State of Minnesota who was called out for failing to meet their responsibilities to locate their facilities in some 70,000 cases.

Installation of underground facilities is increasing nationally and has been for some time. While fundamental to public safety, the responsibilities in this process are as clear as they are important. Unfortunately, fines associated with locating responsibilities are not normally held in the same regard as calling 811 and safe digging practices. However, enforcement action could certainly force decision-makers from these companies to think more thoroughly about the importance of meeting their locating and marking responsibilities.

NUCA will keep the pressure on state enforcement authorities in 2020, and when needed encourage federal entities to weigh in and encourage state authorities to do their job in enforcing the law.

Broadband Deployment

Because deployment of broadband in unserved and underserved areas, especially in rural America, is a growing national priority, NUCA will do its part to advance sound policy proposals that encourage the construction of superior fiber optic networks. Despite constant talk of the need for “wireless” networks, the truth is wireless systems require wireline networks and fiber is the technology needed to most effectively deploy broadband.

Two major bills that will be considered in 2020 will likely drive the broadband debate, the proposed Universal Broadband Act and the Broadband DATA Act. These bills would improve the Universal Service Fund, a major source of federal funding for broadband deployment, and require FCC to improve the national broadband mapping system. These bills will ultimately facilitate the broadband deployment process and encourage installation of fiber systems across the country.

2020 Washington Summit

NUCA’s 2020 Washington Summit, scheduled for three days on May 19-21, provides the perfect opportunity for NUCA members to have an impact on these issues.

Meeting face-to-face with your Members of Congress and their staff on May 20 is one of the most effective ways industry members can directly influence policy. While lobbyists can deliver reports to lawmakers and their staffs, a constituent’s message about a bill’s influence on their business carries authenticity and credibility delivers a powerful punch.

These Washington meetings serve not only as a chance to persuade a Member of Congress on a particular decision, but also serve as a foundation to establish and maintain a relationship. Those NUCA members who attended the 2019 Washington Summit can follow up with their lawmakers this year about last year’s conversations, and first-time attendees can establish a meaningful relationship that if properly nurtured, can pay off in large dividends for their business and our industry. You will discover a trip to Washington in an election year can be one of the most rewarding events you can undertake for your business and our industry.

Please check out NUCA’s Washington Summit website (www.nuca.com/summit) for more information about how you can be an invaluable part of your association’s advocacy program later this spring.

Eben Wyman is the principal of Wyman Associates, which represents NUCA governmental affairs activities in Congress and federal regulatory agencies.
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