Chris Kearney | NSWA Vice President, Governmental Affairs
After working all weekend on several procedural votes and disagreements over the amendment process, the Senate on August 10 voted 69-30 to pass the bipartisan infrastructure bill, H.R. 3684, with 19 Republicans joining all Democrats and Independents to move the measure out of the Senate. The approximately $1.2 trillion bipartisan infrastructure package includes $550 billion in new spending on roads, bridges, transit, ports, broadband and water infrastructure and is the product of more than a month of negotiations.
Now that the $550 billion infrastructure package is approved, the bill will then move to the House, where Democratic moderates are already pressuring Speaker Nancy Pelosi (D-CA) to take the legislation up immediately. But recently she reiterated her position that the House would only move on the bipartisan infrastructure bill once the Senate passes a FY 22 Budget Reconciliation legislative package – which will not pass out of the Senate before mid-October at the earliest. Without the reconciliation package passing first, the Speaker will be hard pressed to gather enough yes votes (the House Democrat majority is three seats)a from either the progressive wing of her party or the GOP side of the aisle, which would kill the Senate passed infrastructure bill.
Against that backdrop, a key element of the Senate infrastructure bill is a bipartisan legislative package advanced by the Energy and Natural Resource Committee, led by Chair Joe Manchin (D-WV). The bill reported out of committee in mid-July, provides billions of dollars for energy infrastructure, environmental projects, and water infrastructure projects.
Of note, title six of the bill as reported out of committee (beginning on page 386) would direct the Secretary of Interior — in coordination with the Secretary of Agriculture and in consultation with the Interstate Oil and Gas Compact Commission as applicable — to establish a program for orphan well plugging, remediation, and restoration, aimed at reducing methane emissions. A specific component would be through a five billion dollar grant program (both short term and long term funding) targeted at states and Indian tribes that would prioritize abandoned well site clean-up on federal lands by the greatest need, while intending to create tens of thousands of jobs in the process. The bill would also establish a federal grants program for states to fund cleanup on state and private lands.
Senate Democrats Release Budget Resolution for $3.5 Trillion Reconciliation Package
The Senate Democrats have passed their $3.5 trillion budget blueprint – technically known as the budget resolution — which occurred the day after final passage of the bipartisan $550 billion infrastructure package. Expected to be in the legislation that implement the resolution are programs that would expand federally backed social and healthcare programs, address climate change, extend middle class tax cuts, and roughly pay for half of the package by raising taxes on the wealthy and corporations. Many of these provisions were previewed in President Biden’s American Jobs Plan and American Families Plan.
The text of the budget resolution includes instructions to Senate committees to draft legislation, consistent with the 3.5 trillion annual spending level, that will expand programs covering health, energy, the environment, agriculture, paid family leave, extend the child tax credit, as well as expand Medicare benefits to include dental, vision and hearing and other federal programs. On the tax side, it would expand the state and local tax deduction (SALT), extend middle class tax cuts, all to be partially paid for by various tax increases on carbon, corporations, and those making over $400,000 per year.
The blueprint only vaguely references corporate tax reform as a funding source. There has been no public discussion of eliminating oil and gas tax benefits as part of the “pay fors” for the budget.
However, NSWA and other likeminded organizations assume that they will be included and our lobbying strategy is premised on a fight to ensure they are not included in the FY 22 Budget Reconciliation legislation that will be crafted as a result of passage of the budget blueprint.
House Passes Major Spending Bills
The House of Representatives has passed a massive appropriations package, containing seven of the 12 annual appropriations bills, including the Energy-Water (E&W) and Interior-EPA measures. The package $617 billion passed on a 219-208 party line vote. The bill included $43.4 billion for Interior Department and EPA, including a 23 percent increase for Environmental Protection Agency’s (EPA), with much of it aimed at delivering on the Biden Administration’s commitment to address climate change.
Despite the House passage of nine annual appropriations bills before departing for the August recess, it appears likely that Congress will be forced to turn to a temporary continuing resolution (CR) — legislation to fund the government at last year’s levels — to avoid a government shutdown on October 1 (the start of the new fiscal year), while the Senate completes its appropriations work and the two chambers’ craft new appropriations funding for FY 22.
Biden EPA Outlines Plan for New WOTUS Rulemaking
The Biden Administration has outlined its plan for repealing and replacing a contentious Trump-era Clean Water Act (CWA) rule over which “waters of the U.S.” (WOTUS) are jurisdictional under the CWA.
EPA and the Army Corps of Engineers (Corps) said they will follow a two-pronged approach to revoke the Trump Administration’s Navigable Waters Protection Rule while revising the definition of WOTUS, which defines which waters fall under federal protection.
First, the Biden Administration last month prevailed in asking the judges to remand the Trump WOTUS rule to EPA while it writes a new one,. While that is underway, its s expected that by year’s end, the agency’s temporary regulation will revert to the 1986 definition of WOTUS and rely on 2008 guidance from the George W. Bush Administration about how to apply that definition.
Although it’s not clear when EPA will issue a rule to redefine WOTUS, the agency has laid out a series of more than a half-dozen meetings for “consultation and engagement” from Aug. 5 to Sept. 2, including discussions about federalism and tribal consultation.
Written public recommendations on the rulemaking are due September 3. The agencies said they also intend to host a series of talks with state and tribal co-regulators this fall to discuss both rulemakings.
USFWS Extends Comment Period on Lesser Prairie Chicken Listing
On May 25th, 2021, the Service announced that “After a thorough review of the best available science, the U.S. Fish and Wildlife Service is proposing to list two distinct population segments (DPS) of the lesser prairie-chicken under the Endangered Species Act (ESA). The Service is requesting comments or information from the public, governmental agencies, the scientific community, industry, or any other interested parties concerning this proposed rule. The lesser prairie-chicken currently occupies a five-state range that includes Texas, New Mexico, Oklahoma, Kansas, and Colorado and faces a number of threats, including, modification, degradation, and fragmentation of its habitat.”
The comment deadline, originally August 2, has now been extended to September 1. It is important to note, that the Service is proposing to list the bird as “endangered” in the southern DPS which includes New Mexico and Texas, and “threatened” in Kansas, Oklahoma, and Colorado.
Under the federal court order that prompted the Service’s announcement, the agency has until May 25th 2022 to make a final decision to list. While the comment period closes soon, legally the agency can take material and comments beyond September 1.
In 2014, the Service was sued, and lost in court, over its previous decision to list the bird in 2013.
API, KIOGA, and PBPA are preparing comments.
If NSWA members would like assistance in preparing comments, please contact Chris Kearney, VP of Governmental Affairs.