Federal Issues Update
House Continues to Make Progress on FY 16 Appropriations; Transportation Reauthorization Deadline Looming
Following a brief recess, House lawmakers returned to Capitol Hill the week of May 11 to pick up where they left off on the fiscal year 2016 appropriations process. On May 12, the House Commerce-Justice-Science (CJS) Appropriations Subcommittee released its fiscal year 2016 spending bill. The measure, which was cleared by the subcommittee on May 14, includes a $35 million increase in funding for the State Criminal Alien Assistance Program (SCAAP), a key CSAC priority. For additional details on the CJS bill, please refer to the SCAAP section below.
In related developments, the full House Appropriations panel on May 13 approved its fiscal year 2016 Transportation-Housing and Urban Development (T-HUD) spending measure. The bill, which funds a number of key local government programs, would provide roughly $1.5 billion above fiscal year 2015 spending levels. On the transportation side, the legislation proposes flat funding for highway and transit programs, contingent upon Congress extending or reauthorizing MAP-21. The bill also includes a significant cut to the Department of Transportation’s (DOT) popular TIGER grant program.
With regard to housing programs, the T-HUD measure would provide level funding for the Community Development Block Grant (CDBG) and the HOME Investment Partnerships program. The bill includes a slight boost in funding for Homeless Assistance Grants. As expected, and similar to other fiscal year 2016 spending bills that have been released by House Republicans, the bill contains several controversial policy riders that are opposed by congressional Democrats and the White House.
To date, the full House Appropriations Committee has approved four of the 12 annual spending measures: T-HUD; Energy & Water (HR 2028); Military Construction-Veterans Affairs (HR 2029); and Legislative Branch (HR 2250). The latter two spending measures have been cleared by the full House.
Looking ahead, the appropriations process is expected to become more challenging as lawmakers prepare to delve into some of the more contentious funding bills. In the coming weeks, for example, House appropriators are expected to unveil their first Labor-HHS-Education spending bill in three years.
Across Capitol Hill, Senate appropriators are just now beginning the process of developing their own versions of the 12 annual spending measures. Despite the late start, Senate Appropriations Committee Chairman Thad Cochran (R-MS) plans to move all 12 bills through committee, something that the panel has not been able to accomplish in several years.
CSAC Testifies on Indian Fee-to-Trust Reform
As reported in this week’s lead article, the House Subcommittee on Indian, Insular and Alaska Native Affairs held an oversight hearing on May 14 entitled “ Inadequate Standards for Trust Land Acquisition in the Indian Reorganization Act of 1934.” Sonoma County Supervisor David Rabbitt testified before the committee on behalf of CSAC.
The forum provided witnesses with an opportunity to discuss the Bureau of Indian Affairs’ (BIA) fee-to-trust process, as well as the implications of the Supreme Court’s Carcieri v. Salazardecision. In Carcieri, the Court ruled that the secretary of the Interior can only take land into trust for tribes that were “under federal jurisdiction” at the time of the passage of the Indian Reorganization Act (IRA).
Since the Court’s action in 2009, many Indian tribes have urged Congress to pass legislation that would overturn the decision. Such bills, known as Carcieri “fix” legislation, would simply reverse the Supreme Court’s action and would not provide for any other amendments to the IRA. For their part, county governments – led by CSAC – have insisted that any Carcieri ”fix” include comprehensive reforms in the fee-to-trust process.
As described by Supervisor Rabbitt in his testimony, the Department of the Interior’s trust land acquisition process - which is governed not by federal statute but by regulations prescribed by the BIA – is void of adequate standards and has led to significant, and in many cases, unnecessary conflict within the federal decision-making system for trust lands. By way of example, current law does not require or incentivize tribes to engage in good faith discussions or enter into enforceable agreements with counties for the mitigation of off-reservation impacts. The result in California and other states has been intense disagreement over proposed tribal development projects and, in many cases, litigation.
Additionally, the BIA does not provide sufficient notice regarding fee-to-trust applications and does not notify counties of requests for Indian lands determinations (which is a critical component of a gaming application). Accordingly, and in light of the various long-standing deficiencies in the fee-to-trust process, CSAC has long advocated for a series of changes that would ensure transparency and fairness in the trust-land system. The proposed modifications are embodied in the association’s comprehensive fee-to-trust reform package, which is gaining traction on Capitol Hill.
At the heart of CSAC’s legislative proposal is the establishment of a process that incentivizes local agreements between counties and tribes. Such an approach would offer the opportunity to streamline the trust land-application process, while helping to ensure the success of tribal projects within local communities. CSAC’s legislative proposal also includes other key standards, including sufficient notice and consultation requirements, as well as provisions that would ensure that changes in land use are sufficiently reviewed.
In addition to Supervisor Rabbitt, the following witnesses testified at the hearing: Kevin Washburn, assistant secretary of Interior for Indian Affairs; Randy Noka, councilman, Narragansett Tribe of Rhode Island and vice president of the United South and Eastern Tribes; Brenda Golden, policy analyst and self governance officer, Muscogee (Creek) Nation of Oklahoma; Lori Stinson, tribal attorney general, Poarch Band of Creek Indians of Alabama; and, Christian McMillen, Corcoran Department of History, University of Virginia, Charlottesville.
To view a copy of CSAC’s testimony, please click on the following link: CSAC FTT Reform Testimony.
Transportation Reauthorization
With just over two weeks remaining before the nation’s surface transportation law (MAP-21) is slated to expire, key lawmakers have been engaged in a series of discussions aimed at generating a short-term extension of current law. As of this writing, no final consensus has emerged, although principal negotiators appear to have settled on two primary options: continue MAP-21 through the end of July or extend the Act through the calendar year. Regardless of which option prevails, Congress will need to act fast in order to clear an extension before members leave town for the upcoming Memorial Day recess.
If Congress approves an extension through July, such a bill would not need to have a revenue source tied to it, as DOT has indicated that it will likely have sufficient revenues to cover MAP-21 programs until mid-to-late July/early August. Congress would still, however, need to approve legislation extending DOT’s authority to spend the revenue.
According to DOT, it would need to begin implementing cash-management procedures around July 17, which is when the Highway Trust Fund is projected to drop below $4 billion. Long-term, Department officials estimate that the trust fund will drop below $1 billion in mid-to-late August, and will reach a zero balance by September 4. As of this writing, it is unclear how lawmakers would pay for a potential seven-month extension, which would cost roughly $11 billion.
Finally, and in an effort to keep pressure on Congress to act on a long-term bill, Senate Environment and Public Works Committee (EPW) Chairman James Inhofe (R-OK) and Ranking Member Barbara Boxer (D-CA) have announced that they are planning a June markup of a six-year reauthorization bill. Notably, the EPW Committee has jurisdiction over the highway title of MAP-21. The revenue component of the legislation is handled by the Senate Finance Committee.
Waters of the United States
The House on May 12 approved legislation (HR 1732) that would block implementation of the Obama administration’s controversial Waters of the United States (WOTUS) rule. Specifically, the bill would require the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) to develop a new proposal that takes into consideration: the public comments that the agencies have received on the proposed rule; a regulatory analysis of the rule; and, the connectivity report that EPA issued earlier this year.
Furthermore, under the legislation, EPA and the Corps would need to consult with state and local officials and other affected stakeholders before moving forward with a revised rule. Additionally, the measure directs the agencies to submit a detailed report to Congress that includes the agencies’ responses to public comments, as well as a comprehensive economic/regulatory analysis of the new proposal.
Although EPA has indicated that its proposed regulation would not protect bodies of water that have not historically been covered under the Clean Water Act, many key stakeholders, including local governments and agricultural interests, have expressed serious concern over the scope of the rule. In response to these concerns, House and Senate lawmakers have been closely scrutinizing the proposal, culminated in the House by the recent passage of HR 1732.
As expected, Democrats pushed back against the legislation during floor debate, arguing that Congress should wait to see what is included in the final rule before taking action. During consideration of the bill, Representative Donna Edwards (D-MD) offered an amendment that would have set conditions on the draft rule. For example, her amendment would have prevented the agencies from expanding their jurisdiction beyond bodies of water that were covered prior to the two Supreme Court decisions. The Edwards amendment was rejected, but the House did adopt an amendment by Representative Dan Kildee (D-MI) that would give states two years to comply with the new rule.
The final vote was 261-155, with 24 Democrats joining Republicans to support the bill. Notably, the vote tally falls short of the two-thirds majority that would be needed to override an expected veto by President Obama. The measure now heads to the Senate for its consideration.
State Criminal Alien Assistance Program
As reported above, the House (CJS) Appropriations Subcommittee approved on May 14 its draft fiscal year 2016 spending legislation. In a positive development for California’s counties, the bill includes a $35 million increase in funding for SCAAP. Under the legislation (bill number not yet available), SCAAP would be funded at $220 million, compared to current spending of $185 million.
The State of California and its counties receive roughly 35 percent of all SCAAP funding (a combined $55 million in fiscal year 2014). All told, California jurisdictions are estimated to incur over $1 billion in SCAAP-eligible expenses annually.
In total, the House CJS bill would provide $51.4 billion in discretionary funding, a proposed increase of $1.3 billion over fiscal year 2015 spending levels (and $661 million below the Obama administration’s budget request). Notably, the legislation includes the aforementioned SCAAP funding boost despite an overall decrease in grant program funding – the bill includes a total of $2 billion for state and local grant programs, or $334 million below the fiscal year 2015 enacted level.
In addition to SCAAP, the CJS spending measure provides funding for a number of other justice-related grant programs that are of interest to California’s counties. For example, the bill would provide $409 million for the Edward Byrne Memorial Justice Assistance Grant program (an increase of $33 million). Additionally, the bill would create a new $50 million “Community Trust Initiative” to support, among other things, police training and research in the wake of the violent protests in Ferguson, MO, and Baltimore, MD.