A New WOTUS Regulation Coming

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Earlier this month, EPA’s Administrator and the Assistant Secretary of the Army for Civil Works announced their agencies were repealing the Obama Administration’s 2015 promulgated rule – the one that a number of agriculture associations had accused the Obama Administration of impermissibly expanding the definition of Waters of the United States (WOTUS).
The two agencies say they are “…recodifying the longstanding and familiar regulatory text that existed prior to the 2015 rule…”  To codify means to arrange information in a logical order that others can follow.
The two agencies promised there will be a “new step 2” which will create a new WOTUS definition.

Messy definition
In the meantime, farmers, landowners and developers nationwide will be stuck with the uncertainty of the definition which existed prior to 2015. That definition is a mess!

You may recall, there were two cases ruled on by the U.S. Supreme Court which involved disputes over the Clean Water Act (CWA) and jurisdiction it had over adjacent wetlands. Justice Scalia, writing for the plurality in the Rapanos and Carabell cases, adopted what has been called the “Bright-Line” rule when he stated waters in WOTUS means “relatively permanent, standing or continuously flowing bodies of water – that is, streams, rivers, and lakes. Wetlands could also be included but only when they have a continuous surface connection to other waters of the United States.”
Justice Kennedy came up with the “significant nexus” test. He concluded that the CWA WOTUS definition required a more “malleable” approach. He stated the Corps should determine on a case by case basis whether the water in question had a significant nexus” to waters which are navigable-in-fact.
Justice Kennedy believed a nexus existed “…when the wetland, either alone or in connection with similarly situated properties, significantly impacts the chemical, physical, and biological integrity of a traditionally navigable water body.”

Bureaucrats run amok

With this language, the bureaucrats at EPA and the Corps went wild.

The bureaucrats did not follow Justice Scalia’s language but quickly adopted Justice Kennedy’s new test. The lower courts said there was no controlling majority and of course all of them applied Justice Kennedy’s “significant nexus” test. Believe it or not, some courts said this language was vague and difficult to implement.
If we are going back to apply the rules before 2015, this nutty procedure apparently will be enforced and in effect.
The EPA and Corps press release on September 12 claim the agencies would be returning to familiar regulatory text. Surely, they are kidding!
The good news in the September statement from the two agencies is that they are setting the stage for step two which will create a new definition of what constitutes a water of the United States. We can only hope that step two will be taken quickly.
An excellent summary regarding what constitutes a water of the United States was provided by the Congressional Research Service (CRS) August 8, 2016. This report by the CRS has a table listing the major federal actions taken to define what is a WOTUS. On February 6, 1973, EPA issued a memorandum attempting to outline the jurisdiction of the Clean Water Act and the Corps first attempted to define navigable waters on May 4, 1973. The list then sets forth numerous dates attempting to define WOTUS and these actions continue through the 80s, 90s and 2000.
As you may remember, on June 29, 2015, the Corps and EPA issued their definition of what constitutes WOTUS. This definition was met with overwhelming rejection by farmers and landowners throughout the United States. The definition was so egregious it became a major plank in Donald Trump’s campaign for the Presidency. It is hard to believe it has taken almost three years for leaders in the Trump administration to deal with this issue. Let us hope that step two for a new WOTUS definition will come quickly. Given the opposition in the bureaucracy to the President’s plans, it is unlikely this issue will be resolved before November, 2020. We can only hope.
A version of this column originally ran in the October 1, 2019 edition of Farm Progress.
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Purple to Blue

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Virginia stopped being a red state a decade or two ago.
Despite a Democratic sweep of all statewide elections (U.S. senators, governor,
lieutenant governor, and attorney general), one could maintain the pretense that Virginia is a “purple” state thanks to a Republican-dominated General Assembly. But it has been long apparent that Republican control will end with the 2019 elections. As further evidence for that proposition, as if any were needed, now comes a new Wason Center for Public Policy poll.
Key finding: Democrats lead Republicans by 13% on the generic ballot test among likely voters 40% to 36%. Ds have a strong advantage over Rs in voter enthusiasm: 62% to 49%. More Dems than Republicans say they “definitely” will vote” than either Republicans or Independents. As a general rule, polls are decreasingly trustworthy, but the Democratic advantage is so overwhelming that it cannot all be attributed to implicit bias in the polling methodology.
Come January Democrats will control all statewide offices and the General Assembly. Virginia, we now can say, is the southernmost Northern state — Maryland with a larger rural hinterland.
Meanwhile, Governor Ralph Northam’s popularity has rebounded to a 51% positive rating, up from 40% in April shortly after his blackface scandal which, after comparably opprobrious revelations on the part of Lieutenant Governor Justin Fairfax and Attorney General Mark Herring, Virginia’s media suddenly decided was no longer an issue. Unlike Sen. George Allen’s “macaca” scandal, which the media flogged until muscle was stripped from bone, the media has focused on Northam’s efforts to “make amends” by adopting a “progressive” agenda on race.
A number of random observations.

  • Republicans have failed to change with the times. Their choice of issues is geared mainly to Virginia’s rural/small town base, even as the state has steadily urbanized. The GOP is unlikely to change until it is stripped of power and is forced to confront the new realities.
  • Democrats are moving to the left. Change will be incremental — we won’t become Maryland or New Jersey overnight — but we’ll move in that direction. All sorts of issues that didn’t used to be issues now will be. Expect serious debates over matters such as the right-to-work law and statewide minimum wage.
  • The business lobby, once a powerful influence in state politics, will accommodate itself to the new political realities. Democrats, already the party of Big Money in this electoral cycle, will become the party of Even Bigger Money in the future.
  • Not to be under-estimated is the role of local media in framing issues and setting the agenda. Paralleling national trends, mainstream media in Virginia are aligned ideologically with the Democratic Party. While the media may continue to play governmental watchdog when the stakes are low, it will always side with Democrats when the stakes are high.
  • Virginia will see more spending and higher taxes. Constituencies and interest groups that benefit from bigger government will prosper. Voters who are not beneficiaries of government will become even more alienated.

As a citizen of Virginia, I am distressed by the direction I see the state heading. But as a rebel by temperament, I’m probably better suited to becoming part of the opposition. Let the resistance begin!
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State’s Strand of Budget Worry Beads Capped by Expanded Medicaid

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Call them the Secretary of Finance’s worry beads.  It is easy to imagine Aubrey Layne putting his fingers on one bead on the strand after another as he asks the economic powers outside his control to smile on Virginia and avert any recession (or even a hiccough) that would slice into the state’s revenue.

Layne, a CPA by trade who has served governors in both parties, puts his worry beads out for Virginians to see.  They are bullet points, not plastic beads, always listed at the end of his monthly economic reports to the General Assembly’s money committees.

Layne’s September comments to both committees did not exude much confidence that Virginia would meet its revenue projections for this fiscal year, which started July 1.  He expressed even more concern for the next fiscal year as 1) General Assembly candidates are competing to offer the most expensive promises and 2) state agencies are at decision time on their own budget requests for next cycle.

He had eight worry beads listed in the presentation, with Medicaid growth at the top of the list, followed by the mandatory recalculation of the state’s contribution to local schools.  A former transportation secretary, he listed transportation funding as a potential budget problem, along with the growing concerns that the Virginia Retirement System will not meet its investment projections and will need additional state infusions.

The state lottery is now creating worry, with reports that an explosion of unlicensed and untaxed gaming machines is deeply cutting into its monopoly on exploiting the wishful.  State legislators likely will shut that competition down or shake down that industry for a cut, but not before next year.

What is not a worry bead on his strand?  Further efforts to reform Virginia’s taxes in the wake of all the federal changes in 2018.   One-time state refund checks will hit mailboxes before the election, the minor policy changes made are now in effect for this tax year, and the prospect of additional action is fading.  The highly touted Taxpayer Relief Fund will hold about $25 million, a revenue rounding error.

The state’s real challenge, which Layne did not ignore, is that Virginia is not exceeding (and not always meeting) national economic growth trends.  In 2019, Virginia missed its projections for employment, personal income, and wage growth. To meet this year’s budget, state revenue needs to grow more than 4 percent, with “a lot of uncertainty in our models going forward.”  So many 2021 spending elements are growing by 5 percent or more “we’re going to need an extraordinary event to make that difference up.”

The outside consulting firm the state uses for forecasting does not see a national gross domestic product growth above 2 percent in 2020.  Growth of less than 2 percent is not a recession, but it will not remove any of the beads on Layne’s strand.

The possibility that Virginia’s own tax policy might be impeding economic growth and thus state tax collections is not a conversation underway anywhere.  The string of worry beads gets all the attention.

The biggest worry bead is Medicaid.  Layne was followed at the House Appropriations Committee by Karen Kimsey, the state’s new director of the Department of Medical Assistance Services. She outlined the many services used by the 314,000 recipients added by expansion. She reported the state spent just under $4.8 billion in state tax funds on Medicaid services in FY 2019, supplemented by another $204 million in spending from the new state taxes on hospital revenues.   (Federal funds brought the total to more than $11 billion.)

Of $204 million from the hospital assessments, $60 million paid for the state’s share of expanding coverage to another 314,000 recipients by the end of the fiscal year.  About $144 million went to increasing the payment rate to many of the medical providers.  Neither amount covered an entire 12-month period, however, and the projected full-year annual cost of those initiatives going forward was not mentioned in the presentations.

With the legislative election a few weeks off, nobody seems to want to fully explore the cost of those two 2018 legislative decisions – coverage expansion and higher reimbursement payments.  There was also a meeting last week of a joint House and Senate subcommittee on health care matters, which the General Assembly had directed to set a formal target for Medicaid spending in the 2020-22 period.  It did not do so.  The meeting lacked a quorum.  The September 15 deadline for action passed.

In the staff presentation to that subcommittee, it was stated at the outset that neither the expanded pool of recipients nor the higher reimbursement rates would be part of the growth target.  The staff looked at the previous forecast, before those changes, and projected future growth in the base program of 5.8 percent next year and 6.4 percent in 2022.

The addition of more than 300,000 recipients by expansion grew the Medicaid population by 30 percent (to 1.4 million Virginians). How can you ignore that in making these projections? But it was disregarded, it was said, because those two expensive policy decisions are having their state share covered by the new hospital assessments.  Within the walls of the Pocahontas Building and other state offices, those hospital assessments seem magically invisible money, not really counted as and certainly not looked upon as taxes ultimately paid by Virginians.  While Director Kimsey provided end of year figures for 2019, no projections were reported for those assessments in the budget year now underway.  Back in March the 2020 projections were more $700 million (but you had to ask to find that).  This week  nobody mentioned them.

The routine revenue reports provided by Secretary Layne do not have a line item marked “Medicaid Hospital Assessments” mixed in with the other taxes and fees tracked. What Medicaid really needs is an entire page tracking Medicaid income and outgo, both the state and federal share, with expansion included.  Such break outs are provided for transportation funds and for the Lottery.  Medicaid is now the most important and aggressive budget driver, and the budget draft released in December will demonstrate that.   Between now and December keep working those beads.

Stephen D. Haner is Senior Fellow for State and Local Tax Policy for the Thomas Jefferson Institute for Public Policy.


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More Reason for Cynicism about Medicaid Expansion

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More than 300,000 Virginians have something today they didn’t have last year — health insurance through Medicaid, observes Virginia Public Radio. What they don’t have is a primary care physician. Many are still seeking primary care treatment at hospital emergency rooms.
Admissions to the emergency room of Norfolk General Hospital have increased 7% this year. One hoped-for benefit of Medicaid expansion is that more patients would seek treatment outside the emergency room, one of the most expensive settings for medical treatment. Clearly, that benefit has not materialized. “There’s a whole behavior modification and teaching and education that needs to happen,” says Sentara Norfolk General President Carolyn Carpenter.
Yeah, that…. and there’s a Medicaid-patients-finding-a-doctor thing that needs to happen, too. Due to low reimbursement rates, many primary care physicians cap the number of Medicaid patients they treat.
One would think that Governor Ralph Northam, a physician, would appreciate this. But other than allowing more latitude for nurse practitioners to treat patients, I have seen no remedies proposed by Virginia’s ruling class to address the most significant of all barriers to health care. The inaction calls into question how serious people really are about expanding real health care coverage for the poor.
In retrospect, Medicaid expansion increasingly looks more like a gimmick designed to accomplish two goals: (1) generate a major new income stream for special interests in the health care sector, while (2) allowing the ruling class to pose as champions of the poor.
Virginia hospitals are now flush with Medicaid cash. An oft-touted benefit of expansion was that hospitals would reduce their losses from charity care and uncompensated care, which would allow them to… Well, it was never clear exactly what hospitals would do, but the results were implied to be socially beneficial. However, as recent news reports have highlighted at Mary Washington hospital and the University of Virginia health system, at least some hospitals have been pursuing collections as aggressively as ever. (Trust me, they aren’t the only ones.) Due to lengthy reporting delays, Virginians won’t know the impact of Medicaid expansion on hospital profitability for another couple of years, but I’ll hazard a guess — revenues and profits will surge.
Meanwhile, hospitals are helping finance Medicaid expansion (the bulk of the funds are coming from the federal government) through a tax on revenue. No word yet on how the industry is absorbing that tax. But I’ll hazard a guess — they’re passing on most of it to payers of private insurance.
Another beneficiary of Medicaid expansion is the medical insurance industry. Rather than rely upon the inefficient fee-for-service system, DMAS is outsourcing managed care programs to private insurers. Maybe those plans will provide enrollees superior access to primary care physicians, maybe they won’t. We’ll have to wait and see. But I’ll hazard a guess — emergency room visits will continue growing.
This commentary originally appeared in the September 18, 2019 edition of the online Bacon’s Rebellion.
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I-66 HOT Lanes Working Better This Year

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During the Q&A at a presentation I gave in June, a questioner cited $40 tolls on the I-66 (inside the Beltway) high-occupancy toll (HOT) lanes as an example of what driving would be like if tolling were more widely used. I had to explain to the largely non-Virginia audience why occasional peak-period I-66 tolls get that high—and why this situation is unique to this particular tolled roadway. The good news is that its average tolls this year are lower than last year, and rush-hour throughput has increased.
This 15-mile stretch of I-66 was built later than the rest of that Interstate due to fierce local (Arlington County) opposition to a new freeway. The final compromise that allowed it to be built limited it to two lanes each way (very low for an urban Interstate) and required it to be HOV-only during AM and PM peak periods—the only such urban Interstate corridor in the nation.
As the DC metro area is now well along in developing a regional express toll lanes network—especially with a $3.5 billion, 21-mile project under construction to add express toll lanes (ETLs) to I-66 outside the Beltway—Virginia DOT made the sensible decision to open the inside-the-Beltway segment of I-66 to paying customers. This converted it during peak periods from HOV-only to a HOT lane system instead. But unlike the HOV policy of the emerging ETL network, which permits only HOV-3s to go free, VDOT continued the pre-existing policy of HOV-2 for I-66 inside the Beltway, but promises to change this to HOV-3 once the outside-the-Beltway ETLs open in 2022.
The unfortunate result of this is that HOV-2s take up nearly a majority of road space on the inside-the-Beltway I-66, leaving far fewer spaces available for paying customers than would like to use it during rush hours. Basic supply/demand economics results in the price during certain time segments, especially in the morning rush, to be occasionally driven to $40 or above. Tolling opponents then take that price as typical, assume that a commuter uses that corridor twice a day 5 days a week, and is forced to pay $400 a week, or $20,000 a year. That’s a great propaganda technique, but is totally bogus.
Since we have ample data showing that most of those who pay to use HOT lanes and ETLs use them only occasionally, it is far more meaningful to focus on the average toll rather than the occasional peaks. On the I-66 HOT lanes last year, the average was $8.31 in the AM and $4.43 in the PM period. VDOT tweaked the tolling algorithm late last year to maintain a somewhat lower speed target, and as a result, for the first quarter of 2019 the AM average toll dropped to $6.35 and the PM average to $4.14. As word got around about lower tolls, more people tried using the lanes as paying customers, with morning trips up 11.1 percent this year and afternoon trips up 8.6 percent. Speeds are somewhat lower, but more people can use the lanes to save time, compared with alternative routes. There are still some tolls above $40, though, with 1,072 such trips in first-quarter 2019. With 13 weeks of 5 workdays each, that amounts to only 16.5 such high-cost trips per day. That’s how un-typical such extreme tolls are.
Incidentally, more space may be opened up for paying vehicles in the I-66 lanes, which would further reduce average toll levels. As of Sept. 30, the only “clean” vehicles allowed in HOV/HOT lanes without meeting the HOV occupancy requirement will be plug-in hybrids and all-electric vehicles; all others with clean fuel license plates will have to either pay the toll or meet the occupancy requirement.
This commentary originally appeared in the September 10, 2019 edition of Surface Transportation News.
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