Best Best & Krieger News Feed

Bringing Water Together

29 Nov 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the ACWA 2016 Fall Conference & Exhibition in Anaheim, Calif.

BB&K Speakers:

Kelly Salt
“Groundwater Sustainability Agency Funding Options”
A discussion of possible groundwater sustainability agency funding options, including Proposition 26, Proposition 218 and other tools being used by those currently forming GSAs. Hear about what the drafters intended possible funding options to be when writing the Sustainable Groundwater Management Act. Get the latest update on how courts interpret the use of Proposition 218 and Proposition 26 for imposing fees and charges. Finally, learn about what current GSAs are contemplating to raise money to form GSAs and prepare groundwater sustainability plans.
Wednesday, Nov. 30
10 - 11:30 a.m.

John Freshman
“ACWA’s Hans Doe Past Presidents’ Breakfast in Partnership with ACWA/JPIA”
After the Elections: What Now? As the dust settles on the 2016 elections, come hear what political insiders have to say about the results. What does it all mean, who are the new players on the scene, and how can you navigate the results?
Friday, Dec. 2
8:30 - 10 a.m.

When
Tuesday, Nov. 29 - Friday, Dec. 2

Where
Anaheim Marriott Hotel
700 West Convention Way
Anaheim, CA 92802

For more information or to register, click here.

All Hands on Deck! Collaborative Approaches to Water Sustainability and Resiliency

15 Nov 2016 00:00:00 -0800

Best Best & Krieger LLP Managing Partner Eric Garner will serve as a panelist at Coro's 2016 Innovate x Water Conference. The topic will be "All Hands on Deck! Collaborative Approaches to Water Sustainability and Resiliency."

When
Tuesday, Nov. 15
8 a.m. - 2 p.m.

Where
LA CIeantech Incubator (LACI)
525 S. Hewitt Street
Los Angeles, CA 90013

For more information and to register, click here.

The Future of U.S. Infrastructure and Local Control Amid Post-Election Uncertainty

15 Nov 2016 00:00:00 -0800

Last week, the nation experienced an election unlike any other in history. A major party candidate broke with his party’s governing philosophies, yet led that party to the presidency as well as preserving control of both chambers of the Congress. This week, Congress returns for a lame duck session in which few major votes are expected until December. This may be a good thing as House and Senate leaders are not sure what, if anything, the rank and file are willing to support. We do know that they must fund government beyond a Dec. 9 deadline. It is also highly likely that a major water funding bill will be enacted and signed before the end of the year.

In the next six months, the federal government will remake itself in the Donald Trump promise of economic populism, proactive deregulation and America-first nationalism. The challenge for local governments and special districts will be to align their advocacy messages with these themes for successful outcomes.

Funding for Infrastructure and Job Creation
Both presidential candidates, and their respective parties, agreed that the nation needs a major investment in infrastructure and the domestic jobs such an infusion could create. Both parties also seemed to agree that the way to fund this is to change our tax code such that corporate America would repatriate billions of tax dollars currently sitting offshore. These infrastructure investments are anticipated to fund water, power, communications, and transportation (air and ground) improvements — the life blood of every community!

Opportunity to Advance Local Control
There will also be opportunities for local governments to demonstrate that some current and proposed federal regulations are exercises in preemptive overreach and should be withdrawn or repealed. But local government will have to be vigilant of efforts by corporate America to ride this deregulation wave to preempt local governments’ ability to manage their own communities.

BB&K’s Government Relations Team is Ready to Assist
Best Best & Krieger government relations professionals are well-positioned to help clients identify advocacy and funding opportunities in the year to come, frame their messages to be relevant in this new government environment, and arrange productive meetings with the new policymakers in both Washington, D.C. and Sacramento. Note that visits to D.C. should be scheduled in late-March or later to allow time for the new team to be in place.

For more information on BB&K government advocacy services, please contact the authors of this Legal Alert listed to the right in the firm’s Municipal Law and Government Relations Services practice groups, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Op-Ed: Automated Vehicles and Minding the Looming Infrastructure Gap

11 Nov 2016 00:00:00 -0800

Best Best & Krieger LLP attorney Gregory Rodriguez authored “Automated Vehicles and Minding the Looming Infrastructure Funding Gap,” published this week in Transportation Weekly, a publication by the Eno Center for Transportation. The opinion piece discusses how, as the country moves forward after the election, infrastructure is expected to be a major area of focus by the new administration. With the perfect innovation storm hitting our transportation system, any transportation funding discussions should also include how we pay for any supporting infrastructure determined necessary for driverless and connected vehicles to operate safely on our local roads, he wrote.

Click here to read the article, originally posted Nov. 7, 2016 on Transportation Weekly.

Read more about autonomous vehicles on our blog for public agencies, BBKnowledge.com, which includes information regarding the comment period ending Nov. 22 on the Department of Transportation’s Federal Automated Vehicles Policy.

County Counsel Teamwork: The Exide Story

23 Sep 2016 00:00:00 -0800

By Robert Ragland

Justice: (1) the principle or ideal of just dealing or right action; (2) conformity to this principle or ideal

The concept of environmental justice is straightforward, the pathway to practical solutions are often circuitous. In the case of Exide Technologies, the road ahead looked tortuous. Exide was a battery recycling facility in the City of Vernon that had operated for 33 years on a temporary permit issued by the State of California. Because of its location and exclusive regulation by the State, it was outside the County’s jurisdiction. After it was determined that the Exide facility had been emitting a significant amount of hazardous waste into the air, including lead, arsenic, and benzene, the State notified Exide that it would not issue another operating permit. Exide, which had previously declared bankruptcy in Delaware, closed its doors in March 2015. The County was then faced with a particularly intractable problem of how to bring relief to the residents living near the facility.

Although Exide was no longer emitting dangerous chemicals, years of damage had already significantly impacted the surrounding communities, including Maywood and Boyle Heights. “The Exide chemicals have raised the cancer risk of tens of thousands of people around the Exide facility,” said Dr. Cyrus Rangan, Director of the County’s Toxics Epidemiology Program.

State and County officials determined that environmental testing of all residential properties within a 1.7 mile radius of the facility was needed. This area includes approximately 10,000 homes. Initial soil testing revealed that lead levels in soil around some of the homes were found to be high enough to characterize the yards as hazardous waste sites. Total cleanup costs were estimated to be as high as $400 million. Based on the State’s bankruptcy claim, Exide paid $9 million for cleanup with an obligation to pay just another $5 million in 2020. The State was able to assess and clean 170 homes before it ran out of funds. State assessment and cleanup efforts slowed to a trickle. The residents were outraged, as the State allotted only $8 million for cleanup in the 2016-17 budget. The problem was straightforward: How could the County and First District Supervisor Hilda Solis — acting as concerned citizens — bring relief to the impacted residents in a timely manner, while supporting the State in its efforts to hold Exide responsible for this environmental catastrophe?

The pathway for resolution was not straightforward. It involved the coordination of litigation strategy, public testimony before the Assembly, community messaging, legislative initiatives, and environmental field testing.

Early on, our County Counsel, Mary Wickham, realized the complexity of the issues presented. She assembled a team to support Supervisor Solis’ efforts to bring relief to the affected communities. The team was comprised of members of the Department of Public Health (DPH), the Chief Executive Office’s Legislative Advocates Office in Sacramento, outside counsel from Best Best & Krieger, representatives from the First District, and County Counsel attorneys. Each group contributed its experience and expertise to solve the continual and evolving challenges met by the team on its path.

The first challenge was to increase the pace of residential home assessment to determine the scope and severity of the contamination. In November 2015, the Board approved a $2 million funding request to hasten the assessment and cleanup of the contaminated soil in the 1.7 mile radius around Exide. This effort required the coordination of DPH’s outreach to residents to permit access to their properties, creation of a rapid soil testing protocol, and teams of certified lead specialists contracted to perform the testing.

Between February 29 and March 9, 2016, DPH assessed lead in soil on 500 residential properties. The testing was carried out by 12 three-person teams in Maywood, Commerce, and East Los Angeles. The teams tested properties at a rate of approximately 48 per day.

The next challenge was how to obtain more dollars for residential cleanup. The $8 million earmarked in the Governor’s budget was simply not enough. This key development took us to Sacramento. The Exide team needed to hold meetings with legislators, involve community members, strategize with its partners, and create public advocacy messaging in support of this goal. In January, Supervisor Solis, along with members of County Counsel’s Exide team, traveled to Sacramento to testify before the Legislative Committee on Environmental Safety and Toxic Materials. The Supervisor’s heartfelt testimony relayed the troubling stories of residents living with debilitating and permanent medical conditions. She and other legislators advocated for $70 million for accelerated residential cleanup efforts. The testimony of DPH Interim Director Cynthia Harding supported this “ask”, as DPH was providing access to care and specialized health screenings for the early identification and treatment of potential health problems caused by the Exide facility’s environmental contamination.

Shortly after the team’s return, Governor Brown proposed $176.6 million in spending to remediate the Exide contamination. In recognition of this extraordinary result, before the Exide team’s next meeting Supervisor Solis provided red velvet cake and expressed her gratitude for all of the extensive work that kept the County on its path. At the meeting, John Holloway of Best Best & Krieger, observed “Each member of the team assembled by the County Counsel’s office played a key role in planning and executing the work that helped secure this phenomenal result. The progress on the Exide matter demonstrates that the County has tremendous resources to get big things accomplished when different divisions of the County work together in a coordinated manner.”

In April 2016, the Legislature approved this funding to expedite and expand testing and cleanup around the former Exide facility. Contaminated soil from places where lead levels are highest will be removed from residential properties, schools, daycare centers and parks within a 1.7-mile radius of the Exide plant. This hard-fought victory was a direct result of our Exide team’s coordinated effort to bring this issue to the forefront of the State’s priorities, and it provided a light at the end of the tunnel for residents.

Ben Polk, Justice Deputy for the First District, described the Exide team’s continuing journey: “Having our cross-County Exide team meet each week to discuss key decisions has been invaluable in developing our strategy and navigating new developments. Our team has succeeded, time and again, in integrating legal, political, and operational priorities.” When asked about the Exide team, County Counsel Mary Wickham commented that “it is a very exciting time to be an attorney in the Office of County Counsel. Our current Board is socially proactive and is tackling the issues of our day. This engaged and active Board deserves an equally engaged and committed Office of County Counsel with lawyers that communicate across divisional and departmental lines to provide the best legal analysis and work product. And that is what has occurred with the Exide team.”

The Exide team soldiers on. It will continue to support the State’s efforts to clean the homes of those affected by 30 years of environmental contamination by Exide.

This article was originally published in the August 2016 edition of The County Counsel Newsletter. Reprinted with permission. The original article can be found by clicking here.

CLE Webinar: Conservation Easement Amendments

21 Sep 2016 00:00:00 -0800

Best Best & Krieger LLP Of Counsel Ann Taylor Schwing will participate in a live 90-minute CLE webinar with interactive Q&A entitled "Conservation Easement Amendments: Navigating Amendment Mechanisms, Overcoming Challenges and the Lack of an Amendment Provision." This webinar will examine conservation easement amendments and the legal considerations that must be weighed when amending an easement for preservation of land and natural resources.

When
Wednesday, Sept. 21
10 - 11:30 a.m. (PDT) / 1 - 2:30 p.m. (EDT)

Friends of Best Best & Krieger can receive a 50 percent discount off of the regular price by using the link below.

For more information or to register, click here.

NHTSA Releases Highly Anticipated Federal Automated Vehicles Policy

21 Sep 2016 00:00:00 -0800

With the goal of creating a path for the safe testing and deployment of autonomous vehicles on public roads nationwide, the U.S. Department of Transportation and the National Highway Traffic and Safety Administration have issued a much-anticipated and groundbreaking draft Federal Automated Vehicles Policy. Recognizing the difficulty of regulating this transformative technology at such an early stage in development, DOT makes it clear that this initial Policy is only guidance seeking to foster the development of a consistent and permanent national regulatory framework.

While most of the guidance is intended to take effect immediately, DOT issued a request for comment for all parts of the Policy, including the recommendations concerning implementation of a “Model State Policy.” Local public agencies should carefully consider the future implications of this Policy on local planning and development, and submit comments during the 60-day comment period. This is an important opportunity for local governments to ensure this first version of the Policy reserves local control and tools for local agencies to implement the safe roll-out and introduction of autonomous vehicles onto our local roads.

The Policy is broken down into four sections that lay out the intended federal approach to autonomous vehicles:

Vehicle Performance Guidance: Provides guidelines for the safe design, development, testing and deployment of autonomous vehicles. The guidance is intended for vehicles tested and deployed on public roadways. Issues such as data recording, privacy and cybersecurity are addressed, and NHTSA encourages data sharing on these topics.
Model State Policy: For now, the guidelines reserve traditional state authority to establish and maintain highway safety programs by regulating issues like driver education and testing, licensing, pedestrian safety, law enforcement, vehicle registration and inspection, and others. The Policy asserts federal authority over setting vehicle safety standards and enforcing compliance with those standards, investigating and managing any recall efforts, communicating with and educating the public on motor vehicle safety, and issuing guidance on how to achieve national safety goals. Perhaps tellingly, the guidelines “strongly encourage” states to allow DOT alone to regulate the performance of autonomous vehicles.
NHTSA’s Current Regulatory Tools: Outlines the current regulatory tools NHTSA can use to ensure safe deployment, including new interpretations of existing rules to promote flexibility and testing of nontraditional vehicle designs and the granting of exemptions.
Modern Regulatory Tools: Identifies potential new regulatory tools and statutory authorities that may be implemented or requested to help DOT meet the challenges and opportunities involving the safe and timely development of autonomous vehicles. Of note and examples of issues this new technology brings are references to post-sale authority to regulate software changes, additional recordkeeping and reporting requirements, and enhanced data collection tools.

The Policy, which is more than 100 pages, highlights the lifesaving potential of driverless cars to reduce traffic accidents and fatalities. In addition, it recognizes the potential for autonomous vehicles to transform personal mobility and offer efficient transportation options for seniors, the disabled and those who do not have the means to own a car. In a press conference, U.S. Transportation Secretary Anthony Foxx described it as the “most comprehensive national automated vehicle policy that the world has ever seen.”

NHTSA Administrator Mark Rosekind clarified the Policy was intended to regulate for fully autonomous vehicles “with different designs than what we have on the road today,” and added that the Policy provides an opportunity for a “uniform consistent framework for the country.” At the same time, the Policy also provides the following guidance to address new regulatory challenges that arise with autonomous vehicles:

States and local agencies should evaluate their current laws and regulations to address unintended impediments to the safe testing, deployment and operation of autonomous vehicles.
For traffic laws, the definition of “driver” may need to be updated to reflect the self-driving system as the “driver” when it conducts driving tasks and monitoring the driving environment.
States are encouraged to coordinate to establish uniform road infrastructure, including signs, traffic signals and lights, and pavement markings.
Clear requirements and application procedures should be developed for manufacturers and other entities to request to test autonomous vehicles on roadways, with law enforcement being involved in the approval process.
A warning that unsafe semi-autonomous systems may be an unreasonable risk to safety and subject to recall, which suggests federal policymakers are concerned about trusting human drivers to safely “take-back control” of a vehicle — an issue many states (including California) are debating.

With this guidance, DOT confirms its support for the deployment of this “inevitable” technology. DOT has announced an intention to update the Policy within the next year; however, this first Policy will establish the framework within which federal regulators view autonomous vehicles — making local participation in this process vital.

For more information regarding these new autonomous vehicle guidelines, questions concerning the public comment process, or legal and policy issues associated with advanced transportation technologies, please contact one of the attorney authors of this Legal Alert listed at the right in the firm’s Transportation, Municipal and Government Relations group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

California State Water Board Releases Revised Drinking Water Fee Regulations

20 Jul 2016 00:00:00 -0800

The State Water Resources Control Board recently released a series of revisions to its proposed Drinking Water Fee Regulations. The revised regulations make a series of amendments to the previously proposed regulations that could result in very significant fee increases for affected public water systems. The revised regulations, however, do not significantly alter the specific requirements for water wholesalers.

The Board is proposing the regulations in conformance with its authority under the Safe Drinking Water Act, which applies to all persons who supply water for human consumption and meet the law’s definition of a “public water system.” A Senate Bill enacted last year (SB 83) modified the Board’s authority to impose annual operating fees on public water systems and served as the impetus for the Board’s most recent round of proposed rulemaking.

Among other changes, the revised regulations alter the fee structure applicable to designated public water systems. For example, as initially proposed, public water systems serving between 101 and 1,000 service connections were going to be required to pay $2.00 per service connection. Now, a system falling within this designation will be required to pay a flat fee of $100, plus $2.00 per service connection greater than 100. In addition, as initially proposed, public water systems with 1,001 or more service connections were going to be required to pay $2.00 per service connection. Now, the revised regulations create an independent fee structure for those systems with 1,001 to 5,000 connections, 5,001 to 15,000, and 15,001 and greater.

Notably, the revised regulations do not significantly alter the specific requirements for water “wholesalers,” as defined. If enacted, wholesalers will be required to pay an annual fee of $6,000 plus $1.36 per million gallons of water that the wholesaler produces from surface and groundwater, as well as gallons of finished water that the wholesaler purchased or received from another public water system.

The Board estimates that the proposed regulation would apply to approximately 7,500 water systems across the State. The Board is seeking public comment on the proposed regulations. The comment period ends on July 29th. More information about the regulation and how to provide public comments can be found here.

For more information on the draft regulations and the comment process, please contact one of the authors of this Legal Alert listed at the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

E-Rate Program Proposed Expansion

30 Jun 2016 00:00:00 -0800

This is the third in a series of three BB&K Legal Alerts that examines the issues of digital inclusion in public housing, and local government’s role in bringing about access to these services. “FCC’s Lifeline Order” and “HUD Proposes Rules on Broadband Infrastructure” ran previously.

The Federal Communications Commission is seeking comments on a proposal to expand what services are eligible for reimbursement under the E-rate eligible services list for the funding year starting July 1, 2017. The eligible services list provides broadband connections to schools and libraries as part of the Universal Services Fund discount program. Comments are due July 5, replies July 20.

According to the Public Notice announcing the changes and seeking comments, the FCC would like to expand the description of eligible dark fiber service under Category One. Generally speaking, “dark fiber” leases are commercial arrangements in which a customer purchases use of a portion of a provider-owned and maintained fiber network. “Lit fiber services” refer to the more conventional purchase of services from a telecommunications provider. Under the proposed change, the description of eligible services would now read:

Leased dark fiber (including dark fiber indefeasible rights of use, or IRUs, for a set term). This revision is intended to further explain the distinction between leased dark fiber and self-provisioned fiber under E-rate program rules.
Among other possible updates, the public notice proposes including a new explanation on the treatment of connections between multiple buildings of a single school, classifying those located on a single campus as Category Two internal connections and those connecting buildings on separate campuses as Category One connections.

E-Rate supports two types of eligible services:

Category One covers services needed to provide broadband connectivity to schools and libraries, and
Category Two covers internal connections.

Last year, the FCC's Wireline Competition Bureau adopted several changes to the eligible services list to provide greater options for E-Rate applicants to utilize leased-lit fiber, leased dark fiber (including fiber made available under IRUs), and self-provisioned broadband networks.

Best Best & Krieger believes that the proposed changes could be very helpful to localities that have municipal or institutional networks to provide broadband connections to their own schools and libraries, and earn the subsidy that the FCC makes available for such services.

Additionally, by clarifying that the eligible services list include dark fiber IRUs, local governments that have virtual broadband networks (i.e., IRUs) on commercial networks might also be eligible for the subsidy, provided that they follow the E-Rate procedure for competitive bidding.

BB&K is assembling a coalition of local governments to review the proposal in greater detail and file comments in the proceedings. Contact one of the authors of this Legal Alert listed at right in the Telecommunications practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

HUD Proposes Two New Rules on Broadband Infrastructure and Consolidated Planning

27 Jun 2016 00:00:00 -0800

This is the second in a series of three BB&K Legal Alerts that examines the issues of digital inclusion in public housing, and local government’s role in bringing about access to these services. “FCC’s Lifeline Order” was first. Look for the third on Thursday dealing with the availability of E-Rate funding for city-owned or rented connections.

The Department of Housing and Urban Development has issued two Notices of Proposed Rulemaking to impose new and unfunded mandates on local governments related to the accessibility of broadband services in federally funded housing. Comments on each of the proposals are due by July 18.

The first proposal mandates the Installation of Broadband Infrastructure in any new construction or substantial rehabilitation of multi-family rental housing funded by HUD. The second would impose an obligation on local governments to evaluate the availability of broadband access and the vulnerability of housing occupied by low- and moderate-income households to natural hazard risks.¹ While no new funding is proposed for either mandate, the rule would make the costs for such actions recoverable under a large array of HUD funding programs.

Broadband Infrastructure Mandate

The proposed rule further requires that the broadband infrastructure must support high-speed Internet that is “accessible” in each unit and adopts the Federal Communications Commission’s definition of broadband currently set at 25 Mbps per second download, 3 Mbps upload.

The proposed rule defines broadband infrastructure as cables, fiber optics, wiring or other permanent infrastructure, including wireless infrastructure, as long as the installation results in broadband infrastructure capable of supporting the transmission speeds established by the FCC in each dwelling unit.

The proposed rule would require that “Any new construction or substantial rehabilitation, as defined by 24 CFR 5.100, of a building with more than four rental units must include installation of broadband infrastructure….” The proposed rule would apply to no less than the following 10 different federal programs that provide for multi-family rental housing, including:

Choice Neighborhoods Implementation Grant
Community Development Block Grant
Continuum of Care
HOME Investment Partnerships
Housing Opportunities for Persons With AIDS
Housing Trust Fund
Project-Based Voucher
Public Housing Capital Fund
Section 8
Supportive Housing for the Elderly and Persons with Disabilities programs

While we believe that this proposal should be supported, Best Best & Krieger has identified a number of issues that must be clarified, and we believe that there are additional issues that must be raised. HUD has requested input on the following questions:

Should this proposed rule be applied to other HUD programs, particularly additional multi-family housing programs (such as Rental Supplement, Rental Assistance Payment, Moderate Rehabilitation Programs, etc.) or programs addressing single-family housing? Should any programs covered by this proposed rule be removed?
Given that the definition of the term “substantial rehabilitation” will determine which projects (other than new construction) are affected by this rulemaking, should the definition be changed in any way?
How much does it cost to add the installation of broadband infrastructure to a pre-planned new construction or rehabilitation project? Are HUD's estimates for the labor and materials costs for installing broadband infrastructure accurate? What data can the public share with HUD about the most cost-effective way for broadband infrastructure to be installed during a new construction or rehabilitation project?
The proposed rule provides exceptions to the requirements if compliance would be infeasible due to cost, location or structural concerns. Are these exceptions too broad or too narrow? What is the best way for grantees to demonstrate to HUD that installation of broadband infrastructure is not feasible, and what would appropriate sanctions be if grantees do not comply, even if it was feasible? Do any grantees have experience with a project in which installing broadband infrastructure was physically or economically infeasible, and under what circumstances was it infeasible?
When evaluating whether the rehabilitation being done meets the threshold in the definition of substantial rehabilitation, should HUD use the pre-rehabilitation estimates for the project alone, or should HUD include increases in rehabilitation costs that arise in the process of rehabilitation?

BB&K has identified some issues of concern, including that the proposed rule would set the rehabilitation threshold at 75 percent rather than the traditional 50 percent. We also believe that it is important that HUD acknowledge that, absent digital education and access to equipment, that investment in broadband infrastructure will be frustrated.

Planning Mandate

The mandate of a “HUD Consolidated Plan” (24 CFR Part 91) has existed since 1994. The consolidated plan requirement seeks to ensure a local government conducts consultations with citizens and civic organizations to ensure HUD funds are expended in a manner that best meets that community’s needs. The proposed rule expands with whom a community must consult to include broadband Internet service providers, and organizations engaged in narrowing the digital divide such as schools and digital literacy organizations.²The proposal also obligates HUD recipients to include in their housing market analysis (24 CFR § 91.210(a)), a description of the “…broadband needs of housing occupied by low- and moderate-income households based on an analysis of data for its low- and moderate-income neighborhoods in the National Broadband Map… [or]… broadband availability data in the FCC Form 477 or other data identified by the jurisdiction, for which the source is cited in the jurisdiction's Consolidated Plan.”³

BB&K’S Response

BB&K believes that HUD is mistaken in its conclusion that the costs involved with the new mandatory broadband consultation requirements and additional areas for reports in the “housing market analysis” will not result in meaningful costs. Since no new federal funding is made available in the rules, it is clear that these are unfunded mandates. BB&K will work with our clients to assist in meeting these new obligations in the most efficient manner.

In addition, BB&K will assemble a coalition to file comments with HUD in the two proceedings by the July 18 deadline. We would also welcome your municipality or agency to the coalition and invite your expertise and insights into these laudable, but unfunded, efforts to close the digital divide. To learn more about BB&K’s efforts in this area, contact one of the authors of this Legal Alert listed to the right in the Telecommunications practice group, or your BB&K attorney.

This issue is especially important given the recent developments in the Lifeline Broadband program that establishes residency in public housing as an eligibility criteria. (Learn more about Lifeline Broadband by clicking here.)

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

[1] The proposed rule changes would also require consultation with agencies whose primary responsibilities include the management of flood-prone areas, public land or water resources, and emergency management agencies to address the sustainability of public housing. We are limiting our review to the broadband requirement.

[2] The proposed rule changes would also require consultation with agencies whose primary responsibilities include the management of flood prone areas, public land or water resources, and emergency management agencies to address the sustainability of public housing. We are limiting our review to the broadband requirement.

[3] The proposed rule also requires that the community’s housing marketing analyses to “… describe the vulnerability of housing occupied by low- and moderate-income households to increased natural hazard risks associated with climate change…”