Ethan I. Strell, Esq. Associate Director and Fellow Columbia Center for Climate Change Law
On Monday November 18, the federal Department of Housing and Urban Development (HUD) published a Federal Register Notice setting forth the requirements for the second round of relief funds appropriated by the Disaster Relief Appropriations Act of 2013 (Relief Act).[1] Importantly, HUD’s notice requires that grantees must develop and submit a comprehensive, science-based risk analysis that includes future risk due to climate change in order to receive the funds.
The Relief Act authorized $16 billion in relief funds, administered through HUD’s Community Development Block Grant (CDBG) program. As with any CDBG grant, in order to receive relief funds, grantees must prepare and submit to HUD an action plan detailing how the money will be used. In order to receive the second allocation under the Relief Act, totaling approximately $5.1 billion—principally for “infrastructure” such as energy, communications, water, wastewater, transportation, and flood control—grantees will need to submit an amended action plan.[2]
Notably, second round action plans must include a “comprehensive risk analysis” that the grantee will use to prioritize, implement, and maintain infrastructure projects. Risk analyses must include the best available data, including “forward-looking analyses of risks to infrastructure sectors from climate change and other hazards….”[3] In conducting the risk analysis, grantees should consider the costs and benefits of alternative investments, including “green infrastructure,” and should assess “changes to climate and development patterns that could affect the project or surrounding communities….” Major infrastructure projects, which cost at least $50 million (at least $10 million of which is federal relief funds), must be described separately in the action plan amendment, and must be specifically discussed in the comprehensive risk analysis. The requirements in this Notice are guided by the recommendations in the August 2013 “Hurricane Sandy Rebuilding Strategy”[4] prepared by the Hurricane Sandy Rebuilding Task Force, as well as HUD’s “Rebuild by Design” competition.[5]
While these conditions only apply to Relief Act funds, the Notice is significant in that the overall HUD CDBG program is enormous and widespread,[6] and these requirements will likely migrate to non-Sandy relief programs. The Hurricane Sandy Rebuilding Strategy itself includes a recommendation that an interagency process be established “to assess the value and feasibility of expanding the use of the Guidelines beyond the Sandy recovery efforts,”[7] and President Obama’s recent climate change resiliency executive order will further move federal agencies in this direction.[8]
Grantees must publish their amended action plans on their public websites for at least 30 days, and hold at least one public hearing, a new requirement. Grantees must respond to public comments and submit the revised plan to HUD within 120 days of the Notice, which comes to March 18, 2014. HUD must then respond to the revision within 60 days.
[1] 78 Fed. Reg. 69104, Nov. 18, 2013, https://www.gpo.gov/fdsys/pkg/FR-2013-11-18/pdf/2013-27506.pdf.
[2] The grantees are: New York City ($1.4B, New York State ($2.1B), New Jersey ($1.5B), Connecticut ($66M), Maryland ($20M), and Rhode Island ($16M). The first allocation of disaster relief money, totaling $5.4 billion, was approved in March, 2013.
[3] 78 Fed. Reg. at 69107, §VI(2)(d).
[4] https://portal.hud.gov/hudportal/documents/huddoc?id=HSRebuildingStrategy.pdf.
[6] In existence since 1974, the CDBG program provides funds to over 1,200 state and local governments nationwide. For instance, the federal money to rebuild Lower Manhattan after the 9/11 attacks was administered through the CDBG program. See, e.g., https://www.renewnyc.com/fundinginitiatives/.
[7] Hurricane Sandy Rebuilding Strategy, Recommendation 5, at 53.
[8] Executive Order, Nov. 1, 2013, “Preparing the United States for the Impacts of Climate Change, https://www.whitehouse.gov/the-press-office/2013/11/01/executive-order-preparing-united-states-impacts-climate-change.
