On December 5, HUD released Notice PIH 2016-22 (HA) titled “Environmental Review Requirements for Public Housing Agencies.” The notice provides information and guidance regarding Public Housing Agencies’ (PHAs) compliance with the National Environmental Policy Act of 1969 (NEPA) and other related laws. NEPA requires federal agencies to consider the environmental impact of proposed actions early in the planning and decision-making process to avoid and mitigate negative impacts to human health and the environment.
The notice clarifies the applicability of environmental reviews to all PHA activities at project site(s) assisted or to be assisted by HUD and to the use of all HUD funds, including operating funds. The notice also reiterates the prohibition on using any funding without environmental clearance, and presents submission and processing requirements using a five-year submission period as long as there are no changes to the project scope or environmental conditions. The notice also discusses the when PHAs are required to perform environment reviews for administrative, management, and certain maintenance activities and for Housing Choice Voucher (HCV) activities.
HUD considers an environmental review for a specific project to be valid for up to five years, so long as there are no changes to the project scope or environmental conditions. PHAs must request an environmental review for each environmental project site every five years. The following items are the responsibility of PHAs:
A. Identify Responsible Entity;
B. Designate Environmental Project Sites;
C. Prepare the Project Description;
D. Submit Project and Environmental Information to HUD or the Responsible Entity (RE);
E. Facilitate Public and Resident Notice and Participation;
F. Wait for Authorization to Use Grant Funds;
G. Abide by Review Requirements;
H. Advise of Changes in Scope or Conditions; and
I. Maintain Appropriate Records.
If a PHA fails to comply with the above-referenced requirements or the requirements of the notice, then HUD can pursue a wide range of remedies at its administrative discretion. PHAs are also required to conform with civil rights and fair housing laws, in addition to affirmatively furthering fair housing. This includes:
- Mandatory training with the goal to curtail future non-compliance;
- Corrective action plan tailored to the violation;
- Suspension of HUD funds used to finance the violating activity;
- Recapture of HUD funds used to finance the violating activity;
- Debarment/suspension of principals and housing authorities that engage in the noncompliant activity; and
- All other remedies at law.
On Friday, December 2 HUD released Notice PIH-2016-21 (HA) titled “Guidance on Automation of Capital Fund Program 5-Year Action Plans and Budgets in the Activity Planning Module of HUD’s Energy Performance and Information Center (EPIC).” The notice modifies the submission process for Capital Fund Program (CFP) 5-Year Action Plans and Budgets (formerly referred to as Annual Statements). PHAs will now be required to submit their CFP 5-Year Action Plans and Budgets within HUD’s Energy Performance and Information Center (EPIC) system instead of the current paper submission process. Concurrently with the shift to electronic submission of 5-Year Action Plans and Budgets in EPIC, PHAs will begin using a new Budget Line Item (BLI) structure across EPIC and HUD’s Line of Credit Control System (LOCCS).
The transition to electronic submission of CFP 5-Year Action Plans and Budgets in EPIC will begin with PHAs that have March 31, 2017 Fiscal Year Ends (FYEs). The transition will then proceed quarterly, as PHAs with June 30th , September 30th , and then December 31st FYEs submit electronically. PHAs may, on a voluntary basis and with approval of their local HUD Field Office, elect to transition to electronic submission early. PHAs with an approved 5-Year Action Plan in EPIC may revise grant amounts in the 5-Year Action Plan to reflect actual awards and may “funge”, or reschedule, approved activities from one year to another without seeking additional HUD Field Office approvals.
On December 6, HUD will issue a technical correction to the “Violence Against Women Reauthorization Act of 2013: Implementation in HUD Housing Programs” final rule. This correction updates the compliance date for completing an emergency transfer plan and providing emergency transfers, and associated recordkeeping and reporting requirements to June 14, 2017. After the rule’s publication last month, HUD discovered the compliance date was incorrectly listed in the preamble as May 15, 2017, while the regulatory text provided the correct date of June 14, 2017. The final rule’s effective date (separate from the emergency transfer compliance date) is still December 16, 2016.
Today, HUD issued an interim final rule for the HOME Investment Partnerships (HOME) Program that makes changes to how the Department will determine participating jurisdictions’ (PJs) compliance with the statutory 24-month commitment requirement.
Starting with Fiscal Year (FY) 2015 HOME grants, HUD will begin determining compliance using a grant-specific accounting method. In order to prevent PJs from losing appropriated funds when they expend program income, this rule also establishes a new method of administering program income.
Beginning in 2013, HUD has provided frequent discussions and training on the transition from the cumulative method to grant-specific method of accounting for its formula grant programs. With the exception of the new requirements related to program income, this rule does not establish new and unfamiliar requirements for PJs. Thus, HUD has elected to omit the advanced public notice and comment process. This interim final rule becomes effective date on January 31, 2017.
HUD is still accepting public comments on the rule however, and requests comments on the best way to treat program income to avoid loss of appropriated HOME funds. Public comments are due by January 3, 2017.
NAHRO staff will provide with a section-by-section analysis of this rule in the forthcoming edition of the NAHRO Monitor (members only).
On November 30, HUD released Notice PIH 2016-20 titled “2 CFR 200.311(c)(1) Disposition Instructions for the Public Housing Agency (PHA) Retention of Certain Public Housing Real Property (that is no longer used or was never used for public housing dwelling purposes) Free from Public Housing Use Restrictions.” The Notice includes “disposition instructions” and applies when a PHA proposes to retain ownership of certain public housing real property in order to use it for purposes outside of the public housing program.
The Notice includes examples of public housing real property that are eligible for retention after disposition and describes compensation requirements. For PHAs undergoing disposition, PHAs are required to compensate HUD with HUD’s percentage of the original purchase (and costs of any improvements and modernization) of the public housing real property to the Fair Market Value (FMV). Because public housing real property has been generally funded exclusively with public housing funds, the percentage of participation costs are typically 100% of the FMV of the public housing real property.
The Notice also discusses potential exceptions to compensation requirements to HUD. PHAs can receive exceptions if the retention of the property includes the development of rental housing or home ownership that will be operated as affordable housing or if the retention of the property is for a use that benefits or supports the services of low-income families. HUD will not accept a retention application unless all information is provided within Form HUD-52860 Addendum-G. HUD may require a use restriction or other arrangement of public record if HUD grants an exception to the requirement to compensate HUD at the release of the Declaration of Trust (DOT) or the Declaration of Restrictive Covenants (DORC). Typically, use restrictions are for not less than 30 years. If the PHA is unable to use the retained property for its intended use as reported in Form HUD-52860 Addemdun-G, the PHA is required to compensate HUD for the property.
The Notice states that a PHA is required to continue to meet all applicable ACC obligations and public housing regulatory requirements until HUD releases the DOT or DORC.
Earlier today, Wednesday, November 30, HUD released a press release for its final rule on smoke-free public housing. Secretary Castro announced the final rule in Boston, Massachusetts at a gathering that included NAHRO National President Stephen Merritt.
The smoke-free final rule will require PHAs to implement smoke-free policies over the next 18 months. The final rule “prohibits lit tobacco products (cigarettes, cigars, or pipes) in all living units, indoor common areas, administrative offices and all outdoor areas within 25 feet of housing and administrative office buildings.”
The rule makes two changes from the proposed rule. First, waterpipes (i.e., “hookahs”) are included in the list of products that may not be used in restricted areas. Second, HUD has changed the term “lit tobacco products” to “prohibited tobacco products.”
HUD’s full press release can be found here.
The text of the final rule can be found here.
Today NAHRO provided members of President-elect Trump’s HUD transition team with the NAHRO Transition 2017 recommendations. All recommendations and positions in this document have been previously approved by our standing committees and the NAHRO Board of Governors. We also intend to make ourselves available to the new transition team and supply them with any and all information and assistance they may require from us to make the transition at HUD under the Trump Administration as smooth as possible.
The transition recommendations can be used as you reach out to your local HUD officials, your elected officials who will be seated in the new Congress, the media and your own state and local officials in a united effort to move a responsible and responsive housing agenda forward at HUD and on Capitol Hill. In addition to this document, the association will also be producing the NAHRO 2017 Regulatory and Legislative Agenda, which will be drafted over the coming weeks with input from NAHRO membership and leadership and will be available at the NAHRO 2017 Washington Conference.
NAHRO’s Transition 2017 recommendations for HUD may be viewed here.
On November 29, HUD opened registration for the MTW Research Advisory Committee teleconference on Tuesday, December 13, from 1PM EST to 4PM EST. Once registered, the public is invited to call-in to the meeting at 1-800-230-1074. Please be advised that the operator will ask callers to provide their names and their organizational affiliations (if any) prior to placing callers into the conference line. Members of the public that register in advance may provide a comment at the end of the call.
HUD published a Federal Register notice announcing a meeting of the MTW Research Advisory Committee on November 7. The call will continue discussions from HUD’s last in-person meeting of the Research Advisory Committee and will discuss policy framework and research methodology for the third MTW Statutory Objective – increasing housing choice.
On November 29, HUD will publish a solicitation of comments regarding the implementation of income limits for public housing residents. A provision limiting incomes for public housing residents was included within the Housing Opportunity Through Modernization Act (HOTMA) of 2016 (members only). Section 103 of the bill contains language oriented to limit the tenancies of over-income residents in a responsible, effective way that still provides significant discretion to PHAs. The language in HOTMA places the threshold for over-income families as those with incomes over 120 percent of area median income (AMI) for the most recent two consecutive years. If a family meets this threshold, PHAs have the option of either charging the higher of the fair market rent for the unit or the monthly subsidy (operating and capital fund), or terminating the tenancy within 6 months. Language in HOTMA also provides the Secretary the discretion to establish different income limitations based on local construction costs or unusually high or low incomes, vacancy rates, or rents. Prior to HOTMA’s passage, HUD also solicited comments on income limitations for public housing residents via an advanced notice of proposed rulemaking (members only).
HUD is soliciting comments on its proposal to use its calculation of very low-income (VLI) to determine income limits. VLIs are preliminarily calculated as 50 percent of the estimated area median family income. VLI limits include several adjustments to align the income limits with program requirements including: high housing cost adjustments, low housing cost adjustments, state and non-metro median family income adjustments, and ceiling and floors for changes. HUD is proposing to use the VLI as the basis for the 120 percent income limit by multiplying the VLI limit by a factor of 2.4. Areas without a VLI adjustment would result in an income limit of 120 percent of AMI. Areas with an adjustment would be higher or lower than 120 percent AMI, depending upon the adjustments made.
Comments are due Thursday, December 29 at midnight.
NAHRO would like to share information on an upcoming Climate Corps for Affordable Housing Webinar provided by HUD, Environmental Defense Fund (EDF), and TDA next Monday, November 21st at 2 PM (EST).
Climate Corps for Affordable Housing
On October 4, 2016, HUD announced a proposed reporting requirement that will require all Public Housing Authorities and owners of HUD-assisted multifamily housing to benchmark their portfolios’ utility usage. The notices can be found at https://www.gpo.gov/fdsys/pkg/FR-2016-10-04/pdf/2016-23979.pdf and https://www.gpo.gov/fdsys/pkg/FR-2016-10-04/pdf/2016-23978.pdf; the 60-day public comment period ends December 5, 2016. Benchmarking will give affordable housing owners and operators a better understanding of the overall utility consumption and costs associated with their properties and enable them to more efficiently and effectively manage their portfolios.
To help owners with the greatest need for technical assistance in complying with the benchmarking requirement, HUD is partnering with the Environmental Defense Fund (EDF) and TDA Consulting to bring you the Climate Corps for Affordable Housing Summer Fellowship program. The program will embed 12 fellows with affordable housing organizations across the country for the summer of 2017 and will be offered at no cost to host institutions, which will be chosen on the basis of need. This free, full-time technical assistance will allow affordable housing organizations to get ahead of the curve on this upcoming HUD requirement.
Please join us for a webinar to further explain the details of this exciting new opportunity on MONDAY, NOVEMBER 21 @ 2 PM ET.
To register, please click here.