Wake Forest Law Review
9Mar

Competitive Grant Applications for Allocating State Revolving Funds Need to be Reconsidered to Curb Ongoing Disparate Impact on Marginalized Communities

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Grace Kinley

The Clean Water State Revolving Funds (CWSRF)  and Drinking Water State Revolving Funds (DWSRF) are the largest sources of federal funding for water infrastructure.[1] The CWSRF provides low-cost financing for water quality infrastructure projects and the DWSRF provides financial assistance to help water systems achieve the objectives of the Safe Drinking Water Act.[2] Both of these State Revolving Funds (SRFs) are intended to increase communities’ ability to take on large water infrastructure projects to provide safe and clean water to their community members.[3] In reality, the communities that are most in need of this funding are often unable to access it. In most states, SRFs are allocated based on a competitive loan application process.[4] Across the country, most water systems have never applied for any SRF assistance, and decision-makers for small systems that serve fewer than 10,000 people are the least likely to apply.[5] Many decision-makers choose not to apply for SRFs because they feel they have insufficient training and time to meet the technical requirements of the applications.[6]

One solution that has been proffered for this dilemma is providing technical assistance to communities to help them complete the application process.[7] In theory, this technical assistance would allow for a more equitable distribution of SRFs; however, at least two obstacles prevent technical assistance from being particularly successful.[8] First, technical assistance will only be helpful if it happens to be given to a community whose application is ultimately accepted for funding. Otherwise, the technical assistance funding is wasted because the application the assistance helped create is never put into use. Therefore, for technical assistance to be beneficial, states must actively seek out water systems that serve overburdened communities and encourage them to participate in the application process.[9] This places an additional burden on SRF state administrators who already have a heavy workload of scoring applications and dispersing funds accordingly.[10] Second, federal statute only allows states to use up to four percent of their SRF capitalization grants for administration and technical assistance.[11] In most states, this is likely not enough funding to provide meaningful technical assistance to all of the low-capacity communities that need it.

Another strategy, and potentially more beneficial solution to this dilemma, is that states could provide funds to low-capacity communities without relying on a competitive loan application process. Instead, states could create sub-funds within their SRFs and use that funding to seek out overburdened water systems to plan and implement water infrastructure projects collaboratively. States administer DWSRF resources with significant discretion.[12] Under the Safe Drinking Water Act, states may set aside up to thirty-one percent of their DWSRF capitalization grant to fund state programs or third parties to provide assistance to and develop the capacity of drinking water systems.[13] This set-aside funding can be used to fund activities that are unique to a state’s individual needs.[14]  For example, Massachusetts used a portion of its set-aside to initiate stakeholder involvement that encourages partnerships between nonprofit organizations and low-capacity communities.[15] These non-profit organizations then offered training, site visits, and mentoring to the low-capacity water systems.[16]

Instead of relying exclusively on the four percent of their SRF capitalization grants for administration and technical assistance, a state could potentially use a portion of its thirty-one percent set aside to seek out low-capacity communities to develop and implement water projects jointly with those communities. This not only would allow a greater percentage of funding to go to these low-capacity communities, but it would also eliminate the risk that technical assistance would be provided to a community whose application is not ultimately accepted. This strategy would potentially be less burdensome on SRF state administrators because they will not have to actively seek out water systems that serve overburdened communities and encourage them to participate in the application process on top of scoring applications and dispersing funds. If this is still overburdensome, then a portion of the thirty-one percent could be used to subcontract this work out in a way similar to how many states subcontract out technical assistance.[17]

It is important that in creating this sub-fund, the state requires the funding to be used toward water projects in disadvantaged communities that cannot undergo the application process on their own. In doing this, the state must create a well-considered definition of disadvantaged communities that fits the characteristics of need in that individual state. The Environmental Protection Agency’s Climate and Economic Justice Screening Tool provides a good starting point for developing this definition.[18] This tool uses factors such as poverty, median household income, proximity to wastewater discharge, language isolation, housing cost burden, and educational attainment; however, these are just a starting point and a state must create a list of factors specific to its need.[19] Importantly, race may be an important factor to consider in this definition to help historically underinvested communities receive the necessary funding. Additionally, using a portion of the thirty-one percent set aside to seek out low-capacity communities and develop and implement water projects collaboratively aligns with the Biden administration’s Justice40 Initiative.[20] Under this initiative, the Federal Government has made it a goal that forty percent of environmental-related Federal investments go to disadvantaged communities.[21]

In conclusion, communities that need SRF resources the most often cannot receive funding due to their lack of capacity to undergo the competitive grant application process. Providing technical assistance to aid these communities in the application process, while beneficial in theory, does not do enough to mediate the currently existing disparities in water accessibility. Eliminating the application process and devoting a portion of DWSRF set-asides to sub-funds used to seek out overburdened water systems to plan and implement water infrastructure projects collaboratively could be a more advantageous approach. Ultimately access to safe and clean water is indispensable to health and human dignity.[22] The solution may not be clear but using creativity to reshape state discretion in the distribution of SRFs is an important step toward achieving water equity.

[1] State Revolving Fund Advocacy Toolkit, River Network, https://www.rivernetwork.org/connect-learn/resources/state-revolving-fund-advocacy-toolkit/ (last visited Mar. 8, 2023).

[2] Id.

[3] Id.

[4] See Katy Hansen et al., Uncommitted State Revolving Funds, Nicholas Inst. for Env’t Pol’y solutions 1 (2022).

[5] Id. at 11.

[6] Id. at 12.

[7] Id. at 15.

[8] Id.

[9] Id.

[10] Id. at 12.

[11] Id. at 15 (“States may also use an additional 2 percent of their DWSRF capitalization grant for technical assistance to systems serving fewer than 10,000 people”).

[12] Katy Hansen et al., supra note 3, at 2.

[13] Analysis of the Use of Drinking Water State Revolving Fund Set-Asides: Building the Capacity of Drinking Water Systems, United States Environmental Protection Agency 1 (2015).

[14] Id. at 40.

[15] Id.

[16] Id.

[17] See id. at 5.

[18] See EJScreen: Environmental Justice Screening and Mapping Tool, United States Environmental Protection Agency (2023) https://www.epa.gov/ejscreen.

[19] Misbah Husain & Melissa K. Scanlan, Disadvantaged Communities, Water Justice & the Promise of the Infrastructure Investment and Jobs Act, 52 Seton Hall L. Rev. 1513, 1522 (2022).

[20] See Justice40 a Whole-of-Government Initiative, The White House, (2022) https://www.whitehouse.gov/environmentaljustice/justice40/.

[21] Id.

[22] OHCHR and the Rights to Water and Sanitation, United Nations Human Rights Office of the High Commissioner, https://www.ohchr.org/en/water-and-sanitation.

 

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8Dec

Keep “Tiny Home” Owners from Becoming Homeless: Remove Unnecessary Barriers to Nontraditional Housing

Categories: Current Issues Blog
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By Caroline Willcox

The cost of housing has risen to such an extent in the past few years that, for some, it has become prohibitive to home ownership or housing generally.[1]  This problem is especially prevalent in Idaho, where houses in Boise are almost 70 percent overvalued.[2]  A woman in Idaho, Chasidy Decker, found a solution to this problem that worked for her.  She bought a “tiny home” constructed from high-quality materials and up to the safety standards of a traditional home.[3]  She wanted a tiny home because “they were attractive, affordable, reliable, mobile, and stable.  With a tiny home on wheels, I believed I would always have a roof over my head.”[4]  Chasidy found a place to park her tiny home in Meridian, Idaho, on Robert Calacal’s property.[5]  Calacal purchased his property specifically in part because of its RV hookups that he could rent to people like Chasidy, who would need a place for their tiny home or RV.[6]  The previous owners of his property and other neighbors utilize their property in this way.[7]  Chasidy and Robert signed a one year lease in which they agreed that Chasidy would pay $600 plus $100 in utilities to Robert in exchange for her to be able to live on his property.[8]

Unfortunately, the city of Meridian prevented this mutually beneficial agreement that allowed for a home for Casidy and rental income for Robert.  While the city code allows Chasidy to have her tiny home parked on the property indefinitely, the regulation prohibits living in “mobile tiny houses” or RVs “except within a recreational vehicle park.”[9]  However, there are currently extensive waitlists for the local RV parks for tiny homeowners like Chasidy, and even then, some do not allow tiny homes to use their property.[10]  The City ordered Chasidy to move from Robert’s property within ten days or face criminal prosecution and fines up to $1,000 per day.[11]  Chasidy ultimately complied with the order, leaving her homeless, despite owning a perfectly safe home.[12]

In addition to the fact that the city selectively and arbitrarily enforced the ordinance against Chasidy and Robert,[13] the ordinance violates the Idaho constitution and the parties’ property rights.  The Idaho constitution requires “laws infringing on property rights to have a direct, real, and substantial relation to legitimate government interest.”[14]  The attorneys representing her argue that this specific ordinance fails that requirement.[15]  They argue that the ordinance does not promote health or safety because the city allows people to live in the same structures but only if they are parked in specified areas.[16]  The home itself is not regulated; instead, the only issue the ordinance regulates is where homes and RVs are parked.[17]  The ordinance also does not advance any aesthetic goals for the city because owners can keep any RV or tiny home parked on private property so long as no one is using them for the purpose of providing housing.[18]  While zoning laws and land use regulations can play an important part in ensuring the safety of a town’s citizens, they must actually serve a legitimate public end.  When they do not, they violate the rights of their citizens.  Casidy has filed a complaint for declaratory and injunctive relief in an attempt to have her property rights restored and the use of her home permitted.

Unfortunately, other cities and municipalities are creating barriers to lower-cost and nontraditional housing.  A nonprofit in Calhoun, Georgia, sought to build small, environmentally friendly cottage-style homes between 450 and 600 square feet for people who wanted to be homeowners but were unable because of the cost of traditionally sized homes.[19]  Though the plans for the cottages were in accordance with all zoning and safety codes, the city bans any homes that are smaller than 1,150 square feet.[20]  This ban does not have any rational relationship to a legitimate government interest but, as the nonprofit’s attorneys, argue only serves to artificially inflate already-high housing costs.[21]  Similarly, in Big Water, Utah’s zoning ordinance prohibits homes smaller than 2,000 square feet in a particular residential zone.[22]  The city even admitted in a letter that the purpose of the ordinance was to “keep the property value up.”[23]  Like the situation that Casidy faces, residents in Sierra Vista, Arizona, were forced to move their RVs because the city code deemed it illegal for them to live in them in one lot, though they were allowed to park there.[24]  These ordinances and statutes, like Meridian’s, do not have a rational relation to a legitimate public end like public welfare or safety.  Because of this, the regulations likely violate their state constitutions and the United States Constitution.

The size of someone’s home or its ability to transport its inhabitants should not hinder people from living as they choose or as their budget allows.  This is especially true as remote work becomes more popular and people use their flexible work schedules to fit a more adventurous lifestyle.  And as a matter of public policy, the government should not interfere with efforts to reduce homelessness through regulations that do not promote public health or improve safety.  Rather, as housing prices continue to rise, states and municipalities should allow people to utilize any form of housing they desire or can afford instead of creating unnecessary barriers to housing.

[1] Zachary B. Wolf & Anna Bahney, The Housing Mess, Explained, CNN Politics (Sept. 17, 2022, 8:08 AM), https://www.cnn.com/2022/09/17/politics/housing-market-questions-what-matters/index.html.

[2] Complaint for Declaratory and Injunctive Relief and for Nominal Damages at 7, Decker v. City of Meridian, Idaho et. al., No. CV01-22-11962 (4th Dist. of Idaho 2022).

[3] Memorandum of Law in Support of Plaintiff’s Motion for Preliminary Injunction at 11, Decker v. City of Meridian, Idaho et. al., No. CV01-22-11962 (4th Dist. Idaho 2022).

[4] Declaration of Chasidy Decker in Support of Motion for Preliminary Injunction at 2, Decker v. City of Meridian, Idaho et. al., No. CV01-22-11962 (4th Dist. Idaho 2022).

[5] Complaint for Declaratory and Injunctive Relief and for Nominal Damages, supra note 2, at 2.

[6] Id.

[7] Memorandum of Law in Support of Plaintiff’s Motion for Preliminary Injunction, supra note 3, at 2.

[8] Complaint for Declaratory and Injunctive Relief and for Nominal Damages, supra note 2, at 9.

[9] Meridian City Code § 11-3A-20.

[10] Complaint for Declaratory and Injunctive Relief and for Nominal Damages, supra note 2, at 3.

[11] Id. at 2.

[12] Memorandum of Law in Support of Plaintiff’s Motion for Preliminary Injunction, supra note 3, at 4.

[13] Complaint for Declaratory and Injunctive Relief and for Nominal Damages, supra note 2, at 4.

[14] Id. at 19.

[15] Id. at 20.

[16] Id.

[17] Id.

[18] Id.

[19] Complaint for Declaratory Judgment, Injunctive Relief, and Attorney’s Fees and Petition for Writ of Certiorari at 2, Tiny House Hands Up, Inc. v. City of Calhoun, Georgia et al. (Super. Ct. Gordon Cnty., Ga. 2021).

[20] Id.

[21] Id. at 3.

[22] Letter via email from Joseph Gay and Bob Belden, Attorneys, Institute for Justice, to David Schmuker, Mayor, Big Water, Utah, Members of the Town Council, and Members of the Planning and Zoning Board at 1 (May 13, 2022) (on file with author).

[23] Id.

[24] Complaint at 17, Root v. City of Sierra Vista, Ariz., No. __ (Super. Ct. Ariz., Chochise Cnty. 2021).

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