Association News Rochester Chapter

LEGAL ADVISORY FROM RAC NYSCAR AFFILIATE MEMBER, HARRIS BEACH PLLC:  Senate Version of Tax Bill Preserves Certain Development Tax Credits

The Senate Finance Committee advanced the Tax Cuts and Jobs Act on November 17, 2017, moving the tax reform legislation to the full Senate for consideration. The bill, originally introduced in October, marks the first effort in three decades to reform the Internal Revenue Code. Lawmakers have said its goal is to reduce taxes on the middle class, while growing jobs across the country. Several tax policy experts criticize the bill for its corporate tax cuts and a balloon plan they believe will ultimately cost the middle-class more in ten years.

Of particular note is that the Senate version includes the retention of the following development tax credit programs:

  • the new markets tax credit (NMTC) through 2019 in its current form without change
  • interest-free private activity bonds in its current form, which bonding help finance more than 50% of affordable low income rental housing each year
  • the 9% allocated low-income housing tax credit (LIHTC)
  • the 20% historic tax credit (HTC) of qualified rehabilitation expenditures, with one change from current law: rather than claiming the HTC 100% in the year at placed-in-service as under current law, the HTC would be claimed ratably over 5 years instead of being.  While the HTC would be retained, the ratable entitlement to the HTC over 5 years would reduce HTC pricing by an investor's internal rate of return (time value) requirement.

The full Senate is expected to take up this bill after the Thanksgiving break.

LEGAL ALERT FROM RAC NYSCAR AFFILIATE MEMBER, HARRIS BEACH PLLC:  The Impact of the Tax Cuts and Jobs Act Provisions on Tax-Exempt Bonds

On November 2, 2017, the U.S. House of Representatives Ways and Means Committee released the Tax Cuts and Jobs Act (the "Bill"). Among what is being called the "biggest transformation of the tax code in more than thirty years" are the following proposed changes to the provisions of the tax law that pertain to tax-exempt bonds: (i) the termination of the ability to issue qualified private activity bonds; (ii) the elimination of the ability to issue advance refunding bonds; (iii) the repeal of the authorization to issue tax credit bonds; and (iv) a prohibition on issuing tax-exempt bonds to finance professional stadiums.

Termination of Ability to Issue Qualified Private Activity Bonds

Under current law, interest on "qualified private activity bonds" is excluded from gross income. However, as proposed under the Bill, no qualified private activity bond can be issued after December 31, 2017. This means that the following types of tax-exempt bonds could no longer be issued: (i) qualified 501(c)(3) bonds, which provide tax-exempt financing for qualifying capital projects undertaken by 501(c)(3) organizations, such as colleges, hospitals and other health-care facilities, senior housing facilities, libraries, private schools and museums, among others; (ii) exempt facility bonds, which provide tax-exempt financing for, among other types of projects, residential rental projects (e.g., affordable or low-income housing), airports, docks and wharves, mass commuting facilities, facilities for the furnishing of water, sewage facilities and solid waste disposal facilities; and (iii) qualified small issue bonds, which provide tax-exempt financing for manufacturing facilities.  Continue Reading ...


New York state is attempting to move closer towards its goal of fifty percent renewable energy production with an announcement by the New York State Energy Research and Development Authority (NYSERDA) that it has identified more than one million acres of offshore area along the south shore of Long Island for potential development. The proposed offshore area has the potential to generate 2,400 megawatts of energy by 2030, enough to power 1.2 million homes.[1]

After a significant period of research, planning and consultation with commercial fisherman, NYSERDA has released recommendations to the Federal Bureau of Ocean Energy Management (BOEM), which identifies four large offshore areas suitable for the creation of windfarms, as well as a written request from New York State Governor Andrew M. Cuomo for expedited approval from federal regulators to begin bidding for leases. The proposed windfarms are a significant development in green energy production along Long Island and would dwarf the recently approved Montauk Point wind farm, currently under development by Deepwater Wind, which is expected to generate 90 megawatts of power by 2022.[2]  Continue Reading ...

LEGAL ALERT FROM RAC NYSCAR AFFILIATE MEMBER, HARRIS BEACH PLLC: U.S. DOT Proposes Rules to Eliminate Duplication of Environmental Reviews

On September 28 and 29, 2017, the U.S. Department of Transportation ("DOT") published Notices of Proposed Rulemaking to commence a public comment period on proposed regulations governing DOT's Program for Eliminating Duplication of Environmental Reviews, established by Section 1309 of the Fixing America's Surface Transportation Act ("FAST Act").  Section 1309 directed the U.S. Secretary of Transportation to establish a pilot program authorizing up to five states to conduct environmental reviews and provide approvals for projects utilizing state environmental laws and regulations, rather than subjecting such projects to the review process of the National Environmental Policy Act ("NEPA"). 

The FAST Act, signed into law by President Obama on December 4, 2015, was the first federal law in over a decade to provide long-term funding certainty for surface transportation infrastructure planning and investment.  It authorized $305 billion over fiscal years 2016 through 2020 for various critical transportation projects.  Continue Reading ...



On September 5, 2017, the New York State Department of Environmental Conservation ("DEC") filed a Notice of Adoption for a comprehensive revision and reorganization of the 6 NYCRR Part 360 series of regulations - better known as the Solid Waste Management Regulations.  The regulations in the new Part 360 series provide the authority by which the state sets design standards and operational criteria for all solid waste management facilities and activities.

The revisions streamline and reduce regulatory burdens for entities while strengthening environmental protections, and are meant to "reflect the DEC's experience in implementing [the] regulations" since their last major revision took place in 1992.  DEC Commissioner Basil Seggos explains: "These final regulations incorporate public comments we received and will ensure New York State remains a leader in protecting our communities and natural resources through enhanced recycling and waste management."

One of the most obvious changes to the regulations is in its structure: the revisions include a complete reformatting of Part 360.  The laws are reorganized into a Part 360 series containing specific waste topics enumerated as Parts 360-369, making it less burdensome to revise specific sections. Continue Reading ...

LEGAL ADVISORY FROM RAC NYSCAR AFFILIATE MEMBER, HARRIS BEACH PLLC:  Drones Deployed to Help Protect the Environment and Respond to Emergencies

The New York State Department of Environmental Conservation recently announced that it has deployed twenty-two drones throughout New York state to assist with environmental issues and in emergency response situations. 

The DEC anticipates using the drones at stations across the state, including Long Island, the New York City metropolitan area, the Capital District, the Adirondacks, and in Central and Western New York.

Basil Seggos, the Commissioner of the DEC, stated that "[t]he use of drone technology will help us do our jobs better and faster while saving taxpayer dollars. We live in a changing world with technological advances being made at an exponential rate, and UAVs give us a safe and efficient way to collect and analyze data, assess threats to the environment, and quickly respond to emergencies. This technology is helping DEC with everything from petroleum spills and wildlife surveys to search and rescue missions, forest fires, and natural disasters."

The DEC has previously used drone technology to survey potential oil spills in the Hudson River, and to assist firefighters extinguishing a grass fire in Steuben County.

The full announcement is available:

Download Legal Advisory Here


The NYS Department of Taxation and Finance (DTF) recently issued Advisory Opinion TSB-A-17(3)I determining that a property listed in the National Register of Historic Places (the building) was located within a qualifying census tract for purposes of the historic tax credit (HTC) based on the determination of the New York State Office of Parks, Recreation and Historic Preservation (SHPO) that the building was in a qualifying census tract. 

NYS Tax Law § 606(oo) allows for a HTC against NYS tax equal to 100% of the federal HTC (up to $5 million).  Among other requirements, NYS Tax Law § 606[oo][5]) requires that a property to be rehabilitated must be located within a qualified census tract, defined as a census tract at or below 100% of the state median family income.  The state median family income is computed as of January 1 of each year using the most recent 5-year estimate from the American Community Survey published by the United States Census Bureau.  The determination of eligibility is made by SHPO. Continue Reading

LEGAL ALERT FROM RAC NYSCAR AFFILIATE MEMBER, HARRIS BEACH PLLC: EPA Issues Interim Final Guidance to States on Coal Ash Management Permit Programs

On August 10, 2017, the U.S. Environmental Protection Agency (EPA) released an interim final guidance document to help states develop and submit permit programs for the safe management of coal ash combustion residuals (CCR), commonly known as coal ash, to EPA for review and approval.  The current version of the guidance describes EPA's statutory authority interpretations and the way in which EPA generally intends to review state programs.  EPA is encouraging states to consult that interim final guidance as they develop and submit programs to EPA for review and approval.

EPA Administrator Scott Pruitt described the interim final guidance as being "part of EPA's ongoing commitment to cooperative federalism," saying that "we continue to consult with our state partners to find the best management strategy for the safe disposal of coal ash in each of their states."  He characterized the guidance as being designed to make the permit program approval process "easier to navigate." Continue Reading

LEGAL ALERT FROM RAC NYSCAR AFFILIATE MEMBER, HARRIS BEACH PLLC: New DEC Rule Impacts Handling and Storage of Anti-Stain and Grease Agent PFOA

The New York State Department of Environmental Conservation (DEC) recently promulgated regulations related to the bulk storage of perfluorooctanoic acid (PFOA), specifically PFOA-acid, PFOA-salt, PFOS-acid and PFOS-salt (collectively referred to as PFOA).  PFOA has been commonly used to make products more resistant to stains, grease, and water and can be found in pre-treated carpeting, carpet-care liquids, certain apparel and upholstery, firefighting foam, textiles, industrial floor wax and wax remover, sealants, food contact paper, dental floss and cookware.

Although the manufacture of PFOA has been phased out in New York state, those entities that continue to use it must take heed of the new regulations to ensure compliance with handling and storage requirements.  

The new rule adds PFOA to the list of hazardous substances under 6 NYCRR Section 597.3.  The New York State Department of Health has found that prolonged exposure to significantly elevated levels of PFOA threatens public health and poses a hazard to the environment when improperly treated, stored, transported, disposed of, or otherwise managed.  

There are three consequences of listing PFOA as a hazardous substance.  Continue Reading