Congressional hearing testimony

Proposed legislation and OIG reports have stressed the need for a permanent authorization of CDBG-DR funds¹⁴HR 3702, S. 2301. We endorse this position.

The wait for allocation notices, published guidances, and waivers is excruciating for grantees and survivors on the ground. The NLIHC has estimated that the timeline for Congress to approve disaster-recovery funding may range from weeks to eight months¹⁵National Low Income Housing Coalition and Fair Share Housing Center. Fixing America’s Broken Disaster Recovery System Report: Part One Barriers to a Complete and Equitable Recovery . The time to adopt allocation notices also adds up. In the case of Puerto Rico, as the most recent OIG report states, the allocation notice was made available, “23 months and 19 days after the corresponding appropriation and 146 days after the statutory deadline”¹⁶Office of the Inspector General. Review of HUD’s Disbursement of Grant Funds Appropriated for Disaster Recovery and Mitigation Activities in Puerto Rico (April 20, 2021), p. 21 .

The obstacles imposed on Puerto Rico by the former presidential administration are grounded on colonialism, racism, and a complete disregard for the lives and well-being of the three million people living on the Island. This adds up to previous OIG findings on FEMA’s mismanagement of the commodity distribution process in response to hurricanes Irma and Maria, as well as to many concerns voiced in federal fair housing complaints on how the recovery processes left behind low income and black communities, disabled mothers of minors, and other groups. Questions on how and if these findings will lead to specific actions to remedy the impact of unjust recovery processes in the population of Puerto Rico still remain.

As Enterprise Community Partners have advised before “[t]his ad hoc system results in different requirements and waivers for different grantees, confusion and frustration among grantees, and inconsistent and unfair disaster recovery outcomes across grantees”¹⁷Enterprise Community Partners. Senate Legislation Introduced to Permanently Authorize the Community Development Block Grant- Disaster Recovery Program (July 30, 2019) . The permanent authorization of CDBG-DR could pave the way for model policies to guide programs, policies, and systems. It could provide a core minimum of guidelines regarding ownership, displacement, climate migration, contractors and accountability, and public participation. Absent these guidelines, it is only through lengthy advocacy and complaint processes at PRDOH, OIG and FHEO levels that we can push for adjustments that usually arrive too late and fail to provide adequate and agile recovery assistance to a survivor. Model guidelines could provide a best practices catalogue for grantees, presenting a uniform yet flexible manner to address the needs of their LMI communities.

The findings of the OIG are important, but they do not overshadow the unmet responsibility of local government. In ALPR’s experience leading disaster legal response and advocacy since 2017, the majority of the restrictions come from local officials and local public policy decision makers.

Title clearance should never condition disaster assistance

As we have reiterated on several occasions, a title deed cannot be a condition to safe housing and recovery. Requiring a deed or other formal legal documents as sole proof of ownership penalizes and disparately impacts impoverished and historically vulnerable survivors.

Around 69% of the inhabitants of Puerto Rico are homeowners¹⁸American Community Survey, 1-year estimates (2019). This proportion is higher than other jurisdictions. Yet, ownership does not mean having a formal title. According to PRDOH estimates, half of the population of Puerto Rico lacks a formal title. Nothing in Puerto Rico’s laws and regulations require homeowners to register their properties. Lack of formal documentation also responds to socioeconomic elements such as lack of access to justice, insecurity of tenure, and land rescues grounded on the unmet need for housing. In the aftermath of hurricanes Irma and María, nearly 77,000 families were excluded from receiving assistance because of their inability to prove ownership. This exclusion was possible due to FEMA’s incorrect and restrictive interpretation of its own regulations, which support a flexible interpretation of who is recognized as a homeowner¹⁹44 FR 206.111.

ALPR researched and drafted a sworn statement form to allow owners without title to prove their ownership through alternate documentation. This form did not require notarization, since, in Puerto Rico, a notary is a specialized attorney and thus, notarization translates into a costly process for low income individuals. In June 2018, almost 8 months after hurricane María, a group of advocates were able to finally move FEMA to accept the sworn statement. It was too late. FEMA’s reluctance to notify applicants about their right to appeal and use the sworn statement, placed on the backs of nonprofits the responsibility to let applicants know and provide them with the tools. Thousands of families might have lost the possibility of receiving immediate and much needed assistance for their homes.

We soon realized that the CDBG-DR Action Plan included exactly the same requirement: repair, rebuild, and relocation assistance was conditioned to formal ownership. Thousands of applications were put on hold and transferred to a title clearance program, delaying eligibility evaluations for months and years. The Action Plan assigned $44 million to the Title Clearance Program (TCP). This program was never made available to public comment. After the public participation process, PRDOH added to the Draft Action Plan, which HUD finally approved on July 29, 2018. The program prioritizes title clearance for properties built on PRDOH lands and has no clear guidelines on how to address the complex title issues, such as inheritances and informal tenure, which form the majority of cases²⁰CDBG-DR Program Guidelines Title Clearance Program May 27, 2020 (V.2) Pp. 22-32. To date, after almost 18 months since the TC program started and more than $1.1 million disbursed, only 2 titles have been registered at the Property Registry. The position of ALPR then and reiterated now by the failure of this program, is that this initiative will not solve the “title issue” but delay urgently needed assistance.

The PRDOH needed to strike down a major barrier that everyone knew was going to stop assistance. Instead, they reinforce barriers by refusing to accept a version of the sworn statement and demanding people provide several notarized statements before sending them to the TCP. Early in the process, officials of the companies hired by the PRDOH asked ALPR for probono help to complete these notarizations. We refused.

It was not till mid 2020, by the approval of an Executive Order, that the title requirement started eroding. While repairs and rebuilding are now exempt of formal title requirements, program participants still are required to through the title clearance program. Further, PRDOH is yet to remove the condition clears title condition from relocation awards. Ironically, those with a clear title, but whose home is still mortgaged, may not access relocation assistance either, because PRDOH requires them to pay off the mortgage debt before they receive relocation for assistance.

We have presented several alternatives to the PRDOH, including access to temporary rental assistance to families eligible for relocation, endorsing purchase option agreements conditioned on eventual title clearance, and adopting a standard of proof in accordance to our legal framework, accountability needs and social reality.

“Formal” ownership should not be an added obstacle for a low income family trying to survive the aftermath of a disaster. It must be noted that lack of clear ownership eligibility criteria has also been an obstacle for disaster survivors in New Orleans, California and North Carolina²¹Fixing America;s  Broken Disaster Housing Recovery System, p. 9. CDBG-DR and MIT and every other federal disaster aid needs clear guidelines on proof of ownership based on flexible criteria, such as those stated on 44 FR 206. Doing so would speed up assistance and allow for local careful consideration of public policy options that could address informal tenure in a definitive and just manner.

It is our position that individual legal strategies do not offer an effective solution to this issue. It can take years to solve a title through the courts. We must also warn against attempts to condition federal funds to Puerto Rico to changes on the property management systems, real property assessments, and title clearance, as proposed by the Office of Management and Budget as per the recent OIG report. We agree with those who consider these requirements to be out of HUD’s legal authority. HUD’s role is not to regulate or assess the property systems of state jurisdictions. Clearing titles in Puerto Rico requires structural policy changes and it is the role of the local legislature to act to identify real solutions.

Flooding is the most frequent and costly natural hazard in the United States. Identifying diverse, sustainable, and cost-effective mitigation alternatives is essential for communities' resilience in the face of future disasters, achieve economic development, and ensure a just recovery. Within a climate-crisis and as experience in the geography of an island in the Caribbean, mitigation of flood zones needs to be a transversal. As stated above, the CDBG-MIT Plan states that 24% of the population lives in high or high-medium risk zones. While several communities and groups have challenged the adequacy of FEMA flood Maps, relocation or no assistance cannot be the only options for families living in these geographic areas.

Puerto Rico CDBG-DR Action Plan still has an across-the-board prohibition to rebuild in flood zones. The CDBG-DR Plan states that people living in flood zones would not receive assistance to substantially repair or rebuild their homes. Their only option would be relocation. This without further consideration to the possibility to mitigate. While under no circumstances we would like to have people living in risk zones, absent a mitigation assessment, a sensible relocation plan, an adequate, affordable housing inventory, and a participatory process, relocation should always be the last option.

Nevertheless, the 4th Amendment of the CDBG-DR Action Plan included an important advocacy win: “Participants who are awarded relocation, but who do not wish to relocate immediately, may defer accepting the R3 Program award to allow for the participative development of a housing mitigation program under the CDBG-MIT Program.²²CDBG-DR Action Plan, 6th version, p. 132” While relocation moratoriums are crucial, it is equally important to ensure coherence between single housing and community mitigation initiatives within the CDBG-MIT Plan. This will depend on the adoption of a clear displacement minimization policy.

We differ from the PRDOH position stating that relocations are always voluntary. Almost four years after the disaster, a low-income family without a safe dwelling would have no choice but to relocate if the only alternative is to receive no aid at all. We should also keep in mind that relocation would only be an option if the family has a “perfect” title. If that is not the case, and most times it is for low-income families in coastal flood-prone areas, there is no alternative for them.

While the Uniform Relocation Assistance and Real Property Acquisition Act of 1970 (URA)²³42 USC 5301, et seq. may protect displaced individuals, the limited scope of its protection demands actions. ALPR reiterated the need to adopt internationally acknowledged standards to mitigate displacements. These criteria include access to information, consultation and participation. We also demand a sensible and human rights-based relocation policy that accounts for the needs of individuals and families, as well as to the threat posed by checker-boarding, the lack of essential services in different municipalities, and destruction of already fragile social tissues. While prohibiting rebuilding in flood prone areas would leave thousands of low income families in insecure dwellings or forcibly displaced, other measures such as new construction moratoriums on coastal and flood zones could be a measure of adaptation and mitigation sensible to housing needs and climate change.

We agree with HUD when the agency recognizes that the first time appropriation of mitigation only CDBG funds may pose challenges to grantees in aligning their mitigation strategies and activities with their obligation to use most of their CDBG-MIT funds to benefit low-moderate income people and to use the funds in the most impacted and distress areas resulting from a disaster²⁴84 FR 45839. Mitigation strategies are effective, save recovery funds²⁵National Institute of Building Science. Mitigation Saves, and provide a unique opportunity to be in a better position to face climate change. Wrongly applied, these initiatives may worsen the impact of an already inequitable recovery on low income, black, and other historically vulnerable communities. Transparency and participation in planning may lead the way to integrate mitigation plans at community, municipal and local levels, as well as to ensure a coherent use of diverse sources of mitigation funds, such as US Army Corps of Engineers and FEMA’s Hazard Mitigation Assistance Grants.

Since the summer of 2019, we have voiced concerns about the lack of accountability of contractors hired to manage the R3 program. ALPR receives constant legal assistance requests from people who have never received a single written notification on their cases. Instances of project managers being constantly replaced, of non-responsive officers, of people made to sign English-language and/or complicated contracts in 24 hours or less without having a chance to read them carefully or seek legal advice, are constant for applicants served by all of the companies contracted by the PRDOH. When we recommended adopting best practices for contractors, and to make them visible and available for the general public’s consultation, we were answered with a social media post mandating “values.” See figure 1. As legal responders who attest to the multiple harms committed by negligent disaster assistance services providers and aware of the millions of dollars invested on this endeavor, we were appalled.

Clear HUD guidelines dictating best practices, contractor monitoring procedures, and the publication of reports that include information of the work completed and in progress, as well as data on complaints, is important. Most of all, a clear guidance requiring clear timelines on when should the grantee answer, process and adjudicate applications should be incorporated. While we understand that recovery processes must remain flexible and may have a degree of uncertainty, it is not possible to demand accountability from contractors who lack basic timeframes to act upon applications.

Public participation is essential for the success of mitigation and resilient housing infrastructure efforts. Ensuring local and regional solutions requires acknowledging the agency to local stakeholders - particularly community-based organizations- to influence the recovery process. Because it is a long-term process that extends well beyond the grant’s timeline, capacity development and engagement of local actors such as community-based organizations and nonprofits is necessary.

ALPR, together with other groups, advocated for Regional Civilian Oversight Committees able to ensure participation throughout the planning, approval and implementation of CDBG-DR and CDBG-MIT funds. One year and a half after the allocation of funds, a version of this Committee was acknowledged by the PRDOH, one lacking actual engagement, guidelines or participatory standards. Moreover, the Committee is facilitated by a PRDOH official who also assesses contractors compliance. We celebrate the inclusion of Citizen Advisory Committees in the CDBG-MIT Allocation Notice. Yet, it is our position, in accordance to HUD and Enterprise Community Partners recommendations, that the Committee must be facilitated by an independent person able to communicate with impartiality. The impartial facilitator, the acknowledgement of the capacity of this Committee to serve as watchdogs of the recovery process, and the need to produce periodic reports could be part of the model guidelines produced by HUD.

We also warn against the approval of measures that hinder the recovery process and that erode the limited political power acknowledged to the people of Puerto Rico in the federal arenas. The recovery czar should have never been an option.

Lastly, participation is intimately related to planning and data. Coherent, participatory and transparent planning is essential. One of the biggest obstacles for needs assessment and housing infrastructure is the fact that planning programs within CDBG-DR have barely started. The PRDOH handpicked a private subrecipient for the Whole Community Resilience Program that had no previous experience or capacity to lead a critical planning. Although this program initiated at the end of 2019, assessments or data on the impact of this program remain unavailable. Yet, planning should be the basis of other critical decisions such as the coherence of programs, the evaluation of housing plans on historically vulnerable communities, relocation plans, the need for temporary measures to protect survivors throughout rental assistance, and budget and compliance assessment. Similarly, open data is needed segregated to include race, gender, disability, age, and other demographic information that could help develop a real profile of who is benefiting from recovery and who is left behind. HUD core guidelines should instruct grantees to publish timelines, progress reports, and to prioritize participatory planning as a basis for recovery.

Thank you again for the opportunity to participate in this hearing.