On September 25, 2024, the Federal Transit Administration (FTA) issued General Directive 24–1 (General Directive) mandating that transit agencies assess the risks posed by assaults on their workforce and report the results back to FTA within 90 days (i.e. by December 26, 2024). The General Directive, which was published by Federal Register Notice (89 Fed. Reg. 78,431), is part of FTA’s ongoing comprehensive efforts to improve transit worker safety.

The General Directive mandates that transit agencies that are subject to FTA’s Public Transportation Agency Safety Plan (PTASP) regulations (49 C.F.R. Part 673) undertake a thorough assessment of the risks posed by assaults on their workforce, utilizing the Safety Management System (SMS) processes detailed in their Agency Safety Plan (ASP). FTA notes that the General Directive applies only to agencies that are subject to the PTASP Final Rule. Thus, recipients that receive funds only under 49 U.S.C. 5310 and/or 49 U.S.C. 5311 are excluded from the General Directive, unless they operate a rail fixed guideway public transportation system.

Each agency is required to conduct a safety risk assessment specifically focused on assaults against transit workers. Should this assessment reveal an unacceptable level of risk, agencies must develop and implement strategies to mitigate that risk and bolster the safety of their employees. For those agencies operating in large urbanized areas with populations exceeding 200,000, compliance with PTASP requirements is required, including the involvement of a joint labor-management Safety Committee in the identification of safety risk mitigations and strategies. Transit agencies’ submissions must detail their methods for assessing, mitigating, and monitoring the safety risks associated with assaults on transit workers.

Transit agencies that have completed a safety risk assessment for assaults on transit workers in the 12 months preceding the publication of this General Directive need not conduct a new safety risk assessment for the purposes of this General Directive. Instead, the General Directive permits agencies to submit the results of the recent safety risk assessment in lieu of submitting a new assessment. This exemption applies only to a safety risk assessment conducted using the processes established under 49 CFR 673.25(c) and defined in a transit agency’s ASP.

The binding nature of the General Directive requirements required FTA to go through a notice and comment process. FTA previously published a proposed version of the General Directive on December 20, 2023 (88 Fed. Reg. 88, 213) and solicited comments, which it responds to in the September 25th Notice. The final version is largely the same, except that the period for agencies to submit responses to FTA has been extended to 90 days from 60 days.

If you have questions about the certification rules, please contact Ayelet Hirschkorn, Suzanne Silverman, Charles Spitulnik, Christian Alexander, or Grant Glovin.

The Department of Transportation (DOT) issued a Notice of Proposed Rulemaking (NPRM) today proposing to codify in its regulations existing guidelines for accessible design governing transit stops in the public right of way.  Currently, the Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way (the PROWAG) are codified in the U.S. Access Board’s regulations.  Although titled “Guidelines,” the PROWAG is a binding regulation implementing the Americans with Disabilities Act (ADA) that was adopted pursuant to notice and comment procedures.  In today’s NPRM, DOT proposes to adopt the PROWAG in its own regulations and apply it to new and altered transit stops in the public right-of-way (an “alteration” is a change such as remodeling, renovation, reconstruction, or structural changes; normal maintenance, including reroofing, painting, asbestos removal, or changes to mechanical or electrical systems, generally does not constitute an alteration).  DOT states that it may pursue an additional rulemaking in the future to address the application of the PROWAG or other ADA standards to existing transit stops.

To adopt the PROWAG, DOT is adding three definitions to 49 CFR Part 37 and adding a new subsection to Section 37.9 of that Part.  The new provisions would require that, following the effective date of the rule, newly constructed transit stops or altered transit stops comply with the requirements in the PROWAG.  Under the PROWAG, transit stops in the public right-of-way would need to include accessible boarding areas and accessible pedestrian access routes between boarding areas and existing pedestrian circulation paths.  If transit shelters were present, they too, along with pedestrian access routes to them, would need to be accessible.  The PROWAG also contains provisions relating to fare vending machines, detectable warnings for boarding platforms, pedestrian signs, benches, and other elements. 

The NPRM proposes to adopt the PROWAG as is, but DOT is also considering adopting stronger accessibility protections than the PROWAG provides.  Specifically, DOT is considering restrictions on the location of transit stop boarding and alighting areas.  The Notice uses the example of a bicycle lane located between a bus stop and a sidewalk, which, in DOT’s view could endanger passengers alighting from a bus who are blind or in a wheelchair.  The same concern would likely apply to rail stations in public rights of way, such as light rail or streetcar stations that run in mixed traffic.  DOT is soliciting comment on whether it should prohibit co-locating boarding and alighting areas with vehicular lanes, including bicycle lanes, or whether there are alternative measures it should adopt. 

Comments are due September 23, 2024, and may be filed on regulations.gov in Docket No. DOT-OST-2024-0090.  If you have questions about the certification rules, please contact Ayelet Hirschkorn, Suzanne Silverman, Charles Spitulnik, Christian Alexander, or Grant Glovin.

Kaplan Kirsch is proud to announce the successful establishment of a perpetual conservation easement on 45 miles of the High Line Canal, a cherished community asset with a rich history, through work provided pro bono to the High Line Canal Conservancy. This remarkable achievement ensures that the Canal will forever be preserved as a public linear open space park and trail, free for all to enjoy.

Dug in 1883 and acquired by Denver in the 1920s, the Canal has evolved from a water supply route to a beloved recreational pathway. This conservation easement preserves its natural beauty and recreational benefits while preventing future development. This project was made possible through collaboration between the Conservancy, Denver Water, and Arapahoe County. Special thanks to firm attorneys Bill Silberstein, Hanna Gustafsson, Diane Sung and legal assistant Pauli Ingwersen for their pro bono work.

“Conservation of natural and historic areas is a collective responsibility, and our pro bono work on the High Line Canal conservation easement is a testament to our Firm’s commitment. We are dedicated to using our expertise to foster solutions that make a lasting impact on the communities we serve and look forward to our continued partnership with the High Line Canal Conservancy,” says Firm Managing Partner, Bob Randall.

DENVER, CO – June 03, 2024 – Kaplan Kirsch & Rockwell today announced the departure of Sarah Rockwell, a founding partner of the firm, effective June 01, 2024. After twenty-one years of dedicated service and leadership, Sarah is pursuing new opportunities as General Counsel of Ulysses Development Group, a Denver based developer and owner of affordable and workforce housing.

Sarah has been an integral part of the firm since its inception, contributing significantly to its success and reputation.  Sarah has served the Denver community in myriad leadership roles during her time at the firm, including most recently as Chair of the Downtown Denver Partnership and a number of leadership positions on City advisory boards, the Rocky Mountain Land Institute, Urban Land Institute and the Lowry Redevelopment Authority.  She has been listed in many national rankings as one of the most distinguished land use lawyers in Colorado.

Steve Kaplan said, “Sarah is an amazing attorney, and it has been a privilege to work with her these past twenty years. She has helped build this firm into a national firm working on major development, land use and infrastructure projects.  Sarah sets the highest bar for quality and ethics, and makes everyone working with her better.  She has made significant contributions to the  Denver civic community.  Her desire to work on affordable housing projects is indicative of her commitment to Denver, and making it a better place to live for everyone.”

In light of this change, Kaplan Kirsch & Rockwell LLP will change its name while remaining committed to excellence and innovation in the legal industry. The firm will now be known as Kaplan Kirsch LLP, effective immediately.

“Sarah’s dedication, expertise, and mentorship have been essential to our firm’s journey and success,” said Bob Randall, Managing Partner. “Her presence at the firm will be greatly missed, but we embrace this new chapter with excitement for growth, renewal, and the continued opportunity to serve our clients with unwavering excellence.”

Kaplan Kirsch remains dedicated to providing exceptional legal services to its clients across the nation, maintaining the highest standards of professionalism and integrity. The firm’s core values remain unchanged, and clients can continue to expect the same level of personalized attention and expertise that they have come to rely on from the firm. Sarah will always be a valued member of the Kaplan Kirsch family, and her contributions to the firm will be remembered and appreciated by all who have had the privilege of working with her.

On the final day of the 2024 legislative session, the Colorado General Assembly passed Senate Bill 24-126, securing a huge win for the people of Colorado. The bill expands the state’s existing Conservation Easement Tax Credit program by increasing the aggregate tax credit certificate cap by $5 million for a total of $50 million annually beginning in 2025. This increase intends to help Colorado meet the current demand for credits, address the current project backlog, and expand conservation opportunities across the state.

As a reminder, under current law, a landowner may claim a transferable Colorado income tax credit in the amount of 90% of the fair market value of the donated portion of the conservation easement up to $5 million issued in increments of $1.5 million per year.

The bipartisan support for the bill underscores the popularity and success of Colorado’s conservation easement tax credit program and reflects the willingness of Coloradans to continue to preserve the state’s natural places.

In addition to increasing the tax credit cap, the bill makes several other notable changes, including:

1. Extends the conservation easement oversight commission and certified holder program indefinitely.
2. Authorizes issuing multiple certificates for a tax credit, allowing multiple transfer of such tax credits.
3. Insurance companies are permitted to purchase credits to offset insurance premium taxes.
4. Provides that credits filed after the cap is reached are placed in a priority system of allocation based on the date the application for the credit was filed, the completeness of the application, and whether the application is approved, with earlier filed credits taking precedence over later filed credits.
5. Provides that on or after January 1, 2027, a taxpayer may only claim 80% of the fair market value of the donated portion of the easement provided that the tax credit shall not exceed $5 million. Until then, taxpayers may claim up to 90% of the fair market value of the donated portion of the easement subject to the same $5 million cap.
6. Increases the total aggregate amount that may be refunded to the owners, partners, and shareholders donating an easement during one calendar year from $50,000 to $200,000 beginning January 1, 2027. 
7. A conservation easement granted on or after January 1, 2025 may include a provision that allows the holder to approve expanded wind or solar energy facilities that are compatible with and do not impair conservation values if technological or legal changes provide that these facilities are allowable under the Internal Revenue Code.

The bill was signed by the Governor yesterday afternoon. With the passing of this bill, Colorado’s conservation easement tax credit program is poised to continue to be an effective vehicle for protecting the state’s agricultural properties, open space, and scenic lands for many years to come—further cementing Colorado as a national leader in conservation.

Please contact Heather Haney, Stephanie Pope, or Bill Silberstein for question about the bill or for more information on or assistance with conservation easements.

The Federal Railroad Administration (FRA) issued two Final Rules on May 21, 2024, requiring all dispatchers and signal employees of railroads in the general system of transportation, including commuter railroads, to be certified as meeting minimum federal safety standards.   Railroads must certify these employees beginning in 2025 and develop several procedures related to the certification programs. 

Both Rules require commuter railroads to develop written certification programs for dispatchers and signal employees by March 17, 2025.  The programs must include procedures to evaluate employees’ prior safety conduct and fitness for duty, train dispatchers and signal employees, and monitor dispatchers’ and signal employees’ operational performance.  The program for signal employees must also include procedures for mentoring uncertified signal employees.  FRA must review and approve each program.  The regulations detail specific requirements related to the content of each section of the program, along with procedures for modifying and implementing the programs. Railroads are also subject to recordkeeping requirements and, starting in 2027, must annually review how they respond to poor safety conduct by dispatchers or signal employees.

Once a railroad’s certification program is approved, the railroad must certify each of their dispatchers and signal employees and determine in writing that each meets the eligibility, visual and hearing acuity, knowledge, training, qualification, and prior safety conduct standards set forth in the Final Rules.  Every dispatcher and signal employee will need to be recertified at least every three years, relying on current information.  The regulations include procedures for denying and revoking certification and provide for a period of ineligibility for dispatchers or signal employees who violate certain rules.  Employees whose certifications are denied or revoked may petition for review of the decision by a Certification Review Board made up of FRA employees.  Both the petitioner and railroad have the right to an administrative hearing if adversely affected by the Certification Review Board’s decision.

Following the publication of the Notice of Proposed Rulemaking, the American Public Transportation Association (APTA), the Southeastern Pennsylvania Transportation Authority (SEPTA), and the New York Metropolitan Transit Authority (MTA) submitted comments.  FRA’s response to comments focused more heavily on comments from freight railroads.  FRA rejected most of the suggestions from APTA, SEPTA, and the MTA, including suggestions regarding the dispatching rule cost-benefit analysis, the definition of “qualified instructor” in both rules, and the interaction between regulations governing the Confidential Close Call Reporting System and these new regulations.  However, FRA made some revisions to the Final Rule in response to APTA’s comments, including giving agencies greater flexibility during the implementation period of both regulations, adding mentoring procedures to the signal regulations, and requiring agencies to identify scenarios in which non-certified persons may perform work on signal systems.  The comments also spurred FRA to clarify the extent of dispatching supervisors’ responsibility and the ability of agencies to discipline signal employees who frequently lose their certificates.  

The Final Rules each create a new Part of title 49 of the Code of Federal Regulations — Parts 245 and 246 — and will be effective July 22, 2024.  The Rules are published at 89 Fed. Reg. 44766 and 44830.  If you have questions about the certification rules, please contact Ayelet Hirschkorn, Suzanne Silverman, Charles Spitulnik, Christian Alexander, or Grant Glovin.

We are pleased to share Kaplan Kirsch & Rockwell’s Colorado Energy & Environmental Legislation – 2024 Year in Review Digest.

• Air Quality & Environmental Justice
• Distributed Energy, Community Solar & Electric Vehicles
• Climate Change & Carbon Sequestration
• Pollution, Waste & Sustainability
• Water Quality
• Conservation Easements
• Just Transition

We hope you find this Digest useful in your efforts to remain current in the always-evolving legal and regulatory framework that governs Colorado energy and environmental landscape. If you have questions about any of the materials in this Digest, please contact Sarah Keane, Samantha Caravello, Polly Jessen, Tom Bloomfield, Bob Randall, or Nate Hunt.

DENVER, CO – May 20, 2024 – Kaplan Kirsch & Rockwell LLP today announced that Tracy Davis has joined the Firm as a partner, an addition that will complement the Firm’s ability to provide exceptional legal services on a variety of airport and project related matters.

Tracy will be part of the Firm’s Airport and Project Funding and Delivery practice areas and will be based in the Denver office. Tracy’s extensive experience representing both private and public-sector clients uniquely positions her as a seasoned professional in the realm of infrastructure and development projects. With her specialized focus on procurement, construction, financing, and operations and maintenance, Tracy brings a wealth of knowledge to the table.

Her proficiency in navigating various project delivery methods, such as public-private partnerships (P3 / PPP) and design-build, and experience advising project owners and contractors during the design and construction process and in disputes, underscores her versatility and capability to offer comprehensive guidance at every stage of a project’s lifecycle. Tracy’s adeptness in addressing intricate procurement and contracting challenges enables her to devise innovative solutions, ensuring smooth project execution.

Prior to joining Kaplan Kirsch & Rockwell, Tracy was Assistant General Counsel at Denver International Airport, a section of the City Attorney’s Office for the City and County of Denver. In this capacity, she was a member of the leadership teams for both the City Attorney’s Office and Denver International Airport (DEN). Tracy provided legal counsel to DEN on many aspects of its operations, from compliance with Federal, state and municipal requirements to procurements and general contracting.  She also advised DEN on its capital improvement program and individual construction projects exceeding $1 billion, such as the termination, workout and re-procurement of the Great Hall Project, DEN’s Concourse Expansion program, and Federally-funded baggage renovation project.

Before joining the legal team at DEN, Tracy was a member of the City Attorney’s Office Municipal Operations Section, where she advised other Denver agencies and elected officials. With a colleague, Tracy established and led a litigation group focused on enforcing City contracts and defending against legal challenges to municipal decisions such as rezonings and other land use matters and represented the City in high-profile court cases, including disputes over golf course renovations and elections. Her advisory role extended to zoning and land use, code enforcement, and contractual matters. Before the City, Tracy was an attorney at law firms representing public and private entities in construction, insurance coverage, real estate, and land use matters.

The Firm is delighted to add Tracy’s breadth and depth of knowledge to the team and her comprehensive understanding of the inner workings of the types of public agencies the Firm is privileged to serve will provide a valuable asset to meet the Firm’s public sector agency clients’ needs.

About Kaplan Kirsch & Rockwell

Founded in 2003, Kaplan Kirsch & Rockwell LLP is a national law firm devoted exclusively to solving problems involving infrastructure, transportation, environmental, land use, public and private lands, and tribal law. The firm strives to craft innovative solutions to high-risk, complex problems involving the interplay of various disciplines of law and is committed to providing strategic counsel to achieve our clients’ objectives. The firm maintains offices in Denver, New York, San Francisco, and Washington, DC.