Parsons Behle & Latimer attorneys Megan Olmstead and Ross Keogh presented this Montana CLE on Real Estate and Land use law on Mar. 19, 2021

1. parsonsbehle.com
Accessing BUILD Grants to Improve
Infrastructure
Megan Olmstead & Ross Keogh
Real Estate and Land Use Law in Montana CLE 2021

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BUILD Grant Background
▪ Originally implemented as part of the American Reinvestment and Recovery
Act of 2009.
▪ Congress has since allocated $8.9 billion in twelve rounds of funding to “shovel
ready” infrastructure projects in all states and territories that have a significant
local or regional impact.
▪ Intended for projects that achieve national objectives and create jobs.
▪ These include interstate highway improvements; seismic remediation;
improvements to port infrastructure and railways; bridge improvements; and
public transit projects.

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BUILD Grant Process
▪ BUILD provides funding through Department of
Transportation Grants to any public entity through a
competitive application process.
▪ Eligible entities include:
o state and local governments
o tribal governments
o transit authorities
o port authorities
o metro planning organizations
o multi-state applicants.

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DOT Consideration Process
▪ This is a competitive process. DOT receives hundreds of
applications in each cycle.
▪ Not all receive funding.
▪ Each applicant must provide a cost-benefit analysis to help
DOT compare the costs and benefits for the project.
▪ Projects must be “shovel ready” since funds must be
obligated within 2 years.
▪ This means that all planning and environmental approvals
must be substantially completed at the time of application.

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DOT Consideration Process
▪ NEPA analysis, rights-of-way, environmental permitting, and
other project approval processes must be completed or
nearly complete.
▪ If these pre-construction activities would utilize BUILD
funds, DOT may obligate the funding in phases. This would
require additional documentation and monitoring of project
milestones.
▪ Most projects only receive a portion of the total funding
needed. Do not expect to fully fund a project through
BUILD.

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Applying for a BUILD Grant
▪ DOT will issue a notice of funding availability via the Federal
Register.
▪ Applicants will then have 90 days to submit the completed
forms to DOT via its Award Management System.
▪ Applicants should apply for a username and password on
the Award Management System now at grants.gov. It can
take several weeks to authorize new users.

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Applying for a BUILD Grant
▪ Ensure all documentation regarding project description;
environmental assessments and permitting; NEPA
processes; cost-benefit analysis; and other information is
submitted to the system.
▪ Because the cost-benefit analysis is highly technical, many
applicants hire a consultant to prepare it.
▪ DOT will then notify applicants if they are awarded a BUILD
Grant.
▪ You may reapply the following year if not awarded a BUILD
Grant.

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2021 BUILD Grant Cycle
▪ Consolidated Appropriations Act (CAA) contained
$1,000,000,000 in infrastructure funding.
▪ Funding is to be allocated by DOT using selection criteria
for 2017 BUILD Grants
▪ Notice of Funding Opportunity to be issued by April 26,
2021.
o https://www.transportation.gov/buildgrants/build-nofo

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Specific 2021 BUILD Grant Cycle Earmarks
▪ $30,000,000 can be used for the planning, preparation, and
design of eligible projects. Of which $10,000,000 must be
used for projects located in or directly benefiting areas of
“persistent poverty.”
▪ 20% may be used to pay the subsidy for administrative
project costs.
▪ $5-25 million grant size, except for rural communities where
grant is $1 million.

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Specific 2021 BUILD Grant Cycle Earmarks (cont.)
▪ “equitable geographic distribution funds, an appropriate balance
in addressing the needs of urban and rural areas, including tribal
areas, and the investment in a variety of transportation modes.”
▪ Each state limited to 10% ($100,000,000)
▪ Prioritize projects with supporting funding.
▪ 80% federal match, generally.
▪ No match for grants supporting areas of persistent poverty.
▪ 50% to rural communities—any area that is not located within
boundaries of an areas (as of 2010 census) having a population
> 200,000

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Likely Montana 2021 Applicants

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Likely Montana 2021 Applicants (cont.)

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BUILD Grant Tips
▪ Consider hiring a consultant to prepare the benefit-cost
analysis.
▪ Assemble a broad multi-jurisdictional team
▪ Plan for multiple application cycles, and continue to iterate.
▪ Can the project support rural communities and areas of
persistent poverty and be multi-modal?

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Trends and Observations—population shifting to
Mountain West from Northeast

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Trends and Observations—only 50% of funding
need being met

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Trends and Observations—Montana
▪ Index state gas tax to inflation?
▪ Sustainable state funding
mechanism?
▪ http://mtinfrastructure.org/wp-
content/uploads/2020/12/FullRep
ort-MT2018.pdf

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Trends and Observations—Montana (Cont.)

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Trends and Observations—Biden’s Infrastructure
package
▪ At least $2 trillion, potentially up to $4 trillion over ten years.
▪ Transportation, water and sewer lines, and green energy
sector
▪ Unclear if it can pass through “reconciliation,” i.e. no
republican support.
▪ Funding? Tax increases targeted at incomes over $1 million
▪ Private equity partnerships?
▪ Increased gas tax?

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Questions?

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Thank You
▪ Megan Olmstead
801-536-6822
molmstead@parsonsbehle.com
▪ Ross Keogh
406-206-9710
rkeogh@parsonsbehle.com