On May 24, 2023, Governor Jared Polis signed the Amenities for All Genders in Public Buildings Act (the “Act”) into law. The Act applies to all publicly accessible buildings by January 1, 2024, and all buildings accessible by employees or enrolled students by July 1, 2025. The Act defines publicly accessible as any indoor or outdoor space or area open to the public and does not include private offices or workspaces not generally open to customers or public visitors.

The Act’s requirements apply to any new construction or restroom renovation in a qualifying public building owned, operated, or controlled by the state, county, or municipality.

First, any building covered by the Act must:

1. Provide a non-gendered single-stall restroom or a non-gendered multi-stall restroom where the restroom is accessible to the public;
2. Ensure that any single-stall restroom is non-gendered;
3. Allow for the use of a multi-stall restroom by a person of any gender if the restroom meets requirements laid out in the International Plumbing Code (“IPC”), adopted into the Colorado Plumbing Code and Colorado Fuel and Gas Code; and
4. Construct the restroom in compliance with the Americans with Disabilities Act (“ADA”).

Additionally, any building covered by the Act must provide any caregiver, regardless of gender, caring for an infant access to a safe, sanitary, and convenient baby diaper changing station where a restroom is accessible to the public as follows:

1. If the building has only gender-specific restrooms, there must be a changing table in each restroom;
2. If there is a non-gendered single-stall restroom is available, there must be at least one changing station in that restroom. Public entities are encouraged to provide changing tables in the gender-specific restrooms in this instance, but not required;
3. If there is a non-gendered multi-stall restroom available, there must be at least one changing table in that restroom. Public entities are encouraged to provide changing tables in the gender-specific restrooms, but not required; and
4. In the alternative, public entities must provide an easily accessible location with equivalent privacy and amenities as a restroom.

In all cases, the changing stations must be maintained, repaired, and replaced as necessary to ensure safety. The changing stations must be cleaned at the same frequency as the restroom in which it is located or the restrooms on the same floor in the same space in which the changing table is located.

Beginning on July 1, 2024, and no later than July 1, 2026, a non-gendered restroom must be labeled with a non-gendered pictogram. Any restroom with a changing station must have signage with a pictogram void of gender indicating the presence of the changing station. There must be signage at or near the entrance of any building covered by the Act indicating the location of non-gendered restrooms and changing stations. If the building has a central directory indicating the location of offices, restrooms, and other building facilities, the directory must include non-gendered pictograms indicating the locations of non-gendered restrooms and changing stations.

Projects may be exempt for the following reasons:

1. Compliance with the Act would cause failure to comply with building standards governing accessibility; or
2. If the project received approval before the Act’s effective date; or
3. The building is designated as a certified historic structure. The Act defines a certified historic structure as a property certified by the state historical society or an entity other than the property owner authorized pursuant to state law to register historic properties.

Failure to comply with the Act is a discriminatory or unfair practice, and employees may file a complaint with the Colorado Civil Rights Division (“CCRD”).

There are several key takeaways from the Act:

• Plans for construction in buildings covered by the Act may need to be modified to comply with the new restroom, changing station, and signage requirements;
• Some construction may be exempted from the Act’s requirements; and
• Buildings covered by the Act may need to update their cleaning schedules to comply with new changing station cleaning requirements.

The Amenities for All Genders in Public Buildings Act is codified as C.R.S. §9-5.7-101 et. seq. The Act goes into effect ninety days after the final adjournment of the General Assembly.

On June 6, 2023, Governor Jared Polis signed SB12-172 into law. The Protecting Opportunities and Workers’ Rights Act (the “POWR Act” or “Act”) redefines “harassment” in Colorado’s anti-discrimination laws. It makes changes to anti-discrimination laws regarding protected class, people with disabilities, record preservation, and affirmative defenses. Finally, it amends what is considered a valid non-disclosure agreement (“NDA”).

Harassment:

The Act defines harassment as unwelcome conduct or communication directed at an individual or group of individuals’ membership in a protected class. Unless otherwise meeting the standards of the Act and the totality of circumstances, petty slights, minor annoyances, or lack of good manners do not constitute harassment.

Harassment does not need to be severe and pervasive, as was the previous standard. Communication or conduct is harassment where it is:

1. Subjectively offensive to the individual alleging harassment and objectively offensive to a reasonable individual of the same protected class; or
2. Submission to the conduct is a condition of the individual’s employment; or
3. An employer makes employment decisions based on the individual’s submission or objection to the harassing conduct.

The Act also requires the Colorado Civil Rights Division (CCRD) to include harassment as a type of discrimination or unfair practice on its complaint intake forms.

Lastly, the Act establishes an affirmative defense for employers when:

1. The employer has created and maintained a program reasonably designed to prevent harassment;
2. The employer has communicated the existence of that program to supervisory and nonsupervisory employees; and
3. The employee has unreasonably failed to take advantage of the harassment prevention program.

Other changes to anti-discrimination law:

The Act makes a number of additional changes to anti-discrimination laws.

The Act adds protection for individuals based on their marital status. This change is in addition to established protections for individuals based on race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, age, national origin, or ancestry.

An employer may not make hiring or discharge decisions or promotion or demotion decisions based on an individual’s disability unless there is no reasonable accommodation the employer can provide that would allow the individual to satisfy the essential functions of the job, and the disability actually disqualifies the individual.

Employers must retain records of complaints of discriminatory or unfair employment practices filed for at least five years after either 1) the date the employer received the record or 2) the date of the final disposition of any personnel action related to the complaint, whichever comes later. Sufficient records contain:

• The date of the complaint;
• The identity of the complaining party (unless anonymous);
• The identity of the alleged perpetrator; and
• The substance of the complaint.

These records are not
considered public records and, thus, not subject to public inspection.

Non-disclosure agreements:

The Act prohibits non-disclosure or confidentiality agreements (“NDAs”) between an employer and employee that would prevent the employee from discussing alleged discrimination or unfair employment practices unless the following requirements are met:

1. The NDA applies equally to all parties;
2. The NDA expressly states that it does not limit the employee or prospective employee from disclosing the facts of the alleged discrimination;
3. If there is a non-disparagement provision, there is a condition preventing the employer from enforcing the NDA if the employer disparages the employee or prospective employee; and
4. Any damages are not a penalty or punishment and are reasonable and proportionate.

An employer is liable for actual damages and subject to a fine of up to five thousand dollars per violation where the employer violates any of the new NDA requirements. The Act also allows the CCRD, or an employee presented with an NDA violating the Act, to bring immediate action. A court may reduce relief available if the employer can demonstrate that the act leading to the action was in good faith and based on a reasonable belief that the employer’s actions complied with the Act.

There are several key takeaways from the Act:

• Employers may need to train their employees in both supervisory and nonsupervisory roles on how to avoid harassment in the workplace.
• Employers may need to update their existing anti-harassment education or create a new program to comply with the Act.
• Employers may not make hiring decisions based on an individual’s disability unless the disability prevents the individual from satisfying the essential functions of the job and actually disqualifies them from the provision. This language is a change from the previous standard.
• Employers may need to train employees to refrain from making hiring or promotion, and demotion decisions based on marital status.
• Employers must preserve records of complaints of harassment for five years.
• Employers must ensure that an NDA with an individual who has filed a complaint alleging a discriminatory or unfair employment practice captures the requirements above.

The Protecting Opportunities and Workers’ Rights Act applies to employment practices occurring on or after the effective date of the law, which is 90 days after the adjournment of the Colorado General Assembly. The Act goes into effect on August 7, 2023.

On May 25, 2023, Lieutenant Governor Dianne Primavera, acting on behalf of Governor Jared Polis, signed HB23-1032 into law. The Remedies for Persons with Disabilities Act (the “Act”) prohibits businesses from discriminating on the basis of disability in places of public accommodation. Places of public accommodation include businesses that offer sales or services to the public, excluding places principally used for religious purposes such as synagogues, mosques, or churches. The most common types of disability-related public accommodation lawsuits can occur, for example, a) when someone with a physical impairment encounters difficulty accessing a building or certain areas within a building, b) when a business cannot communicate effectively with someone with a vision, hearing, or speech disability, or c) when website content is difficult to access for someone with a visual, hearing, or physical impairment.

The Act permits individuals who allege discrimination in a place of public accommodation to file a complaint directly with a court. Unlike individuals who allege disability discrimination in other contexts, such as housing, employment, and discriminatory advertising, individuals alleging disability discrimination in public accommodations may bypass the requirement to exhaust administrative remedies through the Colorado Civil Rights Division (“CCRD”).

The Act also enhances the types of enforcement mechanisms available to courts when there has been a finding of discrimination in places of public accommodation. Individuals who have been discriminated against are entitled to a court order requiring compliance with public accommodations law and either 1) recovery of monetary damages from the business or 2) a statutory fine of $3,500 for each individual claimant levied against the business. Prior to the Act, courts in Colorado could choose just one of either a court order, monetary damages, or a statutory fine.

There are several key takeaways from the Remedies for Persons with Disabilities Act:

• Because “public accommodation” covers all businesses that offer goods and services to the public, a broad swath of businesses in Colorado are required to comply with public accommodation for persons with disabilities.
• Businesses should be aware that the Act requires courts to mandate compliance with public accommodation for persons with disabilities if a court finds that there has been discrimination.
• Likewise, businesses should be aware that the Act requires courts to mandate either monetary damages or fines if the court finds that there has been discrimination.

According to the CCRD, individuals alleging discrimination have 60 days from the alleged discrimination to file a complaint with the court. The Remedies for Persons with Disabilities Act is codified as Colorado Revised Statutes § 24-34-306 and § 24-34-802. The Act went into effect when it was signed on May 25, 2023.

On June 5, 2023, Governor Jared Polis signed SB23-058 into law. The Job Application Fairness Act (the “Act”) prohibits Colorado employers from asking a job applicant’s age, date of birth, and date(s) of attendance or graduation from educational institutions. This prohibition applies only to initial employment applications and is in addition to the requirements set forth in the Federal Age Discrimination in Employment Act of 1967 (“ADEA”), which prohibits discrimination against individuals who are 40 or older.

There are three exceptions to the restrictions set forth in the Act; specifically, an employer may request verification of age:

• when required by a bona fide occupational qualification (“BFOQ”)[1] relating to public or occupational safety;
• as imposed by Federal law or regulation; and
• as required by state and local law or regulation that is also based on a BFOQ.

The Colorado Department of Labor and Employment (“CDLE”) enforces the Act, which does not provide a private right of action for individual employees. Employers that violate the Act may receive a warning that requires employers to comply with the Act within 15 business days. If the employer fails to comply and commits a second violation, the CDLE may impose a penalty of up to $1,000. A third violation raises the penalty up to $2,500.

There are two key takeaways from the Job Application Fairness Act:

• Employers may need to remove fields in their application form(s) and platform(s) that ask for an applicant’s age, date of birth, and dates of attendance or graduation from school.
• Employers may need to train their interviewers to avoid age-related questions during applicant screenings and interviews.

The Job Application Fairness Act is codified as Colorado Revised Statutes § 8-2-131. The Act goes into effect on July 1, 2024.

[1] A BFOQ is defined as an employment qualification that relates to an essential job function and is necessary for the business’s operation.

On June 7, 2023, Governor Jared Polis signed into law House Bill 23-1294, titled “Pollution Protection Measures,” which establishes a new Legislative Interim Committee on Ozone Air Quality, directs the Colorado Oil and Gas Conservation Commission (“COGCC” or the “Commission”) to promulgate rules to evaluate and address the cumulative impacts of oil and gas development, and removes a longstanding affirmative defense provided in Colorado’s air pollution control regulations. Critically, HB 23-1294 removes the start-up, shutdown, or malfunction (“SSM”) affirmative defense from C.R.S. § 25-7-115(3)(b) that allowed operators to avoid enforcement for exceedances of Colorado’s air pollution control regulations if the operator could demonstrate that the exceedance occurred during a period of start-up, shutdown, or malfunction.

As explained in more detail below, HB 23-1294 will have an immediate impact on Colorado oil and gas operators and other industries with air emissions in the state.

Eliminating the SSM Affirmative Defense in C.R.S. § 25-7-115(3)(b)

The most significant and immediate impact of HB 23-1294 on Colorado operators is that the bill eliminates the SSM affirmative defense from C.R.S. § 25-7-115(3)(b). The longstanding SSM affirmative defense provided relief to Colorado operators for temporary exceedances of emission limits and emission control regulations that occurred during periods of start-up, shutdown, or malfunction. Such exceedances are often unavoidable, as emission limits and standards are developed based on normal operations, and SSM events are largely beyond an operator’s control.

While impactful, this change should not come as a surprise to Colorado operators because the U.S. Environmental Protection Agency (“EPA”) has taken the position that exceptions from, or affirmative defenses to, emission standards during periods of SSM are inconsistent with the federal Clean Air Act (“CAA”). Indeed, EPA previously issued a State Implementation Plan (“SIP”) call requiring states to remove such exceptions and affirmative defenses from their SIPs. In response to EPA’s SIP call, the Air Quality Control Commission (“AQCC”) revised its regulations in 2015 to clarify that the SSM affirmative defense was only available in state court proceedings and was not binding on EPA or federal courts. Furthermore, in December 2022, the AQCC directed the Division to work with sources, source categories, industry trade representatives, and other interested stakeholders to develop alternative emission limits and standards associated with periods of start-up, shutdown, or malfunction. This change would allow for an operator’s air permit to include alternative emission limits applicable to SSM events. By removing the SSM affirmative defense altogether, the Colorado Legislature has likely derailed this stakeholder process.

Formation of a new Legislative Interim Committee on Ozone Air Quality

As introduced, HB 23-1294 would have significantly limited air permitting in Colorado and fundamentally changed the state’s enforcement of air permit violations and emission limit exceedances. Rather than enacting such significant legislation, HB 23-1294 was amended to establish a new Legislative Interim Committee on Ozone Air Quality that is tasked with studying Colorado’s ozone air quality and devising strategies and potential legislation to address ozone pollution.

The stated purpose of the new Interim Committee is to “study ozone air quality in the state with a focus on (a) investigating the factors that contribute to ozone pollution in the state, including any scientific consensus around the issue of ozone pollution; (b) analyzing strategies to address and improve ground-level ozone issues; and (c) developing policy, technical, and financial solutions to improve ozone air quality in the state.” C.R.S. § 25-7-145. The Interim Committee will solicit presentations and comments from affected industries, workers, local governments, state agencies, and communities and go on field trips to better understand Colorado’s ozone air quality.

The Committee will consist of six members from the Colorado House of Representatives and six members from the Colorado Senate. Of the six members of the House, four will be appointed by the Speaker of the House, and two will be appointed by the Minority Leader. In the Senate, four members will be appointed by the Senate President, and two will be appointed by the Minority Leader.

The members of the Committee must be appointed by June 30, 2023, and schedule their first meeting by August 29, 2023.

New Rules to Evaluate and Address the Cumulative Impacts of Oil and Gas Operations

In addition to establishing the Interim Committee on Ozone Air Quality and tasking it with studying ozone pollution, HB 23-1294 also directs the COGCC to “promulgate rules that evaluate and address the cumulative impacts of oil and gas operations.” C.R.S. § 34-60-106(11)(d). Notably, in response to the Colorado Legislature’s passage of SB 19-181, the Commission commenced the “800/900/1200 Mission Change, Cumulative Impacts, and Alternative Location Analysis Rulemaking” that implemented several new requirements on oil and gas operators to evaluate and address the cumulative impacts of oil and gas operations in Colorado.

But in August 2022, environmental groups petitioned the Commission to do more and requested that it initiate yet another rulemaking to address the cumulative impacts of oil and gas operations in Colorado, particularly the impacts on Disproportionately Impacted Communities. Rather than engage in another cumulative impacts rulemaking, the Commission denied the environmental groups’ petition and convened an informal stakeholder group over the first quarter of 2023 to study the cumulative impacts of oil and gas operations and develop draft rules that incorporate a wide variety of perspectives to serve as the basis for future rulemaking.

HB 23-1294 requires that the Commission promulgate such rules by April 28, 2024.

Changes to the Division’s Processing of Complaints

Finally, HB 23-1294 changed the Division’s enforcement process associated with written complaints. Now, when the Division receives a written complaint that a person is violating or failing to comply with any of its rules, requirements, or permit conditions, the Division must commence a prompt and diligent investigation unless the complaint is frivolous, falsified, trivial, or the complaint is withdrawn before the investigation commences. Within 30 days of receiving the written complaint, the Division must respond to the complainant and provide an outline of the steps involved with its investigation. If, in response to a complaint, the Division determines that a violation or noncompliance exists, the Division must notify the complainant that it has commenced an investigation into the reported violations or instances of noncompliance.

If the Division chooses to issue an order requiring the operator to comply with its rules, the Division must send the order to the complainant, and if a hearing on the order is requested, the Division must provide the complainant with at least 45-days’ notice of the hearing, as the complainant is now authorized to participate as a party to the hearing. In addition, HB 23-1294 increased the potential civil penalties associated with a violation or instance of noncompliance. The Division must now consider the severity of the violation or noncompliance in assessing the amount of civil penalties. It cannot assess a penalty “that is less than the economic benefit that the owner or operator derived from the violation or noncompliance.” While it is unclear how the Division will make this determination, operators should expect to see increased civil penalties for violations or noncompliance with the Division’s rules.

Conclusion

While the late amendments to HB 23-1294 addressed the most concerning aspects of the legislation, Colorado operators should expect a slate of new regulations in 2024 aimed at addressing ozone pollution, air permitting, and the cumulative impacts of oil and gas operations in Colorado.

If you have questions about HB 23-1294 or how to participate in upcoming rulemakings, please contact Randy Dann or Cole Killion.

The Internal Revenue Service recently published Notice 2023-30 (the “Notice”), setting out “safe harbor” language for landowners that donated a conservation easement and have or are pursuing a federal tax deduction for the gift.

The Notice provides specific safe harbor language for two provisions that are commonly found in conservation easements related to: (1) the extinguishment of the conservation easement and allocation of proceeds resulting from the extinguishment; and (2) boundary line adjustments of the subject property. The Notice does not address any other conservation easement provisions.

Donors are permitted, but not required, to amend their conservation easements to include the safe harbor language. The amended conservation easement must be signed by both the donor and the donee and treated as effective as of the date of the original donation. The amendment may require signature by both the original donor and the current owner if the original donor/grantor is no longer the owner of the property.

There are limited exceptions to easements that are eligible for amendment, including syndicated conservation easements that the IRS considers abusive. However, any non-syndicated conservation easement for which a federal tax deduction was received or is being sought should generally be an eligible conservation easement that can be amended pursuant to the Notice.

Due to the fact that the Notice requires all safe harbor amendments be recorded in the county of donation by July 24, 2023, donors should consult with their legal and tax advisors as soon as possible to determine if amendment is an appropriate course of action under their specific circumstances. Failure to amend could result in the denial of the federal tax deduction (and resulting penalties and interest) obtained or sought in relation to the conservation easement donation.

If you donated a conservation easement and have or plan to pursue a federal tax deduction for the gift, consult your legal and tax advisors in advance of the July 24, 2023 deadline.

Global Accessibility Awareness Day, which falls on May 18, was created to promote digital access for people with disabilities. While great strides have been made under the Americans with Disabilities Act (“ADA”) to ensure physical spaces are accessible, website accessibility has not kept pace. In fact, as of 2023, only 3.7%^[1]
of the internet is fully accessible to people with disabilities. This data indicates that the vast majority of business owners with an online presence do not know that their websites are inaccessible—and, importantly, that their inaccessible websites are driving away customers and potentially violating the law.^[2]

Taking the time to learn about how your company’s website can become digitally accessible not only promotes inclusion for people with disabilities, but also can help your company both increase its profitability and avoid costly litigation. In this article, you will be equipped with the knowledge and resources to ensure that your website is accessible and understand why having an accessible website is so critical. We will cover (1) examples of accessibility barriers on websites; (2) the legal landscape surrounding website accessibility; and (3) ways to ensure that your company’s website is accessible.

A. Website Accessibility and Barriers for Folks with Disabilities

Twenty-six percent of Americans have some form of a disability, including 6.1% of U.S. adults who are deaf or have serious difficulty hearing, and 4.8% of U.S. adults who have a vision disability with blindness or serious difficulty seeing even when wearing glasses.^[3]
In fact, most people reading this article will develop a disability at some point in their life. According to the Joint Center for Housing Studies of Harvard University, “41 percent of older adults aged 65-79 have at least one self-care, household activity, or mobility disability” and for people “80 and over, this share rises to nearly 71 percent.” [4]

Despite the large population of individuals with disabilities, the internet largely remains an inaccessible space. According to the Institute for Disability Research, Policy, and Practice at Utah State University, over 96.3% of websites fail under the prevailing accessibility protocols.[5]

As explained by the World Wide Web Consortium in this video and by the Department of Justice’s ADA website, folks with vision, hearing, and fine motor impairments are most often impacted by website accessibility issues. Common barriers to accessibility on websites include the following design issues:

1. Poor color contrast. People with limited vision or color blindness cannot read the text if there is not enough contrast between the text and background (for example, light gray text on a light-colored background).
2. Lack of text alternatives (“alt text”) on images. People who are blind will not be able to understand the content and purpose of pictures, illustrations, and charts when no text alternative is provided. While screen reading technology can read the other content on the website out loud, the screen reader cannot read images. Text alternatives convey the purpose of an image. For example, alt text that might accompany a picture of a South Carolina beach might say: “Alt Text: Tall grass on a sand dune with the beach and ocean surf in the background on a sunny day.”
3. No captions on videos. People with hearing disabilities may not be able to understand information communicated in a video if the video does not have captions.
4. Inaccessible online forms. People with disabilities may not be able to fill out, understand, and accurately submit forms without things like:
   1. Labels that screen readers can convey to their users (such as text that reads “credit card number” where that number should be entered);
   2. Clear instructions on filling out the forms; and
   3. Error indicators (such as alerts telling the user a form field is missing or incorrect).
5. Mouse-only navigation (lack of keyboard navigation). People with disabilities who cannot use a mouse or trackpad will not be able to access web content if they cannot navigate a website using a keyboard.^[6]

By ensuring that your website does not create these accessibility issues, you can simultaneously support the disabled community and increase your company’s profitability. Websites that are more accessible have better search engine optimization and improved user experience for all individuals who visit your website. Further, failure to make a website accessible can result in lost revenue and customer dissatisfaction.

According to a 2018 article from W3’s Education and Outreach Working Group, “[i]n the US, the annual discretionary spending of people with disabilities is over $200 billion. The global estimate of the disability market is nearly $7 trillion.” When pairing these numbers with the results of a 2019 survey in the United Kingdom revealing that nearly three-quarters of disabled online consumers (69%) will simply click away from websites that they find difficult to use due to the effect of their disability, the monetary impact to inaccessible e-commerce businesses is staggering. That study further revealed that 83% of participants with access needs limit their shopping to sites that they know are accessible, and 86% have chosen to pay more for a product from an accessible website rather than buy the same product for less from a website that was harder to use.

Companies that have inaccessible websites are not only leaving large sums of money on the table – they are also increasing their vulnerability to a costly lawsuit.

B. Legal Requirements for Website Accessibility

In recent years, federal and state laws have required website accessibility for certain businesses and other entities. Therefore, a company’s failure to make its website accessible can result in damages, attorneys’ fees, and injunctive relief that requires the company to make its website accessible.

Title III of the ADA requires that “places of public accommodation”—public-facing businesses that fall within at least one of 12 categories—provide “equal access” to their goods, services, and facilities to individuals with disabilities. While websites are not mentioned anywhere in Title III or its regulations, the Department of Justice, which oversees and enforces the ADA, takes the position that “the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.”^[7]

Several federal courts have confirmed that certain businesses operating online must ensure that their websites are accessible to individuals with disabilities in order to comply with Title III of the ADA. See, e.g., Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019) (ruling in favor of blind plaintiff where plaintiff could not order pizza because Domino’s failed to design its website to enable screen-reading software to read the website and its order form). Similarly, in recent years, several states, including Colorado, have passed laws to develop and maintain statewide website accessibility standards. For instance, in 2021, Colorado passed a bill requiring state and local governments as well as government agencies to bring their websites into compliance with established accessibility standards to avoid civil penalties. See Colorado HB21-1110 (making it a state civil rights violation for a government entities to exclude people with disabilities from receiving services or benefits because of lack of accessibility on their websites). The influx of laws being passed in this space and the increase in litigation over website accessibility make it clear that companies need to pay attention to web accessibility and the hazards (ethical, financial, and legal) of failing to make their websites accessible.

C. Ensuring Website Accessibility

So, what can your company do to ensure that its website is accessible? Here are some steps you can take to promote compliance with the ADA and the Web Content Accessibility Guidelines 2.1 (“WCAG 2.1”) (the leading web-accessibility standard that several states, including Colorado, have designated as the standard that must be met for regulated entities).

1. Conduct a website accessibility audit. A website accessibility audit can identify accessibility issues and provide a roadmap for compliance. This can be done as a self-audit
   or conducted by a consultant such as Userway. The cost can vary depending on the size and complexity of the website. To quickly check your company’s compliance, you can type your company website URL into this search bar.
2. Use accessible design and development practices. Going forward, when designing and developing your company’s website, you should consult accessible design and development practices as laid out in WCAG 2.1. These include using alternative text for images and videos, ensuring that content is keyboard-accessible, and providing captions and transcripts for audio and video content.
3. Solicit user feedback. In addition to providing accessibility features on your website to make it easier for individuals with disabilities to navigate and use the site, consider soliciting feedback from users to understand where and how your website is not meeting their needs. Users should be able to easily submit accessibility complaints – if your users can’t submit feedback easily via a single attempt, they won’t keep trying.^[8] Check out Google’s accessibility feedback form as an example of how you might format yours.
4. Add an Accessibility Statement to your website. An accessibility statement describes your company’s policy, goals, and accomplishments related to web accessibility. The statement also includes instructions on how to use specific accessibility technology that is available on the website and how to contact the organization if a disabled visitor runs into problems.^[9] As an example of a quality accessibility statement, visit Patagonia’s website and navigate to the bottom of the homepage.

Improving the accessibility of your website not only supports people with disabilities, but can also help you avoid legal exposure and increase profits. By consulting the WCAG 2.1 and ADA guidelines and soliciting feedback from website users, you can work to ensure that your company’s website is accessible to all individuals, regardless of ability.

Should you have a question about the contents of this article please contact Sarah Barr or a Davis Graham Partner.

^[1] https://webaim.org/projects/million/

^[2] https://www.forbes.com/sites/forbestechcouncil/2022/10/11/whats-next-for-digital-accessibility/?sh=1aa7aedd4bbd

^[3] https://www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html

[4]www.jchs.harvard.edu/sites/default/files/harvard_jchs_housing_growing_population_2016_chapter_3.pdf

[5] https://webaim.org/projects/million/

^[6] https://www.ada.gov/resources/web-guidance/

^[7] https://www.ada.gov/resources/web-guidance/

^[8] https://www.boia.org/blog/getting-feedback-from-users-to-improve-accessibility

^[9] https://www.boia.org/blog/why-websites-need-an-accessibility-statement

The Federal Register, published on April 3, 2023, includes a proposed rule by the Bureau of Land Management (BLM) to change BLM’s management of public lands significantly by prioritizing conservation and ecosystem resiliency. If finalized, this proposed rule would impact all public land users, including those engaged in conventional and renewable energy development, mining operations, and grazing. BLM is accepting public comment on the proposed rule until June 20, 2023, or until 15 days after the last public meeting, which BLM has yet to announce.

The proposed rule would have two regulatory effects: revise BLM’s existing regulation related to Areas of Critical Environmental Concern (ACECs) at 43 C.F.R. § 1610.7-2 and establish new regulations at 43 C.F.R. Part 6100 titled “Ecosystem Resilience.”

Revisions to BLM’s ACEC Regulation

The Federal Land Policy and Management Act (FLPMA) defines ACECs and directs BLM to give priority to their designation and protection during the land use planning process. The proposed rule would revise BLM’s ACEC regulation at 43 C.F.R. § 1610.7-2 to provide more detail on the process for identifying and designating ACECs. Most notably, the proposed rule would:

• Modify the definitions of “relevance” and “importance” and define the term “special management attention;”
• Require BLM, when revising land use plans, to include an alternative that analyzes all proposed ACECs;
• Establish criteria that limit when BLM can remove an ACEC designation through the land use planning process; and
• Allow BLM, when areas are nominated for designation as ACECs outside of a land use planning process, to manage these areas to protect relevant and important values until BLM completes a planning process.

Ecosystem Resilience Regulations

The proposed rule would establish new regulations at 43 C.F.R. Part 6100 that apply to all BLM programs. The proposed rule is notable in multiple respects because it would:

• Define a host of terms, most notably “unnecessary or undue degradation;”
• Require BLM to manage for conservation;
• Allow BLM to issue conservation leases;
• Require that BLM manage for ecosystem resilience;
• Formalize a framework for compensatory mitigation; and
• Establish fundamentals of land health.

Definitions (§ 6101.4)

The proposed rule would define a host of terms for application across all of BLM’s programs. Many of these terms currently are either undefined or defined only with respect to certain BLM programs. Most notably, the proposed rule would define “unnecessary or undue degradation” as “harm to land resources or values that are not needed to accomplish use goals or is excessive or disproportionate.” The proposed rule would also define “conservation,” “mitigation,” and “protection,” among other terms.

Management for Conservation (§§ 6101.5, 6102.1 to 6102.3-2)

The proposed rule would require BLM to manage for conservation use and bases this direction on FLPMA’s mandate that BLM manages the public lands in accordance with principles of multiple use and sustained yield. The proposed rule notably would:

• Define “conservation” as “maintaining resilient, functioning ecosystems by protecting or restoring natural habitats and ecological functions;”
• Require BLM to consider conservation as a use on par with other uses of the public lands;
• Require BLM, when revising resource management plans (RMPs), to identify and protect “intact landscapes,” which the proposed rule defines as “an unfragmented ecosystem that is free of local conditions that could permanently or significantly disrupt, impair, or degrade the landscape’s structure or ecosystem resilience, and that is large enough to maintain native biological diversity, including viable populations of wide-ranging species;” and
• Prioritize and plan for landscape restoration.

Conservation Leases (§§ 6102.4 to 6102.4-2)

The proposed rule would allow BLM to issue conservation leases. Particularly, the proposed rule would:

• Allow BLM to issue conservation leases over public lands, which would authorize either restoration of public lands or mitigation of impacts; and
• Establish the process to obtain, terms of, and bonds for conservation leases.

Formalized Compensatory Mitigation (§ 6102.5-1)

The proposed rule would attempt to provide a process for BLM to utilize compensatory mitigation to offset impacts from land uses. Particularly, the proposed rule would:

• Direct BLM to require mitigation “to address adverse impacts to important, scarce, or sensitive resources;”
• Allow BLM to use third-party mitigation fund holders to collect, manage, and expend mitigation funds collected by permittees; and
• Establish criteria for approved third-party mitigation fund holders, including state or local government agencies.

Management for Ecosystem Resilience (§ 6102.5)

The proposed rule would require BLM to manage for resilient ecosystems, which the proposed rule defines as “ecosystems that have the capacity to maintain and regain their fundamental structure, processes, and function when altered by environmental stressors such as drought, wildfire, nonnative invasive species, insects, and other disturbances.” The proposed rule notably would require BLM to:

• Avoid authorizing uses of the public lands that would permanently impact ecosystem resilience;
• Identify priority watersheds, landscapes, and ecosystems that require protection and restoration efforts; and
• Develop strategies, including mitigation strategies, to protect resilient ecosystems.

Fundamentals of Land Health (Subpart 6103)

The proposed rule would impose on BLM a requirement to manage lands in accordance with the fundamentals of land health. Particularly, the proposed rule would:

• Require that standards or guidelines developed or revised in RMPs be consistent with specified fundamentals of land health that call for maintenance of or improvements to watersheds, ecological processes, water quality, and species’ habitats;
• Require BLM to apply existing land health standards and guidelines, including those previously established as part of BLM’s grazing program; and
• Require BLM to review and revise land health standards and guidelines as part of its land use planning process and review them at least every five years.

Issues to Consider

The proposed rule raises multiple questions, including:

• Can BLM protect intact landscapes while continuing to authorize principal or major uses as defined by FLPMA? What is the relationship between the protection of an intact landscape and the designation of an ACEC? When must BLM make withdrawals under FLPMA to protect intact landscapes?
• When and how will BLM utilize compensatory mitigation? Although the proposed rule appears to allow BLM to utilize compensatory mitigation to offset impacts from land uses, the proposed rule does not provide guidance on when BLM may utilize it or whether BLM may require it.
• How do the priority watersheds, landscapes, and ecosystems that BLM identifies for protection and restoration efforts relate to ACEC designations? Are these areas distinct from ACECs?
• How does the proposed rule’s direction that BLM avoid authorizing uses of the public lands that permanently impact ecosystem resilience harmonize with FLPMA’s requirement that BLM manages the public lands for multiple uses?
• Which provisions of the proposed rule can BLM implement immediately, and which provisions first require BLM to revise its RMPs? What time and resources will be required for RMP revisions?
• Would the proposed rule require BLM to revisit land use planning efforts that required significant time and negotiation with stakeholders, such as BLM’s greater sage-grouse land use plan amendments, the California Desert Conservation Area Plan, and the Western Solar Plan?
• Will the rule, and particularly its provision establishing conservation as a use of the public lands, if finalized, survive the inevitable legal challenge?

Users of the public lands should closely evaluate this rule and consider its impacts on existing and future land use authorizations. Please contact Katie Schroder with questions about this proposed rule.

Silicon Valley Bank (“SVB”) was placed into receivership with the Federal Deposit Insurance Corporation (“FDIC”) on Friday, March 10 [link]. Federal regulators spent the weekend addressing concerns about the ramifications of SVB’s failure for SVB depositors and the economy more broadly.

On Sunday, March 12, the Department of the Treasury, the Federal Reserve, and the FDIC issued a joint statement [link] announcing the closing of Signature Bank and confirming that all deposits at both SVB and Signature Bank would be fully protected. All deposits at SVB are available to depositors as of today, Monday, March 13.

The Federal Reserve established the Bank Term Funding Program (the “BTFP”), intended to provide a backstop for banks holding government bonds, allowing those bonds to be swapped for cash for up to a year. The BTFP is intended to help other banks meet the deposit requests of their customers to avoid the liquidity problems that led to SVB’s closure [link].

Circumstances are rapidly developing for businesses having deposits and credit lines at SVB, Signature Bank, and other financial institutions. Our attorneys are actively helping clients navigate this situation and monitoring developments. Please contact Davis Graham attorneys Adam L. Hirsch, Chris Richardson, or Kyler Burgi if we can assist in any way.

On December 6, 2022, the Environmental Protection Agency (“EPA”) published a supplemental proposal to reduce methane and volatile organic chemicals (“VOCs”) emissions from the oil and gas sector. 87 Fed. Reg. 74,702 (Dec. 6, 2022) (the “2022 Proposed Rule”). This proposed rule strengthens and expands on EPA’s November 2021 proposed revisions to the New Source Performance Standards (“NSPS”) program, established under Section 111 of the Clean Air Act (“CAA”). If adopted, the 2022 Proposed Rule will have significant impacts on the oil and gas sector, including—among other things— requiring owners and operators to conduct a root cause analysis and take corrective actions for large methane emission events known as “super-emitter events”; requiring ongoing fugitive monitoring at all well sites until the site has been closed; and restricting flaring to instances where the owner or operator has demonstrated a sales line is not available and alternative beneficial uses are technically feasible.

As with EPA’s November 2021 proposal, the 2022 Proposed Rule sets forth three actions under the CAA that would apply to new and existing oil and gas sources. The below chart outlines the three categories of proposed rules, the sources to which they apply, and their applicable date:

NSPS Program	Affected Source	Applicable Date
Subpart OOOO (“Quad O”) and Subpart OOOOa (“Quad Oa”)	For Quad O, new, modified, or reconstructed sources after August 23, 2011, and on or before September 18, 2015. For Quad Oa, new, modified, or reconstructed sources after September 18, 2015, and on or before November 15, 2021.	Currently in effect
Subpart OOOOb (“Quad Ob”)	New, modified, or reconstructed sources after November 15, 2021.	For many sources, 60 days after publication of the final rule. 2022 Proposed Rule, Subpart OOOOb (Section 60.5370b).
Subpart OOOOc (“Quad Oc”)	Existing sources, which includes (with one exception) sources that “commenced construction, reconstruction, or modification before November 15, 2021.” 87 Fed. Reg. at 74,716.	At the latest, 4.5 years after publication of the final rule. See 2022 Proposed Rule, Subpart OOOOc (Section 60.5360c).

Unlike the proposed revisions to Quad Ob regulations, the emission standards set forth under Quad Oc require each state to create plans to regulate methane from existing oil and gas sources. Specifically, the Proposed Rule requires states to submit plans for EPA’s review within 18 months after EPA publishes the final Quad Oc regulation in the Federal Register. In addition, states must then establish a compliance deadline for existing sources within 36 months after the plan is due. The November 2022 Proposed Rule contemplates that these state plans would be finalized (at the latest) within 4.5 years after the publication of the final rule. EPA proposes that an existing source’s compliance with a state or federal plan implementing Quad Oc would constitute compliance with Quad O and Quad Oa because the presumptive standards for Quad Oc result in the same or greater emissions reductions.

The remainder of this alert focuses on some of the 2022 Proposed Rule’s major revisions to the Quad Ob and Quad Oc regulations proposed in November 2021. The below requirements would apply to both new and existing sources under the revised Quad Ob and Quad Oc regulations:

• Super-Emitters: The 2022 Proposed Rule creates a “super-emitter response program” to prevent or detect and mitigate super-emitter emissions event (defined as quantified emissions of 100 kg/hour or greater of methane). The proposed rule will allow an EPA-approved third-party or regulatory authority to identify these super-emitter events and notify owners and operators when they detect an event. Upon notification, the owner or operator must conduct a root cause analysis and take corrective actions to mitigate the emissions.
• Fugitive Emissions: EPA’s proposal expands the requirements of the November 2021 proposal by requiring regular leak inspections at all well sites, regardless of their estimated emissions. The 2022 Proposed Rule expands the types of equipment to which the fugitive emissions monitoring requirements apply. For instance, a single wellhead-only site and small well sites must undergo quarterly audio, visual, and olfactory (“AVO”) inspections. Well-head only sites with two or more wellheads must conduct quarterly AVO inspections and semi-annual optical gas imaging (“OGI”) monitoring. Sites with major production and processing equipment and centralized production facilities must conduct bimonthly AVO inspections and quarterly OGI monitoring. Compressor stations must conduct monthly AVO inspections and quarterly OGI monitoring.
• Well Closures: EPA’s proposal requires owners and operators to continue fugitive emissions monitoring until all wells have been closed, including plugging the wells and submitting well closure reports. Owners or operators will also be required to conduct final surveys of the well sites using OGI once the sites are closed to ensure emissions have ceased.
• Pneumatic Pumps and Controllers: EPA’s proposal requires the use of “zero-emission” pneumatic controllers and pumps at new and existing sources. Based on comments received in response to the November 2021 proposal, EPA seeks to expand the proposed standard for pneumatic pumps. The 2022 Proposed Rule prohibits the use of natural gas to power pneumatic pumps at an affected facility. At sites without electricity, the proposed rule allows owners or operators to use natural gas-driven pneumatic pumps only if they demonstrate that it is not technically feasible to use pneumatic pumps not driven by natural gas. For pneumatic controllers, EPA’s proposal expands the definition of a “pneumatic controller affected facility” to include the “collection of natural gas-driven pneumatic controllers at a site.”
• Flaring Requirements: The 2022 Proposed Rule strengthens flaring regulations, prohibiting any flaring of associated gas from oil wells unless the operator can show that a sales line is not available and other beneficial uses are not technically feasible. In addition, the proposed rule adds compliance requirements to ensure that flares meet all requirements for “good flare performance,” including continuous monitoring to confirm the pilot flame is always burning.

• Centrifugal Compressors: EPA’s proposal sets new flow rate requirements, except for those compressors located at well sites. These were previously not regulated under NSPS.

The below requirement would also apply to existing sources under the revised Quad Oc regulations:

• Well Liquids Unloading: The 2022 Proposed Rule no longer considers liquids unloading to be a modification. EPA’s proposal instead creates a presumptive standard of zero methane and VOCs emissions for liquids unloading at existing wells. If performing liquids unloading with zero methane and VOC emissions is not feasible, owners and operators will be required to employ best management practices to minimize venting of emissions.

EPA expects to issue finalize the 2022 Proposed Rule in 2023. Comments are due on February 13, 2023.