Summary: Winter storms in late 1996 and early 1997 caused flooding in the San Joaquin Valley of California. The U.S. Army Corps of Engineers released water from dams, thus threatening to flood Reclamation District 770 (District), located in the Tulare Lakebed. To protect its "productive land and other improvements," the District began emergency pumping and water diversion operations. Damage Survey Report (DSR) 98522 was prepared for $1,439,685 to fund these operations, but was obligated for $0 after FEMA found no evidence of a threat to improved property. The District appealed this decision on November 13, 1997. It cited documents in FEMA's file on the DSR to support its position. These documents included narratives describing the operations, letters of support from local engineers, and a 1984 appeal decision made by FEMA in a similar case. On March 30, 1998 the District submitted an analysis of the economic impact to the public if Highway 99 had been closed for three days. FEMA denied the appeal on July 22, 1998, based on the applicant's failure to "identify or establish an immediate threat to public health, safety or improved property." In addition, FEMA stated that protecting surrounding areas was not the District's legal responsibility, pursuant to 44 CFR 206.223(a)(3). The District submitted its second appeal on
October 14, 1998. It agreed that protecting outside property was not its responsibility, but asked that FEMA examine the overall benefit to the Tulare Lake area, as evidenced in documents previously submitted.
Issues: 1) Is DSR 98522 eligible for reimbursement as an emergency protective measure, according to 44 CFR 206.225(a)(3)?