Debris Removal on Private Property

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1608-DR
ApplicantNew Hanover County
Appeal TypeSecond
PA ID#129-00129-00
PW ID#211
Date Signed2007-03-01T05:00:00
Citation: FEMA-1608-DR-NC; New Hanover County

Cross-reference: Private property, Gated Communities

Summary: As a result of Hurricane Ophelia, New Hanover County (Applicant) was littered with downed trees and vegetative debris. The County’s debris removal documentation did not distinguish between debris removed from privately-owned and publicly-owned roads, therefore FEMA reduced the original Project Worksheet (PW) #211 by the same percentage as the privately-owned roads within the Applicant’s jurisdiction, or 16.9%. The Applicant submitted its first appeal to the Region on December 12, 2005, asserting that all of the debris removal was within the Applicant’s jurisdiction and, therefore all costs were for eligible work. Region IV denied the first appeal on February 27, 2006, stating that an item of work must be the legal responsibility of the Applicant or the debris removal must be within the public interest. The Regional Director determined the Applicant had not supplied documentation or evidence of either. The Applicant submitted its second appeal June 19, 2006. The Applicant described the work completed, volume of debris removed from the privately-owned land, and the safety issues of the debris being placed at the closest eligible right-of-way.

Issues: 1) Did the Applicant provide documentation demonstrating that it had legal responsibility to remove debris from private property?
2) Did the Applicant demonstrate the debris removal was in the public interest?

Findings: 1) No.
2) No.

Rationale: 44 CFR §206.223(a)(3)
44 CFR §206.224(a) .

Appeal Letter

March 1, 2007

Ms. Mary Canty
Public Assistance Section Manger
Division of Emergency Management
4713 Mail Service Center
Raleigh, NC 27699-4713

Re: Second Appeal – New Hanover County, PA ID 129-00129-00, Debris Removal on Private Property, FEMA-1608-DR-NC, PW #211

Dear Ms. Canty:

This is in response to your letter dated May 8, 2006, which transmitted the referenced second appeal on behalf of the New Hanover County (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA’s) denial of funding for the removal of vegetative debris from privately-owned roads.

As a result of Hurricane Ophelia, the Applicant’s jurisdiction was littered with downed trees and vegetative debris. The Applicant’s debris removal documentation did not distinguish between debris removed from privately-owned and publicly-owned roads. Therefore, when FEMA prepared Project Worksheet (PW) # 211, the eligible cost was reduced by the percentage of privately-owned roads within the Applicant’s jurisdiction, or 16.9 percent.

The Applicant submitted its first appeal on December 12, 2005, asserting that all of the debris removal costs are eligible. Region IV denied the first appeal for two reasons. The first was that the Applicant did not provide documentation that the debris removal efforts were its legal responsibility pursuant to FEMA regulations at 44 CFR §206.223(a)(3). Second, the Applicant did not demonstrate that debris removal from the private roads was in the public interest in accordance with 44 CFR §206.224(a).

The Applicant submitted its second appeal by a letter dated May 4, 2006. The Applicant described the debris removal for 42 homes and eight large condominium buildings located on a private road. The homeowners moved 183 cubic yards of debris from their lots and right-of-way to an empty privately-owned lot. The lot is located on the same privately-owned road and was designated by the Applicant as a temporary staging area for the homeowners. The Applicant’s debris contractor then picked up the debris from the lot for final disposal. The Applicant’s position is that it did not want the debris taken to the closest public right-of-way for safety reasons. The Applicant asserts that this is just one of many examples throughout the county and that it is responsible for all taxpayers’ debris removal regardless of where it is located.

Generally, debris removal from private property is not eligible under the Public Assistance Program and is the responsibility of the property owner. FEMA evaluates the eligibility of debris removal from private property on a case-by-case basis. An eligible applicant must demonstrate that it has legal responsibility for the work and that the removal of the debris was in the public interest. In this case, the Applicant has not provided documentation to support either requirement.

FEMA regulations at 44 CFR §206.223(a)(3) state, “To be eligible for financial assistance, an item of work must be the legal responsibility of an eligible Applicant.” To demonstrate legal responsibility, the local applicant must show that it has the authority under its laws, ordinances, or codes to remove debris from private property and that it followed its procedures for taking responsibility for debris on private property. The Applicant has not provided any documentation demonstrating that it had the authority or responsibility to remove debris from private property.

FEMA regulations at 44 CFR §206.224 define debris removal within the public interest when it is necessary to: “(1) Eliminate immediate threats to life, public health, and safety; or (2) Eliminate immediate threats of significant damage to improved public or private property; or (3) Ensure economic recovery of the affected community to the benefit of the community-at-large.” With regard to the one case cited by the Applicant, the lack of a debris staging area on an eligible right-of-way does not meet any of these conditions. Also, the Applicant does not provide evidence that removing the debris for 50 residences benefited the community-at-large.

The Applicant has not demonstrated that it had legal responsibility to remove debris from private property or that the debris removal was in the public interest. Therefore, I am denying the second appeal.

Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.

Sincerely,
/s/
David Garratt
Acting Director of Recovery

cc: Major Phil May
Regional Director
FEMA Region IV
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