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Second Appeal Brief
PA ID# 165-U04B6-00; White House Utility District
PW ID# 02340 & 03687; USACE Easements
Citation: FEMA-1909-DR-TN, White House Utility District, USACE Easements, PWs 02340 and 03687
Cross- Reference: Eligible Work
Summary: Flooding from severe storms between April 30 and May 4, 2010, damaged the White House Utility District’s (Applicant) water intake buildings and Cages Bend pump station. FEMA prepared PWs 02340 and 03687 for $13,559 and $123,090 to repair the respective facilities to pre-disaster condition. However, upon review, FEMA determined the facilities were ineligible because the sites are located within flowage easements of the U.S. Army Corps of Engineers (USACE). In a December 9, 2010, letter to the Tennessee Emergency Management Agency (TEMA), FEMA stated that Public Assistance (PA) funding was not available for damaged facilities in flowage easements because USACE documents titled “Consent to Easement” contain language which excludes the United States from all liability for flood damage. In the first appeal of PW 02340, the Applicant asserted that this hold-harmless provision is not applicable to FEMA funding as federal disaster assistance is not predicated on federal liability; rather, the intent of the Stafford Act is to alleviate damage caused by disasters. The Applicant also submitted a first appeal of PW 03687, which claimed that there was no “Consent to Easement” and associated hold-harmless provision on the pump station at Cages Bend. The FEMA Regional Administrator denied the first appeals, on the basis that the damage resulted when USACE exercised its right to flood the land. Furthermore, the response noted that the intent of the hold-harmless provision on the consent to easement was for the facility owner, rather than the U.S. taxpayers, to assume the risk of damage to facilities in high flood risk areas. In its second appeal, the Applicant asserts that the cause of the flooding and the liability for the damage is of no consequence to eligibility as prescribed by the Stafford Act. The Applicant claims that contractual provisions in an easement granting the United States a limited right to flood an area should not be a consideration in the determination of eligibility for disaster assistance. The Applicant further maintains that the damage to the pump station was not subject to the USACE easement as the damaged components were installed above the easement’s controlling elevation
Issues: 1). Are facilities that are located on USACE flowage easements eligible for permanent work funding through FEMA’s PA Program?
2). Has the Applicant demonstrated that the pump station at Cages Bend is not subject to a USACE flowage easement?
Findings: 1). No.
Rationale: 44 CFR §206.223, General Work Eligibility