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Second Appeal Brief
PA ID# 000-U2R7P-00; Kansas Department of Wildlife, Parks and Tourism
PW ID# 82, 168, 171, 212, 214, 266, FEMA-1932-DR-KS, PW 461; Legal Responsibility
Conclusion: The Applicant has maintained the shoreline and the damages are the Applicant’s legal responsibility. While the Bureau of Reclamation does not have specific authority to provide disaster assistance, it did provide Title 28 funding to repair disaster-related damages, and this represents a duplication of benefits.
DR-1932 caused flooding and shoreline erosion at several state parks administered by the Applicant. FEMA obligated PW 461 for rip rap protection loss along the Waconda Lake shoreline. Before work could be completed, DR-4010 caused flooding which damaged several facilities and caused further shoreline erosion. FEMA obligated 10 PWs for work in Glen Elder State Park. Later FEMA notified the Grantee that the Applicant was not legally responsible for repairs to the shoreline of Waconda Lake and the PWs written for repairs to infrastructure and recreation facilities at Glen Elder State Park constitute a duplication of benefits since Title 28 funding is available from the Bureau of Reclamation. The Applicant appealed FEMA’s denial of $256,954.80 for damage sustained to the shoreline of Waconda Lake. The Grantee forwarded an appeal for a total of $1,026,389.47 that included the funding sought by the Applicant and additional funding for PWs not identified by the Applicant. The Regional Administrator denied the appeal, determining that: the Applicant is not legally responsible for maintenance to the shoreline and other park facilities; funding from BOR presents a duplication of benefits; and the damages were due to a lack on maintenance instead of a direct result of the disaster. The Applicant submitted a second appeal which reiterated its first appeal and provided further documentation.
Authorities and Second Appeals
- 44 C.F.R. § 206.223(a)(3).
- 44 C.F.R. § 206.226(a)(1).
- PA Guide, at 33.
- Stafford Act § 312(a).
- 44 C.F.R. § 206.223(a)(3) states that “To be eligible for financial assistance, an item of work must … be the legal responsibility of an eligible applicant.”
- FEMA determined that the Applicant is legally responsible for damages per the lease agreement and the legal advice of BOR.
- 44 C.F.R. § 206.226(a)(1) states that “Generally, disaster assistance will not be made available under the Stafford Act when another Federal agency has specific authority to restore facilities damaged or destroyed by an event which is declared a major disaster.”
- BOR does not have specific authority to restore disaster damaged facilities.
- The Stafford Act § 312(a) states the “Federal agency administering any program providing financial assistance to … entities suffering losses as a result of a major disaster or emergency, shall assure that no such … entity will receive such assistance with respect to any part of such loss as to which he has received financial assistance under any other program … or any other source.”
- The Applicant did receive financial assistance from BOR which matches the scope of work in some PWs.