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Second Appeal Brief
PA ID# 125-15160-00; City of Clarksville
PW ID# 827, 3979, 4163, and 5004 ; Flood Control Works
Conclusion: While the City of Clarksville’s (Applicant) facilities are located within United States Army Corps of Engineers (USACE) flowage easement boundaries, the governing legal instruments do not contain language holding the Federal government harmless from liability for all causes of flooding. As such, the hold harmless provision in this instance does not demonstrate that the Applicant had assumed the risk for all flooding and, consequently, does not justify denying eligibility.
Beginning on April 30, 2010, severe storms, tornadoes, heavy rains, high winds, flooding, and flash flooding affected the City of Clarksville. Project worksheets (PWs) 827 and 5004 were drafted to address repair and restoration work to the Applicant’s Police Shooting Range and associated contents, and PWs 3979 and 4163 were drafted to address repair and restoration work to the Applicant’s Park. During PW review, FEMA determined the Range and Park were within a USACE flowage easement boundary. Based on this information, FEMA determined the work in these PWs was ineligible and costs were reduced accordingly. In its first appeal, the Applicant asserted that the governing legal documents, with hold harmless provisions included therein, do not preclude FEMA from providing PA funding pursuant to the Stafford Act. The Regional Administrator (RA) denied the first appeal because he determined that the terms of the legal instruments provided the Federal government with immunity from liability, and that, while immunity from liability does not legally prohibit FEMA from providing grant assistance, FEMA policy precludes PA funding in such circumstances. In its second appeal, the Applicant asserts that the flowage easements do not hold the Federal government harmless for all flooding, only flooding occurring when the USACE takes deliberate action to flood the land at issue. The Applicant also asserts that FEMA’s policy of denying claims based on an USACE flowage easement or lease is directly contrary to the Stafford Act.
Authorities and Second Appeals
- Stafford Act § 406, 42 U.S.C. § 5172.
- 44 C.F.R. § 206.223(a)(3).
- PA Guide, at 23.
- Regarding facilities located within USACE flowage easement boundaries, FEMA reviews the terms of the legal instrument to determine eligibility. If the terms do not specify that the Federal government is not liable for action by the USACE or any other cause, PA funding may be available.
- Here, the USACE flowage easement and lease only hold the Federal government harmless for action by the USACE, not natural flooding.
- Damage to the Applicant’s shooting range and park was caused by Disaster 1909, a natural flood.
- Pursuant to 44 C.F.R. § 206.223(a)(3), to be eligible for PA funding, an item of work must be the legal responsibility of an eligible Applicant.
- The City of Clarksville is an eligible Applicant and was legally responsible for the work embodied in PWs 827, 3979, 4163, and 5004. Accordingly, the work is eligible for PA funding.