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Second Appeal Brief
PA ID# 125-U00B3-00; Clarksville Gas and Water
PW ID# 2519, 2828, 5182, 5184, and 5305; Flood Control Works
Conclusion: On second appeal, Clarksville Gas and Water (Applicant) provided documentation from the United States Army Corps of Engineers (USACE) confirming that its wastewater lift stations are not located within USACE flowage easement boundaries.
Beginning on April 30, 2010, severe storms, tornadoes, heavy rains, high winds, flooding, and flash flooding affected the City of Clarksville. FEMA prepared Project Worksheets (PWs) 2519, 2828, 5182, 5184, and 5305 to address damage to sixteen wastewater lift stations (Facilities) that were flooded due to the storm. Based on FEMA policy, FEMA subsequently wholly or partially disallowed funding because the Facilities were located in USACE flowage easement boundaries. In its first appeal, the Applicant appealed FEMA’s determination that the projects were ineligible because the Facilities were within an USACE easement arguing that Stafford Act claims are unrelated to any contractual provisions regarding liability or flood rights. The Region IV Regional Administrator (RA) denied the first appeal because, based on FEMA policy, PA funding was not available to facilities covered by USACE easement deed that included liability-shifting language. However, the RA informed the Applicant that, if it believed the Facilities were not located within easement boundaries, it should request written confirmation from the USACE and submit it with its second appeal. In a second appeal letter, the Applicant claims that FEMA incorrectly listed the appeal amounts for PWs 2519, 5182, and 5305. The Applicant also argues that the Facilities addressed in these PWs are not located within USACE easement boundaries and provides a letter from the USACE stating the applicable Facilities were located above the “Government flowage easements and therefore are not located on Government property.”
Authorities and Second Appeals
- Stafford Act §§ 403 and 406.
- 44 C.F.R. §§ 206.224, 206.225, and 206.226.
- FEMA Second Appeal Analysis, White House Utility District, FEMA-1909-DR-TN.
- Based on FEMA policy expressed in its White House second appeal, FEMA will deny PA funding for a project involving an USACE flowage easement if the governing legal instrument includes language that clearly holds the Applicant responsible for any flood damage that occurs to its facilities due to USACE actions or inactions, and/or any other causes specified in the legal instrument.
- According to a letter from the USACE, these Facilities are not located within USACE flowage easement boundaries. Therefore, White House Utility District is not applicable and FEMA will not deny funding based on the policy.
- According to Stafford Act § 403 and 44 C.F.R. § 206.224, FEMA may reimburse costs associated with eligible debris removal work.
- The debris removal work in PW 5305 is eligible for PA funding.
- 44 C.F.R. § 206.225 authorizes FEMA to reimburse costs for emergency protective measures that lessen or eliminate threats to lives, public health and safety and improved property.
- Costs associated with emergency work outlined in PWs 2519, 5182 and 5184 are eligible for PA funding.
- Stafford Act § 406 and 44 C.F.R. § 206.226 authorize grant funding for permanent work resulting from a declared disaster.
- The permanent work in PW 2828 is eligible for PA reimbursement.