Conclusion: The north extension of the City of Clarksville’s (Applicant) Riverwalk Park (Facility) was under construction at the time of the disaster and the Applicant did not accept the work as complete prior to the disaster declaration date. On second appeal, the Applicant has failed to demonstrate that it, not the Contractor, was legally responsible for the Facility at the time of the disaster.
Beginning on April 30, 2010, severe storms, tornadoes, heavy rains, high winds, flooding, and flash flooding affected the City of Clarksville. FEMA prepared Project Worksheet (PW) 3655 to address damage to the north extension of the Applicant’s Facility. However, FEMA subsequently determined that the project was ineligible because it was located in an U.S. Army Corps of Engineers (USACE) flowage easement, the Applicant was not legally responsible for the Facility at the time of the disaster because it was under construction, and planting trees and shrubs is not eligible work under the PA Program. In its first appeal, the Applicant appealed FEMA’s determination that the project was not eligible because the Facility was within an USACE flowage easement but the USACE easement did not include a hold harmless provision. The Region IV Regional Administrator (RA) addressed all three reasons for denying eligibility, even though the Applicant only raised the USACE easement determination in its first appeal. The RA concluded that the Facility was misidentified as located within an USACE flowage easement. However, the RA determined that documentation indicated that the construction project was not yet complete at the time of the disaster’s declaration date. Finally, the RA concluded that $14,559.84 in funding to replace grass, trees, and shrubs was ineligible based on FEMA policy. The Applicant’s second appeal claims that the first time FEMA raised the issue of legal responsibility was in the first appeal determination. As such, the Applicant was not afforded its full appeal rights regarding the new basis for denying eligibility and those rights are preserved. In addition, the Applicant states the construction contract clearly states, “[u]nless otherwise provided, the Owner shall purchase and maintain, … property insurance written on a builder’s risk “all-risk” or equivalent policy form in the amount of the initial Contract Sum ….” Finally, the Applicant argues that it was legally responsible for repair work to the Facility at all times because it is the owner.
Authorities and Second Appeals
- Stafford Act §§ 406 and 423.
- 44 C.F.R. §§ 206.206 and 206.223(a).
- PA Guide, at 23, 28, 30-31.
- PA Digest, at 53.
- Metropolitan Water District of Southern California, FEMA-1203-DR-CA, at 2.
- Florida Inland Navigation District, FEMA-1785-DR-FL, at 3.
- Pursuant to Stafford Act § 423 and 44 C.F.R. § 206.206, an eligible Applicant may appeal any decision regarding eligibility for, from, or amount of public assistance within 60 days of notification of such decision.
- The Applicant was afforded its full appeal rights regarding FEMA’s determination that it was not legally responsible for the Facility.
- According to 44 C.F.R. § 206.223(a), an eligible item of work must be the legal responsibility of the Applicant.
- According to the PA Guide and PA Digest, facilities under construction at the time of the disaster are generally not eligible for Public Assistance because they are the responsibility of the contractor until the owner has accepted the work as complete.
- The Applicant did not provide sufficient documentation to establish that it was legally responsible for the Facility at the time of the disaster.