Conclusion: While the City of Clarksville’s (Applicant) facilities are located within United States Army Corps of Engineers (USACE) flowage easement boundaries, the governing lease agreement does 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.
From April 30, 2010 through May 18, 2010, severe storms, tornadoes, heavy rains, high winds, flooding, and flash flooding impacted Clarksville, Tennessee. FEMA prepared Project Worksheet (PW) 2826 to address debris removal from the Applicant’s Park, and PW 5011 to address damage to the Applicant’s Dock located at the Park. Upon subsequent review, FEMA found the projects to be ineligible for PA funding because the facilities were located within a USACE flowage easement and subject to a lease agreement with a hold harmless provision limiting the Federal Government’s liability for damage caused by the USACE. In separate first appeals, the Applicant appealed FEMA’s determination that the projects reflected in PWs 2826 and 5011 were not eligible because the facilities were within a USACE flowage easement. The Applicant argued that the USACE easement did not include a hold harmless provision and asserted that Stafford Act claims are unrelated to any contractual provisions regarding liability or flood rights. The Region IV Regional Administrator (RA) denied funding for debris removal throughout the Park and repair of the Dock. He determined that the facilities were located within a USACE easement, and as a policy matter, FEMA does not provide PA funding for damage to facilities covered by agreements that reflect the Government’s intent that the risk be borne by the owner of the facility. In second appeals for PWs 2826 and 5011, the Applicant asserts that, while the facilities are located within an USACE flowage easement and governed by a lease agreement, the terms of the lease do not absolve the Government from liability when natural flooding occurs, the May 2010 flooding was not caused in any way by action or inaction of USACE, and FEMA’s policy to deny PA funding for damaged facilities located within USACE flowage easements directly contradicts the intent of 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.
- White House Utility District, FEMA-1909-DR-TN (Aug. 15, 2013).
- City of Clarksville, FEMA-1909-DR-TN (Oct. 23, 2015).
- 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 lease agreement only holds the Federal Government harmless for action by the USACE, not natural flooding.
- Damage to the Applicant’s Park and Dock 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 2826 and 5011. Accordingly, the work is eligible for PA funding.