Appeal Brief | Appeal Letter | Appeal Analysis | Back
Second Appeal Brief
PA ID# 000-UK5O0-00; Puerto Rico Aqueduct and Sewer Authority
PW ID# 1966 and 1996; Debris Removal; Immediate Threat
Conclusion: The requested funding for debris removal is ineligible for Public Assistance because the Applicant did not establish immediate threats for purposes of Category A funding, or produce clearance schedules for purposes of Category D funding.
Heavy rains from Hurricane Irene caused debris and sediment deposits in De Loiza and La Plata reservoirs. The Applicant requested Category A Public Assistance (PA) funding for debris removal. FEMA determined that the reservoirs did not meet Category A eligibility requirements because the debris did not pose an immediate threat to public health and safety. Nor did the facilities qualify for Category D funding because the reservoirs were not eligible flood control works and the Applicant did not provide maintenance documentation. On first appeal, the Applicant provided a report from its engineer supporting the claim that sediment was storm related, alleged that the sediment posed an immediate threat to health and safety during periods of low rainfall and diminished water capacity, and submitted a letter referencing annual cleaning programs. The Regional Administrator denied the first appeal, finding that the Applicant’s calculations of disaster related sediment were not precise enough; the Applicant did not provide documentation supporting its claim that diminished water capacity and quality posed an immediate threat; and the maintenance of the reservoirs was intermittent, not regular. On second appeal, the Applicant alleges FEMA: underestimated the consequences of the sediment in the river; wrongly interpreted its methodology of sediment calculations; and incorrectly determined that sediments, which included organic matter, posed an immediate threat in the event of a drought. The Applicant also states that it has a draft plan of perpetual dredging under review.
Authorities and Second Appeals
- Stafford Act § 403(a)(3)(I).
- Stafford Act § 406.
- 44 C.F.R. § 206.204(c); § 206.201(b).
- 44 CFR § 206.221(c); § 206.224.
- PA Guide, at 2; 23; 66; and 82.
- Stafford Act § 403(a)(3)(I), as implemented by 44 CFR § 206.224, authorizes FEMA to provide assistance for work and services performed to reduce immediate threats to life, property, and public health and safety. 44 CFR § 206.221(c) and the PA Guide define an immediate threat as the threat of additional damage or destruction from an event which can reasonably be expected to occur within five years.
- The Applicant has not established that the threat of diminished water quality and quantity posed by the reduced capacity is only attributable to the declared disaster. The threat is a result of years of cumulative debris.
- 44 CFR § 206.201(b) defines emergency work as work that must be done immediately to save lives and protect improved property and public health and safety. Section 206.204 provides that emergency work must be completed within six months of the disaster unless extensions are granted by the Grantee or FEMA. The PA Guide further states that applicants must not delay response and recovery actions in anticipation of Federal funding.
- The Applicant did not provide documentation regarding time extension requests. Thus, debris removal was not performed within the required timeframes.
- Stafford Act § 406 authorizes FEMA to fund restoration of public facilities. Per the PA Guide, FEMA requires maintenance records to determine disaster-related debris and clearance schedules to show that the facility was actively used and maintained.
- The Applicant used an acceptable method to show disaster related debris but failed to provide any clearance schedules.