Appeal Brief | Appeal Letter | Appeal Analysis | Back
Second Appeal Brief
PA ID# 127-16675-00; City of DeBary
PW ID# 149; Immediate Threat, Direct Result of Disaster
Conclusion: The Applicant has not provided sufficient documentation to demonstrate that all of the work to continue pumping beyond the declared period was necessary to address an immediate threat. In limited circumstances, continued pumping in the days immediately following the incident period was necessary. However, the Applicant was unable provide sufficient documentation to allow FEMA to allocate costs.
Between May 17 and May 28, 2009, rainstorms impacted the City of DeBary. On May 9, 2009, prior to the declared rain event, the Applicant began pumping anticipated water out of its surrounding watershed into the nearby St. Johns River. The Applicant initiated the pumping as an emergency protective measure to protect surrounding homes and businesses from flood damage and continued to pump after the incident period ended on May 28, 2009. FEMA subsequently prepared Project Worksheet (PW) 149, which covered $19,150.01 for pumping costs incurred during the declared incident period. FEMA, through the PW, denied eligibility for the pumping performed by the Applicant after the incident period, determining this additional work could not be directly attributed to the declared event. Through a September 10, 2010 letter to the Florida Division of Emergency Management (Grantee), the Applicant submitted its first appeal, requesting an additional $690,754.63 in funding for pumping costs incurred after the incident period. The FEMA Region IV Regional Administrator (RA) denied the first appeal on July 20, 2012, finding that the Applicant failed to provide documentation showing that the 30 days of pumping beyond the incident period was necessary to remove an immediate threat or that pumping was required as a result of the declared event. In a letter dated May 4, 2015, the Applicant submitted its second appeal to the Grantee along with an engineering report arguing the necessity of the additional pumping. Subsequently, the Grantee submitted a May 27, 2015 letter to FEMA, discussing the timeliness of the appeal and endorsing Applicant’s request for an additional obligation of $323,778.98 in Public Assistance for pumping costs beyond May 28, 2009.
Authorities and Second Appeals
- 44 C.F.R. §§ 206.223 & 206.225 (a)(3)(i-ii).
- PA Guide at 71.
- OMB Circular A-87 Att. A § (C)(1)(a) & (j)
- Pursuant to 44 C.F.R. § 206.225 (a)(3)(i-ii), in order to be eligible, emergency protective measures must eliminate or lessen immediate threats to life, public health or safety; or eliminate or lessen immediate threats of significant additional damage to improved public or private property through measures which are cost effective.
- Not all of the pumping work the Applicant performed after the end of the incident period addressed an immediate threat.
- Pursuant to 44 C.F.R. § 206.223, to be eligible for financial assistance an item of work must “[b]e required as the result of the emergency or major disaster event.
- Lake water levels above the emergency pump level immediately after the incident period were a result of the disaster due to their proximity in time to the disaster event.
- OMB Circular A-87 provides that allowable costs must meet the cost principles of being allocable to Federal awards and adequately documented.
- The Applicant’s documentation does not demonstrate costs allocable to any additional eligible work.