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Second Appeal Brief
PA ID# 031-35000-00; City of Jacksonville
PW ID# 813; Duplication of Benefits
Conclusion: The Department of Agriculture Natural Resources Conservation Service (NRCS), through its Emergency Watershed Protection Program (EWP), did not have authority to fund the permanent restoration of the City of Jacksonville’s (Applicant) sediment basin. FEMA may fund the project pursuant to Stafford Act § 406(a)(1)(A).
From June 23 to July 26, 2012, flooding and high winds from Tropical Storm Debby deposited sediment and vegetative debris in a sediment basin in Red Bud Creek, owned and maintained by the Applicant. FEMA prepared Project Worksheet (PW) 813 to document permanent restoration of the sediment basin to its predisaster capacity. FEMA determined that the Natural Resources Conservation Service (NRCS), through its Emergency Watershed Protection Program (EWP), had authority to fund the project. Consequently, FEMA found that the restoration of the sediment basin was not eligible for Public Assistance (PA) and obligated PW 813 for $0. NRCS subsequently denied funding the project, stating that EWP assistance was not available for operation or maintenance costs. The Applicant appealed FEMA’s determination and argued that NRCS’s denial should be sufficient evidence for FEMA to reverse its position. The Regional Administrator (RA) denied the appeal, finding that NRCS denied funding due to the Applicant’s lack of periodic maintenance. Further, the RA found that NRCS had the statutory authority to fund this type of work and reasoned that 44 C.F.R. § 206.226(a)(1) prohibited FEMA from funding projects that another federal agency has specific authority to fund. The Applicant appeals the RA’s decision and reiterates that the NRCS’s denial was solely based on the regulatory prohibition on funding maintenance projects. The Florida Division of Emergency Management concurs and argues that EWP implementing regulations should be given the same deference as the enabling statute when determining which agency has the most specific authority under 44 C.F.R. § 206.226(a).
Authorities and Second Appeals
- Stafford Act § 406(a)(1)(A).
- 16 U.S.C. § 2203(a).
- 7 C.F.R. § 624.6(b).
- 44 C.F.R. § 206.226.
- PA Guide, at 82.
- RP 9524.3, at 2.
- Stafford Act § 406 authorizes FEMA to fund permanent work to repair an improved and maintained natural feature to its predisaster design.
- Pursuant to 44 C.F.R. § 206.226(a)(1), FEMA funding is not available when another federal agency has specific authority to restore a facility damaged by the disaster.
- 16 U.S.C. § 2203(a) authorizes the Secretary of Agriculture to undertake emergency measures necessary to protect lives and property from any natural occurrence that caused a sudden impairment to a watershed. 7 C.F.R. § 642.2 authorizes NRCS’s EWP to implement such emergency recovery measures.
- NRCS does not have specific authority to fund the restoration of the Applicant’s sediment basin. As such, FEMA may fund the work.