Duplication of Benefits

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-4068
ApplicantCity of Jacksonville
Appeal TypeSecond
PA ID#031-35000-00
PW ID#813
Date Signed2017-05-11T00:00:00

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).     

Summary Paragraph

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.

Headnotes

  • 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.

Appeal Letter

Bryan W. Koon
Director
State of Florida Division of Emergency Management
2555 Shumard Oaks Boulevard
Tallahassee, Florida  32399-2100

Re: Second Appeal – City of Jacksonville, PA ID 031-35000-00, FEMA-4068-DR-FL, Project Worksheet (PW) 813 – Duplication of Benefits

Dear Mr. Koon:

This is in response to a letter from your office dated February 2, 2015, which transmitted the referenced second appeal on behalf of the City of Jacksonville (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $363,658.80 to fund the removal and disposal of vegetative debris and sediment from a sediment retention basin in Red Bud Creek.

As explained in the enclosed analysis, I have determined that FEMA has the authority to fund the permanent restoration of the sediment basin.  Accordingly, I am granting the appeal and directing the Region IV Regional Administrator to take appropriate action to determine whether the project meets all other Public Assistance eligibility requirements. 

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. §206.206, Appeals.
 

Sincerely,

/s/

Christopher Logan
Director
Public Assistance Division                                                                       

Enclosure

cc: Gracia Szczech
      Regional Administrator
      FEMA Region IV

Appeal Analysis

Background

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 City of Jacksonville (Applicant).  The sediment basin is an engineered portion of the Red Bud Creek with a low dam designed to capture debris flowing down the creek.  FEMA prepared Project Worksheet (PW) 813 to document restoration of the sediment basin to its predisaster capacity.[1]  FEMA determined that the Department of Agriculture Natural Resources Conservation Service (NRCS), through its Emergency Watershed Protection Program (EWP), had authority to fund the project.  Consequently, FEMA determined the Facility was not eligible for Public Assistance (PA) and PW 813 was obligated for zero dollars.  NRCS subsequently denied funding for the project, and noted, “EWP assistance will not be used to perform operation or maintenance, such as the periodic work that is necessary to maintain the efficiency and effectiveness of a measure to perform as originally designed and installed.”[2] 

First Appeal

The Applicant appealed FEMA’s determination in a letter dated April 24, 2013, arguing that the NRCS denial provided sufficient evidence for FEMA to reverse its previous position and fund the work.  The Applicant claimed that its Department of Public Works completed periodic maintenance of the sediment basin before the disaster, at a minimum of once per year.[3]  The Florida Division of Emergency Management (Grantee) concurred in a letter dated August 2, 2013 and noted an appeal amount of $363,098.00.[4]  The Grantee asserted that while NRCS categorized the scope of work as maintenance, its denial did not consider the sediment basin was less effective due to the disaster, leaving the surrounding area more prone to flooding.  The Grantee claimed FEMA failed to realize that EWP regulations clearly exclude the project’s scope of work because such work fell outside NRCS’s authority.[5] 

On September 19, 2014, FEMA Region IV Regional Administrator (RA) denied the appeal.  The RA concluded that the Applicant’s lack of periodic maintenance was the reason NRCS did not fund the project.  The RA explained that the NRCS has broad statutory authority under Title 16 of the United States Code (16 U.S.C.) § 2203, and that statutory authority was not limited by an implementing regulation, such as the regulation outlining the EWP’s operation and maintenance requirements.[6]  The RA cited FEMA Recovery Policy RP9524.3, Rehabilitation Assistance for Levees & Other Flood Control Works, to conclude that FEMA must defer to other Federal agencies where those agencies have authority over the work.[7]  As such, the RA reasoned that Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.226(a)(1) applied and disallowed funding for work that fell under the authority of another federal agency.[8] 

Second Appeal

The Applicant submitted an undated second appeal, arguing that the RA incorrectly determined that the NRCS’s denial was due to a lack of periodic maintenance by the Applicant.  The Applicant clarifies that NRCS denied funding due to a lack of regulatory authority to cover the type of work requested.  It further claims that it routinely maintains the sediment basin and in support thereof provided maintenance and survey records with the appeal.[9] 

The Grantee concurred and transmitted the appeal to FEMA on February 2, 2015, stating that the Applicant was appealing $363,098.00 to return the sediment basin to its predisaster condition.[10]  The Grantee further notes that the Applicant maintained the basin and submitted supporting records to FEMA.  The Grantee asserts that NRCS was not the responsible Federal agency and therefore the project was not eligible under the EWP program.[11]  The Grantee asserts that FEMA misinterpreted the meaning of “authority” in 44 C.F.R. § 206.226(a)(1):

FEMA has determined the word to refer to an agency’s statutory authority, not to an agency’s [implementing] regulations and policies that establish discretionary eligibility rules for a grant program (citation omitted).  This interpretation of “authority” is too broad and leads to large categories of work being reassigned to agencies that will never provide funding.[12]

The Grantee emphasizes that the NRCS’s specific regulation preventing funding of this type of work should be given the same deference as the broad statutory authority FEMA used to assign this project to NRCS.[13]

Discussion

Pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), FEMA may provide funds for the restoration of a public facility damaged by a major disaster.[14]  Work to restore water control facilities is eligible for PA funding so long as those facilities are not otherwise eligible for funding from the United States Army Corps of Engineers or NRCS.[15]  NRCS’s EWP assists with the implementation of emergency measures deemed necessary to safeguard lives and property from floods, drought, and the products of erosion whenever fire, flood or any other natural occurrence causes a sudden watershed impairment.[16]  Such assistance may not be used to perform operation or maintenance, including periodic work necessary to maintain the efficiency and effectiveness of a measure to perform as originally designed and installed.[17]  Alternatively, FEMA may fund repairs to water control facilities, including sediment basins, which are not eligible to receive funding from NRCS.[18] 

PW 813 was formulated for the permanent restoration of a sediment basin.  NRCS determined it did not have authority over the project because the basin was designed to collect sediment and would require periodic removal of the sediment.[19]  As such, NRCS found that the sediment basin was operating as designed and did not require emergency work through the EWP.[20]  NRCS did not make a determination regarding whether the Applicant routinely maintained the sediment basin.[21]  As such, FEMA has authority to fund restoration of the storage capacity of the sediment basin pursuant Stafford Act § 406(a)(1)(A). 

Conclusion                                                                                             

NRCS did not have authority to fund the permanent restoration of the Applicant’s sediment basin.  As such, FEMA has authority to fund the work.  Accordingly, the appeal is granted and the RA is directed to determine whether the project meets all other eligibility requirements.

 

 

[1] Project Worksheet 813, City of Jacksonville, Version 0, at 8 (Oct. 28, 2012) (the PW stated that the Applicant was unable to provide maintenance records at the time the PW was written).

[2] Email from Area Engineer, U.S. Dep’t Agric. – Nat’l Res. Conservation Serv. to Rep., City of Jacksonville (Apr. 3, 2013, 1050 EST). 

[3] Letter from Chief, Right of Way and Grounds Maint. Div., City of Jacksonville, to Representative, Fla.Div. of Emergency Mgmt. (Apr. 24, 2013).

[4] Letter from Governor’s Authorized Representative, Fla. Div. of Emergency Mgmt., to Reg’l Adm’r, FEMA, at 2 (Aug. 2, 2013) (the $363,098.00 the Grantee appealed reflects the estimated repair costs in PW 813, however, the PW also included direct administrative costs of $560.80, for a total of $363,658.80).

[5] Id.

[6] Letter from Reg’l Adm’r, FEMA to Dir., Fla. Div. of Emergency Mgmt., at 2 (Sep. 19, 2014).

[7] Id.

[8] Id.

[9] Letter from Chief Right of Way and Stormwater Maint. Div., City of Jacksonville to Representative, Fla. Div. of Emergency Mgmt. (Undated) (stating that it routinely maintained the sediment basin on an almost yearly basis).

[10] Letter from Governor’s Authorized Representative, Fla. Div. of Emergency Mgmt. to Assistant Adm’r – Disaster Assistance Dir., FEMA, at 1 (Feb. 2, 2015) (the RA on first appeal noted a denial of $368,658.80 in PA funding for the restoration and direct administrative costs).

[11] Id.

[12] Id. at 3.

[13] Id.

[14] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406(a)(1)(A), 42 U.S.C. § 5172(a)(1)(A) (2011).

[15] Recovery Policy RP 9524.3, Rehabilitation Assistance for Levees and other Flood Control Works, at 2 (Sep. 23, 2011) [hereinafter RP 9524.3]; Public Assistance Guide, FEMA 322, at 82 (June 2007).

[16] 16 U.S.C. § 2203(a) (2011).

[17] Title 7 of the Code of Federal Regulations (7 C.F.R.) § 624.6(b)(2)(ii) (2011).

[18] RP 9524.3, at 2.

[19] Email from Area Eng’r, USDA-NRCS, to Appeal Analyst, FEMA (Dec. 20, 2016, 2108 EST). 

[20] Id.

[21] Id.

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