Conclusion: The New York State Thruway Authority and Canal Corp.’s (Applicant) consolidated second appeal is time-barred by Stafford Act § 423(a) and 44 C.F.R. § 206.206(c), and is consequently denied.
As a result of severe storms in June and July 2006 (DR-1650), Hurricane Irene in August and September 2011 (DR-4020), and Tropical Storm Lee in September 2011 (DR-4031), the New York State Thruway Authority and Canal Corp. (Applicant) sustained flooding damage to several of its facilities. FEMA prepared Project Worksheets (PWs) 2384, 2448, 2544, 2549, 2551, 2552, 4785, and 7991 to document the Applicant’s damages. Thereafter, FEMA applied mandatory funding reductions pursuant to Section 406(d) of the Stafford Act, because several of the facilities were insurable under the National Flood Insurance Program, located in a Special Flood Hazard Area identified for more than one year, and not covered by flood insurance at the time of the declared event. FEMA reduced funding for each PW by the amounts that would have been payable under a Standard Flood Insurance Policy (SFIP) for the damages to the facilities had they been covered by a SFIP at the time of the flooding. FEMA also determined that it had provided assistance for several facilities under a prior declared event, and the Applicant failed to obtain and maintain insurance as required by Section 311 of the Stafford Act. As such, FEMA deducted the estimated costs to restore those facilities from the PWs. The Applicant appealed the action arguing that it was covered by the State’s self-insurance plan; and thus, FEMA’s insurance requirements were satisfied and therefore no deductions should have been applied. The Regional Administrator upheld the insurance-related reductions, finding that the Applicant failed to provide any documentation, plan or policy demonstrating the State’s self-insurance; documentation demonstrating that the Applicant satisfied the obtain and maintain insurance requirement; or any other documentation showing the insurance reductions were improper. The Applicant received FEMA’s first appeal determinations for PWs 2384, 2448, 2549, 2551, 2552, and 7991 on December 28, 2016, and the first appeal determinations for PWs 2544 and 4785 on January 30, 2017. On May 24, 2017, 114 and 147 days after receiving notice of all the first appeal determinations, the Applicant submitted its consolidated second appeal to the Grantee. In its second appeal, the Applicant again argues that the State is self-insured and exempt from the Stafford Act requirements to purchase flood insurance pursuant to 44 C.F.R. § 75.14.
Authorities and Second Appeals
- Stafford Act § 423(a).
- 44 C.F.R. § 206.206(c)(1).
- FEMA Second Appeal Analysis, Township of Vernon, FEMA-4021-DR-NJ, at 3 (Dec. 7, 2016).
- Stafford Act § 423(a) and 44 C.F.R. § 206.206(c)(1) provide that an Applicant must file an appeal within 60 days after the receipt of notice of the action that is being appealed.
- The Applicant submitted its consolidated second appeal 114 days after receiving notice of FEMA’s first appeal decisions.
- Neither the Stafford Act nor 44 C.F.R. § 206.206 provide FEMA with the authority to grant time extensions for the deadline to file an appeal.