Conclusion: FEMA policy required Flagler County (Applicant) to submit a written request with specific supporting documentation and receive approval from FEMA prior to commencing Private Property Debris Removal (PPDR). Because the Applicant did not comply with these requirements, its request for reimbursement for PPDR costs in Project Worksheets (PW) 989 and 990 is denied.
During October of 2016, Hurricane Matthew caused severe damage along the east coast of Florida, resulting in extensive debris accumulations in Flagler County (Applicant). On October 13, 2016, the Applicant submitted a mission request for FEMA’s approval of PPDR through EM Constellation (EMC), a web-based emergency assistance program administered by the Florida Division of Emergency Management (Recipient). The one sentence request asked for the Federal Coordinating Officer’s approval of PPDR for emergency responder access. When it did not receive a response, the Applicant commenced PPDR on October 25, 2016, and completed the work on December 6, 2016, at which point it requested reimbursement from FEMA. PWs 989 and 990 document $512,833.49 in PPDR costs. On December 21, 2016, the Applicant submitted a PPDR request letter, with a public interest determination, debris removal locations, the Applicant’s legal authority for PPDR, and indemnification agreements included. FEMA denied the request because the Applicant did not provide necessary documents or demonstrate a public interest pertaining to PPDR, omissions which the Applicant disputed on first appeal. A Final Request for Information sought additional documents and photographs and an explanation for the Applicant’s commencement of work prior to receiving FEMA approval. In response, the Applicant re-submitted its documents and noted that it requested prior approval through EMC and verbally, but eventually had to proceed with PPDR operations to address immediate public safety threats. The Regional Administrator (RA) subsequently denied the Applicant’s appeal due to its initial failure to submit a written request or receive prior approval, contrary to policy requirements. The RA also suggested the administrative record was insufficient to validate eligibility after-the-fact. On second appeal the Applicant requests that FEMA treat its EMC request as a formal written request, excuse its commencement of work without prior approval given repeated and ignored verbal requests for prior approval, and validate eligibility after-the-fact. The Recipient further suggests that FEMA apply 2017 policy retroactively to relax the written request and prior approval requirements.
Authorities and Second Appeals
- Stafford Act §§ 403(a)(3), 407(a)-(b).
- 44 C.F.R. § 206.224(a)-(b).
- PAPPG, at 53-54.
- The PAPPG requires applicants to submit a written request and receive approval from FEMA prior to commencing PPDR. The written request must identify properties requiring debris removal and include documentation demonstrating a public interest justification, establishing the applicant’s legal responsibility for PPDR, and indemnifying the federal government from claims arising from PPDR.
- The Applicant’s commencement of PPDR prior to submitting a specifically detailed written request and obtaining FEMA’s approval renders the work ineligible for reimbursement.
- A September 2017 Fact Sheet relaxing PPDR eligibility requirements does not apply retroactively to the 2016 disaster at issue in this appeal.
- The PAPPG does not provide for after-the-fact eligibility determinations for PPDR work commenced prior to obtaining FEMA approval.