In July 2014, the Chiwaukum Creek Fire, a severe wildfire located in Chelan County, Washington spread over 18,000 acres of privately and publicly owned lands, and threatened power lines, railways, businesses, orchards, fishing streams, wildfire, cultural resources, and over 1,700 structures. FEMA Region X Regional Administrator (RA) approved a Fire Management Assistance Grant (FMAG) on July 17, 2014, and the Washington State Patrol (Applicant) activated the Washington State Fire Services Resource Mobilization Plan (Mobilization Plan) to provide statewide mutual aid resources to assist with fire suppression. The Mobilization Plan is an agreement between the Applicant and local fire protection districts, and allows for other local fire districts to assist the Applicant once all local mutual aid resources are exhausted. The RA determined that the Mobilization Plan was a mutual aid agreement, and awarded Project Worksheet (PW) 10 to reimburse labor costs associated with fire mitigation, management, and control costs. However, FEMA subsequently determined that the amount the Applicant requested for labor costs included labor hours spent not working or not performing eligible emergency work. The Applicant appealed and claimed the Mobilization Plan was a contractual agreement between the fire protection districts and the Applicant and required the Applicant to pay all shift hours assigned. The Washington Emergency Management Division (Grantee) also argued that FEMA was incorrect in finding hours spent preparing to deploy or stand-by time was ineligible, and that those labor costs should be viewed as an eligible lost pay stipend. The RA denied the appeal, finding that the Mobilization Plan was a mutual aid agreement, and time spent not working was not eligible under the FMAG program. The Applicant submitted its second appeal and reiterates its prior arguments.
Authorities and Second Appeals
- Stafford Act § 420.
- 44 C.F.R. §§ 13.3, 13.36, 204.1-204.64.
- FEMA Recovery Policy 9525.7, Labor Costs – Emergency Work (Nov. 16, 2006).
- FEMA Recovery Policy 9523.6, Mutual Aid Agreements for Public Assistance and Fire Management (Nov. 10, 2012).
- FEMA Second Appeal Analysis, Washington State Patrol, FEMA-5059-FM-WA, at 3-4 (May 14, 2018); FEMA Second Appeal Analysis, Town of Nichols, FEMA-4031-DR-NY, at 5 (May 10, 2018) (citing FEMA Second Appeal Analysis, Village of Waterford, FEMA-4020-DR-NY, at 4 (Sept. 4, 2014)).
- FEMA Second Appeal Analysis, Washington State Patrol, FEMA-5063-FM-WA, PW 6, at 3-4 (Oct. 5, 2018)
- FEMA will reimburse labor costs associated with fire suppression activities under mutual aid agreements, but only for time spent conducting emergency work.
- The Applicant has not demonstrated that the hours claimed on second appeal were spent conducting emergency firefighting activities, therefore, the labor costs are not eligible for reimbursement.
- FEMA Recovery Policy 9525.7 – Labor Costs – Emergency Work provides that that FEMA will reimburse only labor costs for time spent conducting emergency work, even if an applicant is obligated by contract to fund 24-hour shifts.
- Even if the Mobilization Plan were a contract between the Applicant and local fire districts that requires reimbursement of 24-hour shifts, FEMA policy does not allow reimbursement for time spent not conducting emergency work.
Conclusion: The Applicant has not demonstrated that the labor costs are eligible as time spent conducting emergency work. Moreover, even if the Mobilization Plan were a contract between the Applicant and local fire districts, it does not bind FEMA and FEMA policy does not allow for reimbursement of time spent not conducting emergency work.