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Second Appeal Brief
PA ID# 121-73710-00; Town of Trophy Club
PW ID# PW Multiple; Legal Responsibility – 705(c)
The Town of Trophy Club, Texas (Applicant) is located on Grapevine Lake, which is managed by the U.S. Army Corps of Engineers (USACE). The Applicant’s Trophy Club Park (Facility) sustained flooding as a result of severe storms in May and June 2015 (DR-4223). The Facility sits on land owned by USACE and leased to the Applicant. FEMA prepared three project worksheets (PWs): PW 2107 for debris removal; PW 1840 for donated resources; and PW 1584 for park repairs. FEMA issued determination memos for each PW in November 2017 stating that FEMA would not fund them per the hold harmless provision in the USACE lease. On first appeal, the Applicant stated that the flooding was caused by natural events, not USACE actions. It also stated it had completed debris removal. The Regional Administrator (RA) denied the appeal, citing the hold harmless provision. The RA noted the provision indicates a substantial risk of flooding and that the Applicant was aware of the risk. The RA also stated USACE allowed the lake’s level to rise. The RA also determined Stafford Act Section 705(c) did not bar FEMA from deobligating funds. On second appeal, the Applicant again states that the flooding was caused by natural events and that FEMA provided assistance for the Facility before.
- Stafford Act §§ 406(a)(1)(A), 705(c)
- Recovery Policy FP 205-081-2, Stafford Act Section 705, Disaster Grant Closeout Procedures
- White House Util. Dist., FEMA-1909-DR-TN (Aug. 15, 2013); City of Clarksville, FEMA-1909-DR-TN PWs 2826 & 5011 (Dec. 18, 2015)
- When an applicant’s facility is located on land owned by USACE and leased to the applicant, FEMA determines eligibility based on the terms of the lease. If it specifies the applicant is responsible for flood damage due to USACE actions or inactions or any other specified causes, FEMA will deny funding. This is because such language indicates that risk of damage is great and that the owner is aware of and has assumed it.
- Here, the USACE lease expressly stated the government had a right to flood the park and manipulate lake levels and would not be liable for any resulting damage. Therefore, the Applicant was aware of and assumed the risk of flood damage to the Facility.
- Section 705(c) of the Stafford Act bars FEMA from deobligating any payment to a state or local government if: (1) the payment was authorized by an approved agreement specifying the costs, (2) the costs were reasonable, and (3) the purpose of the grant was accomplished.
- The Grantee did not draw down funds for PWs 1584 and 1840. Under FEMA policy, this means there was no payment under Section 705(c). The Grantee also failed to certify the Applicant completed work under PW 2107 and, therefore, failed to demonstrate the purpose of the grant was accomplished. Section 705(c) does not bar deobligating funds.
Given the UCASE lease’s hold harmless provision, the Applicant assumed the risk of Facility flood damage, and FEMA will not provide funding. Section 705(c) doesn’t deobligation.