In January and February 2017, severe winter storms caused flooding and extensive damage throughout communities in California; including Blackhawk (a mixed-use, private community in Contra Costa County). The community suffered mudslides and storm-related debris. FEMA declared two major disasters (FEMA-4305/4308-DR-CA) which authorized PA for the county. In its first Request for Public Assistance (RPA), the Applicant requested PA for debris removal and emergency protective measures ($315,000.00; DR-4305). In its second RPA, the Applicant requested PA for emergency work and permanent repairs ($3,340,000.00; DR-4308). FEMA denied both RPAs in separate determination memos, noting that the Applicant did not own the property where work was performed and did not substantiate it was otherwise legally responsible for the work claimed; did not obtain prior approval from FEMA to remove debris from private property; and did not have the authority to declare, and had not otherwise demonstrated, the existence of a health and safety threat to the public. The Applicant appealed, arguing that FEMA misunderstood its legal responsibility, and incorrectly determined that the Applicant was required to own the property. The Applicant did not obtain prior approval because it considered the work an emergency response; by law, it was required to perform work to address public health or safety threats. The Regional Administrator denied the appeal, finding that the work was not the Applicant’s legal responsibility. On second appeal, the Applicant reiterates its prior arguments, and states that FEMA misunderstands its work approval discretion, and misconstrues its authority in emergency response situations. The California Governor’s Office of Emergency Services (Grantee) recommends denial because the Applicant did not obtain prior approval to remove debris from private property.
Authorities and Second Appeals
- Section 407 of the Stafford Act authorizes FEMA to fund the removal of debris from private property, if specific criteria and requirements are met, including pre-approval.
- The Applicant did not request or obtain prior approval from FEMA, as required.
- 44 C.F.R. § 206.223(a)(3) states that for an applicant to be eligible for PA funding, it must be legally responsible for the work.
- The Applicant does not own any property within its boundaries and has not demonstrated legal responsibility for permanent repairs.
- The PAPPG states the applicant must demonstrate a widespread threat to the general public’s health and safety to receive funding for emergency protective measures on private property.
- The Applicant demonstrated a limited threat to certain private properties rather than a widespread threat to the general public’s health and safety.
The Applicant does not have the legal responsibility to perform the work. The Applicant also failed to obtain prior approval from FEMA for private property debris removal. Additionally, the work performed does not meet eligibility requirements for emergency protective measures on private property. Accordingly, the Applicant’s second appeal is denied.