Flood Control Works
|Applicant||City of Clarksville|
|PW ID#||827, 3979, 4163, and 5004|
Conclusion: While the City of Clarksville’s (Applicant) facilities are located within United States Army Corps of Engineers (USACE) flowage easement boundaries, the governing legal instruments do not contain language holding the Federal government harmless from liability for all causes of flooding. As such, the hold harmless provision in this instance does not demonstrate that the Applicant had assumed the risk for all flooding and, consequently, does not justify denying eligibility.
Beginning on April 30, 2010, severe storms, tornadoes, heavy rains, high winds, flooding, and flash flooding affected the City of Clarksville. Project worksheets (PWs) 827 and 5004 were drafted to address repair and restoration work to the Applicant’s Police Shooting Range and associated contents, and PWs 3979 and 4163 were drafted to address repair and restoration work to the Applicant’s Park. During PW review, FEMA determined the Range and Park were within a USACE flowage easement boundary. Based on this information, FEMA determined the work in these PWs was ineligible and costs were reduced accordingly. In its first appeal, the Applicant asserted that the governing legal documents, with hold harmless provisions included therein, do not preclude FEMA from providing PA funding pursuant to the Stafford Act. The Regional Administrator (RA) denied the first appeal because he determined that the terms of the legal instruments provided the Federal government with immunity from liability, and that, while immunity from liability does not legally prohibit FEMA from providing grant assistance, FEMA policy precludes PA funding in such circumstances. In its second appeal, the Applicant asserts that the flowage easements do not hold the Federal government harmless for all flooding, only flooding occurring when the USACE takes deliberate action to flood the land at issue. The Applicant also asserts that FEMA’s policy of denying claims based on an USACE flowage easement or lease is directly contrary to the Stafford Act.
Authorities and Second Appeals
- Stafford Act § 406, 42 U.S.C. § 5172.
- 44 C.F.R. § 206.223(a)(3).
- PA Guide, at 23.
- Regarding facilities located within USACE flowage easement boundaries, FEMA reviews the terms of the legal instrument to determine eligibility. If the terms do not specify that the Federal government is not liable for action by the USACE or any other cause, PA funding may be available.
- Here, the USACE flowage easement and lease only hold the Federal government harmless for action by the USACE, not natural flooding.
- Damage to the Applicant’s shooting range and park was caused by Disaster 1909, a natural flood.
- Pursuant to 44 C.F.R. § 206.223(a)(3), to be eligible for PA funding, an item of work must be the legal responsibility of an eligible Applicant.
- The City of Clarksville is an eligible Applicant and was legally responsible for the work embodied in PWs 827, 3979, 4163, and 5004. Accordingly, the work is eligible for PA funding.
Tennessee Emergency Management Agency
3041 Sidco Drive, P.O. Box 41502
Nashville, Tennessee 37204-1502
Re: Second Appeal – City of Clarksville, PA ID 125-15160-00, FEMA-1909-DR-TN, Project Worksheets (PWs) 827, 3979, 4163, and 5004 – Flood Control Works
Dear Mr. Purkey:
This is in response to a letter from your office dated July 10, 2014, which transmitted the referenced second appeal on behalf of the City of Clarksville (Applicant). The Applicant appealed a total of seven PWs; the remaining PWs will be addressed in separate determination letters. Regarding PWs 827, 3979, 4163, and 5004, the Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $393,033.32 in Public Assistance (PA) funding for the repair and restoration of the Clarksville Police Department Shooting Range Building and McGregor Park.
As explained in the enclosed analysis, I have determined that, while the facilities are subject to the U.S. Army Corps of Engineers (USACE) flowage easements, the terms of the legal instruments at issue do not hold harmless the Federal government for damage caused by natural flooding. As such, the existence of the legal instruments does not demonstrate the Applicant had knowingly assumed the risk for natural flooding and, consequently, does not justify denying eligibility. Therefore, the appeal is granted. By copy of this letter, I am requesting the Regional Administrator take appropriate action to implement this determination.
Please inform the Applicant of my decision. This determination is the final Agency decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.
cc: Gracia Szczech
FEMA Region IV
Beginning on April 30, 2010, severe storms, tornadoes, heavy rains, high winds, flooding, and flash flooding affected the City of Clarksville (Applicant). As a result, the Police Department’s Shooting Range (Range) and McGregor Park (Park) sustained extensive damage. Project worksheets (PWs) 827 and 5004 were drafted to address repair and restoration work to the Range and associated contents, and PWs 3979 and 4163 were drafted to address repair and restoration work to the Park. During the PW development process, FEMA determined the Range and Park were within a USACE flowage easement boundary. As such, FEMA reviewed the USACE Consent to Easement governing the Range, specifically covering Tract Number 10750E. In addition, FEMA reviewed the signed lease governing the Park, specifically covering Tract Number 10764E-3. Based on this information, FEMA determined the work in PWs 827, 3979, 4163, and 5004 was ineligible for Public Assistance (PA) funding and reduced the PWs to zero dollar amounts accordingly.
In its first appeal letter dated June 24, 2011, the Applicant asserted that the governing legal documents, with hold harmless provisions included therein, do not preclude FEMA from providing PA funding pursuant to the Stafford Act. The Applicant argued that the purpose of the Stafford Act is to provide funding to state and local governments for facilities damaged by any major disaster and has nothing to do with contractual rights or liability. In addition, the Applicant asserted that FEMA’s position that contractual provisions holding the United States harmless from liability make otherwise eligible work ineligible for funding is not in accordance with the Stafford Act.
In a letter dated May 1, 2014, the Region IV Regional Administrator (RA) denied the first appeal for PWs 827, 3979, 4163, and 5004 because he determined that the facilities were located within a flowage easement boundary. The RA interpreted the flowage easements to make the United States immune from liability. The RA noted that “[t]he easement agreement’s terms reflect the U.S. government’s intent that the risk of damage to the facilities in the high risk flood area would be borne by the owner rather than by the U.S. taxpayer.” The RA also stated that immunity from liability does not legally prohibit FEMA from providing grant assistance, but FEMA has decided as a matter of policy to preclude PA funding in such circumstances.
In its second appeal dated June 30, 2014, the Applicant requests $393,033.32 for work to restore and repair its facilities to pre-disaster condition. The Applicant asserts that the determination that disaster relief funds are not available for the PWs is incorrect because the flowage easement agreements do not hold the USACE or the U.S. government harmless for all flooding. The Applicant asserts that the “hold harmless” provisions only apply when the USACE takes deliberate action to flood the tracts at issue, not when natural flooding occurs. The Applicant also asserts that FEMA’s policy of denying claims based on an USACE flowage easement or lease is directly contrary to the Stafford Act. The Applicant cites Stafford Act § 406(a)(1)(A) that states FEMA is authorized to make contributions to a state or local government for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster, and that by the Stafford Act’s express terms, funding is available for damage from any flood, regardless of cause. Therefore, the Applicant argues the right to flood an area, or any liability resulting from such flooding, has nothing to do with eligibility for funding under the Stafford Act.
The Stafford Act authorizes FEMA to provide federal assistance to a local government for the repair, restoration, reconstruction, or replacement of a facility damaged by a declared disaster. While FEMA is authorized to provide reimbursement to eligible Applicants, the Stafford Act does not obligate FEMA to provide PA reimbursement; meaning FEMA’s authority is discretionary. Pursuant to Title 44 of the Code of Federal Regulations (C.F.R.) § 206.223(a)(3), disaster-related work must be the legal responsibility of the Applicant to be eligible for PA funding. Ownership of a facility is generally sufficient to establish responsibility. FEMA does not dispute that Clarksville Gas and Water is an eligible applicant, nor that the Range and Park are eligible facilities. On second appeal, the only issue in dispute is whether the damage was disaster-related or intentionally caused by the USACE.
In the past, FEMA has denied PA funding for facilities located in USACE flowage easements, in particular when the flowage easement includes provisions that identify risks to the facility and hold the Federal government harmless. FEMA reviews each project on a case-by-case basis and determines eligibility using the terms of the legal instrument. FEMA considers the hold harmless provisions to evaluate the inherent level of risk and as evidence of the State or local government’s awareness and acceptance of risk. If the governing legal instrument includes language that clearly holds the Applicant responsible for any flood damage that occurs to its facilities due to USACE actions or inactions, and/or any other causes specified in the legal instrument, FEMA will deny PA funding for the project because inclusion of such language indicates that the risk of damage is great, and that the owner of the facility is aware of and has assumed it should resulting damage occur. FEMA’s existing practice is to deny assistance to facilities located in USACE flowage easements where the language in the flowage easement is clear that the Applicant is responsible for any flood damage that occurs to its facilities due to USACE actions or any other causes specified in the flowage easement. However, if the legal instrument does not include such language, the project is potentially eligible, and other eligibility criteria for the PA Program apply.
There are two legal instruments relevant to this appeal. The first, USACE flowage easement DACW62-9-95-0157, governs PWs 827 and 5004. The flowage easement governing PWs 827 and 5004 does not relinquish ownership of the property from the Applicant. Regarding liability, the flowage easement states, “[t]he United States shall in no case be liable for any damage or injury to the structure herein consented to, which may be caused by any action of the United States under this easement, or that may result from future operations undertaken by the United States…” The flowage easement further states, “[t]he United States shall not be responsible for damages to property… which may arise from or be incident to the exercise of the consented activity.”
In PWs 827 and 5004, FEMA states, “[t]he USACE flood easement agreement(s) hold harmless the United States Government for all losses resulting from flood.”  However, this is not supported by the actual terms of the flowage easement. The terms of the flowage easement hold the Federal government harmless from liability for property damage caused or undertaken by the United States. The flowage easement does not extend to property damage resulting from “any other cause.” In this instance, the flooding was caused by natural flooding, not USACE action or inaction.  Therefore, as a matter of practice, FEMA is not precluded from providing PA reimbursement for these projects.
The scope of work for PW 827 included use of force account labor and equipment to demolish, load, haul and dispose of construction debris, while FEMA drafted PW 5004 to reconstruct the Range and replace its contents, including ammunition, equipment, weapons, tactical clothing, body armor vests and training supplies. Generally, this type of work is eligible for reimbursement under the PA program. Since the terms of the flowage easement do not preclude PA reimbursement, FEMA should determine these projects eligible and reimburse eligible costs.
The second legal instrument, a lease agreement between the USACE and the Applicant, is relevant to PWs 3979 and 4163. The lease agreement establishes the U.S. Army as the lessor and the City of Clarksville as the lessee. The consideration for the lease is the operation and maintenance of McGregor Park by the Applicant for the benefit of the United States and general public. Regarding liability, the lease states, “[t]he right is reserved to the United States… to enter upon the premise… for any purpose… in connection with Government purposes…, and the Lessee shall have no claim for damages on account thereof against the United States or any officer, agent, or employee thereof.” Moreover, the lease stipulates, “[t]he United States shall in no case be liable for any damage… to the structures… which may be caused by any action of the United States under its easement, or that may result from future operations undertaken by the United States….” The terms of the lease do not extend the Federal government’s limited liability to damage caused by natural flooding. Since the lease does not include language holding the Federal government harmless from liability resulting from natural flooding, the projects embodied in PWs 3979 and 4163 are potentially eligible for PA funding. Accordingly, FEMA must look to the terms of the lease to determine whether the Applicant is legally responsible for the facility.
The facility, a park, would generally be eligible for PA funding. While federal agencies are not eligible for PA funding, and legal responsibility usually lies with the owner of the facility, there are circumstances where a federally-owned facility that is operated and maintained by a local government may be eligible for assistance because the local government has the legal and financial responsibility for the operation, maintenance, and repairs for the facility. Examples include roads constructed by the U.S. Forest Service and the Bureau of Indian Affairs, and reservoirs and water delivery systems constructed by the U.S. Bureau of Reclamation. FEMA’s practice is to provide Public Assistance for leased facilities if the applicant can establish legal responsibility for disaster-related repair or replacement of the damaged facility.
Regarding the projects embodied in PWs 3979 and 4163, the lease contains a Structures and Equipment provision that allows the Applicant to erect structures and provide equipment that is necessary to furnish the facilities and services authorized by the lease. The provision stipulates that the structures and equipment are and will remain the Applicant’s property. In addition, the Protection of Property provision requires the Applicant to “exercise due diligence in the protection of all property located on the premises against fire or damage from any and all other causes.” According to PW 3979, the Applicant used force account labor to clean, repair, or replace: rock rip-rap, concrete sidewalks, concrete columns, two tubular steel handrails, playground equipment and chips, 450 exterior outlets and boxes, eight light fixtures, bathroom facilities, benches, light poles, and other park fixtures. Moreover, according to PW 4163, the Applicant used contracted labor to repair the elevator in the Pavilion Building at McGregor Park. Pursuant to the terms of the lease agreement, this work is the Applicant’s responsibility and, therefore, eligible for PA funding.
The legal instruments governing PWs 827, 3979, 4163, and 5004 do not contain language that holds the Federal government harmless from liability from damage resulting from natural flooding. As such, the existence of the legal instruments does not justify denying eligibility. In addition, the work is generally eligible under the PA Program. Therefore, the appeal is granted.
 See The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, §§ 102 and 406, 42 U.S.C. §§ 5122 and 5172 (2007).
 See Stafford Act § 305; see also City of San Bruno v. FEMA, 181 F. Supp. 1010, 1015-16 (N.D. Cal. 2001) (FEMA’s decision whether or not to obligate funds is clearly a discretionary decision.).
 Public Assistance Guide, FEMA 322, at 23 (June 2007) [hereinafter PA Guide].
 FEMA Second Appeal Analysis, White House Utility District, FEMA-1909-DR-TN, at 3 (Aug. 15, 2013).
 Id. at 2-3.
 Id. at 3.
 Id. It is important to note that in the White House decision, FEMA found the USACE caused the flooding of the damaged facilities. FEMA did not find the same causation in this appeal.
 It should be noted that an easement is a right of use over the property of another, the most important being rights of way and rights concerning flowing waters. Further, an easement does not allow the easement holder to occupy the land, or to exclude others from the land, unless they interfere with the easement holder's use. (Black’s Law Dictionary 509 (6th ed. 1991)).
 See Consent to Easement between the City of Clarksville and Chief, Real Estate Division, USACE, Consent No. DACW62-9-95-0157 (Aug. 2, 1995) [hereinafter DACW62-9-95-0157].
 See generally DACW62-9-95.
 DACW62-9-95-0157, at 1.
 Id. at 2.
 It is important to note that a “hold harmless” clause is a contractual term that absolves the United States from liability, whereas a Public Assistance grant involves a transfer of money from the Federal government to a Grantee to carry out a public purpose of support.
 See U.S. Army Corps of Engineers, After Action Report: May 2010 Flood Event Cumberland River Basin, at 10 (July 21, 2010) (available at https://www.hsdl.org/?view&did=21310) (detailing that the flooding was caused by a combination of an extraordinary rain event that exceeded the 1,000-year rainfall event and flash flooding).
 See Lease Agreement between the Secretary of the Army and the City of Clarksville, Department of the Army Lease to Non-state Governmental Agencies for Public Park and Recreational Purposes, DACW62-1-00-0008 (Oct. 26, 1999) [hereinafter DACW62-1-00-0008].
 Id. at 1.
 Id. at 5.
 Id. at 13.
 Supra note 16.
 Stafford Act § 102(9)(D),44 C.F.R. § 206.221(h).
 PA Guide, at 23.
 DACW62-1-00-0008, at 3.
Id. at 5 (emphasis added).