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Legal Responsibility

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4010-DR-KS
ApplicantKansas Department of Wildlife, Parks and Tourism
Appeal TypeSecond
PA ID#000-U2R7P-00
PW ID#82, 168, 171, 212, 214, 266, FEMA-1932-DR-KS, PW 461
Date Signed2015-07-23T00:00:00

Conclusion:  The Applicant has maintained the shoreline and the damages are the Applicant’s legal responsibility.  While the Bureau of Reclamation does not have specific authority to provide disaster assistance, it did provide Title 28 funding to repair disaster-related damages, and this represents a duplication of benefits.

Summary Paragraph

DR-1932 caused flooding and shoreline erosion at several state parks administered by the Applicant.  FEMA obligated PW 461 for rip rap protection loss along the Waconda Lake shoreline.  Before work could be completed, DR-4010 caused flooding which damaged several facilities and caused further shoreline erosion.  FEMA obligated 10 PWs for work in Glen Elder State Park.  Later FEMA notified the Grantee that the Applicant was not legally responsible for repairs to the shoreline of Waconda Lake and the PWs written for repairs to infrastructure and recreation facilities at Glen Elder State Park constitute a duplication of benefits since Title 28 funding is available from the Bureau of Reclamation.  The Applicant appealed FEMA’s denial of $256,954.80 for damage sustained to the shoreline of Waconda Lake.  The Grantee forwarded an appeal for a total of $1,026,389.47 that included the funding sought by the Applicant and additional funding for PWs not identified by the Applicant. The Regional Administrator denied the appeal, determining that: the Applicant is not legally responsible for maintenance to the shoreline and other park facilities; funding from BOR presents a duplication of benefits; and the damages were due to a lack on maintenance instead of a direct result of the disaster.  The Applicant submitted a second appeal which reiterated its first appeal and provided further documentation.

Authorities and Second Appeals

  • 44 C.F.R. § 206.223(a)(3).
  • 44 C.F.R. § 206.226(a)(1).
  • PA Guide, at 33.
  • Stafford Act § 312(a).

Headnotes

  • 44 C.F.R. § 206.223(a)(3) states that “To be eligible for financial assistance, an item of work must … be the legal responsibility of an eligible applicant.”
    • FEMA determined that the Applicant is legally responsible for damages per the lease agreement and the legal advice of BOR.
  • 44 C.F.R. § 206.226(a)(1) states that “Generally, disaster assistance will not be made available under the Stafford Act when another Federal agency has specific authority to restore facilities damaged or destroyed by an event which is declared a major disaster.”
    • BOR does not have specific authority to restore disaster damaged facilities.
  • The Stafford Act § 312(a) states the “Federal agency administering any program providing financial assistance to … entities suffering losses as a result of a major disaster or emergency, shall assure that no such … entity will receive such assistance with respect to any part of such loss as to which he has received financial assistance under any other program … or any other source.”
    • The Applicant did receive financial assistance from BOR which matches the scope of work in some PWs.

Appeal Letter

07/23/2015


Major General Lee Tafanelli
Director
Kansas Division of Emergency Management
2800 SW Topeka Blvd.
Topeka, Kansas 66611-1287

Re:  Second Appeal – Kansas Department of Wildlife, Parks and Tourism, PA ID 000-U2R7P-00, FEMA-4010-DR-KS, Project Worksheets (PWs) 82, 168, 171, 212, 214, 266, FEMA-1932-DR-KS, PW 461; Legal Responsibility – Other Federal Agency; Duplication of Benefits; Deferred Maintenance

Dear Major General Tafanelli:

This is in response to your letter dated August 22, 2013, which transmitted the referenced second appeal on behalf of the Kansas Department of Wildlife, Parks and Tourism (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $256,954.80 in funding for damage sustained at Glen Elder Reservoir.  The Grantee appealed additional funding on behalf of the Applicant for a total appeal amount of $1,026,389.47.

As explained in the enclosed analysis, I have determined the damaged facilities are the Applicant’s legal responsibility per the lease agreement.  Furthermore, the Applicant has provided sufficient documentation to show that it maintained the Waconda Lake shoreline at Glen Elder State Park. While the Bureau of Reclamation does not have explicit authority to provide disaster assistance, it did provide Title 28 funding to repair disaster related damages, and such funding represents a duplication of benefits where the scopes of work overlap with the FEMA PW scopes of work.  Accordingly, I am partially granting the appeal for $595,833.76.  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 decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

 

Sincerely,

/s/

Alex Amparo
Assistant Administrator
Recovery Directorate

Enclosure

cc:  Beth Freeman
       Regional Administrator
       FEMA Region VII

Appeal Analysis

Background

Severe storms, high winds, and heavy rain from disaster declaration FEMA-1932-DR-KS (DR 1932) caused flooding and shoreline erosion at several state parks administered by the Kansas Department of Wildlife, Parks and Tourism (Applicant) from July 7 through July 21, 2010.  FEMA obligated Project Worksheet (PW) 461 for rip rap protection loss along the Waconda Lake shoreline at the Glen Elder Camping area.  Before work could be completed for PW 461, severe storms, high winds, and heavy rain from disaster declaration FEMA-4010-DR-KS (DR 4010) caused flooding, damaging several facilities and resulting in further shoreline erosion at several state parks administered by the Applicant.  After DR 4010, FEMA obligated 10 PWs for work in Glen Elder State Park and wrote one estimated PW, but neither entered the estimated PW into EMMIE nor obligated funds.  With Version 1 of each obligated PW FEMA deobligated all funding, explaining that, among other things, the work was the legal responsibility of the Bureau of Reclamation (BOR).  The relevant PWs are:

 

Disaster

PW #

Version 0 Amount

Version 1 Amount

Description

4010-DR-KS

82

$29,177.00

$0.00

Glen Elder State Park, Osage Camp Ground – Replace Vault Toilet

4010-DR-KS

168

$19,156.01

$0.00

Glen Elder State Park – Swim Beach

4010-DR-KS

171

$3,318.48

$0.00

Glen Elder State Park – Emergency Protective Measures

4010-DR-KS

210

$3,233.32

$0.00

Glen Elder State Park – Osage Parking Lot

4010-DR-KS

211

$11,300.02

$0.00

Glen Elder State Park – Various Park Facilities

4010-DR-KS

212

$14,423.70

$0.00

Glen Elder State Park – Debris Removal

4010-DR-KS

214

$119,437.58

$0.00

Glen Elder State Park – Park Roads

4010-DR-KS

266

$23,800.74

$0.00

Glen Elder Wildlife Area – Roads and Parking Lots, 10 Sites

4010-DR-KS

271

$30,491.70

$0.00

Campsite Restrooms and Boat docks – 2 Sites

4010-DR-KS

310

$2,616.25

$0.00

Debris left from flood

4010-DR-KS

Estimated PW

$478,272.13

N/A

PW written for rip rap damages but never obligated

 

The Applicant administers state parks on lands leased from the BOR.  The lease, signed in 1967, authorizes the Applicant to exclusively administer and manage Federal lands and waters for recreation, fish and wildlife, and related uses at, among other places, Lovewell Reservoir and Lake Waconda (Glen Elder Reservoir).  In interpreting the terms of the lease, with regard to the issue of legal responsibility, the BOR  explained, in a letter dated April 13, 2012,[1]  that BOR “retains primary jurisdiction over only those areas designated as ‘Operations Areas’ which include the dam, outlet works, spillway, and water distribution system,” and it is not responsible for operation and maintenance (O&M) of the leased lands around the reservoirs as those lands are the responsibility of the Kansas Department of Wildlife and Parks.[2]  BOR further explained that it “assume[s] no liability for damages to property which may arise from the use and occupation of the leased premises or damage to the property arising from or incident to the regulation, storage, routing, and discharge of water through the reservoir, including flooding, where applicable.”[3] Lastly, BOR explained that they do “not provide funding for regular O&M purposes at Glen Elder or Lovewell Reservoirs and [have] no plans to do so in the future.”[4]

By letter dated September 21, 2012, FEMA notified the Grantee that review of the lease revealed the Applicant was not legally responsible for repairs to the shoreline of Waconda Lake.  In support of the finding FEMA cited section 4 of the lease agreement between the Applicant and BOR which states in part that “[t]his provision shall not be construed as imposing liability upon the Lessee for damage to the leased lands resulting directly or indirectly from the action of reservoir waters.”[5]  Furthermore, FEMA stated that PWs written for repairs to infrastructure and recreation facilities at Glen Elder State Park constitute a duplication of benefits since Title 28 funding is available from the Bureau of Reclamation for these projects.  As a result, FEMA deobligated PW 461 for DR-1932 and PWs 82, 168, 171, 210, 211, 212, 214, 266, 271 and 310 for DR-4010.

First Appeal

In a first appeal letter dated November 30, 2012, and submitted to the Grantee, the Applicant appealed FEMA’s denial of $256,954.80 for damage sustained to the shoreline of Waconda Lake.  The appeal letter included a legal memorandum dated November 30, 2012 which analyzes the lease and the Title 28 duplication of benefits issue.[6]  The Applicant claims that the language FEMA quotes from the lease is taken out of context.  The full provision reads: 

“The responsibility for operation and administration of recreation, fish and wildlife, and related purposes, uses and facilities within the Leased premises shall be vested exclusively in the Lessee.  This provision shall not be construed as imposing liability upon the lessee for damages to the Leased land resulting directly or indirectly from the reservoir waters.”[7]

The Applicant maintained that “responsibility for the operation and administration of the leased premises, including the shoreline, vests with the [Applicant]”[8] and provided maintenance records,[9] which included invoices and purchase orders demonstrating the work performed on the Glen Elder shoreline that was paid for by the Applicant.  The Applicant then refers to the aforementioned April 13, 2012 letter in which BOR stated the Applicant is responsible for damages to the reservoir lands per the lease agreement.  The Applicant also explains that the Title 28 Cooperative Agreement is a cost share funding mechanism for recreational enhancement projects with the intent to cost share the construction, upgrade, repair and replacement of recreational facilities for full Americans with Disabilities Act (ADA) compliance.  The Applicant goes on to explain that Title 28 funds have never been used to repair the Waconda Lake shoreline and that this would be disallowed through the Cooperative Agreement[10] since the agreement is silent on this issue.

In a letter dated January 28, 2013, the Grantee forwarded the appeal for $1,026,389.47.[11]  This amount includes the $256,954.80 that the Applicant appealed from DR-4010, $291,162.54 for DR-1932, PW 461, as well as $478,272.13 for the PW that was never entered or obligated in EMMIE.  The estimated PW was not addressed in the initial FEMA denial letter dated September 21, 2012.  The Grantee supported the appeal.  The following shows the Grantee cost breakdown by PW:

 

Disaster

PW #

Amount

Grantee Cost Breakdown

1932-DR-KS

461

$291,162.54

$291,162.54

4010-DR-KS

82

$29,177.00

$256,954.80

4010-DR-KS

168

$19,156.01

4010-DR-KS

171

$3,318.48

4010-DR-KS

212

          $14,423.70

4010-DR-KS

214

$119,437.58

4010-DR-KS

266

$23,800.74

4010-DR-KS

210

$3,233.32

4010-DR-KS

211

$11,300.02

4010-DR-KS

271

$30,491.70

4010-DR-KS

310

$2,616.25

4010-DR-KS

Estimated PW

$478,272.13

$478,272.13

TOTAL

 

$1,026,389.47

$1,026,389.47

In its recommendation for the appeal letter, the Grantee reiterated that the Applicant has legal responsibility for repairs to the facilities at state parks, and has an established history of maintaining those facilities.  The Grantee further asserts that BOR “retains primary jurisdiction over only those areas designated as ‘Operations Areas’ which include the dam, outlet works, spillway, and water distribution system.”[12]  The Grantee also supported the Applicant’s assertion that BOR has no obligation to provide any funding for disaster events under Title 28.  However, the Grantee acknowledged a duplication of benefits for rebuilding park roads (PW 214), pumping two vault toilets (PW 82), restoring a swim beach (PW 168), and restoring volleyball courts (PW 211), and did not recommend FEMA approve funding for those projects.  While the Grantee did not support those costs, they were included in the total amount appealed.

On April 24, 2013, the Region VII Regional Administrator denied the appeal, determining that the Applicant is not legally responsible for maintenance to the shoreline and other park facilities in light of the text of section 4 of the 1967 lease agreement.  Furthermore, the RA determined that funding from BOR presented a duplication of benefits because: 1) BOR recently funded O&M projects including the rebuilding of park roads, repairs to a beach, and repairs to volleyball courts, and 2) the Applicant and BOR signed a cost share agreement which would provide the Applicant $101,000.00 for improvements to recreation, and fish and wildlife facilities.  The RA also determined that the Applicant failed to demonstrate a record of maintaining the shoreline at Glen Elder State Park.  Specifically, the RA found that the invoices submitted by the Applicant lacked a detailed description, and therefore did not demonstrate the damages were a direct result of the disaster rather than a lack of maintenance.

 

Second Appeal

On July 1, 2013, the Applicant submitted to the Grantee a second appeal for $256,954.80 in funding for damage sustained at Glen Elder Reservoir. The Applicant included a memorandum from its legal counsel dated July 2, 2013, explaining their position on FEMA’s first appeal decision.  The memo explains that BOR is not legally responsible for repairs per the lease agreement and that Title 28 funding excludes funds for beach erosion control purposes, and thus cannot be a duplication of benefits.  The Applicant provided new documents including: department purchase orders showing shoreline work performed, rip rap invoices, expenditure reports, program reports, capital improvement project reports, and statements from four former employees attesting that shoreline maintenance work was performed regularly and financed by the Applicant.  Additionally, an amended legal memorandum dated August 20, 2013 provided photographs showing the baseline rip rap levels in 2008 and the extent of the rip rap damage after the two disasters.

On August 22, 2013, the Grantee transmitted the second appeal to FEMA.  The Grantee appealed additional funding on behalf of the Applicant for a total of $1,026,389.47.[13]  The Grantee first  analyzes the issue of legal responsibility and explains it believes that FEMA took the second sentence of section 4 of the 1967 lease— “[t]his provision shall not be construed as imposing liability upon the Lessee for damages to the Leased land resulting directly or indirectly from the reservoir waters[]”[14]—out of context.  The Grantee argues that the purpose of the sentence is to prevent BOR from taking legal action against the Applicant when property is damaged due to fluctuations in the reservoir waters.[15]  Next, the Grantee examines the issue of duplication of benefits and points out that Title 28 funding is not designed to be used for disaster assistance but can be redirected to assist with this purpose.  The Grantee supports the Applicant’s argument that the intent of the Cooperative Agreement between BOR and the Applicant is to “cost share the construction, upgrade, repair and replacement of recreational facilities for full ADA compliance for [five] different department leased BOR properties.”[16]  Lastly, the Grantee analyzes the issue of failure to properly maintain property and identifies documentation provided by the Applicant to demonstrate a history of maintaining the shoreline.  The Grantee concludes by stating that FEMA has considered state-run BOR facilities to be eligible for public assistance funding in the past and it would be inconsistent to single out this facility as ineligible.

On September 12, 2013, the Region VII Regional Administrator forwarded the second appeal to FEMA Headquarters.  On December 23, 2013, FEMA issued a Request For Information (RFI) requesting a detailed description and scope of work for Title 28 funding received by the Applicant as well as actual costs for the PWs in question.  On January 16, 2014, the Applicant responded with a summary of Title 28 funding projects and actual PW costs.  On September 24, 2014, FEMA issued a second RFI wherein FEMA identified the PWs and work that were similar to projects covered by Title 28 funding and requested the Applicant provide a detailed scope of work and the exact location of each project.  The Applicant responded on October 24, 2014 stating that Title 28 funds were redirected to ADA improvements in other parks.  The Applicant included a “Request To Modify Report” referring to Cooperative Agreement # R11AC60075 between the Applicant and BOR.  The report details the original projects, the new projects, and explains that the projects were modified to support other higher priority projects and because of a duplication of benefits with FEMA funding.

 

Discussion

Legal Responsibility

“To be eligible for financial assistance, an item of work must … [b]e the legal responsibility of an eligible applicant.”[17]  When discussing legal responsibility, FEMA’s Public Assistance Guide (PA Guide) specifically mentions water delivery systems constructed by BOR as an example of a Federal agency that may assign the legal and financial responsibility for the operation and maintenance of facilities over to local agencies.[18]  In this instance, because the Applicant leases the land at issue from BOR, FEMA must look to the language of the lease to determine the responsible party.  Further, should the lease be unclear about legal responsibility, FEMA may consider the opinion furnished by BOR regarding their interpretation of the lease as it relates to the matter. 

A summary of the pertinent provisions of the lease is provided below:

  • Preamble: The Applicant is charged with managing and administering recreation, fish and wildlife and related uses for, among other locations, Glen Elder Reservoir, with the federal government retaining control and administration of lands for irrigation operation, flood control, and municipal and industrial water supply purposes.[19] This portion of the lease notes that BOR does not have “at its avail the facilities, appropriations, and means to manage or administer the lands and water surfaces” for the lands identified in the lease.[20]

  • Section 3(d): BOR has primary jurisdiction over Operations Areas “for the purpose of insuring proper operation and protection of the reservoirs, but shall not preclude such recreation, fish and wildlife, and related use administration and development by the [Applicant] within the Operations Areas.”[21]

  • Section 4: “The responsibility for operation and administration of recreation, fish and wildlife, and related purposes, uses and facilities within the leased premises shall be vested exclusively in the [Applicant].”[22]The same section further indicates that “[t]his provision shall not be construed as imposing liability upon the [Applicant] for damages to the leased land resulting directly or indirectly from the action of reservoir waters.”[23]

  • Section 6: Permits the Applicant to construct improvements but requires these improvements and expenses related to them to be the Applicant’s responsibility.

  • Section 7: The Applicant must “keep and maintain the leased premises … in a good and reasonable state of repair … at its own cost and expense.”[24]

  • Section 12: Limits the liability of the BOR for a variety of reasons, to include liability for flooding.

  • Section 18: Reinforces the previous paragraphs that limit BOR liability and responsibility for damages caused by fires or other unspecified causes.It states that BOR is not “liable for any loss, injury, or damage of any kind or nature whatsoever to any building or structure belonging to [the Applicant] … whether such loss, injury, or damage results from fire or other cause.”[25]

In addition to the lease provisions, in an effort to clarify legal responsibility for the damaged land, the Applicant sought and obtained the opinion of BOR.  In the letter dated April 13, 2012, the area manager for BOR clarified that BOR was “not responsible for operation and maintenance (O&M) of the leased lands around the reservoirs.”[26]  The area manager further explained that BOR “retains primary jurisdiction over only those areas designated as ‘Operations Areas’ which include the dam, outlet works, spillway and water distribution system.” Lastly, the area manager noted that BOR views damages to the reservoir lands as O&M expenses, which are the responsibility of the Applicant.  Legal counsel for the Department of Interior concurred with the area manager’s analysis.[27]  FEMA finds the legal opinion from the Regional Solicitor’s office to be persuasive on this issue.

When read together, the aforementioned lease provisions and the legal opinion of the Regional Solicitor’s office demonstrate that the parties intended for the Applicant to retain legal responsibility for damages to recreational areas covered by the lease.  FEMA accepts and agrees with this position.  Therefore, the Applicant has provided sufficient documentation demonstrating that the work in question is its legal responsibility pursuant to the terms of the lease.

Maintenance

Upon first appeal, FEMA questioned whether the Applicant maintained the shoreline at Glen Elder State Park.  Pursuant to PA policy, “[n]ormal maintenance items that existed prior to the disaster, such as pothole repair, routine pulling of ditches, and minor gravel replacement; and deferred maintenance, such as replacing rotted timber, and repairing deteriorated asphalt and leaking roofs, are not eligible because they do not meet the criterion of being disaster-related.”[28]  “For facilities that require routine maintenance to maintain their designed function, such as culverts, roads, bridges and dams, it may be possible to review pre-disaster maintenance or inspection reports to verify the pre-disaster condition and to assess eligible disaster damage.”[29] 

At second Appeal, in support of Applicant’s contention it maintained the shoreline at Glen Elder Park, the Applicant resubmitted the original invoices for maintenance, and supplemented that documentation with maintenance records showing purchases of rip rap used to maintain the shoreline[30] as well as statements from current and former employees[31] attesting to regular shoreline maintenance funded by the Applicant.  Based on the information submitted, FEMA finds the Applicant has sufficiently demonstrated it maintains the shoreline at Glen Elder State Park.

Other Federal Agency

“Generally, disaster assistance will not be made available under the Stafford Act when another Federal agency has specific authority to restore facilities damaged or destroyed by an event which is declared a major disaster.”[32]  The PA Guide clarifies that “[f]or certain types of facilities, other Federal agencies have authority to provide disaster assistance;”[33] and that “[p]ublic assistance is not available for the permanent repair of such facilities and is limited to emergency work.”[34]

The BOR has authority to enter into cost-share agreements with non-Federal partners to plan, develop, and replace recreation and fish and wildlife enhancement facilities located on BOR lands.[35]  The authority is not specific to restoring non-Federal facilities that are damaged or destroyed by a declared major disaster.  Any recreational facility on BOR lands can be modified or expanded under the program if the facility is inadequate to meet recreational demands and the non-Federal entity signs an agreement.[36]  In contrast, FEMA’s authority under the Stafford Act § 406 is more specific than the BOR’s authority in regard to restoring facilities damaged or destroyed by a declared major disaster.  FEMA provides public assistance under the Stafford Act to State and local governments or certain private, nonprofit organizations for repair, restoration, and replacement of damaged facilities.[37]  FEMA’s authority specifically states that it restores facilities damaged or destroyed by an event that is declared a major disaster.[38]  The BOR’s authority is more general and does not contain specific language to restoring damaged or destroyed facilities following a declared major disaster.  Therefore, FEMA finds that the BOR’s authority does not preclude FEMA from providing public assistance to restore non-Federal facilities located on BOR lands that are damaged or destroyed by a declared major disaster.

Duplication of Benefits

The Stafford Act states that “no such person, business concern, or other entity will receive such assistance with respect to any part of such loss as to which he has received financial assistance under any other program from insurance or any other source.”[39]  However, receipt of partial benefits for a major disaster or emergency does not preclude provision of additional Federal assistance for any part of a loss or need for which benefits have not been provided.[40]  In cases where FEMA funds are duplicated by another source, the FEMA funds must be returned.[41]

In this instance, FEMA PA funds and BOR Title 28 funds may result in both agencies conceivably funding the same project for the Applicant (i.e., a duplication of benefits).  A duplication of benefits occurs when an entity has received financial assistance from another source.  FEMA considers the receipt of funds for a specific project to be duplication regardless of whether the funds are later redirected. [42]  The fact that an Applicant subsequently requests to redirect the funds indicates an element of control and that the financial assistance was received.  FEMA will only reimburse those disaster related projects for which the Applicant has not received BOR Title 28 funds. 

A review of the FEMA PWs and BOR Title 28 funding reveals that the Applicant received BOR funding for the following projects:

 

Title 28 Description

Title 28 Funding

Location

Associated FEMA PW

Reconstruct beach and replace sand

$5,500.00

Glen Elder State Park - Osage

168

Reroof day use shelter

$5,000.00

Glen Elder State Park - Osage

211

Reconstruct sand volleyball courts

$5,000.00

Glen Elder State Park - Osage

211

Re-shingle office roof

$8,000.00

Glen Elder State Park - Office

 

Native grass seed

$3,000.00

Glen Elder State Park - Shoreline

 

Pump 2 vault toilets

$700.00

Glen Elder State Park

211

Repaint vault toilet

$400.00

Glen Elder State Park - Kanza

 

Repaint shower house

$5,000.00

Glen Elder State Park - Kanza

 

Rebuild rock roads

$30,000.00

Glen Elder State Park - Park-wide

214, 266

Rip rap

$15,000.00

Lovewell State Park

 

Picnic tables

$4,400.00

Glen Elder State Park - Prairie Dog

 

Picnic tables

$4,000.00

Cedar Bluff State Park

 

Campground refurbishment

$15,000.00

Webster State Park

 

Total

$101,000.00

 

 

 

The $478,272.13 estimated PW was written to replace PW 461, which was written for DR-1932, as well as to add additional damages that occurred to the same sites during DR-4010.  It is written for rip rap and asphalt damages at different campgrounds in Glen Elder State Park, but FEMA never obligated the project worksheet.  The BOR did not provide Title 28 funding for rip rap or asphalt work at Glen Elder State Park.  PW 461 should remain deobligated and the estimated PW is eligible for funding and should be entered into EMMIE.  Supporting documentation for the work must be provided by the Applicant at closeout.

FEMA deobligated PWs 82, 171, 210, 212, 271, and 310 for DR-4010 and the Applicant appealed the deobligations.  This work is eligible for public assistance and, as the Applicant has not received BOR Title 28 funding for the work, a duplication of benefits does not exist.

FEMA deobligated PWs 168, 211, 214, and 266 for DR-4010 and the Applicant appealed these deobligations.  The Applicant received Title 28 funding for work contained in these PWs.  FEMA requested information from the Applicant through the September 24, 2014 RFI to assess whether these costs constituted a duplication of benefits; the Applicant did not supply any information to show the costs did not constitute a duplication of benefits.  Therefore, FEMA upholds the Region VII Regional Administrator’s decision that PWs 168 and 266 constitute a duplication of benefits and are not eligible for FEMA funding.  PW 211 contains work to re-roof a day-use shelter, reconstruct sand volleyball courts, pump two vault toilets, and repair the park headquarters roof.  Title 28 funding was not provided to repair the park headquarters roof, thus it does not constitute a duplication of benefits, but other work was duplicated by Title 28 funding.  Therefore, $179.36 is eligible on PW 211 and $125.44 in Direct Administrative Costs (DAC) is eligible.  PW 214 contains road repair and jetty repair work.  The road repair work constitutes a duplication of benefits, but jetty repair work does not.  Therefore, $32,791.25 in jetty repair costs is eligible and $1,205.13 in DAC is eligible for PW 214.

Conclusion

After examining the lease agreement, it is evident that the damages are the Applicant’s legal responsibility.  The Applicant has also provided sufficient documentation to show that it has maintained the Waconda Lake shoreline at Glen Elder State Park.  Further, while the BOR does not have specific authority to provide disaster assistance, it did provide Title 28 funding to repair disaster related damages, and this represents a duplication of benefits where the scope of work overlaps with the FEMA scope of work.  FEMA finds $595,833.76 in costs to be eligible for public assistance funding, as shown in the table below. 

 

Disaster

PW #

Amount

1932-DR-KS

461

$0.00

4010-DR-KS

82

$29,177.00

4010-DR-KS

168

$0.00

4010-DR-KS

171

$3,318.48

4010-DR-KS

212

          $14,423.70

4010-DR-KS

214

$33,996.38

4010-DR-KS

266

$0.00

Disaster

PW #

Amount

4010-DR-KS

210

$3,233.32

4010-DR-KS

211

$304.80

4010-DR-KS

271

$30,491.70

4010-DR-KS

310

$2,616.25

4010-DR-KS

Estimated PW

$478,272.13

 

Total

$595,833.76

 

                                                                                                                                  

 

[1] See letter from Area Manager, Bureau of Reclamation, to Kansas Division of Emergency Management (Apr. 13, 2012) [hereinafter Letter from Area Manager].

[2] Id. at 1.

[3] Id.

[4] Id. at 2.

[5] Lease between the Bureau of Reclamation and the State of Kansas (May 31, 1967) at 4, [hereinafter Lease].

[6] A legal analysis supporting the Applicant, dated May 7, 2010, from the Department of the Army and the Air Force, Kansas National Guard was also included with the first appeal.

[7] Id.

[8] Letter from Legal Counsel, Kansas Department of Wildlife, Parks and Tourism, to Secretary Kansas Department of Wildlife, Parks and Tourism (Nov. 30, 2012) [hereinafter Letter from Legal Counsel].

[9] See Maintenance Records, First Appeal Exhibit E.

[10] Letter from Legal Counsel, supra note 8.

[11] Note that the Grantee’s first and second appeal letters sometimes state that the estimated PW was for $478,272.19 and therefore the total amount appealed is $1,026,389.53.  The estimated PW in FEMA’s possession lists a total of $478,272.13 in costs, so therefore the actual total amount appealed is $1,026,389.47.

[12] Letter from Area Manager, supra note 1.

[13] See note 11.

[14] Lease, supra note 5, at 4.

[15] Letter from Deputy Director, Kansas Division of Emergency Management, to Assistant Administrator for Recovery, FEMA (Aug. 22, 2013), at 5 [hereinafter Letter from Deputy Director].

[16] Id. at 7.

[17] 44 C.F.R. § 206.223(a)(3) (2009).

[18] Public Assistance Guide, FEMA 322, at 23 (June 2007) [hereinafter PA Guide].

[19] Lease, supra note 5, at 1.

[20] Id.

[21] Id. at 3.

[22] Id. at 4.

[23] Id.

[24] Id. at 5.

[25] Id. at 8.

[26] Letter from Area Manager, supra note 1 at 1.

[27] Email from Department of Interior, Office of the Solicitor (April 30, 2012, 09:31) (on file with FEMA).

[28] PA Guide, supra note 18, at 33.

[29] Id.

[30] See Maintenance Records, Second Appeal Appendix H.

[31] See Employee Statements, Second Appeal Appendix I.

[32] 44 C.F.R. § 206.226(a)(1) (2009).

[33] PA Guide, supra note 18, at 23.

[34] Id.

[35] Federal Water Project Recreation Act of 1965, Pub. L. 89-72, 79 Stat. 213, 16 U.S.C. §§ 460(L)(12)-460(L)(21), as amended by the Water Resources Development Act of 1974, Pub. L. 93-251; 88 Stat. 12, and the Reclamation Recreation Management Act of 1992, Pub. L. 102-575, Title XXVIII.

[36] 16 U.S.C. § 460(L)(14).

[37] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406, 42 U.S.C. § 5772 (2006).

[38] See 44 C.F.R. § 204.3 (2009).

[39] Stafford Act § 312, supra note 37.

[40] Id.

[41] PA Guide, supra note 18, at 41.

[42] 44 C.F.R. § 13.24(b)(1) (2009) provides that “[A] cost sharing or matching requirement may not be met by costs borne by another Federal grant.”  Therefore, public assistance funding cannot be used for the non-federal cost share of BOR funding and BOR funding cannot be used for the non-federal cost share of FEMA funding.  Since the Applicant has a 50 percent cost share under Title 28 funding, and a 25 percent cost share under FEMA reimbursement, FEMA cannot fund any projects for which the Applicant has received any Title 28 funding.  The “Request To Modify Report” does not, in and of itself, indicate that the redirection has actually occurred.

 

 

Last updated May 28, 2020