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Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4421
ApplicantL-601 Missouri River LB - Bartlett Segment
Appeal TypeSecond
PA ID#071-U8FVM-00
PW ID#GMP 105793
Date Signed2021-09-02T16:00:00

Summary Paragraph

Beginning March 12, 2019, Iowa experienced severe storms and flooding.  The L-601 Missouri River LB - Bartlett Segment (Applicant) suffered damages to its levee system, including the access road and embankment (Facility), as well as to its pump station.  FEMA wrote Grants Manager Project 105793 in the requested amount of $952,038.00 to document repairs to the Facility and damaged pump station.  The Facility was constructed by the United States Army Corps of Engineers (USACE) and was inactive in the USACE’s Rehabilitation and Inspection Program (RIP) at the time of the disaster.  On June 4, 2020, FEMA issued a Determination Memorandum finding that the Facility was ineligible for Public Assistance (PA) funding because the Facility was under the authority of the USACE at the time of the disaster.  FEMA determined, however, that the pump station was not under the control of the USACE and thus eligible for PA funding.  The Applicant appealed, arguing that the USACE had abandoned jurisdiction over the Facility, and therefore, the Facility was not under the USACE’s authority at the time of the disaster.  The Region VII Regional Administrator denied the appeal, determining that the Applicant had not demonstrated that the Facility was not under the USACE’s authority, and therefore was ineligible for PA funding.  The Applicant submitted its second appeal, reiterating its first appeal arguments. 

 

Authorities and Second Appeals

  • Stafford Act § 406(a).
  • 33 C.F.R. Part 203, 44 C.F.R. § 206.226(a).
  • 33 U.S.C. § 701n(a).
  • PAPPG, at 17, 118.
  • M & P Mo. R. Levee Dist., FEMA-4421-DR-IA, at 2-3.

Headnotes

  • FEMA PA funding is generally not available when another federal agency has specific authority to restore the same disaster damaged or destroyed facility.
  • The USACE has specific authority to perform the Facility repairs.

Conclusion

The Facility is not eligible for PA funding, because another federal agency, the USACE, has specific authority to perform the Facility repairs.  Therefore, the appeal is denied.

Appeal Letter

John Benson               

Interim Director                                                         

Iowa Department of Homeland Security and Emergency Management           

7900 Hickman Road, Suite 500                                             

Windsor Heights, Iowa 50324           

 

Re:  Second Appeal – L-601 Missouri River LB - Bartlett Segment, PA ID: 071-U8FVM-00 FEMA-4421-DR-IA, Grants Manager Project 105793, Other Federal Agency  

 

Dear Mr. Benson:

This is in response to a letter from your office dated May 28, 2021, which transmitted the referenced second appeal on behalf of L-601 Missouri River LB - Bartlett Segment (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $393,829.28 for repairs to its levee system and access road (Facility).  

As explained in the enclosed analysis, I have determined that the Facility is not eligible for Public Assistance funding because another federal agency, the United States Army Corps of Engineers, has specific authority to perform the Facility repairs.  Therefore, this appeal is denied. 

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/

                                                                       Ana Montero

                                                                       Division Director

                                                                       Public Assistance Division

 

Enclosure

cc:  Kathy D. Fields  

Acting Regional Administrator

FEMA Region VII

Appeal Analysis

Background

Beginning March 12, 2019, Iowa experienced severe storms and flooding.  The L-601 Missouri River LB - Bartlett Segment (Applicant) suffered damages to its levee system, including the access road and embankment (Facility), as well as to its pump station.  FEMA wrote Grants Manager Project 105793 in the requested amount of $952,038.00 to document repairs to the Facility and damaged pump station.  The Facility was constructed by the United States Army Corps of Engineers (USACE) and was inactive in the USACE’s Rehabilitation and Inspection Program (RIP) at the time of the disaster.

The RIP provides, among other things, assistance for the repair and rehabilitation of flood control works (FCWs) damaged by flood events.[1]  The USACE conducts periodic inspections to ensure that facilities meet eligibility requirements to remain active in the RIP.[2]  FCWs which do not meet specific criteria are given a grade of unacceptable following the inspection and designated as inactive.[3]  The USACE offers participants a process through the System Wide Improvement Framework (SWIF) to remain temporarily eligible for assistance while they correct unacceptable operation and maintenance deficiencies.

On June 4, 2020, FEMA issued a Determination Memorandum finding that the Facility was ineligible for Public Assistance (PA) funding because the Facility was under the specific authority of the USACE at the time of the disaster.  FEMA determined, however, that the pump station was not under the control of the USACE and thus eligible for PA funding.

 

First Appeal

The Applicant appealed FEMA’s determination and stated that because the Facility was inactive in the RIP, and it had not been an active participant for multiple years before the disaster, the USACE had effectively abandoned jurisdiction over the Facility.  The Applicant provided an inspection report dated October 18, 2018, showing that the Facility was inactive in the RIP, and a repair contract for the Facility, demonstrating that the Applicant assumed responsibility for the repair work.

The Iowa Department of Homeland Security and Emergency Management (Grantee) supported the Applicant’s appeal, arguing that the USACE did not have specific authority to restore the Applicant’s Facility, the Applicant had legal responsibility to perform repairs, and PA funding would not duplicate benefits available from any other source.  The Grantee expressed its belief that the duplication of benefits prohibition in Section 312 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act is considered synonymous with FEMA’s regulation making funding unavailable for Facilities under the specific authority of another Federal agency.  The Grantee also requested FEMA consider a provision in Version 4 of the Public Assistance Program and Policy Guide (PAPPG), in order to clarify the interpretation and application of the FEMA policy that was in effect at the time of the disaster.  The Grantee referred to a change in the PAPPG noting that FEMA will review other Federal agency authority when determining legal responsibility for a facility constructed by a Federal agency.  The Grantee explained that this supported its claim because the Operation and Maintenance Manual between the USACE and the Applicant provides the Applicant has legal responsibility to perform repairs.[4]    

The FEMA Region VII Regional Administrator denied the Applicant’s appeal on February 22, 2021.  FEMA found that the Applicant had not provided documentation showing that the Facility was no longer under the authority of the USACE and consequently, eligible for PA funding.  FEMA also clarified that its determination did not rely on any findings regarding a potential duplication of benefits, as that issue is distinct from the issue of other Federal agency authority under applicable law, regulation, and policy.

 

Second Appeal

On April 2, 2021, the Applicant submitted its second appeal, reiterating its first appeal arguments.  On May 28, 2021, the Grantee forwarded the Applicant’s appeal to FEMA reiterating its first appeal arguments.

 

Discussion

FEMA may fund the repair or restoration of a public facility damaged or destroyed by a major disaster.[5]  FEMA PA funding is generally not available when another federal agency has specific authority to restore the same disaster damaged or destroyed facility.[6]  If the facility is under the specific authority of another agency, FEMA does not provide assistance to restore the facility even if that federal agency does not provide funding to restore the facility or does not fund certain elements of the repair work.[7] 

In an email dated April 9, 2020, USACE confirmed that the Facility is still under the USACE authority, regardless of the Facility’s inactive status.[8]  The USACE inspected the Facility and rated it as “unacceptable” on October 18, 2018, and therefore “inactive.”[9]  The USACE advised the Applicant to participate in the SWIF, offering the Applicant an opportunity to correct the Facility’s deficiencies and return it to active status in the RIP.  While the Facility was ineligible for the RIP at the time of the disaster, it was still under the specific authority of the USACE.  Therefore, the Facility is ineligible for PA funding.[10]

 

Conclusion

The Facility is not eligible for PA funding because another federal agency, the USACE, has specific authority to perform the Facility repairs.  Therefore, the appeal is denied.

 

[1] 33 U.S.C. § 701n(a)(1) (2018) (authorizing funding for repair or restoration of any flood control work threatened or destroyed by flood); Title 33 Code of Federal Regulations (33 C.F.R.) § 203.41(b) (2018) (implementing statutory authority through the USACE’s RIP program).

[2] 33 C.F.R. §§ 203.41(c), 203.48.

[3] Id. §§ 203.42, 203.43.

[4] Letter from Alternate Governor’s Authorized Representative, Iowa Dep’t of Homeland Security & Emergency Mgmt., to Reg’l Adm’r, FEMA Region VII, at 4 (Nov. 15, 2020), Operations and Maintenance Manual, Mo. River Levee Unit L-601, at 1-3.

[5] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 406(a)(1), 42 U.S.C. § 5172(a)(1) (2018).

[6] Title 44 Code of Federal Regulations § 206.226(a)(1) (2018).

[7] Public Assistance Program and Policy Guide, FP 104-009-2, at 17 (Apr. 2018) [hereinafter PAPPG]; see FEMA Second Appeal Analysis, M & P Mo. R. Levee Dist., FEMA-4421-DR-IA, at 3 (July 21, 2021).

[8] Email from Levee Safety Program Manager, USACE, to State Pub. Assistance Officer/Bureau Chief, Iowa Dep’t of Homeland Security & Emergency Mgmt. (Apr. 9, 2020, 1356 CST).

[9] Letter from Chief, Readiness Branch, Operations Div., USACE, to Chairman, Mo. River LD #1 and Miller-Sturgeon LD (Oct. 19, 2018).

[10] Per FEMA’s legal authorities, the other Federal agency authority guidance in 44 C.F.R. § 206.226(a)(1) is separate and distinct from the legal responsibility and result of the disaster eligibility issues in § 206.223(a), as well as the duplication of benefits prohibitions in Stafford Act § 312.  Because FEMA finds the USACE had specific authority to restore the Facility, FEMA will not address those additional eligibility issues. 

Last updated September 8, 2021