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Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4461
Applicant	Nutwood Drainage and Levee District
Appeal Type	Second
PA ID#	083-UBGQD-00
PW ID#	GMP 133600
Date Signed	2023-03-14T16:00:00

Summary Paragraph

Flooding along the Mississippi and Illinois Rivers from February 24 - July 3, 2019 caused levee breaches and embankment failures along the Nutwood Drainage and Levee District’s (Applicant) levee system (Facility). The Applicant requested Public Assistance (PA) funding to purchase soil to repair the damage. FEMA issued a Determination Memorandum on February 25, 2021, stating costs were ineligible because the Applicant did not provide sufficient documentation supporting the $444,480.00 cost estimate and did not demonstrate that the claimed costs were reasonable. The Applicant appealed and explained the United States Army Corps of Engineers (USACE) calculated the amount of soil needed and landowners executed an easement allowing removal of soil within market pricing. The Applicant responded to a Request for Information, stating it was a public sponsor of the Facility in coordination and per an agreement with USACE, but that it was responsible to provide and fully pay for the borrow material (soil). FEMA determined the Facility was not eligible because the USACE has specific authority to perform Facility repair and denied the appeal. On second appeal the Applicant argues the appeal is for obtaining the material, not for the repair, that providing the borrow material is its obligation, and that FEMA erroneously denied reimbursement.

Authorities and Second Appeals

• Stafford Act § 406(a)(1).
• 44 C.F.R. § 206.226(a)(1).
• PAPPG, at 17.

Headnotes

• FEMA Public Assistance (PA) funding is generally not available when another federal agency has specific authority to restore the same disaster damaged or destroyed facility. 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.
  • The USACE constructed the Facility, the Facility is under USACE authority and it participated in USACE Rehabilitation Inspection Program at the time of the disaster. The post-disaster Cooperation Agreement states that the USACE would repair the Facility pursuant to its statutory authority. Although the agreement also states that the Applicant would remain responsible for providing borrow material, FEMA does not provide assistance for a facility under the specific authority of another agency, even if that federal agency does not provide full funding to restore the facility.

Conclusion

FEMA finds that the Facility is not eligible for PA funding because another federal agency has specific authority to perform the Facility repairs.

 

Appeal Letter

Appeal Analysis

Background

Flooding along the Mississippi and Illinois Rivers from February 24 - July 3, 2019 caused levee breaches and embankment failures along the Nutwood Drainage and Levee District’s (Applicant) levee system (Facility). The Applicant requested Public Assistance (PA) funding to purchase soil/borrow materials[1] to repair the damage. FEMA issued a Determination Memorandum on February 25, 2021, stating costs were ineligible because the Applicant did not provide sufficient documentation supporting the $444,480.00 cost estimate and did not demonstrate that the claimed costs were reasonable.

First Appeal

On April 22, 2021, the Applicant appealed and explained that the United States Army Corps of Engineers (USACE) calculated the amount of soil needed and landowners executed an easement allowing removal of soil within market pricing. FEMA sent a Request for Information, advising that the Facility appeared to be in USACE’s Rehabilitation and Inspection Program (RIP) and eligible for Flood Control and Coastal Emergency funding. FEMA requested information or documentation demonstrating that the Facility did not fall under USACE authority. The Applicant responded that it was a public sponsor of the Facility in coordination and per a post-disaster agreement with USACE,[2] but that it was responsible to provide and fully pay for the borrow material. The Applicant noted this was not a cost-sharing item and therefore it was eligible for PA funding. In the May 24, 2021 transmittal, the Illinois Emergency Management Agency (Recipient) recommends that FEMA take all presented information into account when considering the Applicant’s appeal.

On September 19, 2022, the FEMA Region V Regional Administrator denied the appeal. FEMA found the Facility was not eligible for PA funding because another federal agency, USACE, had specific authority to perform the Facility repair.

Second Appeal

In its November 17, 2022 second appeal, the Applicant argues that: (1) it is requesting PA funding for obtaining the borrow material and not for the repair work under USACE authority; (2) providing the borrow material is its obligation; (3) borrow material is specifically exempt from the Cooperation Agreement between USACE and the Applicant and does not fall under USACE responsibility; and (4) that FEMA erroneously denied reimbursement. In the December 14, 2022 transmittal, the Recipient again recommends that FEMA take all presented information into account when considering the Applicant’s appeal.

 

Discussion

FEMA may fund the repair or restoration of a public facility damaged or destroyed by a major disaster.^[3] FEMA PA funding is generally not available when another federal agency has specific authority to restore the same disaster damaged or destroyed facility.^[4] 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.^[5]

The Applicant participates in USACE’s RIP.[6] The Cooperation Agreement between the Applicant and USACE states USACE constructed the Facility and that USACE would repair the Facility pursuant to its statutory authority to assist in the repair or restoration of flood control improvements threatened or destroyed by floods.[7] The Cooperation Agreement also states that the Applicant would remain responsible for providing lands, easements, and rights-of-way, including suitable borrow material for the project.[8] However, FEMA does not provide assistance for a facility under the specific authority of another agency, even if that federal agency does not provide funding for costs to restore the facility.[9] Therefore, the Facility is not eligible for PA funding because USACE has specific authority to perform the Facility repairs and the responsibility for the provision of borrow material are stipulated in the agreement between USACE and the Applicant under that authority.

 

Conclusion

FEMA finds that the Facility is not eligible for PA funding because another federal agency has specific authority to perform the Facility repairs. Therefore, this appeal is denied.

 

[1] Borrow material refers to soil or sand that is removed from one location and used as fill material in another location.

[2] Cooperation Agreement between USA Dep’t of the Army and Nutwood Drainage and Levee Dist. Jersey Cty., Ill. for Rehabilitation of a Federal Flood Control Work, at 1 (Sept. 11, 2019) [hereinafter Cooperation Agreement].

[3] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act, § 406(a)(1), Title 42, United States Code § 5172(a)(1) (2018).

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

[5] Public Assistance Program and Policy Guide, FP 104-009-2, at 17 (Apr. 2018) [hereinafter PAPPG].

[6] Project Information Report, PL 84-99 Rehabilitation of Damaged Flood Control Works, Nutwood Drainage & Levee Dist., Jersey/Greene Cnty., Illinois River, at 2 (Feb. 11, 2020).

[7] Cooperation Agreement, at 1 (stating that the Dep’t of the Army was represented by the U.S. Army Corps of Engineers, that it “constructed a flood control project” and that “pursuant to 33 U.S.C. 701n the Government is authorized to assist in the repair or restoration of flood control improvements threatened or destroyed by floods”); id. at 1-2 (“The Government[] . . . shall expeditiously implement the Rehabilitation Effort [defined as the initial repair of the levee breach], . . . pursuant to Federal laws, regulations, and policies.”).

[8] Id. at 2.

[9] PAPPG, at 17.