AEMA argued in its March 2011 2nd Appeal that: "The 5% initiative program was created to allow some flexibility to enhance each states' mitigation philosophy and receive funding to mitigate against each states' unique risk. While the risk of flooding is certainly seen nationwide, each state has its own prionties to mitigate the effects of flooding. While we agree this is not a traditional mitigation activity, we feel that it certainly offers the same, if not more, mitigation benefits than generators. The use of sandbaggers would contribute to Alabama's comprehensive program to mitigate flooding
disasters and increase resiliency.
FEMA HQ argued in its May 2011 denial letter: "Under the guidelines established for the 5% Initiative, projects must still meet "any other applicable HMGP criteria" per the HMGP Desk Reference, which was the guidance in force at the time of the disaster declaration on May 8, 2009. This includes the general understanding that equipment that fulfills a preparedness or response purpose, and is therefore only used at the time a disaster event is occurring, is not an eligible use of HMGP funding. Other 5% Initiative projects that are eligible, including warning sirens and generators, have either been clearly and specifically designated as eligible via memorandum or are permanent installations that require little, if any, human intervention at the time of disaster to provide mitigation benefits."