Debris Removal-Private Property and Legal Responsibility-Private Entity

Appeal Brief

Appeal Letter

Appeal Analysis

Background

Blackhawk is a master planned community in an unincorporated area of Contra Costa County, California, that includes six individual gated residential communities, a retail shopping center, two golf courses and various other improvements and amenities.  The Blackhawk Geologic Hazard Abatement District (Applicant) was formed in 1986 by the Contra Costa Board of Supervisors.  This district is organized to serve as an ongoing resource for managing geologic hazards that pose a threat to properties within the boundaries of the district.  The Applicant operates pursuant to a “Plan of Control” (POC), a report prepared by an engineering geologist that describes the geological hazard of concern, its location and the area affected, and a plan for the prevention, mitigation, abatement or control of that hazard.

In January and February 2017, severe winter storms caused flooding and extensive damage in communities throughout California, including Blackhawk.  The community suffered mudslides, which generated storm-related debris.  As a result, FEMA declared two major disasters, FEMA-4305/4308-DR-CA, which authorized Public Assistance (PA) for Contra Costa County.  In its first Request for Public Assistance (RPA), the Applicant submitted Lists of Projects (LOPs) and requested PA funding for debris removal and emergency protective measures ($315,000.00 for DR-4305).  In its second RPA, the Applicant requested funding for permanent and emergency work to repair damage caused by the mudslides and to stabilize slopes and hillsides ($3,340,000.00 for DR-4308).

In separate Determination Memos (DM) (dated September 12, 2017 and February 6, 2018), FEMA denied the requests for funding, stating that the Applicant had not substantiated it was legally responsible to perform any of the work claimed.  Additionally, at the time of the disaster, the Applicant did not own the properties identified in the LOPs and the owners had not expressly transferred to the Applicant their inherent legal responsibility for repairing their properties.  Furthermore, the Applicant had not received prior approval for private property debris removal.  Lastly, the Applicant did not provide documentation to support its emergency protective measures claim and it does not have the authority to determine that a public health and safety threat exists.  The Applicant was notified on October 27, 2017 and February 14, 2018, respectively.

First Appeal

The Applicant submitted an appeal of FEMA’s September 12, 2017 DM to the California Governor’s Office of Emergency Services (Grantee) in a letter dated December 26, 2017 and a supplemental letter dated January 22, 2018.  On April 15, 2018, the Applicant filed a first appeal of FEMA’s February 6, 2018 DM.  The Applicant explained that FEMA misunderstood its legal responsibility in the POC;[1] incorrectly determined that it was required to own the property or expressly assume ownership wherein the work was performed; and erroneously determined that it failed to provide documentation that a health and safety threat existed to the general public and does not have the authority to declare the existence of a public health or a safety threat.  Additionally, the Applicant confirmed that it does not own property within its boundaries, but it is still required to maintain the property within its boundaries.

On May 29, 2019, the FEMA Region IX Regional Administrator (RA) denied the appeal.  FEMA determined that the appealed work is not eligible because the work is not the legal responsibility of the Applicant.[2]  The RA also noted that FEMA may fund debris removal from private property in certain circumstances, but that it must be approved in advance by FEMA.  The RA further stated that it would categorize the emergency work under appeal as Category A - debris removal, rather than Category B - emergency protective measures.

Second Appeal

The Applicant submitted a second appeal to the Grantee.[3]  The Applicant reiterates its first appeal arguments, and states that FEMA misunderstands its work approval discretion under the POC Mandate, and misconstrues its authority in emergency response situations.  The Applicant further states that the POC requires it to determine, perform, and complete necessary work.  The Applicant also notes that contrary to FEMA’s determination, it is not required to own the property wherein it performs work.  Additionally, the Applicant states that debris removal was done in the context of an emergency response, making it impractical to seek and obtain prior approval as required by FEMA.

The Grantee transmitted the Applicant’s second appeal to FEMA recommending that FEMA deny the request.[4]  The Grantee states that the Applicant is eligible, but the work it performed is not eligible, because the Applicant must receive FEMA’s prior approval to do the work.

Discussion

Legal Responsibility for Permanent Work

For an applicant to be eligible for FEMA PA funding, it must be legally responsible for the work.[5]  To determine whether a local government has legal responsibility to conduct activities on private property, FEMA reviews an applicant’s legal basis and authority to conduct the activities.[6]

Legal responsibility to repair a facility usually resides with the owner of the facility, unless the owner has transferred the responsibility to another party by lease or other legal instrument.[7]  The Applicant acknowledges that it does not own any property within its boundaries.  Additionally, there is no evidence indicating that the owners have transferred legal responsibility for repairs to the Applicant by lease or any other legal instrument.[8]  For example, the predisaster Right of Entry and Facilities Maintenance License agreements between the Applicant and the entities that owned the private properties at issue state that each agreement “in no way obligates the [Applicant] to repair any landslide(s) or other geologic hazard(s) that might exist on the Licensor property, and nothing herein shall be construed to impose such an obligation on the [Applicant].”[9]  Therefore, the Applicant has not demonstrated that it had the legal responsibility for the permanent work repairs on appeal.

Eligibility of Debris Removal from Private Property

Section 407 of the Stafford Act authorizes FEMA to fund the removal of debris from private property, if specific criteria and requirements are met.[10]  This includes the requirement that the Applicant submit a written request and receive approval from FEMA prior to commencing work on private property.[11]  The Applicant argued that some of the debris removal at issue was done in the context of the emergency response, making it impractical to seek and obtain prior approval from FEMA.  However, FEMA policy in effect at the time of these disasters required the Applicant to request and obtain FEMA’s prior approval, and the Applicant did not meet this requirement.[12]  Therefore, the appealed debris removal work does not meet eligibility requirements for PA funding.

Emergency Protective Measures on Private Property

In general, emergency protective measures to save lives, to protect public health and safety, and to protect improved property are eligible if they eliminate or lessen certain immediate threats.[13]  The PAPPG states that in limited circumstances, FEMA may determine that emergency protective measures conducted on private property are eligible if: (1) the immediate threat is widespread, affecting numerous homes and businesses in a community such that it is a threat to the health and safety of the general public in that community; (2) the Applicant has legal authority to perform the work; and (3) the Applicant obtained rights-of-entry and agreements to indemnify and hold harmless the Federal Government.[14]

The Applicant documented its claimed emergency protective measures (i.e., damage control, erosion control and fence/wall construction) on a limited number of private properties.  However, the Applicant did not meet its burden to demonstrate a widespread and immediate threat to the health and safety of the general public in the community.  The Applicant’s documentation instead indicates that the threat only affected certain private properties within the community.

The Applicant also submitted Rights of Entry documents for the individual home owners; however, those documents did not have a “hold harmless” clause for the Federal Government as required by the PAPPG.  Therefore, the Applicant has not met the eligibility criteria for emergency protective measures on private property.

Conclusion

The Applicant does not have the legal responsibility to perform the work.  The Applicant also failed to obtain prior approval from FEMA for private property debris removal.  Additionally, the work performed does not meet eligibility requirements for emergency protective measures on private property.  Accordingly, the Applicant’s second appeal is denied.