Flood Control Works

Appeal Brief

Appeal Letter

Appeal Analysis

Background

Beginning on April 30, 2010, severe storms, tornadoes, heavy rains, high winds, flooding, and flash flooding affected the City of Clarksville.  FEMA initially prepared Project Worksheets (PWs) 2519, 2828, 5182, 5184, and 5305 to address either emergency or permanent work to sixteen wastewater lift stations[1] (Facilities) that were flooded due to the disaster.  During the PW reviews, FEMA determined that the Facilities were wholly or partially located within United States Army Corps of Engineers (USACE) easement boundaries by overlaying the Global Positioning System (GPS) coordinates of the Facilities onto USACE flowage easement maps.  Because the Facilities were located within USACE easement boundaries, FEMA, as a policy matter, determined that they were not eligible for Public Assistance (PA) funding. 

First Appeal

In a first appeal dated June 24, 2011 and an October 18, 2011 supplement, the Applicant appealed FEMA’s determination that the projects were not eligible because the Facilities were within a USACE easement.  The Applicant argued that the USACE Consent to Easement deed[2] (easement deed) did not include a hold harmless provision.  In addition, the Applicant asserted that Stafford Act claims are unrelated to any contractual provisions regarding liability or flood rights. 

In a letter dated October 16, 2014, the Region IV Acting Regional Administrator (ARA) denied the first appeal determining that the Facilities were located within USACE flowage easement boundaries based on the overlay maps developed during PW formulation.  The ARA further determined that the easement deed included liability-shifting clauses that stated the United States Government was immune from liability.  The ARA concluded, that as a matter of policy, PA funding was not available to facilities covered by the easement deed that included such language.  The ARA informed the Applicant that, if it believed the Facilities were not located within USACE flowage easement boundaries or that the easement deed did not include the non-liability provisions, it should request written confirmation from the USACE and submit it with its second appeal.  In an attachment to the first appeal decision, the RA provided the Facilities’ locations and amounts in dispute for each PW as follows: $29,458.50 for PW 2519, $45,311.25 for PW 2828, $1,429.35 for PW 5182, $866.74 for PW 5184 and $21,222.22 for PW 5305, for a total amount of $98,288.06.

Second Appeal

In its second appeal letter dated January 23, 2015, the Applicant argues that the Facilities addressed in PWs 2519, 2828, 5182, 5184 and 5305 are not located within USACE flowage easement boundaries because they are located above the 378’ contour elevation and the FEMA base flood elevation.  As evidence, the Applicant submits a January 21, 2015 letter (USACE Letter) from the USACE, Nashville District, stating the Beacon Hills, Cornwall, Gallows Hollow, Hickory Wilds, Main, McClure, McGregor, Old Russellville Pike, Pettus, Providence Cabinet, Red River, Southern Hills, Swan Lake, Talley Drive, Woodstock and Roedeer Lift Stations are located above the “Government flowage easements and therefore are not located on Government property.”[3]  The USACE states that it made its determination after carefully reviewing the coordinates and Light Detection and Ranging (LIDAR) information provided by the Applicant in comparison with current mapping of the USACE flowage easements for the Barkley Dam and Lake Barkley Project.  As a separate matter, the Applicant claims that FEMA incorrectly listed the appeal amounts for PWs 2519, 5182, and 5305 in the first appeal response.  The Applicant asserts that the correct amounts are $529,624.95, $8,647.79, and $233,444.42 respectively.[4]

Discussion

Applicability of USACE Flowage Easements

In order to receive Public Assistance (PA) funding, the recipient must be an eligible applicant[5] that is legally responsible for a facility[6] damaged as a result of a declared disaster or emergency event.[7]  Ultimately, FEMA determines whether a particular project is eligible for PA funding.[8]  As a policy matter, FEMA will deny PA funding to restore facilities located in USACE flowage easements if the governing legal instrument includes language that clearly holds the Applicant responsible for any flood damage that occurs to its facilities due to USACE actions or inactions, and/or any other causes specified in the legal instrument.^[9]  However, if the legal instrument does not include such language, the project is potentially eligible, and other eligibility criteria for the PA Program apply.  FEMA reviews each project on a case-by-case basis and determines eligibility using the terms of the legal instrument.   FEMA does not dispute that Clarksville Gas and Water is an eligible applicant, nor that the wastewater lift stations are eligible facilities.  On second appeal, the primary issue in dispute is whether the USACE flowage easement applies to the facilities. 

Prior to second appeal, FEMA found only a portion of the Facilities located within USACE easement boundaries and reduced costs according to the portion of the Facilities within the boundaries for PWs 2519, 5182 and 5305.  FEMA deducted $20,081.76 from PW 2519, leaving $500,166.45 eligible, deducted $1,429.35 from PW 5182, leaving $7,218.44 eligible and deducted $21,222.22 from PW 5305, leaving $212,222.20 eligible.  Therefore, the RA accounted for the deducted portions of the PWs in the first appeal determination.[10]  It is the Grantee’s responsibility to release these funds to the Applicant.  As such, only the portions of the Facilities previously determined to be within the USACE easement are at issue on second appeal.    

Following a recommendation in FEMA’s first appeal response,[11] the Applicant obtained a letter from the USACE determining that these Facilities are above USACE flowage easement boundaries.  In light of these facts, FEMA has determined that the provisions in the USACE flowage easement are not applicable to the facilities at issue in this appeal.  As such, the restrictions outlined in White House Utility District are not applicable in this instance and consequently the easement has no bearing on PA eligibility.

Work Eligibility

FEMA may reimburse costs associated with disaster-related debris removal from public land.^[12]  FEMA prepared PW 5305 as a Category A project covering sand, gravel and debris removal from eleven lift stations throughout the Applicant’s Waste Water Treatment Plant (WWTP) district using contract labor and equipment.  The Facilities listed in the scope of work for PW 5305 are also listed in the USACE Letter.  Within the scope of work of PW 5305, FEMA states “[t]he project specialist has reviewed the bid documents and specifications with damage and found them to be reasonable.”  As stated earlier, Clarksville Gas and Water is an eligible Applicant and the wastewater lift stations are eligible facilities.  In addition, debris removal typically is eligible work.  Therefore, the project is eligible for PA reimbursement. 

Pursuant to the Stafford Act § 403 and 44 C.F.R. § 206.225, emergency protective measures that eliminate or lessen threats to lives, the public health and safety or improved property are eligible for PA reimbursement.  If the measures protect improved property, they must be cost effective.^[13]

FEMA prepared PWs 2519, 5182 and 5184 to address various emergency measures implemented at the Applicant’s lift stations due to the disaster.  Specifically, PW 2519 addressed contract services for pumping out flooded Facilities, cleaning, odor control and other emergency repairs, PW 5182 addressed force account labor and equipment and contract services and materials used to install and connect temporary electrical service line drops, switches, and meters at six wastewater lift stations, and PW 5184 addressed force account labor and equipment required to disconnect temporary power service and reconnect permanent power service at wastewater six lift stations.  The work addressed in PWs 2519, 5182 and 5184 is generally eligible for PA funding as emergency protective measures.  Each PW specifies that FEMA personnel reviewed the Applicant’s documentation related to work completed and found it accurate and reasonable.  Therefore, FEMA will draft versions for PWs 2519, 5182 and 5184 reimbursing costs incurred as the result of the disaster.  

The Stafford Act and implementing Regulations authorize FEMA to provide Federal assistance to a local government for the repair, restoration, or replacement of a facility damaged by a declared disaster.^[14]  FEMA prepared PW 2828 to document repairs to the Hickory Wild Lift Station including removing and replacing two pump motors and pump seal assemblies, primer motors, a control panel, a fan, a transformer, a heater and floats.  The PW associates $44,858.07 with this work.  This is permanent work and otherwise eligible under the PA Program. 

Conclusion

The USACE Letter substantiates the Applicant’s claim that the Facilities addressed in PWs 2519, 2828, 5182, 5182 and 5305 are not located within USACE flowage easement boundaries.  The costs associated with the emergency or permanent work otherwise are eligible for PA reimbursement.  As such, the appeal is granted.  The total eligible amount of additional PA funding for these PWs is $88,458.14, contingent upon verification of documentation by Region IV.[15]