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Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4421
Applicant	M & P Missouri River Levee District
Appeal Type	Second
PA ID#	000-UHZUR-00
PW ID#	PW 581 GMP 109674
Date Signed	2021-07-21T16:00:00

Summary Paragraph

Beginning March 12, 2019, Iowa experienced severe storms and flooding.  On March 23, 2019, the President issued a major disaster declaration.  The Applicant’s Facility suffered damages including the loss of the Facility’s fill material.  The Facility was an active participant in the United States Army Corps of Engineers (USACE) Rehabilitation and Inspection Program at the time of the disaster and was under its authority pursuant to a post-disaster Cooperation Agreement.  The Cooperation Agreement required the Applicant to provide fill material for the Facility’s repairs.  FEMA prepared Project Worksheet 581 for fill material totaling $287,361.20.  In its Determination Memorandum, FEMA found that the Facility was ineligible for funding because it was under the authority of another federal agency.  The Applicant appealed, arguing that it was legally responsible to provide the fill material and, therefore, FEMA should reimburse the incurred costs.  The Region VII Regional Administrator denied the first appeal, finding that the issue of the Applicant’s legal responsibility for providing the fill material was irrelevant because the Facility was ineligible for Public Assistance (PA) funding since it was under the authority of another federal agency.  The Applicant submitted its second appeal, which reiterates its first appeal arguments. 

Authorities and Second Appeals

• Stafford Act § 406(a).
• 33 C.F.R. Part 203, § 701n(a); 44 C.F.R. § 206.226(a).
• PL 84-99 § 5.
• RP 9524.3, at 2.
• PAPPG, at 17,118.
• E.g., S. Fla. Water Mgt. Dist., FEMA-1539,1545,1561,1609-DR-FL, at 4-5; Bois Brule Levee Drainage Dist., FEMA-1749-DR-MO, at 1.

Headnotes

• FEMA is prevented from providing disaster assistance when another federal agency has specific authority to restore the same disaster damaged or destroyed facility.
  • The Facility is not eligible for PA funding for reimbursement of costs incurred for fill material provided because USACE has specific authority to perform the Facility repairs.

Conclusion

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

Appeal Letter

Appeal Analysis

Background

Beginning March 12, 2019, Iowa experienced severe storms and flooding.  On March 23, 2019, the President issued a major disaster declaration.  A section of the M & P Missouri River Levee District’s (Applicant) levee system (Facility) near Council Bluffs, Iowa suffered damages including the loss of the Facility’s fill material.  The Facility was constructed by the United States Army Corps of Engineers (USACE), was an active participant in the USACE Rehabilitation and Inspection Program (RIP) at the time of the disaster and was under USACE authority pursuant to a post-disaster Cooperation Agreement.  

The RIP[1] is an ongoing USACE program, authorized by the Flood Control Act of 1941[2] that provides for inspection of flood control works (FCWs), including non-federal levees, the rehabilitation of damaged FCWs by flood events, and the rehabilitation of federally authorized and constructed hurricane or shore protection projects.  Active participants in the RIP are FCWs, which meet specific criteria and are determined acceptable and enrolled in the RIP following inspection by USACE.  The Cooperation Agreement[3] provided that USACE would repair the project damaged by flooding and have control over the award of contracts and performance of work.  The Applicant retained responsibility for operation and maintenance of the Facility and was required to provide suitable fill material for the USACE repairs and rehabilitation effort.  The Cooperation Agreement also provided that the Applicant did not contribute cash or services toward rehabilitation effort costs and did not use any federal funds to meet its share of the total rehabilitation effort costs unless the federal granting agency verified in writing that the expenditure of such funds is authorized by statute.[4]  

To supply the fill material required by USACE to complete the repairs, the Applicant entered into a supply agreement with a USACE-approved supplier to purchase the fill materials.  FEMA prepared Project Worksheet (PW) 581 totaling $287,361.20 based upon the supplier’s invoice for the fill materials.[5]  On May 12, 2020, USACE sent an email to the Iowa Homeland Security and Emergency Division (Grantee) confirming the Facility is under USACE authority and that the fill material is required to be provided by the Applicant under USACE’s repair authority.[6]  In its May 28, 2020 Determination Memorandum, FEMA determined that the Facility was ineligible for funding because it was under the authority of another federal agency, referencing the May 12, 2020 email from USACE to the Grantee.

 

First Appeal

On July 23, 2020, the Applicant appealed FEMA’s determination, acknowledging the Facility was under USACE’s authority and that it was active in the RIP at the time of the disaster, but arguing that the Applicant was legally responsible to provide the fill material.  Therefore, the Applicant stated FEMA should reimburse the costs for the fill material.  To support its argument, the Applicant provided the RIP fact sheet, the post-disaster Cooperation Agreement, the supplier’s invoice, and the payment order.  The Grantee transmitted the appeal, with its support, on September 18, 2020.  The Grantee also argued that FEMA’s current policy regarding legal responsibility for work, while not in effect at the time of the disaster, is necessary to clarify the interpretation and application of FEMA policy to PW 581.[7]  The FEMA Region VII Regional Administrator denied the appeal, concluding that despite the Applicant’s arguments that it maintained legal responsibility for providing the fill material, the Facility was ineligible for Public Assistance (PA) funding because the Facility was under the authority of another federal agency.

 

Second Appeal

The Applicant submitted its second appeal on March 6, 2021, reiterating its first appeal arguments.  The Applicant also requested that FEMA recognize the equities involved in this matter along with the legal and contractual requirements placed on it as the RIP sponsor of the Facility, including the provision of fill material for repairs.  The Grantee transmitted the second appeal on May 6, 2021, supporting the Applicant’s position and recommending approval of the appeal.

 

Discussion

FEMA may fund the repair or restoration of a public facility damaged or destroyed by a major disaster.[8]  FEMA is prevented from providing disaster assistance when another federal agency has specific authority to restore the same disaster damaged or destroyed facility.[9]  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.[10]  Generally, FCWs are under the authority of USACE or Natural Resources Conservation Service and restoration of damaged FCWs under the control of another federal agency are not eligible.[11]  Repairs to FCWs that are eligible for the RIP are not eligible for PA funding.[12]

The May 12, 2020 email from USACE confirms that the Facility is under USACE authority and the Cooperation Agreement is further confirmation that the Facility participates in the RIP.  According to the Cooperation Agreement, the Applicant is legally responsible for the Facility’s operation and maintenance, while USACE, not the Applicant, is legally responsible for the repair work.  That Cooperation Agreement prohibits the Applicant’s use of federal funds unless the federal agency authorizes it and cites the relevant federal statute.  Moreover, the Applicant does not dispute that the Facility is a FCWs under the authority of another federal agency or that it is an active participant in the RIP.[13]  Therefore, the Facility is ineligible for PA funding.

 

Conclusion

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

 

[1] Title 33 Code of Federal Regulations (33 C.F.R.) Part 203, Emergency Employment of Army and Other Resources, Natural Disaster Procedures (see Subpart D outlining USACE’s RIP program); FEMA Recovery Policy 9524.3, Rehabilitation Assistance for Levees and Other Flood Control Works, at 2 (Sept. 23, 2011).

[2] Flood Control Act of 1941, Pub. L. No. 84-99, § 5, 33 U.S.C. §701(n) (Aug. 19, 1941).

[3] Cooperation Agreement between USA, Dept. of Army and M&P Mo. River Levee Dist. for Rehabilitation of a Federal Flood Control Work, at 2-3 (Apr. 12, 2019).

[4] Id. at 3.

[5] Invoice from Thieschafer Ltd. To M & P Mo. River Levee Dist. (Sept. 27, 2019). FEMA notes that the Applicant  received a $10,500 discount and paid only $276,861.20 but, on this appeal, seeks  the full $287,361.20. This discrepancy is not discussed here since the issue is facility eligibility not cost eligibility.

[6] Email from Iowa Dept. of Homeland Security and Emergency Mgmt. (HSEMD) to FEMA, CTR (May 12, 2020) (forwarding an email from USACE to HSEMD dated May 12, 2020).

[7] The language cited by the Applicant is not new to the Public Assistance Program and Policy Guide, Version 4. Each prior version, including Version 3.1 applicable here, included similar language with the only difference between the two versions being the removal of the word “However” from the start of the second sentence. The referenced section involves an issue of work eligibility, which issue is not reached unless FEMA determines an applicant and the facility are eligible for PA funding. The section also addresses cases where the facility is owned by another federal agency but an eligible applicant is responsible for the repairs. This section is not applicable here where the Facility in under the authority of another federal agency, is not federally owned, and the Applicant is not responsible for the repairs.

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

[9] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.226(a)(1) (2018).

[10] Id.; Public Assistance Program and Policy Guide, FP 104-009-2, at 17 (Apr. 2018) [hereinafter PAPPG]; See FEMA Second Appeal Analysis, S. Fla. Water Mgmt. Dist., FEMA-1539,1545,1561,1609-DR-FL, Various PWs, at 4-5 (Feb. 18, 2014).

[11] Title 33 United States Code (33 U.S.C.), as amended, § 701n(a) (1996) (specifically authorizing USACE to repair or restore “any flood control work threatened or destroyed by flood”); PAPPG, at 118.

[12] Flood Control Act of 1941 (PL 84-99), §5 (Aug. 19, 1941); FEMA Second Appeal Analysis, Bois Brule Levee Drainage Dist., FEMA-1749-DR-MO, at 1 (Jan. 4, 2010).

[13] 44 C.F.R. §206.226(a); PAPPG at 17.