Immediate Threat, Direct Result of Disaster

Appeal Brief

Summary Paragraph

Between May 17 and May 28, 2009, rainstorms impacted the City of DeBary.  On May 9, 2009, prior to the declared rain event, the Applicant began pumping anticipated water out of its surrounding watershed into the nearby St. Johns River.  The Applicant initiated the pumping as an emergency protective measure to protect surrounding homes and businesses from flood damage and continued to pump after the incident period ended on May 28, 2009.  FEMA subsequently prepared Project Worksheet (PW) 149, which covered $19,150.01 for pumping costs incurred during the declared incident period.  FEMA, through the PW, denied eligibility for the pumping performed by the Applicant after the incident period, determining this additional work could not be directly attributed to the declared event.  Through a September 10, 2010 letter to the Florida Division of Emergency Management (Grantee), the Applicant submitted its first appeal, requesting an additional $690,754.63 in funding for pumping costs incurred after the incident period.  The FEMA Region IV Regional Administrator (RA) denied the first appeal on July 20, 2012, finding that the Applicant failed to provide documentation showing that the 30 days of pumping beyond the incident period was necessary to remove an immediate threat or that pumping was required as a result of the declared event.  In a letter dated May 4, 2015, the Applicant submitted its second appeal to the Grantee along with an engineering report arguing the necessity of the additional pumping.  Subsequently, the Grantee submitted a May 27, 2015 letter to FEMA, discussing the timeliness of the appeal and endorsing Applicant’s request for an additional obligation of $323,778.98 in Public Assistance for pumping costs beyond May 28, 2009. 

Authorities and Second Appeals

• 44 C.F.R. §§ 206.223 & 206.225 (a)(3)(i-ii).
• PA Guide at 71.
• OMB Circular A-87 Att. A § (C)(1)(a) & (j)

Headnotes

• Pursuant to 44 C.F.R. § 206.225 (a)(3)(i-ii),       in order to be eligible, emergency protective measures must eliminate or lessen immediate threats to life, public health or safety; or eliminate or lessen immediate threats of significant additional damage to improved public or private property through measures which are cost effective.
  • Not all of the pumping work the Applicant performed after the end of the incident period addressed an immediate threat.
• Pursuant to 44 C.F.R. § 206.223, to be eligible for financial assistance an item of work must “[b]e required as the result of the emergency or major disaster event.
  • Lake water levels above the emergency pump level immediately after the incident period were a result of the disaster due to their proximity in time to the disaster event.
• OMB Circular A-87 provides that allowable costs must meet the cost principles of being allocable to Federal awards and adequately documented.
  • The Applicant’s documentation does not demonstrate costs allocable to any additional eligible work.

Appeal Letter

Appeal Analysis

Background

The City of DeBary (Applicant), Florida utilizes a municipally owned and operated set of storm water control systems for flood control (including lakes, storm water ponds, and depressional areas), which is augmented by temporary storm water removal systems and equipment that is rented or otherwise procured on an as-needed basis.  This equipment includes portable pumps and above ground hoses.

Between May 17 and May 28, 2009, rainstorms deposited approximately 17 inches of rain during an 11-day incident period.  On May 9, 2009, prior to the declared rain event, the Applicant activated its emergency plan to pump anticipated flood waters out of its water control systems and into the nearby St. Johns River.  The Applicant initiated this emergency protective measure for the stated purpose of protecting surrounding homes and businesses from flood damage.  The Applicant continued to pump after the incident period.

FEMA subsequently prepared Project Worksheet (PW) 149 on January 25, 2010, in the amount of $19,150.01, covering labor, equipment and contracted costs incurred during the May 17 through May 28, 2009 incident period.  The Applicant continued pumping beyond the incident period for an additional 30 days.  FEMA denied eligibility for the work performed by the Applicant after the incident period, as the work could not be directly attributed to the declared event.

First Appeal

In a September 10, 2010 letter, the Applicant submitted its first appeal to the Florida Division of Emergency Management (Grantee), and requested an additional $690,754.63 in Public Assistance (PA) funding for labor, equipment, and contracted costs associated with pumping beyond the incident period.  The submission contained an engineering report from Professional Engineering Consultants (PEC), an engineering and consulting firm.  The PEC report asserts that the disaster created an immediate flooding threat and the pumping activities undertaken by the Applicant eliminated this threat.  PEC’s report provided documentation supporting its conclusion, including the following: rainfall totals in the city corresponding to the time period before, during and after the disaster; the water level of the various lakes before, during and after the disaster; and the sequence from which water was pumped between these lakes.[1]  

The FEMA Region IV Regional Administrator (RA) denied the first appeal on July 20, 2012, finding that the Applicant’s appeal submission failed to document how pumping 30 days beyond the incident period was necessary to remove an immediate threat to lives, public health and safety, or improved property.  The RA further stated that the Applicant failed to provide adequate documentation showing the work was required as a result of the declared event. 

Second Appeal

In a letter dated May 4, 2015, the Applicant submitted its second appeal to the Grantee and included with it a report from Pegasus Engineering, which asserts pumping was necessary to remove an immediate threat of flooding.  The Applicant’s second appeal requests an additional obligation of $323,778.98 in PA funding for pumping costs past May 28, 2009.  The Applicant asserts that an immediate threat to lives, public health and safety, and improved property caused by flooding required the additional pumping.  The Applicant also makes an additional argument pointing to 44 C.F.R § 206.5(h) and requesting FEMA waive any administrative conditions preventing assistance.

The Grantee endorsed the Applicant’s second appeal through a May 27, 2015 letter to FEMA, and also presented arguments regarding the timeliness of the appeal.  The Grantee asks FEMA to consider the appeal timely, even though the Applicant filed the appeal almost three years after the RA issued its June 20, 2012 first appeal decision.  The Grantee asserts that it had prior knowledge of the denial but no record of providing notice of it to the Applicant.  Upon discovery of this oversight, the Grantee contacted the Applicant, which confirmed it had no knowledge of any decision from FEMA.  Subsequently, the Grantee sent a letter to the Applicant dated March 6, 2015, and through this letter provided the Applicant notice of the denial.   

Discussion

Timeliness of Appeal

An applicant must file its appeal within 60 days after receipt of a notice of the action that is being appealed.[2]  A grantee will review and forward appeals from an applicant, with a written recommendation, to the RA within 60 days of receipt.[3]

The Grantee has indicated that it did not provide the Applicant with timely notice of the denial.  There is no documentation that the Applicant received notice of the denial until March 6, 2015.  As the Applicant submitted its second appeal within 60 days of the Grantee’s notice, which is consistent with 44 C.F.R. § 206.206(c)(1), the Applicant’s second appeal is timely. 

Request to Waive Administrative Conditions

Pursuant to 44 C.F.R. § 206.5(c), FEMA may direct any other Federal Agencies during a declared major disaster or emergency to provide emergency assistance.[4]  Further, an agency charged by FEMA with the administration of a Federal assistance program may, if so requested by an applicant, waive administrative conditions as would otherwise prevent the giving of assistance under such programs if the inability to meet such conditions is a result of the major disaster.[5]

Here, FEMA never directed another Federal Agency to administer aid to the Applicant.  Accordingly, the Applicant’s reliance on this regulation is misapplied.  The citation to 44 C.F.R § 206.5(h) is inapplicable to this appeal.

Immediate Threat

Emergency protective measures are those activities undertaken by a community before, during, and following a disaster that are necessary to eliminate or reduce an immediate threat to life, public health, or safety or eliminate or reduce an immediate threat of significant damage to improved public or private property through cost-effective measures.[6] Generally, those actions taken by a community to warn residents, reduce the disaster damage, ensure the continuation of essential public services, and protect lives and public health or safety are eligible for assistance.[7] 

The Applicant’s geographical area is made up of what the PEC report describes as eight separate drainage systems.  Each system is made up of a series of lakes, ponds and depressional areas that receive runoff from the sub-basins in specified geographic areas of the city.  During the incident period, continued rainstorms presented an immediate threat of flooding that would endanger lives, public health and safety, or improved property.  Therefore, emergency pumping of water from the sub-basins so that it drained into the St. John’s River was eligible for Public Assistance in order to meet the immediate threat during the incident period. 

For purposes of this appeal, a review of the eight systems was conducted to determine whether an immediate threat may have existed after the incident period.  This review considered the water levels reached during and after the incident period, emergency pump levels, and rainfall that occurred after the incident period.[8]  As reflected in the following table, in some instances continued pumping was required to address an immediate threat after the incident period.

Systems 1, 3, 4 and 5 were not at emergency pump levels at the end of the incident period.  In some cases the water elevation rose after June 3, 2009, correlating with the rainfall received after the incident period.  In others, the pumping did not begin until June 5, 2009.  Based on the information provided by the Applicant, Systems 2, 6, 7 and 8 exceeded the emergency pump levels at the locations shown in the above table in the days immediately following the incident period, and therefore demonstrate an immediate threat was still present and additional pumping was necessary.   

Direct Result of Disaster

To be eligible for financial assistance an item of work must “[b]e required as the result of the emergency or major disaster event.”[10]  From the review conducted, it appears immediate threats continued to exist on Upper Lake on May 29 and 30, Lake Maud/ Anna Maria and No Name Lake on May 29 and 30, and Cinnamon Bay and Woodbound Lake from May 29 to June 5.  The proximity in time of these levels to the incident period demonstrates that the cause of the immediate threat was linked to the declared major disaster incident.  Accordingly, the work to pump during those days immediately following the disaster was required as a result of the declared disaster event.

However, the Applicant, through its Pegasus Engineering Report, states additional rainfall events after May 29, 2009 caused water levels to increase, while pumping systems were operational.[11]  To the extent that waters on certain systems later exceeded their emergency pumping levels after June 5, additional rainfall events were contributory.  Accordingly, any such threats are not found to be the direct result of the declared disaster.  Therefore, work to pump outside of the incident period, with the exception of the aforementioned dates for the specifically named lakes, is not eligible.

Adequate Documentation of Cost Allocation

FEMA determines allowable costs in accordance with the Office of Management and Budget (OMB) cost principles.[12]  As a local government, the Applicant must follow the OMB Circular A-87 requirement that costs must be necessary for proper and efficient performance and administration of the Federal award.[13]  OMB Circular A-87 also mandates that costs be adequately documented and allocable to the specific project completed with Public Assistance funds.[14]   Generally, costs that can be directly tied to the performance of eligible work are eligible for FEMA reimbursement.[15]

The information submitted in conjunction with Applicant’s second appeal, as well as documentation provided in response to FEMA’s subsequent request for information,[16] does not document costs that are directly allocable to the pumping on Upper Lake on May 29 and 30; Lake Maud, Anna Maria and No Name Lake on May 29 and 30 and Cinnamon Bay and Woodbound Lake from May 29 to June 5.  While the Applicant’s documentation establishes costs of pumping for the eight systems, it does not provide specificity to allocate those costs to the eligible activities.  Therefore, FEMA cannot approve additional funding for those costs.

Conclusion

The Applicant has not demonstrated that continued pumping work for the entire system outside of the incident period was necessary to address an immediate threat caused by the declared disaster.  While the Applicant was able to show that water levels on certain lakes posed an immediate threat after the incident period and were a direct result of the disaster, its documentation cannot allocate costs to the potentially eligible work.  As such, those costs are not eligible and FEMA cannot approve additional funding.