Legal Responsibility, Result of Declared Incident, Public Interest, Section 705

Appeal Brief

Appeal Letter

Appeal Analysis

Background

Hurricane Michael resulted in a major disaster declaration on October 11, 2018 for the state of Florida, with an incident period of October 7 through October 19, 2018. Washington County (Applicant), a local government entity, requested reimbursement of $4,581,881.61 for completed and future work, including the monitoring, collection, reduction, removal, and disposal of debris that the disaster deposited throughout the county. FEMA prepared Grants Manager Project 99455/Project Worksheet (PW) 1404 to document the claimed costs.[1]  

On February 7, 2020, FEMA performed site inspections, where it performed a sampling of debris types at multiple sites throughout the county. On November 10, 2020, FEMA approved $4,581,881.61 for debris removal from various locations, including drainage ditches and waterways that ran perpendicular to county rights of way (ROWs).[2] 

On November 5, 2021, the Florida Division of Emergency Management (Recipient) requested a new project version (Version 1) due to a significant cost increase to complete the project’s scope of work (SOW). Specifically, the Applicant requested an additional $2,873,690.36 for a new total project cost of $7,455,571.97.[3] On April 5, 2022, FEMA created Version 1 to reflect the cost change. On May 6, 2022, the Recipient drew down most of the funds and paid the Applicant, leaving a balance of $1,630.52. 

On July 13, 2022, FEMA sent a Request for Information (RFI) to the Applicant seeking information on the debris removal for both the previously obligated work as well as the additional requested work. The RFI included 70 line items encompassing: (1) invoice documentation to support claimed amount; (2) documentation to support maintenance responsibility for claimed ditches that cross into private/natural/unimproved properties; (3) signed rights of entry (ROEs) from each private property that the Applicant entered without legal responsibility to maintain; and (4) documentation and photographs to demonstrate immediate threat to life, safety, or improved property, and site number identification for the completed work by cross-referencing the locations. 

On August 11, 2022, the Applicant responded to the RFI by providing invoices, monitoring reports from 2021, maintenance reports from 2015 to 2021, site photographs, maps and GPS locations. The Applicant also provided explanations regarding the unprecedented flooding from the declared incident as well as information on its legal responsibility for performing the work. In addition, the Applicant provided amended costs based on the invoices, maintenance logs showing ditches had been historically maintained, and site maps showing the ditch locations.

In a Determination Memorandum dated November 21, 2022, FEMA denied $7,455,571.97, which included the amount FEMA originally obligated in Version 0 of the project as well as the Applicant’s request for additional contract costs of $2,873,690.36. FEMA found the Applicant did not: (1) provide evidence/details of its debris removal activities which would substantiate claimed work performed and work to be performed; (2) show that the claimed damage was a direct result of the declared incident; and (3) demonstrate it had the legal responsibility to remove debris beyond the public ROWs. FEMA noted it would deobligate the previously awarded funds. 

First Appeal

In a January 19, 2022 letter, the Applicant filed a first appeal, reiterating its request for $7,455,571.97, and asserting that the debris obstructed drainages, which caused damage to roadways and homes, constituting an immediate threat resulting from the disaster. 

The Applicant stated that the sites included in the project are the main drainages that run perpendicular to the county roads.[4] The Applicant provided 51 undated, unlabeled photographs showing flooding, and load tickets for debris removal work it completed at various site locations from July to September 2021. The Applicant stated that the main drainages that prevented flooding of county roadways ran perpendicular to the roads through fields and improved timber stands and are adjacent to improved property. The Applicant said FEMA had conducted a 

1.5-year evaluation (to include site inspections) and had witnessed the debris deposited by the disaster before the project was approved and obligated. The Applicant also stated the maintenance records it provided demonstrate that it performed regular inspections and maintenance on a set schedule. The Applicant also asserted it was legally responsible to remove the debris obstructing the drainages in question. The Applicant further stated it met criteria outlined in the Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 705(c) that prohibits FEMA from recovering the previously obligated amount. In a March 20, 2023 letter, the Recipient transmitted the Applicant’s first appeal to FEMA with its support.

On July 22, 2024, the FEMA Region 4 Regional Administrator denied the appeal, stating that the Applicant did not provide documentation to substantiate its legal responsibility for the debris removal work, the eligibility of its debris removal activities, or that the claimed debris damage was a result of the disaster. Consequently, FEMA found that the additional costs of $2,873,690.36 related to debris removal activities were ineligible for PA reimbursement. FEMA further found that because the purpose of the grant had not been accomplished, it would proceed with deobligating the previously obligated funds from the PW.

Second Appeal

In a letter dated September 20, 2024, the Applicant submitted a second appeal, referencing its first appeal arguments, and requesting $7,455,571.97. While the Applicant acknowledges that some of the claimed debris removal work took place within drainage areas that extend through unimproved property, it argues that this work eliminated immediate threats to public health and safety as well as the threat of damage to improved public and private property for which it, as a county government, is legally responsible to address. The Applicant further asserts that these are precisely the circumstances under which FEMA may provide funding to local governments for such work, and that FEMA’s denial seems to be applying FEMA’s standards for funding repairs to an improved property or facility rather than debris removal. On October 4, 2024, the Recipient transmitted the second appeal with its support.

Discussion

General Work Eligibility (Legal Responsibility and Result of the Declared Incident)

FEMA is authorized to provide PA funding for emergency work, as long as it is required as a result of the declared incident, located within the designated area; and the legal responsibility of an eligible Applicant.[5] To determine legal responsibility for emergency work, FEMA evaluates whether the applicant requesting assistance either had jurisdiction over the area or the legal authority to conduct the work related to the request at the time of the incident.[6] For debris removal, the Applicant must demonstrate that the debris causing an immediate threat was generated during the declared incident period and directly by declared incident.[7] 

Here, the Applicant asserts that it was legally responsible to remove the debris at the sites in question. Although the Applicant conducted some debris removal from its ROWs, the majority of the work the Applicant completed was associated with drainage ditches that ran perpendicular to its roadways.[8] The Applicant provided rights of entry documentation to demonstrate it received approval to perform debris removal on private property. However, documentation showing that private property owners gave the Applicant permission to enter those properties to perform debris removal work does not establish the Applicant was legally responsible for removing debris from those private properties nor on natural unimproved property adjacent to the Applicant’s ROWs.

Additionally, the Applicant has not demonstrated that any of the claimed debris at any of the sites was generated during the declared incident period and directly by declared incident. For example, many of the photographs showing debris at the sites are undated or dated years after the declared incident, which does not enable FEMA to verify that the debris was generated during the declared incident period and directly by the declared incident. 

Public Interest

Debris removal, clearance, and disposal is eligible if it is in the public interest.[9] Debris removal is in the public interest based on when it is necessary to eliminate immediate threats to lives, public health and safety, eliminate immediate threats of damage to improved public or private property; or to ensures economic recovery of the affected as a result of the disaster.[10] An immediate threat is a threat of additional damage which can reasonably be expected to occur within five years.[11] 

Removal of debris from improved public property and public ROWs is eligible.[12] Debris removal from agricultural land or natural, unimproved land, such as heavily wooded areas, is ineligible.[13] Debris removal from waterways that is necessary to eliminate the immediate threat to life, public health and safety, or improved property is eligible.[14] For non-navigable waterways, debris removal is only eligible to the extent that it is necessary to eliminate an immediate threat if the debris: (1) obstructs, or could obstruct, intake structures; (2) could cause damage to structures; or (3) is causing, or could cause, flooding to property during the occurrence of a 5-year flood.[15] 

FEMA considers the urgency with which the Applicant proceeds with work when evaluating eligibility.[16]

The Applicant acknowledges that portions of the claimed debris removal work took place within drainage areas that extend through unimproved property.[17] The Applicant argues, however, that the debris removal work eliminated immediate threats to public health and safety as well as the threat of damage to improved public and private property. However, a review of the photographs in the record shows that a majority of the debris removal sites appear to be located on natural, unimproved lands, such as heavily wooded areas and unused areas, which does not address an immediate threat to lives, public health and safety, nor threats of significant damage to improved property. Therefore, the debris removal from unimproved and private property is not in the public interest and is ineligible for PA.[18]

The Applicant also states it removed or plans to remove debris from non-navigable waterways, and asserts that the debris obstructed drainages, constituting an immediate threat resulting from the disaster. However, the photographs provided by the Applicant do not support this assertion. Several of the Applicant-provided photographs of the waterway sites show waterways that are free of visible debris or show debris such as twigs or other brush that is not obstructing intake structures nor do they demonstrate a threat of additional damage or destruction from an incident that can reasonably be expected to occur within five years of the declared incident. The Applicant’s assertions and documentation do not support its claim that the debris presents an immediate threat to lives, public health and safety, or a threat of significant damage to improved property. Therefore, its removal is not in the public interest and is ineligible for PA. 

Finally, the Applicant completed the debris work at 24 of the 67 sites from July 2021 through December 2021, three years after the declared incident. In addition, the majority of the sites still remain uncleared. The extended length of time the Applicant took to complete the debris removal work at 24 of the debris sites coupled with the fact that the Applicant has not demonstrated that it has completed debris removal at the 43 additional sites described in the obligated PW’s approved SOW does not support its assertion that the debris was an immediate threat resulting from the 2018 disaster.

Section 705 

Section 705(c) of the Stafford Act bars FEMA from deobligating payments made for a project to a state or local government if: (1) the payment was authorized by an approved agreement specifying the costs; (2) the costs were reasonable; and (3) the purpose of the grant was accomplished.[19] Section 705 prohibits FEMA from recovering payments for a project if all three criteria of section 705(c) are met.[20] FEMA considers that the purpose of the grant was accomplished if the SOW is completed as described in the obligated PW and supporting documentation, and post-award terms and conditions are met.[21] 

The Applicant has completed debris removal at 24 of the previously listed 67 sites that comprised FEMA’s approved SOW as described in the PW; thus, the Applicant has not completed debris removal at 43 sites that were described in the obligated PW’s approved SOW.[22] However, FEMA requires that the entire SOW of the PW be complete for 705(c)(3), the condition that requires the purpose of the grant be accomplished, to potentially apply. Only where the entire project, as represented within the SOW of the PW prior to identification of ineligibility, is completed, would section 705(c)(3) be satisfied. Thus, because the Applicant did not complete the entire project as represented within the SOW of the PW prior to identification of ineligibility, section 705(c)(3) has not been met. Therefore, section 705(c) of the Stafford Act does not bar the recovery of funds for this project. 

Conclusion

The Applicant has not substantiated that it had legal responsibility for all the claimed debris removal work, that any of the claimed debris was generated during the declared incident period and directly by the declared incident, or that all the claimed debris caused an immediate threat. Further, FEMA finds that section 705 of the Stafford Act does not bar FEMA from recovering the previously awarded funds. Thus, FEMA finds $7,455,571.97 in costs related to debris removal activities are ineligible for reimbursement. Therefore, this appeal is denied.