Direct Result of the Disaster

Disaster Causation

HEADNOTES

CONCLUSION

Between February 14 and July 20, 2011, rains and the spring thaw caused flooding in Stutsman County, North Dakota (Applicant). Floodwaters submerged CR-39 (Facility), a road that provided sole access to essential services for four residences. From April 12 to April 28, 2011, the Applicant constructed an emergency grade raise to provide access to the isolated homes. Due to wave erosion from standing floodwaters, the Applicant installed riprap and surface gravel to reinforce the emergency grade raise between July 21 and July 26, 2011. FEMA inspected the site on July 26, 2011, and prepared PW 306 Version 0 on July 28, 2011. Because the Facility was a sole access road for multiple residences, the scope of work provided for converting the emergency grade raise into a permanent grade raise and included riprap as a hazard mitigation measure. Version 0 also encouraged the Applicant to investigate a less-expensive alternate route and report back to FEMA with either a scope change request or an explanation of why the alternate route was not feasible. In addition, FEMA conducted an environmental review in compliance with the Endangered Species Act. Once the environmental review completed, FEMA obligated Version 0 on November 2, 2011. The Applicant did not begin construction due to the fall freeze-up and due to the conditional language regarding the alternate route that remained in Version 0. Before FEMA obligated Version 0, the Applicant made repairs to weak areas of the riprap in September 2011. In February and April, 2012, the Applicant sent letters to FEMA regarding the infeasibility of the alternate route. FEMA then obligated Version 1, which removed the conditional language regarding the alternate route. After the thaw in spring, 2012, the Applicant made an additional repair to the emergency grade raise prior to construction beginning on the permanent structure. At closeout in January 2014, the Applicant requested $700,546.36, which included costs for the repair work. FEMA awarded all but $45,930.00, explaining that the costs for the September 2011 and May 2012 repairs were not eligible because the Applicant did not demonstrate that they were the direct result of the disaster. The Applicant submitted a first appeal, which FEMA Region VIII denied on October 6, 2017. In its second appeal, the Applicant renewed its same arguments made on first appeal that floodwaters from the disaster caused the damages to the emergency grade raise. Authorities and Second Appeals Stafford Act § 406(a)(1)(A) 44 C.F.R. § 206.223(a) Public Assistance Guide, FEMA 322 at 2, 29-30 (June 2007) Palisades Medical Center, FEMA-4086-DR-NJ, at 4 (Mar. 10, 2017); Town of Stillwater, FEMA-4020-DR-NY, at 4-5 (Oct. 23, 2015); Village of Waterford, FEMA-4020-DR-NY, at 4 (Sept. 4, 2014) Headnotes Both the Stafford Act and 44 C.F.R. § 206.223(a) provide that work is eligible for Public Assistance (PA) funding only if it is the direct result of a declared disaster. Village of Waterford provides that an Applicant has the burden of demonstrating that damages and work resulting from them are the direct result of a declared disaster. The Applicant has not demonstrated that the repair work was required as a direct result of the disaster. Thus, the work is ineligible for PA funding.

AUTHORITIES

Direct Result of the Disaster