Per 44 C.F.R. § 206.226(a)(1), generally, disaster assistance will not be made available under the Stafford Act when another Federal agency has specific authority to restore facilities damaged by a disaster. The PAPPG, at 116, provides that the FHWA has authority to restore public roads under the ER Program. Federal-aid routes are not eligible for permanent work even if the ER Program is not activated or if the program is activated but FHWA does not provide funding for the work. In Town of York, FEMA found that a facility was not eligible for PA even if FHWA did not provide assistance, so there will be times when no assistance is available for the repair of some facilities. The spoil islands are in the FHWA right of way so FDOT has specific authority to restore them. Even though FHWA has not provided funding for the work through the ER Program, the work is not eligible for PA. Per 44 C.F.R. § 206.223(a)(3), to be eligible for financial assistance, an item of work must be the legal responsibility of the applicant. The PAPPG, at 21, provides that facilities owned and maintained by Federal agencies are not eligible. FEMA reviews the agreement between the Federal agency and the Applicant to confirm the legally responsible entity. The Applicant has not demonstrated that it was legally responsible to perform the work because the MMOA does not specify that the work falls under its responsibilities. Therefore, the work is not eligible for PA.

FEMA finds that the spoil islands are in a Federal-aid route’s right-of-way and the Applicant has not demonstrated that it was legally responsible for the claimed work. Therefore, this appeal is denied.

Stafford Act § 406(a)(1). 44 C.F.R. §§ 206.223(a)(3), 206.226(a)(1). PAPPG, at 21, 116. Second Appeal Analysis, Town of York, FEMA-4367-DR-ME, at 4.