General Practice, Solo & Small Firm DivisionMagazine

 
Volume 17, Number 5
July/August 2000

FEMA: FEDERAL DISASTER RELIEF

BY Sandra Leon and Sandy Lubin

Sandra Leon and Sandy Lubin are field attorneys with the Federal Emergency Management Agency's Office of General Counsel.

Your client calls and says her home was swept away by the storm surge of a Category V hurricane. Or perhaps you represent a municipal power company that lost several thousand poles and transformers during a severe storm. Ideally, your clients' insurance policies will cover their losses. However, if they do not carry insurance or if their policies are insufficient, your clients may be eligible for federal disaster assistance in the form of grants, loans, or technical assistance.

Knowing more than the evening news clips tell you about federal disaster programs and the Federal Emergency Management Agency (FEMA) may prove to be very helpful when providing guidance to your clients. In addition, you might learn how to protect your own business or community from the devastating effects of natural hazards.

FEMA: An Overview

FEMA is an independent agency of the federal government. It is charged with helping states and localities prepare for and respond to natural disasters and other catastrophes. Since its founding in 1979, FEMA's mission has been clear: to reduce loss of life and property and protect our institutions from all hazards by leading and supporting the nation in a comprehensive, risk-based emergency management program of mitigation, preparedness, response, and recovery. FEMA's assistance programs are authorized under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) (42 U.S.C. §§ 5121 et seq).

In its role as coordinator of federal assistance, FEMA may designate other federal agencies to provide specific types of assistance to those impacted by "emergencies" and "disasters" that the president declares under the Stafford Act. FEMA's "blueprint" for the federal response to disasters, the Federal Response Plan, is a cooperative agreement signed by 26 federal agencies and the American Red Cross. FEMA has a staff of roughly 2,100 permanent employees, and nearly 4,000 standby disaster assistance employees who are available to help out after disasters, including field attorneys who provide legal support to all aspects of the disaster or emergency operation.

While disaster assistance brings to mind aid provided to communities and individuals after a disaster strikes, the scope of federal disaster assistance is broader. Disaster assistance involves aid provided both before and after disasters; and it involves many federal agencies other than FEMA, such as the U.S. Army Corps of Engineers, the Small Business Administration (SBA), and the departments of Agriculture, Transportation, the Interior, Commerce, and Housing and Urban Development. Moreover, these and other agencies may provide assistance under a number of different statutory authorities that they are responsible for implementing.

Comprehensive Emergency Management

Under the Comprehensive Emergency Management Concept-a concept that assumes all disasters (regardless of their size) require the same basic strategies-disaster management is viewed as consisting of four phases, the first two of which occur before a disaster strikes:

  • Preparedness activities are designed to help communities and governments prepare for dealing with disasters. Included are the development of response plans, establishing the location and identity of needed resources, planning for the evacuation of residents, and training for emergency officials. These activities are authorized under Title II and Title VI of the Stafford Act.
  • Mitigation activities are authorized under 42 U.S.C. § 5170c, and are undertaken to prevent, reduce, or minimize the losses from disasters. Examples include buyouts of flooded homes, retrofitting structures to withstand earthquakes, and developing land-use plans and zoning ordinances to discourage development of hazardous areas.
  • Response activities are accomplished during or immediately following a disaster. Examples include temporary shelter, food, medical supplies, and debris removal, authorized under 42 U.S.C. §§ 5170b and 5173.
  • The Stafford Act §§ 5172-5184 authorizes various recovery activities to help individuals and communities rebuild following a disaster. Recovery activities might include the repair or reconstruction of public facilities such as roads, water distribution systems, and government buildings.

Traditionally, the role of the federal government has been to supplement the emergency management efforts of state and local governments, voluntary organizations, and private citizens. Federal policy generally assumes that states and local governments maintain primary responsibility for damages within their states and localities. Under the Stafford Act, postdisaster assistance may be provided only if the president, at the request of a state governor, declares that an emergency or disaster exists that is beyond the state's capability to redress.

The Disaster or Emergency Declaration Process

A disaster or emergency declaration usually involves several steps. First, the local government responds, supplemented by neighboring communities and volunteer organizations. If overwhelmed, it turns to the state for assistance. Second, the state responds with state resources, such as the National Guard and the services of various state agencies. Third, damage assessment by local, state, federal, and volunteer organizations determines losses and recovery needs. Fourth, the governor (based on the damage assessment and an agreement to commit state funds and resources to the long-term recovery) requests a disaster or emergency declaration. Fifth, FEMA evaluates the request and recommends action to the White House based on the disaster or emergency event, the local community, and the state's ability to recover. Finally, the president approves the request or FEMA informs the governor it has been denied. This decision process could take a few hours or several weeks, depending on the nature of the disaster or emergency.

Disasters and Emergencies

A disaster declaration could result from a hurricane, earthquake, flood, tornado, or fire that the president determines warrants supplemental federal aid. The event must be clearly more than states or local governments can handle alone. If declared, funding comes from the president's disaster relief fund, which is managed by FEMA, and disaster aid programs of other federal agencies. A presidential disaster declaration puts into motion long-term federal recovery programs, some of which are matched by state programs that are designed to help disaster victims, businesses, and public entities. In 1999, President Clinton issued 50 disaster declarations.

Emergency declarations that do not require a disaster declaration are more limited in scope and without the long-term federal recovery programs of a disaster declaration. Generally, federal assistance funding is provided to meet a specific emergency need or help prevent a disaster from occurring. In 1999, President Clinton issued 18 emergency declarations.

The Recovery Process and Disaster Aid Programs

Immediately after the declaration, FEMA disaster workers arrive and set up a field office to coordinate the recovery effort. FEMA also opens recovery centers in or near the community affected by the disaster. Disaster applicants can visit a center to meet with program representatives and obtain information about available aid and the recovery process.

A toll-free telephone number is published for use by affected residents and business owners in registering for assistance. (At this time, disaster victims cannot register for disaster assistance on the Internet.) Specially trained operators will ask for the disaster applicant's name, date of birth, Social Security number, home address, mailing address, insurance information, and family gross income. The application is then referred to damage inspectors for an onsite visit to verify the claim. Those inspections can take place within a few days of the application. If approved, checks for housing assistance will follow in about seven to ten days.

FEMA provides two categories of disaster aid. The first, individual assistance, may be available to your client whose home was destroyed during the Category V hurricane. On the other hand, the municipal power company you represent may qualify for disaster assistance under FEMA's public assistance program.

Individual assistance. Individual assistance covers damage to residences, businesses, and personal property losses. Individuals, families, farmers, and businesses may be eligible for various federal assistance programs if they live or own a business in a county declared a disaster area, incur sufficient property damage or loss, and do not have the insurance or resources to meet their needs.

Disaster aid to individuals falls into the following categories:
  • Disaster housing may be available for up to 18 months for persons whose primary residences were damaged or destroyed by a declared event, and who do not have alternative living assistance options under their insurance policies. This program includes funding for alternative rental housing, which occasionally may include mobile homes, and for emergency repairs to damaged homes.
  • Low-interest disaster loans are available from the Small Business Administration (SBA) after a disaster for many homeowners and renters to cover uninsured property losses. Loans may be for repair or replacement of homes, automobiles, clothing, or other damaged personal property. Loans are also available to businesses for property loss and economic injury. The SBA has special procedures and designated staff to process disaster loan applications on an expedited basis, working closely with FEMA to assure needs are met, but that services are not duplicated. Low-interest disaster loan applications from the SBA require more information, and approval may take several weeks after the application is submitted. While FEMA and the SBA are separate entities, the application process begins at the same time for both services, saving the applicant time and frustration. Disasters are the only times the SBA may provide low-interest loans to homeowners, as well as small business owners.
  • Individual and family grants may be available to eligible disaster victims to meet serious disaster-related needs or necessary expenses not covered by other disaster assistance programs or insurance, or to disaster applicants who are unable to repay an SBA loan. These unmet necessary expenses and serious needs include medical, dental, and funeral expenses that are incurred as a result of the disaster. FEMA funds 75 percent of the grant program's eligible costs, with the remaining 25 percent covered by the state. The state administers the program.
  • Disaster unemployment assistance and unemployment insurance benefits may be available through the state unemployment office for disaster victims who do not qualify for regular unemployment assistance.
  • Crisis counseling is available to help relieve grieving, stress, or mental health problems caused or aggravated by the disaster or its aftermath. These short-term services, provided by FEMA as supplemental funds granted to state and local mental health agencies, are only available to eligible victims of presidentially declared disasters.
  • Free legal counseling is available through the ABA Young Lawyers Division through an agreement with FEMA. The Young Lawyers Division provides free legal advice for low-income individuals regarding non-fee-generating cases. Cases that may generate a fee are usually turned over to the local lawyer-referral service.
  • Other agencies provide specific disaster services too numerous to list here, ranging from IRS tax benefits to a number of services provided by the American Red Cross.

Only disaster applicants who are U.S. citizens, non-citizen nationals (those born in an outlying U.S. possession, such as American Samoa), and qualified aliens are eligible to receive federal public benefits (i.e., grants and loans) from FEMA. This requirement does not apply to short-term, non-cash, in-kind emergency relief such as search and rescue, emergency medical care, emergency shelter, crisis counseling, and legal services.

The deadline to apply for most individual assistance programs is 60 days following the president's disaster declaration.

Public assistance. Public assistance is aid to state or local governments to pay part of the costs of rebuilding a community's damaged infrastructure. Generally, the federal share of the public assistance program is 75 percent of the approved project costs. The state determines how the non-federal share is split with the eligible applicants.

  • Eligible applicants/eligible work. Eligible applicants include the states, local governments, Indian tribes, and certain private nonprofit organizations. Eligible private nonprofit facilities must be open to the public and perform essential services of a governmental nature.

To be eligible for public assistance, the work must be required as the result of the disaster, be located within the designated disaster area, and be the legal responsibility of an eligible applicant. Work is classified as either emergency work or permanent work. Emergency work includes debris removal from public roads and rights-of-way, as well as from private property when determined to be in the public interest. Emergency protective measures include activities performed to eliminate or reduce immediate threats to the public, such as search and rescue, warning of hazards, and demolition of unsafe structures.

Permanent work includes work to restore an eligible damaged facility to its predisaster design and can range from minor repairs to replacement. Categories eligible for funding to perform permanent work include roads, bridges, water control facilities, buildings, and utility distribution systems.

  • Application process/project requirements. Applicants for public assistance funding should complete and submit to the state a Request for Public Assistance form within 30 days following the designation of the area in which the damage is located. Applicants should document all damages and costs with pictures, written descriptions, and financial records. For small projects (under $48,900 for FY 2000), the grant is based on an estimate of the cost of the work. For large projects ($48,900 or more), the final grant is based on actual eligible costs. For large projects, the state will disburse progress payments as required.

The project completion deadlines are set from the date that the disaster or emergency is declared. In the case of emergency work the completion deadline is six months from the declaration date, and in the case of permanent work the completion deadline is 18 months. The state or FEMA may impose shorter deadlines if considered appropriate. Based on extenuating circumstances or unusual project requirements, the state may extend the deadlines for an additional six months for debris clearance and emergency work and an additional 30 months, on a project-by-project basis, for permanent work.

The state must notify FEMA of any entitlement to insurance settlement or recoveries for a facility and its contents. FEMA will reduce the cost for otherwise eligible applicants in the event of insurance recoveries.

l State roles and responsibilities in the public assistance program. The state is the grant administrator for all funds provided under the Public Assistance Program. Part 13 of Title 44 of the Code of Federal Regulations sets standards for the administration of grants that give the states discretion to administer federal programs in accordance with their own procedures and thereby simplify the program and reduce delays. As grantee, the state is responsible for administering the programmatic and grants-management requirements of the Public Assistance Program. Key among the programmatic requirements is informing the applicants of the assistance available to them-what is eligible and how to apply for it. Grant management includes applying for federal assistance, monitoring, and closing out the grant. The state and FEMA work in partnership to provide prompt and consistent service to all applicants.

Hazard Mitigation

Disaster victims and public entities are encouraged to avoid the life and property risks of future disasters. Mitigation is the cornerstone of emergency management. It's the ongoing effort to lessen the impact disasters have on people and property. Mitigation is any action of a long-term, permanent nature that reduces the actual or potential risk of loss of life or property from a hazardous event. It involves providing individuals and communities with resources and technical assistance to rebuild in ways that will reduce the possibility of future losses.

Examples include the elevation or relocation of chronically flood-damaged homes away from flood hazard areas, retrofitting buildings to make them resistant to earthquakes or strong winds, and adoption and enforcement of adequate codes and standards by local, state, and federal government. FEMA encourages and helps fund damage mitigation measures when repairing disaster-damaged structures.

Project Impact. Project Impact is a strong new FEMA mitigation initiative to work in partnership with communities to help them become more disaster resistant even before disasters occur. Communities protect themselves from the devastating impact of disasters through planning preventive actions and utilizing private sector participation. FEMA offers expertise and technical assistance to local communities and provides communities with the most current mitigation practices and technology. There are more than 200 Project Impact communities and 1,100 businesses that are Project Impact partners.

National Flood In-surance Program. In 1968, Congress created the National Flood Insurance Program (NFIP) in response to the rising cost of taxpayer-funded disaster relief for flood victims and the increasing amount of damage caused by floods. The NFIP is authorized by the National Flood Insurance Act of 1968 (42 U.S.C. § 4001 et seq.), as amended, and is administered by FEMA. The NFIP makes federally-backed flood insurance available in communities that agree to adopt and enforce floodplain management ordinances to reduce future flood damage. More than 18,000 communities across the United States and its territories participate in the NFIP.

The NFIP is based on an agreement between the federal government and a community. If the community manages development that may occur in hazardprone areas, flood insurance can be available. Participation in the NFIP is completely voluntary. The rationale behind the NFIP is that if a community does its part in attempting to avoid future flood damages (by adopting protective building codes), then the community is allowed the opportunity for its citizens to purchase flood insurance.

If a community does not participate in the NFIP, it is not eligible for flood insurance. Further, under Public Law 93-234 § 202(b), if a presidential disaster declaration occurs as a result of flooding in a nonparticipating community, no federal financial assistance can be provided for the permanent repair or reconstruction of insurable buildings in special flood hazard areas. A special flood hazard area is defined as an area of land that would be inundated by a flood having a 1 percent chance of occurring in any given year (also referred to as the base or 100-year flood).

For insurable buildings located in a special flood hazard area and damaged by flood, applicants are required to have flood insurance, and if they do not, the amount of any assistance they may receive is reduced by the amount of insurance they should have purchased. Eligible applicants, however, may receive other forms of disaster assistance that are not related to permanent repair and reconstruction of buildings. If the community applies and is accepted into the NFIP within six months of a presidential disaster declaration, these limitations on federal disaster assistance are lifted.

FEMA's Federal Insurance Admin-istration (FIA) and Mitigation Directorate manage the NFIP. The FIA manages the insurance component of the NFIP and works closely with FEMA's Mitigation Directorate, which oversees the floodplain management aspect of the program. The NFIP, through partnerships with communities, the insurance industry, and the lending industry, helps reduce flood damage by nearly $800 million a year. Further, buildings constructed in compliance with NFIP building standards suffer 77 percent less damage annually than those not built in compliance.

Conclusion

The growth in disaster assistance costs in the 1990s has been attributed to a number of factors: a sequence of unusually large and costly disasters, for which the federal government has occasionally borne a larger-than-usual share of the costs; a significant number of presidential emergency and disaster declarations; and a gradual expansion of eligibility for assistance, through legislation and administrative decisions. Post-disaster recovery accounts for the largest portion of federal disaster assistance, while disaster mitigation accounts for the second largest category of federal disaster assistance obligations.

FEMA is strongly committed to the dual principles of preventing disaster devastation whenever and wherever possible, and responding as rapidly as possible to alleviate damage that has occurred. We welcome suggestions on how to improve service, and methods to develop a safer, more disaster resistant environment. More information can be found on the FEMA website (www.fema.gov), including open field attorney positions.

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