Lawyers have a critical role in protecting governments, businesses, nonprofits, and individuals from the financial disaster that could follow a natural or man-made disaster if federal requirements are not understood and followed - and an attorney's involvement in pre-event planning can increase efficiency after an event, improve the quality of life of survivors, and help a community to rebuild.
When responding to a man-made or natural event, time is a valuable, yet limited, resource. In the aftermath of a disaster, it is critical for local governments to take rapid action to save lives, protect property, and protect the public health and safety. Communities do so through actions such as ordering evacuations, establishing shelters, cordoning off dangerous areas, removing debris, and taking actions necessary to ensure the provision of police, medical, fire, and utility services.
Assistance from the federal government may be critical to a community's ability to respond and recover. Yet, unless they were subject to previous disaster losses, most communities lack prior experience with federal disaster relief programs at the time they respond to an event. Communities may incur costs before federal officials arrive to explain the reimbursement process and applicable rules, and perhaps even before the state or tribe requests federal assistance.
When federal emergency response teams do arrive, they commit to providing all the assistance they can, consistent with existing law and policy, to meet emergency needs and to help communities and individuals recover. However, this assistance can only be as generous as is authorized by statute and regulation. As the response crisis fades from memory, questions will be asked about actions already taken, such as: Did the state, tribe, or local government comply with applicable laws, regulations, and policies when performing or contracting for emergency work? Further, a community's eligibility for federal assistance could be jeopardized even before the event takes place if the community failed to follow mitigation or preparedness requirements. For example, if a community does not restrict construction or rebuilding in the floodplain,2 or fails to adopt and enforce building codes3 so that homes and businesses will withstand earthquakes in seismic zones or hurricane force winds in hurricane alleys, it may find itself ineligible for assistance, or find that the amount of assistance available is significantly reduced.
All federal disaster assistance is subject to documentation and review requirements, and may be audited by the Department of Homeland Security's Office of the Inspector General.4 When the rules are not followed, frequently for lack of documentation or failure to follow procurement regulations, the Federal Emergency Management Agency (FEMA) may disallow or "de-obligate" costs already incurred by the community. This means that all or a portion the federal award provided, whether spent or not, must be returned or be offset against other requests for reimbursement.5
Lawyers have a critical role in protecting governments, businesses, nonprofits, and individuals from the financial disaster that could follow a natural or man-made disaster if federal requirements are not understood and followed. A successful attorney will assist her or his client in identifying and maximizing all available resources; help her or his clients follow the rules; articulate the type and extent of assistance needed, and clearly document the actions taken, rationale applied, and costs incurred.
In addition, an attorney's involvement in pre-event planning can increase efficiency after an event, improve the quality of life of survivors, and help a community to rebuild. Attorneys can help their clients develop strong, clear, and comprehensive response, recovery, and mitigation plans; laws that implement or accommodate the activities envisioned in those plans; mutual aid agreements; contract provisions that address responsibilities in the event of a disaster; building codes and standards; and attorneys can ensure that their clients' property is properly insured.
This chapter gives attorneys a head start in understanding FEMA's disaster assistance programs.6 In doing so, the chapter highlights some of the most significant issues that attorneys representing states, tribes, and local governments are likely to grapple with during a federally declared disaster. This chapter also identifies several pre- and post-event actions that attorneys can take to ensure that their clients are properly prepared for disaster response and recovery, and well positioned to maximize federal disaster assistance. The first three sections discuss federal disaster assistance in general, including how assistance is requested. The next sections outline specific programs—Public Assistance Program, Community Disaster Loan Program, and Fire Management Assistance Grant Program—followed by sections covering Individual and Households Program, other Individual Assistance Programs, and Hazard Mitigation Assistance. The final sections outline closeout, audits, appeals, arbitration, and judicial review.
LEGAL AUTHORITY
FEMA provides the disaster assistance programs discussed in this chapter under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (Stafford Act)7 as authorized in the Homeland Security Act of 2002, as amended (the Homeland Security Act)8 and delegated by the Secretary of Homeland Security in DHS Delegation No. 9001.1.9 FEMA's implementing regulations can be found in title 44 C.F.R., chapter 1, with relevant regulations also found in title 6 C.F.R. and title 2 C.F.R., part 200. In addition, FEMA's implementing policies may be found online, at www.FEMA.gov.
New policies, regulations, and statutory changes affecting any FEMA program or federal assistance could be issued at any time. However, with rare exception, the law and policy applicable to an event is the law and policy in effect on the date that the President of the United States issued the declaration authorizing Stafford Act assistance for that event.
DISASTER RESPONSE AND RECOVERY FRAMEWORKS
Although this chapter focuses on the assistance available from FEMA under the Stafford Act, the response to and recovery from an event requires a comprehensive approach that involves resources from a wide range of stakeholders. A community needs the efficient collaboration of all levels of government, private for-profit entities, nonprofit organizations, and voluntary organizations to respond and recover. The National Response Framework (NRF)10 and National Disaster Recovery Framework (NDRF)11 provide scalable solutions and resources that can be used to assist states, tribes, and local governments in disaster response and recovery. States, tribes, and local governments can use the NRF/NDRF framework to integrate resources from one another, the federal government, voluntary, nonprofit, and private sector agencies regardless of an event's size, scale, or whether it receives a presidential declaration.
There are many federal resources that may be available to assist a community after an event. The Environmental Protection Agency, Department of Agriculture, Department of Housing and Urban Development, Department of Health and Human Services, Department of Defense, and Department of Commerce, and many other federal departments and agencies have resources that may be available to a community independent of, or in coordination with, FEMA's programs and assistance. In addition to learning about FEMA's disaster assistance programs, attorneys should familiarize themselves with the NRF/NDRF and the resources available from other federal agencies to ensure their clients maximize the availability of federal assistance and do not miss funding opportunities.
REQUESTING AN EMERGENCY OR MAJOR DISASTER DECLARATION UNDER THE STAFFORD ACT
When the damage from an event exceeds the abilities and resources of the local government, the state, or tribe, the governor of the state or the Indian tribal chief executive may request federal assistance under the Stafford Act.12 If the damage is of such severity that the President declares a "major disaster" or "emergency," then the communities located within the declared counties may be eligible to receive federal grant awards and/or direct federal assistance from FEMA to assist with their response and recovery efforts.13
The disaster relief and emergency assistance programs discussed in this chapter are available only after the President declares either a "major disaster" or an "emergency." While FEMA has the delegated authority to make recommendations to the President, the President has not delegated to anyone the authority to declare a major disaster or emergency.14 The issuance of a presidential declaration remains solely a presidential prerogative.
The Stafford Act defines the two types of declarations and specifies the assistance programs that are triggered by each. A "major disaster" is defined as:
[A]ny natural catastrophe (including any hurricane, tornado, storm, high water, wind driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance under this Act to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby.15
A disaster is an event that has already caused damage to people or property—even if additional damage is continuing. By contrast, the statutory definition...
