N.J. Gov. Appeals FEMA’s Decision to Deny Public Assistance Funds for Those Impacted by Flooding

Acting New Jersey Gov. Richard Codey has submitted a formal appeal of the Federal Emergency Management Agency’s decision to deny federal public assistance to the municipalities and counties that experienced damage due to severe storms and flooding this past April. Codey also appealed the denial of the State’s request to include Burlington and Camden Counties in the disaster area.

In a letter sent last week to Daniel Craig, Recovery Division director of the U.S. Department of Homeland Security, Codey detailed New Jersey’s appeal and called into question the application of the statewide per population cost formula used in the decision to deny public assistance in this instance, saying that it would be in violation of the Stafford Act.

The letter’s text is below:

June 10, 2005

The Honorable Daniel A. Craig
Director, Recovery Division
U.S. Department of Homeland Security
500 C Street S.W.
Washington, DC 20472

Through: The Honorable Joseph Picciano

Acting Regional Director FEMA Region II

Re: FEMA-1588-DR: Appeal From Denial of Public Assistance and the Addition of Burlington and Camden Counties

Dear Director Craig:

Please consider this an appeal of your decision, dated May 26, 2005, denying the implementation of the Public Assistance Program under major disaster declaration FEMA-1588-DR for the Counties of Bergen, Essex, Gloucester, Hunterdon, Mercer, Morris, Passaic, Sussex and Warren Counties, and an appeal of the decision of the Federal Coordinating Officer, dated June 2, 2005, denying the State of New Jersey’s request to include Burlington and Camden Counties in the disaster area.

Both denial letters indicate that FEMA denied the requests based on a lack of severity of public sector losses and expenditures to justify implementation of the Public Assistance Program in the areas requested. However, public statements by FEMA officials indicate that the denials appear to be based on a strict application of a statewide cost per population formula. Basing eligibility for Public Assistance strictly on a statewide cost per population formula seems to violate the Robert T. Stafford Disaster Relief and Emergency Assistance Act’s prohibition that: “No geographic area shall be precluded from receiving assistance under this Act solely by virtue of an arithmetic formula or sliding scale based on income or population.” 42 U.S.C. ‘§5163 (Section 320).

On April 13, 2005, I requested a presidential disaster declaration under the Stafford Act for the State of New Jersey due to severe storms that plagued not only New Jersey, but the entire Northeast Region as well. On April 19, 2005, President Bush declared a major disaster for Bergen, Essex, Gloucester, Hunterdon, Mercer, Morris, Passaic, Sussex and Warren Counties. The declaration authorized the Individual Assistance Program for the declared counties and the Hazard Mitigation Program for the entire State. The Public Assistance Program was neither granted nor denied.

By letter dated May 10, 2005, with my authorization, my Alternate Authorized Representative Captain Karl Kleeberg, Recovery Bureau Chief made a second request for the Public Assistance Program for the declared counties and also asked that Burlington and Camden Counties be included in disaster declaration FEMA-1588-DR.

Your letter of May 26, 2005 denied New Jersey’s request for the Public Assistance Program. By letter dated June 2, 2005, the Federal Coordinating Officer advised that the request to include Burlington and Camden Counties within the disaster declaration was also denied. This appeal from both denials follows.

For the purposes of this appeal, I specifically adopt by reference the contents of my original request for a disaster declaration dated April 13, 2005 and the contents of the Alternate Governor’s Authorized Representative’s letter dated May 10, 2005 requesting the Public Assistance Program and the addition of Burlington and Camden Counties.

Both denial letters cited a lack of severity and magnitude of public sector expenses to warrant inclusion of the Public Assistance Program. Public statements from FEMA officials were more specific. One newspaper quoted a FEMA spokesperson as saying: “Until it [the State] meets that painful threshold, they have to pay for it on their own.” Feds reject $7.5m in aid for N.J. floods, the Star-Ledger, June 2, 2005. Another newspaper reported that: “FEMA officials say that under federal law, New Jersey did not cross a financial threshold needed to be eligible for the public assistance program.” Flood aid bid denied by U.S., Trenton Times, June 3, 2005. Quoting the same spokesperson as the Star-Ledger, the article continued: “The State showed $7.5 million in damage and under the formula that was not enough.”

I can only assume that the “formula” and “painful threshold” mentioned refer to the “estimated cost” factor to be considered in reviewing a Governor’s declaration request under 44 CFR ”§206.48(a)(1). The rule itself indicates that this cost estimate is not to be a hard formula or threshold, nor is it to be the only factor weighed in determining whether a declaration request should be granted. In addition, the previously cited provision of the Stafford Act, Section 320, specifically prohibits the use of a formula.

44 CFR ‘§’206.48(a)(1) establishes a dollar figure per statewide population to be used as an “indicator”, in addition to other factors mentioned in the rule, that an event is of such size to warrant a disaster declaration. The particular dollar figure is adjusted annually. The figure for all disasters on or after October 1, 2004 has been set at $1.14 per capita, or $9,592,359 Statewide for New Jersey. By the very language contained in the rule, this figure is to be used as an indicator, together with other factors, to determine the severity of a disaster. Yet, the quoted comments from FEMA officials indicate that this figure was not only used as a prohibited threshold but also was the sole factor considered in deviation of the regulation.

There certainly is justification for attempting to determine the severity of an occurrence by a reasonably reflective dollar value in order to distinguish one event from another. However, such a dollar figure, as aptly envisioned by the rule, is to be used as a guide, not an inflexible qualifier. Also, as envisioned by the rule, the dollar figure is to be used in conjunction with other factors. Determining eligibility for a disaster declaration solely based on a concrete dollar threshold, as was done in this instance would violate Section 320 of the Stafford Act.

Another factor that apparently was not considered in New Jersey’s request is localized impacts, 44 CFR ”§206.48 (a)(2). No consideration appears to have been given to the local impact, as opposed to the statewide impact, of this event. At least four counties along the Delaware exceeded the more stringent countywide per capita figure. Although not mentioned in 44 CFR ”’§206.48, the Response and Recovery Directorate establishes a countywide per capita figure to be used when the Statewide estimated cost indicator is not met. That figure for disasters on or after October 1, 2004 is $2.84. No explanation was provided as to why these four counties, at least, did not survive the strict application of the dollar threshold to New Jersey’s Public Assistance request.

I emphasize that localized impact involves more than dollar estimates. On this, my view is consistent with the rule. The flood levels experienced in this storm, in all but Trenton, were exceeded only by the historic Delaware flooding event of 1955. Indeed, flood levels along the Delaware exceeded the flood levels of Hurricane Ivan, FEMA-1563-DR, in September 2004, in which Public Assistance was granted. While I do not say that a near record flood level should be a requisite to qualify for award of Public Assistance, the near record levels of this storm is yet another indicator of its severity warranting the Public Assistance Program in the stricken areas.

Further, many of the declared and sought to be declared counties are part of the Delaware River basin. As previously indicated, the April flooding was caused by a regional storm. Both New York and Pennsylvania received Public Assistance for their Delaware River flooded locales. Yet, the fact that some of the New Jersey declared counties are contiguous to counties in other States that received Public Assistance seems not to have been taken into account in reaching the decision to deny New Jersey the Public Assistance Program.

Another factor to be considered is recent multiple disasters, 44 CFR ”§206.48 (a)(5). Four of the declared Counties, Hunterdon, Mercer, Sussex and Warren, received disaster declarations for Hurricane Ivan in September 2004, FEMA-1563-DR. The two Counties that were denied inclusion in FEMA-1588-DR, did receive disaster declarations in July 2004 for severe flooding, FEMA-1530-DR. The rule indicates that FEMA will take into account the previous twelve-month disaster history of an area to better evaluate the overall impact of an event on the State or locality. No such disaster history analysis appears to have been conducted regarding the State of New Jersey’s request for the Public Assistance Program.

While the preliminary damage assessment has fallen short of the statewide cost indicator, that dollar figure is an indicator, not an absolute amount, which rightfully should be considered along with other factors. The damage estimate is a substantial amount. There is a multiplier effect caused by the fact that this is the third disaster declaration in New Jersey within nine months. A damage estimate of $7.5 million carries substantially more weight as the third disaster declaration than as an isolated occurrence. That circumstance, which is required by rule to be taken into account, apparently was not considered in responding to the State of New Jersey’s request for Public Assistance.

Also, the near record level of this event, with its attendant disruption of public convenience, trauma to the public psyche and public weariness and expense of yet another disaster appears not to have been evaluated. Finally, the conversion of a cost indicator into a dollar threshold standing alone as a qualifier for Public Assistance, as has happened here, would be a violation of Section 320 of the Stafford Act.

Director Craig, I hope that you will reconsider New Jersey’s request for Public Assistance and take into favorable account all the factors taken together envisioned by the rule to be utilized in determining whether the Public Assistance Program is warranted. If you consider all the relevant factors involved as described by the rule, I am sure that you will agree with me that this event is of such magnitude and impact to New Jersey as to warrant implementation of the Public Assistance Program.

Sincerely,

Richard J. Codey
Acting Governor