In the Matter of MUNICIPALITY OF CANÓVANAS, PUERTO RICO

June 18, 2025

CBCA 8342-FEMA

In the Matter of MUNICIPALITY OF CANÓVANAS, PUERTO RICO

Pablo Guerrero SanFilippo and Angelisse Ortiz Cruz of Guerrero SanFilippo Law

Firm, San Juan PR, counsel for Applicant.

Heriberto López Guzmán and Jan Carlos Bonilla Silva, Outside Counsel, Puerto Rico

Central Office for Recovery, Reconstruction and Resiliency, Guaynabo, PR, counsel for

Grantee; and Yashira M. Vega Montalvo, Legal Director, Alice Morales Roldán, Deputy

Legal Director, and Melanie N. Negrón Rivera, Legal Lead, Puerto Rico Central Office for

Recovery, Reconstruction and Resiliency, appearing for Grantee.

Jasmyn Allen, Office of Chief Counsel, Federal Emergency Management Agency,

Department of Homeland Security, Washington, DC; and Emanuel Rier Soto, Office of Chief

Counsel, Federal Emergency Management Agency, Department of Homeland Security,

Guaynabo, PR, counsel for Federal Emergency Management Agency.

Before the Arbitration panel consisting of Board Judges LESTER, SULLIVAN, and

KANG.

LESTER, Board Judge, writing for the Panel.

The Municipality of Canóvanas, Puerto Rico (the Municipality), seeks arbitration

under section 423 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act

(Stafford Act), 42 U.S.C. § 5189a(d) (2018), after the Federal Emergency Management

Agency (FEMA) denied its request for approximately $4 million in public assistance (PA)

funding to repair a roadway area allegedly damaged during a hurricane in 2022 and for an

additional $5.5 million in hazard mitigation expenses. FEMA denied the request as largely

duplicative of earlier requests for PA funding that the Municipality submitted in response to

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hurricanes in 2011 and 2017 for repair of the same roadway area at issue here. Although

FEMA granted the 2011 PA funding request, the Municipality never performed the repair

work, and FEMA believes that the current claimed damage either is the same as or was the

result of the non-repair of the 2011 damage. For that reason and others discussed below,

FEMA denied the Municipality’s current PA funding request.

As permitted under Rule 611 of the Board’s rules governing this arbitration (48 CFR

6106.611 (2024)), the parties have requested a decision on the written record—that is,

through a “paper hearing” without live testimony. In accordance with Board Rule 613, this

decision is being issued within sixty calendar days after the submission of the last written

brief in this arbitration, which was when the arbitration record was closed.

Factual Background

The disaster underlying this arbitration is Hurricane Fiona, which made landfall in

Puerto Rico on September 17, 2022. The President declared Fiona a major disaster for all

seventy-eight municipalities in Puerto Rico (DR-4761-PR) on September 21, 2022. See

https://www.fema.gov/disaster/4671/designated-areas (last visited June 11, 2025). The

Municipality claims that Fiona caused significant damage to an asphalt road, a culvert, and

embankments (collectively, the facility) located in Barrio La Central, Calle Caribe.

Although the Municipality’s PA funding request targets damage allegedly caused by

Fiona, earlier disasters affect the manner in which we must analyze this PA funding request.

Specifically, the Municipality previously claimed that Hurricane Irene (DR-4017), which

struck Puerto Rico in August 2011, caused significant damage to the same facility at issue

in this arbitration. The damage included collapsed asphalt road areas, eroded embankments,

collapsed concrete swales, collapsed metal guard rails, a collapsed concrete catch basin, and

concentrated rock debris. See FEMA Exhibit 12 at 4. In response to the Municipality’s Irene

PA funding request, FEMA prepared project worksheet (PW) 1482 and eventually approved

PA funding of $2.26 million to repair the facility and to install a sheet pile foundation system

to mitigate against future damage. The Municipality, however, never commenced repairs to

the facility. On April 5, 2023, twelve years after the disaster, and after having granted five

time extensions, FEMA denied the Municipality’s request for a sixth time extension,

effectively rescinding PA funding for the 2011 Irene damage. FEMA upheld that denial in

first and second appeal decisions on October 16, 2023, and April 16, 2024, respectively. See

FEMA Exhibits 13, 14.

Hurricane Maria (DR-4339) struck Puerto Rico in 2017, which the Municipality tells

us caused severe flooding, landslides, and prolonged power outages in the area, making the

Municipality “among the hardest hit in the northeastern region.” Applicant’s Response to

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Motion to Dismiss (March 18, 2025) at 5. The Municipality submitted a request for PA

funding to FEMA for damage to the facility allegedly caused by Maria, but it later withdrew

that request. See FEMA Exhibit 3 at 3.

The Municipality tells us that it was “still in the process of recovery” from Hurricane

Maria when Hurricane Fiona struck in September 2022 with 14.6 inches of rain and sustained

winds of approximately 85 miles per hour, “bringing more widespread flooding, landslides,

and power outages.” Applicant’s Response to Motion to Dismiss at 5-6; see FEMA Exhibit 8

at 3. The Municipality subsequently requested PA funding to repair the facility, see FEMA

Exhibit 5, asserting that Fiona had damaged the asphalt surface, a concrete swale, a guardrail,

the embankment, the roadway base, a culvert, a concrete headwall, and a concrete wingwall.

FEMA Exhibit 11 at 1. The Municipality also sought PA funding to mitigate against future

damage with an anchored sheet pile wall system. FEMA Exhibit 5 at 4. FEMA prepared

Grants Manager Project (GMP) 699330 to document the Municipality’s claims. FEMA

conducted a site visit on April 21, 2023. See FEMA Exhibit 10.

On May 17, 2024, FEMA issued a determination memorandum (DM) finding the

work being claimed ineligible for PA funding. FEMA Exhibit 4 at 1. It represented that,

“[a]lthough the Applicant asserts that the Facility was damaged as a result of DR-4671-PR,

the record shows that the Applicant requested FEMA assistance for similar damage to the

same Facility on previous disaster[] declarations, DR-4017-PR and DR-4339-PR,” id. at 2,

the first of which FEMA originally approved (and the second of which the Municipality

withdrew), but that the Municipality had never performed any of the previously identified

necessary repair work. Id. at 3. FEMA determined that, “[w]hile the declared [Fiona]

incident may have played a role in the claimed damage, the Applicant has not provided

documentation that allows FEMA to differentiate between pre-existing damage or disasterrelated damage.” Id. FEMA denied relief because “[t]he Applicant has not demonstrated

that the claimed damage was a direct result of the declared [Fiona] incident.” Id.

On July 16, 2024, the Municipality submitted its appeal of the DM to the grantee,

explaining that, although its current PA funding request included some damages from Irenerelated PW-1482, it would separate those components of the project when finalizing the

repair work. FEMA Exhibit 5 at 2. In response to a request for documentation from the

grantee, the Municipality provided a Hurricane Maria damage assessment report from 2018,

general maintenance certifications from 2023 and 2024, and a general maintenance activity

log. FEMA Exhibit 17. It also provided a total cost estimate for repairs to the facility of $9.5

million, $5.5 million of which would serve as a mitigation effort to repair the embankment

failure caused by Irene in 2011 and another $4 million to repair supplemental embankment

failures during Fiona. Id. at 3. The grantee forwarded the Municipality’s first-level appeal

to FEMA on September 13, 2024.

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On December 5, 2024, FEMA emailed the Mayor of the Municipality (as well as

several representatives of the grantee) a “courtesy copy” of a decision that, on its face, was

dated December 3, 2024, in which FEMA denied the Municipality’s first appeal.1 The email

forwarding the courtesy copy read, in its entirety, as follows:

Hello:

Attached please see FEMA’s First Appeal Determination for the item listed

below:

•

FEMA-4671-DR-PR-Municipality of Canovanas GMP 699330

For disasters declared on or after January 1, 2022, the official transmittal is

through Grants Portal/Grants Manager. This email message and the

attachments provide a courtesy copy.

Thank you,

Policy Implementation | Recovery Division | FEMA Region 2

FEMA Exhibit 6; see Applicant’s Response to Motion to Dismiss, Exhibit G. Although

FEMA asserts in its briefing that it uploaded the first appeal decision in the Grants

Manager/Grants Portal systems on December 5, 2024, see FEMA’s Motion to Dismiss

(March 4, 2025) at 4, the Municipality provided the Board with a printout from the Grants

Manager/Grants Portal systems showing that the first appeal decision was not distributed

through those systems until February 4, 2025. See Applicant’s Response to Motion to

Dismiss, Exhibits H & I.

In the first appeal decision that accompanied the email, FEMA found that the

Municipality had “not demonstrated that the claimed damage to the Facility was directly

caused by [Hurricane Fiona]” and that, “[t]herefore, [the Municipality’s] claim to repair the

Facility as well as any corresponding hazard mitigation measures are ineligible for PA

funding.” FEMA Exhibit 1 at 1. FEMA specifically referred to prior events that the

1

As noted above, the “courtesy copy” email was sent to only one Municipality

representative: the Municipality’s Mayor. When a notice of FEMA action is sent to the

Municipality through the Grants Manager/Grants Portal systems, notice automatically goes

to nineteen Municipality representatives. See Applicant’s Response to Motion to Dismiss

at 9-12, 18-19 & Exhibit G.

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Municipality acknowledged had damaged the facility and FEMA’s inability to distinguish

between that damage and the damage now being claimed, as follows:

Here, the Facility was damaged by a 2011 previously declared incident and the

Applicant had received PA funding to repair it under PW 1482. However, the

Applicant did not repair any parts of the Facility and FEMA then determined

PW 1482 was ineligible for PA. . . . [Eleven] years after the previous incident,

the Applicant claimed that Fiona impacted the Facility and requested PA

funding for repairs. In support, the Applicant provided a damage assessment

report from 2018 (4 years prior to the incident), evidence of post-disaster

maintenance activities, and general maintenance certifications signed in 2023

and 2024. Based on this, FEMA finds that the Applicant’s supporting

documentation is insufficient to demonstrate a routine maintenance program

that allows FEMA to validate disaster-related damage. Consequently, the

Applicant has not demonstrated that the claimed damage was directly caused

by Fiona. Therefore, the Applicant’s claim to repair the Facility as well as any

corresponding hazard mitigation measures are ineligible for PA funding.

FEMA Exhibit 1 at 5. At the end of the decision, FEMA notified the Municipality that, in

lieu of a second appeal, the Municipality could elect to submit a request for arbitration to the

Board and indicated that the Municipality should consult 44 CFR 206.206(b)(3) and 48 CFR

Part 6106 “for arbitration eligibility and procedural requirements.” FEMA Exhibit 1 at 2.

The Municipality filed its request for arbitration with the Board on February 6, 2025.

Subsequently, FEMA filed a motion to dismiss the arbitration as untimely because the

request was submitted sixty-three days after the Municipality’s Mayor received the

December 5, 2024, “courtesy copy” email. After the Municipality responded to that motion,

the Board directed FEMA to include any reply in its brief in response to the merits of the

Municipality’s arbitration request.

FEMA filed its response brief on March 31, 2025. As part of its response, FEMA

provided the Board with a technical evaluation of the Municipality’s claimed damages from

Brandon R. Klein, P.E., who, at FEMA’s request, mapped the damages claimed for Irene in

2011 and compared them to those claimed for Fiona. In his March 20, 2025, report, he found

that, “[a]fter mapping the damages for both incident periods, it is clear the damages [claimed

for Fiona] overlap with the damages previously claimed under Hurricane Irene

(4017DR-PR).” FEMA Exhibit 11 at 4. He also explained his opinion, developed as a result

of his review, that the Municipality’s failure to repair the Irene damage would necessarily

have been a significant factor in more recent deterioration of the roadway and embankment:

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Typically, asphalt pavements are designed for a 20-year period of

performance. One of the biggest factors that affect pavement life is improper

drainage, which can result from insufficient pavement cross slope, cracking of

the pavement surface, inadequate ditches, etc. This can lead to saturation of

the base layers and result in support issues, whereby traffic stress will induce

excess movement in the pavement layer and cause the pavement to crack and

deteriorate. Normal maintenance procedures would entail cleaning ditches,

patching potholes, crack sealing, etc., to help alleviate moisture penetration of

the pavement surface and saturation of the base layers.

In summary, the Applicant has not established the damages being claimed are

(1) a direct result of the incident or (2) beyond the damages previously claimed

under Hurricane Irene. The other issue at hand is the damages from Hurricane

Irene have not been repaired to date. After reviewing the site inspection

photos, it is impossible to distinguish between (1) previously claimed damages

under 4017DR-PR, (2) potentially new damages under 4671DR-PR, or

[(3)] damages due to normal wear and tear. It would be normal for the

roadways to continue to deteriorate from normal wear and tear if repairs are

not completed in a timely manner.

Id. at 6.

On April 21, 2025, the Municipality and the grantee filed separate reply briefs

addressing the merits of the Municipality’s entitlement to PA funding. On April 28, 2025,

the parties informed the Board that none were requesting a live hearing in this matter and

asked that the Board issue a decision based solely on the exhibits in the record and the

parties’ written submissions. When FEMA subsequently filed its sur-reply on May 5, 2025,

the record was closed.

Discussion

I.

Timeliness of the Municipality’s Request for Arbitration

As noted above, in its first appeal decision, FEMA notified the Municipality that, in

lieu of a second appeal, the Municipality could elect to submit a request for arbitration to the

Board and indicated that the Municipality should consult 44 CFR 206.206(b)(3) and 48 CFR

Part 6106 “for arbitration eligibility and procedural requirements.” The regulation at 44 CFR

206.206(b)(3)(iii)(B)(1) provides that “[a]n applicant must submit a request for arbitration

within 60 calendar days from the date of the Regional Administrator’s first appeal decision.”

Here, FEMA’s first appeal decision is, on its face, dated December 3, 2024, but the

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Municipality first saw that decision when FEMA sent an email to the Municipality’s Mayor

on December 5, 2024, providing the Mayor with what FEMA called a “courtesy copy” of the

decision. In that email, FEMA indicated that the “official transmittal” of the decision would

come through the Grants Manager/Grants Portal systems. FEMA Exhibit 6. When uploaded

into the systems, the decision was automatically distributed to nineteen Municipality

representatives (including the Mayor). For reasons not explained in the record, that official

transmittal did not occur until February 4, 2025.

FEMA filed a motion seeking to dismiss this arbitration as untimely filed because the

Municipality did not submit its arbitration request until more than sixty days after the Mayor

was notified by email of the first appeal decision. The Stafford Act provides that an

applicant may file an appeal of a first appeal decision (and, by extension, an arbitration

request) within sixty days “after the date on which the applicant for such assistance is

notified of the award or denial of award of such assistance.” 42 U.S.C. § 5189a(a); see id.

§ 5189a(d)(5)(B). FEMA’s regulation is written a bit differently than the statute, stating that

“[a]n applicant must submit a request for arbitration within 60 calendar days from the date

of the Regional Administrator’s first appeal decision.” 44 CFR 206.206(3)(iii)(B)(1)

(emphasis added); see FEMA Policy 104-22-0001: FEMA Policy, Public Assistance Appeals

& Arbitration (PAAA Policy) (Feb. 24, 2022) at 4 “Requirements” ¶ B.2.a (“Applicants must

make an arbitration request within 60 calendar days from date of first appeal decision.”).

FEMA has not argued that the “date” of the decision is the December 3 date written on the

decision. Instead, it argues that, because the Mayor of the Municipality was “notified” of the

decision when she received the “courtesy copy” email on December 5, that is the “date” of

the decision from which the Municipality’s time to seek arbitration began to run. Because

the Municipality’s arbitration request was not submitted until February 6, 2025, sixty-three

days after the Mayor received the “courtesy copy” email, the request was, according to

FEMA, untimely.

In its regulations, FEMA promises to “provide electronic notice of the disposition of

the appeal to the applicant and recipient within 90 calendar days of receipt of the appeal” or,

if FEMA requests additional information, “within 90 calendar days following [FEMA’s]

receipt” of the information. 44 CFR 206.206(b)(1)(ii)(C) (emphasis added); see PAAA

Policy at 2-3 “Requirements” ¶ A.3 (“Electronic notice. For disasters declared on or after

January 1, 2022, FEMA will provide electronic notice of the disposition of appeals, and if

there is a need for additional information, make requests for appeals-related information

electronically to Applicants and Recipients through Grants Manager/Grants Portal.”). In its

PAAA Policy, FEMA explains that the “‘date of the Regional Administrator’s first appeal

decision’ as used in 44 C.F.R. 206.206 means the date FEMA electronically transmits its . . .

first appeal decision to the Applicant and Recipient.” PAAA Policy at 3 “Requirements”

¶ A.4.b (emphasis added).

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On its face, it might make sense to view FEMA’s email of the “courtesy copy” of the

first appeal decision on December 5, 2024, to the Municipality’s Mayor and the

grantee/recipient as an “electronic” delivery of that decision, even if the reference in the

email that the official transmission would come through the Grants Manager/Grants Portal

systems might create some ambiguity regarding the effect of the “courtesy copy.” If we

viewed the “courtesy copy” as proper notice, the Municipality’s February 6, 2025, arbitration

request would have to be viewed as having been filed three days late and, therefore, as

untimely. Although the grantee has asked us simply to ignore any slight timeliness problems

as insignificant and non-prejudicial, see Grantee’s Reply Brief (Apr. 21, 2025) at 6-7, “[t]he

Board has no authority to extend the [statutorily-established arbitration request] filing

deadline.” City of Pine Bluff, Arkansas, CBCA 7102-FEMA, 21-1 BCA ¶ 37,883, at

183,983.

Nevertheless, we cannot view the “courtesy copy” delivered to the Mayor as a delivery

that started the sixty-day clock for requesting arbitration. We need not consider the extent

to which the delivery of the December 5 “courtesy copy” to only one of the nineteen

Municipality representatives who are supposed to receive notice of FEMA’s official actions

through FEMA’s Grants Manager/Grants Portal systems creates some kind of prejudicial

notification defect. Instead, we rely on FEMA’s PAAA Policy, in which it defines precisely

what FEMA means in stating in its regulations that it will “electronically” transmit a decision

and provide “electronic” notice:

Definition of Electronic and Electronically: For the purposes of 44 C.F.R.

§ 206.206(b)(1) and 44 C.F.R. § 206.206(b)(2), and as described in this policy,

“electronic” and “electronically” means using FEMA’s web-based Grants

Manager and/or Grants Portal systems.

FEMA PAAA Policy at 2 “Requirements” ¶ A.1. As stated in the PAAA Policy, FEMA

relies on the Grants Manager/Grants Portal systems delivery as the defining event for

purposes of establishing receipt and defining the effective date of a first appeal decision

because it “promotes transparency for all stakeholders by using an electronic submission

system that allows for verification and tracking of applicable dates.” Id. “Principles” ¶ A.

Because FEMA policy clearly interprets the date of a first appeal decision as the date on

which the decision was delivered electronically through the Grants Manager/Grants Portal

systems, we cannot find that the sixty-day clock for the Municipality to file an arbitration

request was triggered at some point before the February 4 official decision date—that is,

before the date when the decision was first delivered to recipients through the Grants

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Manager/Grants Portal systems.2 Because the Municipality submitted its arbitration request

two days after receipt of the first appeal decision through the Grants Manager/Grants Portal

systems, we deny FEMA’s request to find the Municipality’s request untimely.

II.

PA Funding for Repairs and Restoration

Section 406 of the Stafford Act authorizes FEMA to provide assistance for “the repair,

restoration, reconstruction, or replacement of a public facility damaged or destroyed by a

major disaster.” 42 U.S.C. § 5172(a)(1)(A). Public facilities eligible for assistance can

include local public roads and highways, id. § 5122(10)(B); 44 CFR 206.221(h) (2022), and

encompasses the roadways’ surfaces, bases, shoulders, and drainage structures (including

culverts). See Public Assistance Program and Policy Guide (PAPPG) (June 2020) at 168-69.

“Nevertheless, PA funding is available only if the damage to the roads was the result of a

declared disaster.” Monroe County Engineer, CBCA 7251-FEMA, et al., 22-1 BCA

¶ 38,061, at 184,800-01 (citing 42 U.S.C. § 5172(a)(1)); see 44 CFR 206.223(a)(1) (“To be

eligible for financial assistance, an item of work must . . . [b]e required as the result of the

emergency or major disaster event.”). “Prior arbitration panels of the Board have construed

this requirement to mean that ‘cause and effect [for any damage claimed] must be

established.’” City of New Orleans, CBCA 5684-FEMA, 18-1 BCA ¶ 37,005, at 180,199

(quoting City of Kenner, CBCA 4086-FEMA, 15-1 BCA ¶ 35,875, at 175,387). It is the

applicant’s burden to establish that the declared disaster caused the claimed damage to the

public facility. Monroe County Engineer, 22-1 BCA at 184,801; City of Kenner, 15-1 BCA

at 175,389; see PAPPG at 52 (“The Applicant must demonstrate that damage was caused

directly by the declared incident.”).

2

In its response brief, FEMA asserts that, because the definitions of “Electronic”

and “Electronically” are housed underneath a heading in the PAAA Policy titled “Appeals,”

delivery of the first-level appeal decision through the Grants Manager/Grants Portal systems

is necessary only to trigger the sixty-day clock for filing a second appeal. FEMA’s Response

Brief (Mar. 31, 2025) at 15. FEMA believes that, although the PAAA Policy does not so

expressly state, the trigger for starting the clock for requesting arbitration could be any type

of electronic delivery (like a “courtesy copy” email) without the need for delivery through

the Grants Manager/Grants Portal systems. Id. at 15-16. Under FEMA’s argument, there

would potentially be different triggers for starting the sixty-day deadline for requesting

arbitration and the sixty-day deadline for filing a second-level appeal. Nothing in the PAAA

Policy suggests that FEMA intended to create different first-level appeal decision finality

dates, one applicable only to triggering the arbitration request clock with a later one for

triggering the second-level appeal clock. FEMA’s assertion to the contrary does not reflect

a fair or logical interpretation of FEMA’s published policies.

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Further, for an applicant to obtain PA funding, “the pre-disaster condition” of the

facility cannot be “a significant contributing factor in the cause of failure.” PAPPG at 52.

“No assistance will be provided to an applicant for damages caused by its own negligence.”

44 CFR 206.223(e). Although at least one prior panel, applying an arbitration authority

limited to allowing us to review Hurricanes Katrina and Rita PA funding matters, placed the

burden on FEMA to show an applicant’s negligence, see Forrest County Board of

Supervisors, CBCA 1772-FEMA, 10-1 BCA ¶ 34,453, at 169,998, current PAPPG policy

establishes that the applicant, in demonstrating “that damage was caused directly by the

declared incident,” bears the burden of demonstrating that the damage was not caused by

“[d]eterioration; [d]eferred maintenance; [t]he Applicant’s failure to take measures to protect

a facility from further damage; or [n]egligence.” PAPPG at 52; see Monroe County

Engineer, 22-1 BCA at 184,801.

When the damage being claimed involves a roadway, showing cause and effect, as

well as the absence of negligence or pre-existing damage, can be potentially more difficult

than showing the source or existence of damage for other types of structures:

If a tornado strikes and demolishes a building, there is little doubt that the

tornado caused the building’s destruction. The type of erosion and slope

instability at issue [when a roadway fails], though, does not necessarily happen

all at once as the result of a single event. It can, but it might also develop over

time through the cumulative effect of numerous heavy storm events that

progressively cause[s] seepage, soil instability, and growing erosion.

Monroe County Engineer, CBCA 7288-FEMA, et al., 22-1 BCA ¶ 38,142, at 185,260; see

City of Pacific Junction, Iowa, CBCA 8099-FEMA, 24-1 BCA ¶ 38,650, at 187,879

(“[B]ecause roadways typically erode and degrade with time even if maintained,

‘[d]etermining causation for [particular roadway] damage . . . can, in many ways, be more

difficult than for damage resulting from many other types of disasters.’” (quoting Monroe

County Engineer, 22-1 BCA at 185,260)); PAPPG at 169 (acknowledging that, when

roadways are involved, “distinguishing between preexisting damage and damage caused by

the incident is often difficult”). Despite the potential difficulty of the task, “the Applicant

must demonstrate that the damage [to the roadway and its support] was directly caused by

the incident.” PAPPG at 169-70.

In this case, the Municipality has a Herculean task in attempting to show that its

requested damages are unrelated to Irene and its now-fourteen-year delay in repairing the

Irene-related damages. During those fourteen years, additional significant weather events,

including Hurricane Maria, would certainly have impacted the roadway area, and the

Municipality has provided scant evidence of maintenance or care of the facility in the years

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between Irene and Fiona. Although the Municipality asserts that it has carved out its Irenerelated damages from those that it is now seeking, the report from FEMA’s technical

engineer shows significant overlap in the claimed damage areas. Further, as he reports, the

deterioration that is now evident at the facility has to be attributed, in large part, to the

fourteen years that have passed since Irene, with no repairs to the embankments and

roadways during that time. The Municipality has not established that its current claimed

damages are the direct result of Fiona, rather than the result of Irene and the effects of

continuing deterioration following Irene.

The Municipality argues that FEMA’s denial of PA funding for Fiona is based in large

part on what the Municipality says is “commonly referred to as the duplication of benefits

(DOB) prohibition,” which it calls “a foundational safeguard in disaster recovery funding.”

Applicant’s Reply Brief (Apr. 21, 2025) at 52-53. By statute, an applicant cannot receive

“assistance with respect to any part of [a] loss as to which he has received financial

assistance under any other program or from insurance or any other source.” 42 U.S.C.

§ 5155(a). Accordingly, “[i]f [an] Applicant receives funding from another source for the

same work that FEMA funded, FEMA reduces the eligible cost or de-obligates funding to

prevent a duplication of benefits.” PAPPG at 93. The Municipality argues that, to the extent

that FEMA is declining to provide PA funding because some of the damage at issue here was

caused by Irene in 2011, FEMA cannot do so because the Municipality never actually

received any payment of Irene PA funding, meaning that the damages being claimed now do

not overlap with prior funding that the Municipality received. Applicant’s Reply Brief

at 53-58.

Although the Municipality may have correctly described the DOB prohibition, it is

misguided when it suggests that FEMA’s prior 2011 determination about the damage that

Irene caused is irrelevant now. The only reason that the Municipality ultimately did not

receive the Irene PA funding is because, years after the Irene disaster, the Municipality had

yet to start any repair work. FEMA decided that, at a certain point in time, it was too late for

the Municipality to receive PA funding for repair work that it had never commenced, and it

effectively rescinded its funding decision. The Municipality challenged that rescission

decision in separate proceedings, and FEMA’s second-level appeal decision affirming the

Irene funding rescission is final and not before us. For purposes of this matter, the important

part of the Irene PA funding analysis is what it tells us about the source of the Municipality’s

currently claimed damage. As noted above, PA funding for damage from Hurricane Fiona

is limited to that “required as the result of the emergency or major disaster event” at issue.

44 CFR 206.223(a)(1). The Municipality cannot seek PA funding under the guise of

repairing Fiona damage for damage that, in reality, is from or associated with Irene—damage

that the Municipality never repaired. The current arbitration only addresses funding for

damage caused by Fiona. Damage from Irene is not eligible for PA funding in this

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matter—not just because of the DOB prohibition but because any covered damage here must

be directly related to and caused by Fiona.

In its reply brief, the Municipality offers the declaration of its Mayor, who attests that

it was Hurricane Fiona which caused the 2022 embankment failure at the facility. Applicant

Exhibit AS at 1 ¶ 2. Yet, the Mayor has no engineering background and conducted no

engineering investigation and analysis. We cannot give any weight to such a declaration.

See City of Kenner, 15-1 BCA at 175,388 (“Various casual observations . . . are of limited

value in determining when the damage may have occurred and what may have been the

cause.”). Similarly, the grantee asserts that the facility’s “infrastructure experienced

geophysical movement and erosion not previously recorded in PW 1482 or other documents

associated with Hurricanes Maria or Irene,” citing to “[d]rone imagery and geo-tagged

photographs” in the record “taken immediately after Fiona [that] document acute washouts

and failures at specific coordinates outside the scopes of PW 1482 and prior repair claims”

which “confirm[] that these areas experienced new soil displacement patterns consistent with

Fiona’s hydrological pressure and surface runoff.” Grantee’s Reply Brief at 7-8 (citing

FEMA Exhibits 8, 9, 10, 11, 23, 24). We do not find the cited exhibits as compelling as the

grantee does and give more weight to the report of FEMA’s technical expert, who found a

high degree of overlap in the damage that followed Irene and the damage that the

Municipality now claims. We also see little if any evidence that, prior to Fiona, the

Municipality had engaged in serious maintenance efforts to try to protect the facility against

the type of damage that resulted.

The Municipality asserts that this repair project “is crucial to saving lives and

protecting property, as Calle Caribe serves as a primary access route for first responders,

medical services, and evacuation efforts during emergencies for [L]a Central Sector residents

and visitors.” Applicant’s Response to Motion to Dismiss at 6. It states that “isolated

communities depend on this road for access to work and to essential services, including

hospitals, emergency shelters, and gas stations” and that “[t]he restoration and reinforcement

of this roadway are not merely about infrastructure recovery but about ensuring the safety and

security of Canóvanas residents.” Id. at 6-7. Regardless of which party equity favors,

equities do not override FEMA policy.

The Municipality is not entitled to PA funding for Fiona repairs.

III.

PA Funding for Hazard Mitigation Expenses

The Municipality seeks $5.5 million in hazard mitigation expenses to fund

construction of an anchored sheet pile wall system at the facility.

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“Hazard mitigation is any sustained action taken to reduce or eliminate long-term risk

to people and property from natural hazards and their effects,” and “FEMA has authority to

provide PA funding for cost-effective hazard mitigation measures for facilities damaged by

the incident.” PAPPG at 153; see 44 CFR 206.226(e). “To be eligible for PA funding, the

mitigation measures must directly reduce the potential of future damage to the damaged

portion(s) of the facility.” PAPPG at 155. FEMA’s regulations make clear that, when

speaking of “the damaged portion(s) of the facility,” it means damage to the facility caused

by the disaster at issue, not by prior disasters. See 44 CFR 206.223(a)(1) (“To be eligible

for financial assistance, an item of work must . . . [b]e required as the result of the emergency

or major disaster event.”).

Here, the Municipality acknowledges that the $5.5 million hazard mitigation plan that

it now proposes is essentially the same one that it proposed in response to the 2011 Hurricane

Irene disaster (albeit now with a significantly higher price tag). As FEMA correctly argues,

the Municipality “is essentially attempting to fund a project that was [originally funded but

then] denied under a prior disaster and project number (PW 1482) due to delays and

noncompletion, under this [new] disaster and project number (PW 699330),” FEMA’s

Sur-Reply (May 5, 2025) at 12-13, which it cannot do under FEMA policy.

In addition, the proposed hazard mitigation effort is not cost effective under FEMA’s

guidelines. “FEMA evaluates proposed PA mitigation measures for eligibility,

cost-effectiveness, technical feasibility and effectiveness, and compliance with

[environmental planning and historical preservation] laws, regulations, and [Executive

Orders].” PAPPG at 154. A measure may be considered cost effective if its cost “does not

exceed 15 percent of the total eligible repair cost (prior to any insurance reductions) of the

facility or facilities for which the mitigation measure applies,” id. at 156, but the sheet pile

wall costs proposed here far exceed 15 percent of the $4 million repair cost. Alternatively,

a PA mitigation measure may be deemed cost effective if it is specifically listed in PAPPG

Appendix J, titled “Cost Effective Public Assistance Mitigation Measures,” see id. at 242,

and the cost “does not exceed 100 percent of the eligible repair cost (prior to any insurance

reductions) of the facility or facilities for which the mitigation measure applies.” Id. at 156.

Here, even if the proposed sheet pile wall could be considered covered by Appendix J, its

$5.5 million price tag exceeds the $4 million facility repair price tag.

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Decision

For the foregoing reasons, we deny FEMA’s request to find the Municipality’s request

for arbitration untimely. On the merits, the Municipality’s requested costs are ineligible for

PA funding.

Harold D. Lester, Jr.

HAROLD D. LESTER, JR.

Board Judge

Marian E. Sullivan

MARIAN E. SULLIVAN

Board Judge

Jonathan L. Kang

JONATHAN L. KANG

Board Judge