U.S. Senate Committee on Environment & Public Works
U.S. Senate Committee on Environment & Public Works
Hearing Statements
Date:   07/27/2006
Statement of Tamara S. Little
Legal Counsel Committee
National Emergency Management Association
A Hearing on the Stafford Act: A Path Forward for the Nation’s Emergency Preparedness and Response System

Thank you Chairman Inhofe, Ranking Member Jeffords, Senator Voinovich, and distinguished members of the Committee for allowing me the opportunity to provide you with a statement for the record on the Stafford Act and recommendations for improving the law. I am Tammy Little, the Assistant Attorney General assigned to the Ohio State Emergency Management Agency. In my statement, I am representing the National Emergency Management Association (NEMA), whose members are the state directors of emergency management in the states, territories, and the District of Columbia. Currently, I am in my fifth term as the Chair of the NEMA Legal Counsel Committee. I have over 17 years of experience in emergency management, specifically in legal issues. I am also a certified assessor and assessor team leader for the Emergency Management Accreditation Program (EMAP) and a member of the EMAP Assessor Training Subcommittee.

State of the Stafford Act
As the nation continues to address the recommendations of various reports reviewing the preparations for, response to, and recovery from Hurricane Katrina, careful thought must be given to how Congress approaches the Stafford Act. As you know, the Robert T. Stafford Disaster Relief and Recovery Act was enacted “to provide an orderly means of assistance by the Federal Government to State and local governments in carrying out their responsibilities to alleviate the suffering and damage from such disasters by: . . .” revising and broadening the scope of disaster relief programs; encouraging comprehensive disaster preparedness; achieving greater coordination and responsiveness of disaster preparedness and relief programs; encouraging individuals, States, and local governments to protect themselves through insurance; encouraging hazard mitigation measures to reduce disaster losses; and providing Federal assistance programs for both public and private disaster losses.

The Stafford Act is a law that the members of NEMA hold in very high regard. Major revisions are not necessary since the law provides flexibility for emergency management in this country. NEMA played a very active role during the last major rewrite of the Act, which resulted in the Disaster Mitigation Act of 2000 (DMA2K). NEMA’s members implement various Stafford Act provisions routinely within their states and often serve as their Governor’s state coordinating officer as outlined in Section 302 of the Act. State emergency management directors are responsible for carrying out the preparedness, mitigation, response, and recovery functions outlined in the Act at the state level and coordinating those functions with their federal and local counterparts.

NEMA does not support creating a separate or new system solely to address catastrophic disasters. Not only is the Stafford Act nimble enough to handle disasters on a large and small scale, but Congress can and has utilized its ability to make temporary changes to the law particular circumstances warrant. Any revisions to the Stafford Act must be thoughtful, deliberate, and closely vetted through stakeholder groups with proximity to the outcomes, such as NEMA and the members of the Stafford Act Coalition. NEMA’s members firmly believe that the Stafford Act has served state and local governments well and that the most persistent problems exist because of inconsistent application of the Act and its accompanying regulations. Policies, guidelines, course materials, and most recently strategies are issued without coordination, a good statutory or regulatory foundation or Congressional oversight. While the Stafford Act is flexible and scalable, it is still the authority for emergency management in the nation.

For many years, NEMA has provided leadership of a coalition of over 15 national associations that serves to share information on the Stafford Act and to protect the act from major revision without input from those stakeholders. The Coalition agrees on a few basic points: Pre-Disaster Mitigation (PDM) should be fully funded and continually authorized; the Post-Disaster Hazard Mitigation Grant Program (HMGP) formula should be restored to 15 percent of disaster costs; and the Repair Cap for Individual Assistance must be increased.

Mitigation and the Stafford Act
When DMA2K was signed into law, the intent was to create a Pre-Disaster Mitigation Program; create an Interagency Task Force on Pre-Disaster Mitigation; set criteria for an increased federal share for hazard mitigation measures and allow states to administer the program directly; define management costs eligibility; outline assistance for repair of structures; and update the individual assistance program. Congress made the changes at that time to address a growing need for mitigation assistance before disasters occur and to make refinements to disaster programs that would result in cost-savings for the federal government after disasters.

While the legislation took a strong mitigation focus, one example of how the Stafford Act has been side-stepped is to examine how the state of mitigation in our country has changed over the last six years. Amendments to law that occurred during the appropriations process reduced the formula for the post-disaster HMGP program from 15 percent of disaster costs to 7.5 percent. In effect, mitigation opportunities were cut by 50 percent since FY 2004. What was intended to be a program that helped to fund every state’s predisaster mitigation efforts, has now become a competitive program which favors communities with greater ability to dedicate financial resources to grant applications, engineering, and preservation reviews before a grant application is even considered. On a policy front, mitigation has been marginalized. When the Department of Homeland Security was formed and terrorism became a greater focus, mitigation activities received less focus. Mitigation was initially deleted from early drafts of the National Response Plan and has even less focus in the most recent revisions. The lifecycle of emergency management (preparedness, response, recovery, mitigation) was broken when preparedness was moved from FEMA to create a new Preparedness Directorate within DHS in 2005.

There is some good news that came out of DMA2K. Every single state and many local governments now have plans in place to pre-identify mitigation priorities prior to disasters and have identified which measures may be put in place through PDM and HMGP if a federal financial assistance is made available. Additionally, some states took on greater responsibility of writing and obtaining approval of “enhanced mitigation plans” that enable states to be eligible for up to 20 percent of disaster costs for post-disaster HMGP by acting in a managing state role for mitigation grants. Currently, seven states have been approved for enhanced plans (two are pending federal review), but no state has received 20 percent for HMGP post-disaster to date. Ohio had its enhanced mitigation plan approved in May 2005.

As new changes are being considered to the Stafford Act, NEMA asks that the Senate pay particular attention to ensuring mitigation opportunities are increased by fully funding the programs and allowing the important changes made in DMA2K to have the intended effect - reduction of disaster costs to the federal government.

Administrative Costs
A critical issue facing states regarding the Stafford Act right now has less to do with Stafford Act revisions than with proper reading and interpretation of the current law. Even prior to Hurricane Katrina, accepted uses for the administrative allowance provided by Section 406, such as personnel, overtime, and travel for states related to the administration of disaster assistance grant programs have been questioned and rejected. The administrative allowance and management costs for state and local governments are vital to the success of these disaster grant programs and are clearly set forth in the law. This is a significant problem for states in recent disasters and must be resolved. FEMA should follow the plain language of the statute and regulations.

Congress created a mechanism under the Stafford Act to compensate grantees and sub grantees involved in the Hazard Mitigation and Public Assistance Grant Programs for the administrative expenses they incurred related to the assistance programs. That mechanism is found in §§ 406(f)(1) and (f)(2), of the Act, which provides a grant equal to the flat percentage of the final eligible costs as defined under the Act. FEMA regulations directly relating to §§ 406(f)(1) and (f)(2) mirror the Act and do not impose any restrictions upon the use of those funds. The supplemental regulations, 44 CFR §§206.228 and 206.439, state that the funds provided to the State or the sub grantees for their administrative costs are, in fact, correctly referred to as an allowance. Several memoranda, audit reports, and draft policies have resulted in FEMA’s current policy that the statutory administrative allowance provided to the states can only be used for the three items identified in the Stafford Act even though they are presented as examples. This is simply an incorrect reading of the plain language of the statute and regulation. Federal statutes cannot be changed by policies, memoranda or audit reports and Congressional oversight is necessary to remedy this practice by FEMA.

Suggested Changes to the Law
As the Congress examines changes necessary to the Stafford Act, NEMA has several areas identified for immediate improvement.

The fiscal year 2003 appropriations omnibus package included language to change the formula for HMGP from 15 percent of disaster costs, to 7.5 percent, which has caused degradation of post-disaster mitigation opportunities. Reducing by half the available funding through the disaster relief fund prevents lessons learned from disasters from being immediately incorporated into mitigation projects to prevent future losses of life and destruction of property. HMGP grants are used for such things as rebuilding under more current building codes, purchasing repetitive loss properties, and for other projects that will prevent or minimize the impacts of the next disaster. Mitigation lessons are particularly important to the Gulf Coast as rebuilding begins. Cost-benefit analysis is currently a requirement for predisaster mitigation programs and the recently released independent study from the National Institute of Building Sciences’ Multi-Hazard Mitigation Council concludes that for every dollar invested in mitigation, four dollars of federal benefits accrue – clearly demonstrating that mitigation funds are a sound investment. In a purely competitive grant program, lower income communities, often those most at risk when a natural disaster strikes, will not effectively compete with more prosperous communities. Also, disasters graphically and vividly expose the need for and value of mitigation projects. Less funding means that not only do disaster victims have a harder time recovering economically and socially, but they remain vulnerable to future disasters. We must not lose future opportunities to initiate projects to enhance our communities and reduce future disaster costs. There are not enough mitigation dollars available to address all of the vulnerabilities that exist in this country, but the post-disaster HMGP should at least be restored to the 15 percent of disaster costs prescribed by DMA2K, allowing more communities to participate in important disaster cost reduction projects. That was the original intent of the Stafford Act, as amended by DMA2K.

2. Fixing the Cap on Disaster Costs
A reduction to the Repair Cap for Individual Assistance was erroneously included in DMA2K and has since adversely impacted many disaster victims. The limitation prevents disaster victims from returning to their homes when repair costs exceed the allowable costs, until other funds can be used to make adequate repairs to make the home inhabitable. NEMA supports a technical amendment to DMA2K included in the House passed version of H.R. 3181 from the 108th Congress that would address the $5,000 cap on disaster repair or replacement for Individual Assistance. FEMA supports making a change to raise the cap to the previously accepted amount of $15,000 for repair or replacement assistance adjusted for inflation to over $27,000.

Rental assistance should be paid up to a maximum of 18 months at fair market value, with the ability to extend when deemed necessary by the FEMA Director. The provision change would allow for significant cost savings by keeping families out of federally provided housing while repairs are made to minimally damaged homes.

3. Regular-time and Over-time Issues Related to Disasters
State and local governments need to have the ability to utilize federal assistance to keep state and local personnel working after a disaster. Changes to legislation (44 CFR 206.228 (a) (4)) must clarify that regular time and overtime costs can be paid for vital emergency and disaster support functions through general federal assistance. In cases of catastrophic disaster, where entities have no further income source, this is particularly important to enable local governments to continue operations related to response and recovery. Also, there are cost benefits to having local or state officials trained in building inspections, health and safety inspections, debris removal, and other fields to respond during disaster response operations.

4. Pre-positioning of Resources Must be an Eligible Expense for all Emergency Management Programs and Grants
State and local governments must be able to utilize funds from emergency management grants such as the Fire Management Assistance Grants (FMAG) and others to pre-position, purchase and stage supplies, resources, and equipment prior to a disaster when warning is given. Having the supplies on the ground reduces response times and costs after the disaster occurs.

5. Reinstate the Mortgage Rental Assistance Program
The Mortgage and Rental Assistance Program was eliminated in the DMA2K. Despite its elimination from the Stafford Act, Congress authorized the program for recent catastrophic disasters such as the September 11, 2001 terrorist attacks and Hurricane Katrina. The program allows for disaster victims to receive federal assistance to pay for mortgage and rental costs when displaced from their homes in a major disaster. The program should be permanently reinstated and allowed to be used for future disasters as it helps when a disaster causes widespread unemployment but housing stock is maintained. Mortgage rental assistance is critical for community resilience.

6. Declaration Process
NEMA members report that the disaster declaration process has been slower in some cases since FEMA became a part of DHS. Congress should not make changes to the law that will slow the process down, but rather look at ways to ensure disaster declarations may be considered as expeditiously as possible. Other provisions need clarification too. The Stafford Act defines the role of the Federal Coordinating Officer and the law must be followed by DHS. The PFO concept being implemented by DHS is not authorized in law. Additionally, while the declaration process is being considered, Congress may wish to consider revising the definition of “major disaster” to address a biological or chemical terrorism event or even a pandemic influenza outbreak since those incidents may not be considered under the current definition.

7. Mass Evacuation
The Stafford Act does not provide for cost reimbursement for states and localities outside the declared disaster area. While handled during Hurricane Katrina with individual state emergency declarations for states taking in evacuees, the need for mass evacuations into other cities, counties and states will continue to be necessary in catastrophic events. Further, the new FEMA Interim Recovery Policy will allow states to seek reimbursement for expenses, through mutual aid. This process must be addressed by legislation to make clear that emergency declarations should be made by FEMA, as the change to policy will mean an additional burden on assisting states and may cause some states to reconsider participation in mutual aid missions.

8. Post-Storm Assessments
Post-storm assessments are vital data collection tools used to capture perishable hurricane related intelligence such as evacuation survey data, decision tools, shelter issues, and hazards vulnerability. A formalized funding process with consistent funding sources for assessments must be identified. Currently, FEMA is pursuing this information on an ad-hoc basis and allowing FEMA to utilize the Disaster Relief Fund is an authorized use in the Stafford Act. However, legislative changes may be needed to encourage FEMA to take advantage of these opportunities to learn from disasters and improve preparedness, response, recovery and mitigation with solid data.

Stafford Act Regulatory and Policy Changes NEMA has specifically looked at some Stafford Act related issues that do not require changes to the law. Significant need exists for streamlining and simplifying national policy decisions on response and recovery. These policy decisions must be made by educated and enlightened federal experts in a timely manner during the response and recovery phases and such expertise needs to be built and maintained at the federal level in support of the state and local activities for recovery.

Some of the changes that must occur on the regulatory and policy levels by FEMA include:

· Uniform, systematic, written, guidance in a clear, timely and meaningful manner that does not vary from region to region;

· Timely notice and training to field personnel and state officials on new or updated guidance and policies;

· A process to approve state management costs within 60 days of a request;

· Clear concise guidance on submission content and evaluation criteria specific to state management costs;

· Administering the Other Needs Assistance Program to address ethnic and cultural diversity issues in accordance with the approved state plan for Other Needs Assistance; and

· Utilizing the State Disaster Mental Health plans as the basis for approving the immediate services grant.

Debris Removal
The Committee specifically asked for the witnesses today to address debris removal issues. Hurricane Katrina resulted in numerous disaster specific changes in policy for debris removal. Historically, debris removal is the single issue in a major disaster that creates the most problems and also opportunities for abuse. You will recall the issue of the concrete slab removal in Oklahoma that initiated some of the changes in DMA2K, yet the Gulf Coast states are still struggling with these issues. In fact, FEMA is releasing new debris removal this week as part of larger policy guidance on what will be and what will not be covered in the future.

Our current debris removal reimbursement system is outdated and provides little incentives for state and local governments to take over the management of debris removal. The choices are to use the U.S. Army Corps of Engineers at their prices at up to 100 percent federal reimbursement or to have to pay a 25 percent cost share if state and local governments want to take over the management of the project. Most state and local governments can utilize public works systems in place and mutual aid to get the job done – often cheaper than the Corps. However, there is no incentive. Thought needs to be given to lowering the state and local cost share for debris removal if the impacted communities are willing to take on these tasks themselves. Additionally, some local governments managing the process in the Gulf Coast have reported the desire to recycle materials removed, yet the federal government gets any financial credit for such actions instead of the state or local government completing the work.

Careful thought must be given to the issue of debris removal on private property in emergency situations. Community and homeowners associations properties are not always afforded Category assistance in the early days of an emergency and this assistance varies by disaster and location. In these cases, the associations often maintain the streets and roadways on the private property. Debris removal on private property bubbled up again in the 2004 Hurricane season in Florida and Alabama as the response began in the emergency phase.

We must find some common ground and develop policies that remove the obstacles that prevent us from accomplishing debris removal goals and objectives without compromising the integrity of the program and provide acceptable levels of accountability.

With the nation poised to implement reforms to make our emergency response system stronger, improvements are needed in our disaster laws. I offer NEMA to the Committee as a technical resource as you develop legislation and debate the issues mentioned before you today. I thank you for the opportunity to testify on behalf of NEMA and appreciate your partnership. I hope we can work together to ensure the Stafford Act is strengthened and protected.