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Disaster Declarations Welcome Welcome to Disaster Declarations. - - PDF document
Disaster Declarations Welcome Welcome to Disaster Declarations. - - PDF document
Disaster Declarations Welcome Welcome to Disaster Declarations. This learning module is the third in a series of modules developed by the Tribal Legal Preparedness Project to assist Tribal Nations interested in expanding their legal
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Navigating Through This Module
This module is designed to be interactive. If a slide is interactive or includes an activity, instructions will be provided. When you see the book icon, click on it for more information. When you see the “i“ icon, click on it for slide instructions.
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Learning Objectives
At the end of this module, you will be able to: Recognize the authority for Tribal declarations; Define the federal framework for emergency declarations; and,
Describe the process for exercising the new authority for Tribal Nations to directly request a Presidential
emergency or major disaster declaration, including the 2017 Federal Emergency Management Agency Tribal Declarations Pilot Guidance.
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Declarations
There are three types of federal emergency declarations that will be discussed in this module: Public Health Emergency declarations; Stafford Act declarations; and, National Emergencies Act declarations. Additionally, there are three types of authorities that provide Tribal Nations with the opportunity to declare an emergency. These authorities can come from: A Tribal constitution; A Tribal code; or, Inherent authority. The mechanisms for federal emergency declarations will be discussed later in this module. First, let’s discuss the authority for Tribal declarations.
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Tribal Protection of Public Health
Authority for Tribal declarations can come from the Tribe’s constitution, the Tribe’s code, or inherent authority. Click on each type of authority to learn more.
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Tribal Protection of Public Health: Constitution
A Tribe’s constitution may provide a Tribal government with the power to declare a disaster. An example is the Standing Rock Sioux Tribe, where the Chairman declared a state of emergency on May 27, 2013, due to excessive rainfall, which caused flash flooding and threatened roads, homes, and the Tribe’s irrigation system. The declaration stated that, pursuant to Article IV, Section 1(c)(j)(o) of the Tribe’s constitution, the Tribe has the authority “to safeguard and protect general welfare, property, cultural, and natural resources of the Standing Rock Sioux Tribe.”
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Tribal Protection of Public Health: Code
Some Tribal Nations codify authority to declare states of emergency and develop procedures for declaring an emergency. An example is the Navajo Nation Code, which establishes a Commission of Emergency Management, which is authorized, “[w]ith the concurrence of the President of the Navajo Nation, to declare states of emergency affecting the Navajo Nation or any section thereof.”
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Tribal Protection of Public Health: Inherent Authority
Tribal Nations have inherent authority to protect the public health and welfare of their citizens, including issuing declarations. This authority is derived from several sources. Some Tribes rely on governing councils’ inherent authority to declare states of emergency. An example is when the Council of the Havasupai Tribe declared an emergency by resolution due to the failure of a dam and high water in nearby creeks.
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Emergency Declarations: Federal Framework
Here is the framework for federal declarations related to disasters and emergencies. Public Health Emergency Declarations are issued by the HHS Secretary if the HHS Secretary determines that a public health emergency exists. The Stafford Act authorizes the President to make certain programs of assistance available to respond to and recover from an incident that exceeds all available resources and overwhelms the Tribal, territorial,
- r state and local governments.
The National Emergencies Act authorizes the President to declare a “national emergency”, which triggers emergency authorities contained in other federal statutes. Click on each type of declaration learn more.
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Emergency Declarations: Federal Framework- Public Health Emergency Declaration
Public Health Emergency declarations are issued by the HHS Secretary if he/she determines that a public health emergency exists. Section 319 of the Public Health Service Act authorizes the HHS Secretary to determine that a public health emergency exists if: A disease or disorder presents a public health emergency, or A public health emergency, including significant outbreaks of infectious diseases or bioterrorist attacks, otherwise occurs. A public health emergency declaration is in effect until the HHS Secretary either declares that the emergency no longer exists, or after 90 days, whichever occurs first. If the HHS Secretary finds that the public health emergency declaration should remain in effect based on the continued existence of the
- riginal public health threat or the emergence of new circumstances, the HHS Secretary may renew the
declaration for additional 90-day periods. The HHS Secretary may take such action as may be appropriate and may use funds from the Public Health Emergency Fund to respond to the public health emergency.
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Emergency Declarations: Federal Framework- Stafford Act Declaration
The Robert T. Stafford Disaster and Emergency Assistance Act, commonly referred to as the Stafford Act, is the broadest and most well-known of the federal government’s emergency programs. Before the Federal Emergency Management Agency or FEMA can provide any significant direct funding, a presidential declaration must occur. A governor or Tribal leader must first request the federal government for a declaration unless the emergency involves an area of primary federal responsibility, where principal responsibility for response rests with the federal government because the emergency involves a subject or area for which the United States exercises exclusive responsibility and authority (e.g., federal buildings). However, FEMA may position resources without a declaration in anticipation of a
- declaration. FEMA will make a recommendation to the President based on the severity of the catastrophe
- r emergency. However, the President alone makes the decision whether or not to issue a Stafford Act
declaration. A Stafford Act declaration triggers access to federal assistance, including response and recovery funding. Under the Stafford Act, the U.S. President can declare a “major disaster” or “emergency” in response to an event or threat that overwhelms state, Tribal, local, or territorial governments. While both declaration types authorize the President to provide federal disaster assistance, the events related to each type of declaration as well as the scope and amount of assistance available differ.
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Emergency Declarations: Federal Framework- National Emergencies Act Declaration
One type of federal declaration comes from the National Emergencies Act, or NEA. The NEA does not provide any specific emergency authority itself; instead, it relies on emergency authority provided in other
- statutes. An NEA declaration triggers these other statutory authorities. However, these emergency
authorities are not activated automatically, but rather must be specifically identified in the President’s declaration. A national emergency can be terminated if the President issues a proclamation or if congress enacts a joint resolution terminating the emergency. A national emergency will automatically terminate on the anniversary of the declaration unless renewed by the President. During the 2009 H1N1 pandemic, President Obama signed a declaration under the NEA, which, together with the HHS Secretary’s prior determination of the existence of a public health emergency, allowed health care facilities to waive certain regulatory requirements while responding to the pandemic.
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Emergency Declarations: Federal Framework- Major Disaster Declaration
The President may issue a major disaster declaration for any natural event, including any hurricane, tornado, storm, high water, wind-driven water, tidal wave, tsunami, earthquake, or drought, or regardless
- f the cause, any fire, flood, or explosion, that the President believes has caused such severe damage
that is beyond the capabilities of the state and local governments to respond. A major disaster declaration provides a wide range of federal assistance programs for individuals and public infrastructure, including funds for both emergency and permanent work.
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Emergency Declarations: Federal Framework- Emergency Declaration
What is the difference between a major disaster and an emergency declaration? When there is a non- natural event, the President cannot declare a major disaster in the absence of a fire, flood, or explosion. An emergency declaration may be declared for any occasion where the President determines that federal assistance is needed to save lives, protect property, public health and safety, or to lessen or avert the threat of a catastrophe.
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Stafford Act Declarations
State Request: A state Governor may make a request to the federal government for assistance when a disaster or emergency overwhelms its resources. The request must state: The situation is beyond the capability of the state or local government; The state emergency plan has been activated; and, The specific nature of the federal assistance requested. FEMA will make a recommendation to the President based on the severity of the catastrophe or
- emergency. However, the President alone makes the decision whether or not to issue a Stafford Act
declaration. Tribal Request: Tribal Nations may receive assistance from the federal government when a disaster or emergency
- verwhelms its resources.
Prior to 2013, Tribal Nations could only receive a federal disaster declaration if the Governor of the State requested one. Now, under the Sandy Recovery Improvement Act of 2013, which amended the Stafford Act, the Chief Executive of a Tribal government may directly request disaster or emergency declarations from the President. So, the Chief Executive of a Tribe can follow the same procedures as a state governor to request a Stafford Act declaration.
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Thus, there are 2 ways a Tribe can receive assistance under the Stafford Act: 1.A Tribal request for the President to issue a Stafford Act emergency or major disaster declaration (the Tribe is the direct recipient) or, 2.A governor’s request for the President to issue a Stafford Act emergency or major disaster declaration (the Tribe is a sub-recipient). Click on “direct recipient” and “sub-recipient” to view the definitions of each.
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Types of FEMA Assistance Available
There are several types of disaster assistance programs offered by FEMA, not all of which are activated for every disaster. The FEMA disaster assistance programs are: Individual Assistance: which provides aid to individuals and households Public Assistance: which provides assistance to state and local governments and certain private non- profit organizations for emergency work and the repair or replacement of disaster-damaged facilities
Hazard Mitigation Assistance: which provides assistance to state and local governments and certain
private non-profit organizations for actions taken to prevent or reduce long term risk to life and property from natural hazards
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Final Federal Emergency Management Agency Pilot Guidance
In January 2017, FEMA issued its Tribal Declarations Pilot Guidance, which describes the process that Tribal governments will use to request Stafford Act declarations and the criteria FEMA will use to evaluate Tribal declaration requests and make recommendations to the President. This Pilot Guidance follows three years of Tribal consultation with Tribal Nations across the country. Significant changes were made based upon comments made by Tribal Nations. These changes included the establishment of a $250,000 minimum damage threshold for Tribal requests for public assistance. Following the pilot period, which has an end date that is yet to be determined, FEMA will issue regulations using the notice and comment rulemaking process. Click on the image of the Tribal Declarations Pilot Guidance to view the entire document.
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Requirements for Disaster Assistance
Before a Tribal Nation may receive disaster assistance, it must fulfill certain requirements. While these requirements will be briefly described in this training, please be sure to consult the Tribal Declarations Pilot Guidance for more information. A FEMA-approved Tribal Mitigation Plan is required to receive disaster funding for the Hazard Mitigation Grant Program and certain Public Assistance categories. Page 19 of the Tribal Declarations Pilot Guidance provides a chart that indicates whether a Tribal Mitigation Plan is required for the various FEMA assistance programs depending on whether the Tribe is a direct or a sub-recipient. Tribal governments must also develop a disaster-specific Public Assistance Administrative Plan after the President declares a disaster authorizing Public Assistance for the Tribal Nation. While this plan is required for a Tribe to receive a declaration, FEMA cannot obligate Public Assistance funding until this plan is signed by the Tribe’s Chief Executive or his/her representative and approved by FEMA. The plan must: Designate the Tribal agency that will act as the recipient; Describe the staffing plan, including management and oversight responsibilities; Detail procedures for processing project appeal requests and requests for time extensions; and, Describe procedures to comply with certain administrative requirements. Before a Tribal Nation may receive funds under the Hazard Mitigation Grant Program (HMGP), it must first have an HMGP Administrative Plan approved by FEMA. At a minimum, the HMGP Administrative Plan must: Designate the Tribal agency that will act as the recipient;
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Identify the Tribal Hazard Mitigation Officer; Identify staffing requirements and resources, including a procedure for expanding staff temporarily if necessary after a disaster; Establish procedures to guide implementation activities, including management costs; and, Describe procedures to comply with certain administrative requirements. In addition to the plans just described, Tribal governments must also comply with federal grants management regulations. Under the FEMA pilot guidance, individual assistance plans are not listed as a requirement for disaster assistance.
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Declaration Request Process
FEMA has established a process for Tribal Nations requesting a major disaster declaration that should be followed in order to avoid delays in processing the disaster request. After an incident affects a Tribal Nation, the Tribal Nation will take action to respond to the event, including activation of its emergency plan and use of Tribal resources to address disaster-related needs. If a Tribal Nation anticipates that it will request an emergency declaration independent of a state, then it must activate its emergency plan or its request may be denied. This is a critical first step. In order to be considered for federal disaster assistance, an incident must be of such severity and magnitude that it overwhelms the capacity of the Tribal government to provide effective response. Accordingly, after an incident occurs, the Tribal Nation should first assess the impacts of the incident and determine if there are needs that cannot be addressed with its own resources or through insurance. In addition, the Tribal Nation should explore other assistance options, such as existing mutual aid agreements with other jurisdictions, the availability of assistance from non-governmental disaster relief
- rganizations like the Red Cross, and aid from other federal agencies.
After conducting the initial damage assessment and exploring other assistance options, a Tribal Nation may identify needs or damages that are eligible for Stafford Act assistance and beyond the capabilities of the Tribal government. In that event, the Tribal government should request Joint Preliminary Damage Assessments or Joint PDAs from its FEMA Regional Administrator. Joint PDAs validate Stafford Act- eligible damage and evaluate the magnitude and impact of a disaster to determine whether Stafford Act assistance may be needed. The Joint PDA request must be in writing and should describe the disaster event, the dates the event
- ccurred, and the type and severity of damage. As declaration requests need to be submitted within 30
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days of an incident, the Joint PDA request should be submitted as soon as possible to allow enough time to perform the Joint PDA and for the Tribe’s Chief Executive to develop and send the declaration request within the 30-day timeframe. The Tribal Nation will then review the results of the Joint PDA to help determine whether the situation may exceed available resources and therefore warrant Stafford Act assistance. If Tribal government determines Stafford Act assistance is needed, it must then determine whether to submit the request for Presidential declaration on its own as a direct recipient or be considered part of the state declaration as a sub-recipient. The next slide compares being a sub-recipient vs. a direct recipient.
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Tribal Stafford Act Declarations
Sub-Recipient: If a Tribe is a sub-recipient, then the Tribal government receives a subaward from a pass through entity to carry out part of the federal program. As a sub-recipient, the Tribal Nation assists the state with application efforts, as needed. Direct Recipient: If the Tribal Nation decides to be a direct recipient of federal disaster assistance, the following steps must be taken. A Tribal declaration request must be submitted to the appropriate FEMA Regional Administrator by the Chief Executive of the Tribal Nation on forms specified by FEMA and typically accompanied by a cover letter that provides the opportunity to include additional information regarding the impacts of the disaster
- n the Tribal Nation. The FEMA pilot guidance website has a template for this cover letter. This request
must be within 30 days of the last day of the incident unless an extension has been requested within 30 days of the incident and granted by the FEMA Regional Administrator. The FEMA Regional Administrator will evaluate the request and provide his/her recommendation to FEMA Headquarters. FEMA then sends its recommendation to the President after review of the request using criteria that vary depending upon the type of disaster assistance requested. Such criteria are specified in the Tribal Declarations Pilot Guidance on page 34. When a Tribal Nation submits a declaration request, FEMA will notify appropriate state government
- fficials. Likewise, FEMA will notify appropriate Tribal government officials when a state requests a
declaration that includes counties where Tribal lands are located. Such notifications do not affect the
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processing of declaration requests. The President makes a determination and FEMA notifies the Tribal Chief Executive of the decision. If the request is denied in whole or in part, the Tribal Nation may submit an appeal within 30 days of the date of denial that includes additional information to support the appeal. The emergency declaration process essentially mirrors the major disaster declaration process; however, a Joint PDA is not required. Nevertheless, a Tribal Nation must still generally establish some specific unmet need to demonstrate that an emergency declaration is needed to provide federal assistance. Click on the book icon to access the template cover letter. Book Icon Contents: Template Cover Letter- Visit https://www.fema.gov/media- library/assets/documents/128307 to view a template cover letter.
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Examples of Direct Tribal Declarations Under the Stafford Act
Here are some examples of direct Tribal declarations under the Stafford Act. On March 1, 2013, the Eastern Band of Cherokee Indians received the first ever direct Tribal disaster declaration due to damage from severe storms, flooding, landslides, and mudslides. This was a major disaster declaration. In September 2017, the Seminole Tribe of Florida received the first ever direct emergency declaration due to the damage suffered after Hurricane Irma. The Seminole Tribe received a direct major disaster declaration a few weeks later. However, some Tribal Nations have had direct declaration requests denied. For example, Navajo Nation has two such denials: the first after the Gold King Mine spill in August 2015 and another after flooding in Shiprock, New Mexico in August 2016.
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Direct or Sub-Recipient
There are many factors that a Tribal Nation must consider before it makes the decision whether to be a direct or sub-recipient. Here, we highlight some of the major considerations. The first relates to the issue of cost sharing. If the Tribal Nation directly requests a federal declaration, it is responsible for the 25% cost share. If the state makes the request and the Tribe is a sub-recipient, some states will cover all or part of the cost share. As this may be a significant amount of money, Tribal Nations will have to carefully consider the issue of cost-sharing. It is important to note that the President may waive or adjust the cost share for public assistance, thereby reducing the burden to a Tribal government. Another factor that must be considered is the impact on neighboring jurisdictions. Federal disaster assistance requires the meeting of certain minimum damage thresholds. After certain incidents, neighboring jurisdictions may not meet these minimums unless damage to the Tribal Nation is also included in the calculations. Many Tribal Nations have indicated that they have not directly requested a declaration but rather chose to be included in a larger request in order to be a good neighbor and maintain good relationships with surrounding communities. A closely related issue is the ownership and location of roads, bridges, and buildings, particularly in checkerboard areas. The nature of the ownership and location may influence the Tribal Nation’s decision to be a direct or sub-recipient. The level of destruction and the scale of the event may impact this decision, as well as who has been affected by the incident. Another consideration is the time and expense involved in being responsible for the application for and administration of federal disaster assistance, which includes record keeping. This is a considerable
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administrative burden. A Tribal Nation may decide that it is easier to be a sub-recipient if the project is large with a heavy administrative burden.
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Other Considerations
Other considerations may include: The timeline for reimbursement, as the Tribal Nation must pay expenses out-of-pocket and it may take several years before reimbursement is received; How to value time and materials lost, including tracking volunteer time and putting a cost on things like freezer contents and the loss of gathering (e.g., elk, berries); and/or
If Tribal Council is newly elected, the Tribal government may decide to work with the state.
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Tribal Leadership Responsibility
Tribal leadership makes the decision to be a direct or sub-recipient. If the decision is made to be a direct recipient, the Tribal Chief Executive must make a request to the President.
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Summary
In summary, The Tribal Chief Executive is responsible for requesting an emergency declaration. A Tribal Nation may be a sub-recipient or direct recipient of a Stafford Act Declaration. The FEMA Tribal Declaration Pilot Guidance describes the process Tribal governments will use to request direct declarations, as well as the criteria FEMA will use to evaluate Tribal declaration requests and make recommendations to the President. This is the third module in a series of 4 modules.
See module 4, Tribal Legal Preparedness Best Practices Toolkit, for best practices related to legal
preparedness, including audio and video recordings from Tribal Nations across the country.
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Resource Library
The Tribal Legal Preparedness Project has developed a resource library to provide relevant resources to Tribal Nations seeking to enhance their legal preparedness capacity. While most resources have a Tribal focus, some resources are included that are generally applicable to legal preparedness for public health emergencies and natural disasters. Please visit tlpp.pitt.edu to access the resource library. Additionally, a printable word version of this module will be available for download upon completion of this
- module. To access the document, please click on the resources tab in the top right hand corner of this
module.
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