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12.1.2.2 Federal Disaster Declarations

The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act)3 was enacted in 1988 to support state and local governments and citizens when disasters happen.4 The Stafford Act establishes a process for requesting and obtaining a presidential disaster declaration, defines the type and scope of assistance available from the federal government, and sets the conditions for obtaining that assistance. A state or territory’s governor must request a federal disaster declaration for one to be considered.

The Stafford Act provides two types of disaster declarations: major disaster declarations and emergency declarations. Both declaration types authorize the President to provide supplemental federal disaster assistance. However, the events related to the two different types of declaration and scope and amount of assistance differ.5 Presidential major disaster declarations are available for any natural catastrophe (hurricanes, tornadoes, high water, earthquakes, droughts, etc.), fire, flood, or explosion, regardless of the cause.6 Presidential emergency declarations are available in situations where federal assistance is needed to supplement state and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States.7

The process for presidential declarations, codified at 44 C.F.R. Part 206 Subpart B, governs declarations for emergencies and for major disasters. The process may commence at the local government8 level when a governing official determines that the scope of a disaster or emergency exceeds available resources that would be required for an adequate response.9 Because the state’s governor must be the one to request a federal disaster declaration,10 if the incident commences at a municipal or township level, then the local governing official must first submit its declaration request to the affected governor (or tribal chief executive). Then, if the governor determines that the locale’s request exceeds state resources, the governor must submit the state’s request to the President via the appropriate Federal Emergency Management Agency (FEMA) regional administrator11 within thirty days of the occurrence.12 If the governor decides that the state’s resources are adequate to address the disaster or emergency, then no presidential declaration request will be made.13 The thirty-day deadline to request a declaration may be extended if the governor submits a written request for extension within the initial thirty-day period.14

Federal emergency and disaster declarations can be requested preemptively to lessen or avert the threat of a catastrophe.15The presidential declaration process permits requests for the utilization of Department of Defense (DOD) resources for removal of debris and wreckage and temporary restoration of essential public facilities and services.16

The FEMA regional administrator plays an important role in the presidential disaster declaration process. First, the regional administrator and the governor are instructed to combine resources in preparing a joint preliminary damage assessment (PDA) before the governor makes the request for a presidential declaration.17 After the governor submits the presidential request through the regional administrator, the regional administrator is responsible for summarizing the PDA findings and formulating a recommendation that is forwarded to the President with the governor’s request.18 When preparing its recommendation, the regional administrator reviews relevant information including, but not limited to, the availability of resources from the local government, non-governmental organizations, and the public sector.19 Federal disaster assistance under the Stafford Act is intended to be supplemental in nature, and is not a replacement for state emergency relief programs, services, and funds.20

The determination to grant or deny a governor’s request for a federal declaration is within the President’s sole discretion.21 If the governor’s request is denied in whole or in part, the governor has one opportunity to appeal within thirty days after the date of the denial letter, and must submit the appeal via the regional administrator.22 The thirty-day deadline may be extended if a written extension request is made within the thirty-day period.

If the President grants the governor’s request, FEMA is tasked with coordinating the response.23 Three categories of FEMA assistance may be available: individual assistance, public assistance, and hazard mitigation assistance.24 Within those categories, subcategories cover specific programs made available including, but not limited, to housing assistance and financial assistance.25

Footnotes

  • 3 42 U.S.C. §§ 5121 to 5206.

  • 4 FEMA, A Guide to the Disaster Declaration Process, available at https://www.fema.gov.

  • 5 FEMA, How a Disaster Gets Declared (last update May 24, 2021), available at https://www.fema.gov.

  • 6 44 C.F.R. § 206.2(a)(17).

  • 7 44 C.F.R. § 206.2(a)(9).

  • 8 Defined at 44 C.F.R. § 206.2(a)(16), “local government” includes school districts, rural communities, regional or interstate government entities, and other categories of local government.

  • 9 44 C.F.R. § 206.33.

  • 10 44 C.F.R. Part 206 Subpart B.

  • 11 44 C.F.R. § 206.2(a)(21).

  • 12 44 C.F.R. §§ 206.35, 206.36

  • 13 “Of course, the State does not always request Federal assistance. A great many disasters are handled successfully at the State and local levels with the assistance of voluntary agencies and private agencies. Although the exact number of disasters successfully handled without requests for Federal assistance is not known, it is estimated at 3,500 to 3,700 annually.” FEMA, A Citizen’s Guide to Disaster Assistance 3–4, available at https://training.fema.gov.

  • 14 44 C.F.R. § 206.36.

  • 15 42 U.S.C. § 5122.

  • 16 44 C.F.R. § 206.34.

  • 17 44 C.F.R. § 206.33.

  • 18 44 C.F.R. § 206.37.

  • 19 44 C.F.R. § 206.48.

  • 20 44 C.F.R. § 206.48(b)(1)(ii).

  • 21 44 C.F.R. § 206.38. According to a Congressional Research Service report, Congress has no formal role, but has taken actions to adjust the terms of the process. For example, the Post-Katrina Emergency Management Reform Act of 2006, Pub. Law No. 109-295, established an advocate to help small states with the declaration process. More recently, Congress passed the Hurricane Sandy Recovery Improvement Act, Pub. Law No. 113-2, which had two potentially major impacts on the declaration process. First, the act authorized Native American tribal groups to directly request disaster assistance from the President rather than only requesting through a state governor. The second potential major impact in the act was that FEMA was directed to update its criteria for considering whether to make a recommendation to the President for Individual Assistance declarations. Since the decision for a declaration is at the discretion of the President, there has been some speculation regarding the influence of political favor in these decisions. Congressional Research Service, FEMA’s Disaster Declaration Process: A Primer (Nov. 12. 2014), available at https://www.everycrsreport.com.

  • 22 44 C.F.R. § 206.46.

  • 23 44 C.F.R. §§ 206.1, 206.3.

  • 24 44 C.F.R. Part 206 Subparts D–N.

  • 25 44 C.F.R. §§ 206.117, 206.119.