Result of Declared Incident, Improved Property/Natural Features

Appeal Brief

Appeal Letter

Appeal Analysis

Background

During the incident period of September 4, 2020, to November 17, 2020, the state of California was impacted by wildfires (the Creek Fire).[1] Fresno County (Applicant) requested $1,187,293.62 in Public Assistance (PA) funding for repairs to Peterson Road and three embankments along the road. The Applicant claimed the road, shoulders and associated berms were damaged due to heavy equipment conducting fire suppression activities, the fire destroyed the natural vegetation that provided erosion control, and subsequent rainfall eroded the embankments supporting the road. Specifically, the Applicant claimed that 17 curbs, 86 sections of asphalt, and three embankments were damaged. The Applicant utilized contracts under existing on-call agreements to restore the road and to replace the embankments by placing new retaining walls to support the road. The Applicant provided six years of maintenance records for its roads, dated 
March 10, 2014, to May 31, 2020.

On September 19, 2022, FEMA denied funding in a Determination Memorandum, finding that the Applicant did not establish the claimed damage was directly caused by the incident. FEMA explained that the Applicant did not provide sufficient documentation to establish the predisaster condition of the road to be able to distinguish disaster-related damage from deterioration or deferred maintenance. Specifically, FEMA stated that photographs showed the road pavement exhibited alligator cracking and discoloration due to age. FEMA added that the Applicant’s maintenance records showed the only predisaster work performed on the road was intermittent patching of unspecified amounts at unspecified locations.

First Appeal

On November 18, 2022, the Applicant submitted a first appeal, requesting a total of $2,038,771.95 for work that included road patching ($1,468,477.12),[2]embankment repairs ($522,670.46), soil testing ($36,899.37), and the initial cleanup work ($10,725.00). The Applicant disclaimed $507,206.48 associated with road reconstruction costs. The Applicant explained that Peterson Road is a small, local foothill road that typically accommodates light traffic. The Applicant stated that during the incident, heavy equipment and bulldozers operated on and along the road, which far exceeded typical use. The Applicant acknowledged the road was not in new condition prior to the incident but added that photographs clearly showed surface damage that could only be attributable to the fire and suppression efforts, such as bulldozer tracks along the road and shoulders.

The Applicant stated that the fire and fire suppression efforts burned off and removed ground cover, which would normally prevent heavy erosion. The Applicant stated that this resulted in three embankments collapsing during a relatively light rainfall, which the Applicant asserted would not have happened had they not been exposed. The Applicant provided a Geotechnical Engineering Investigation Report (Geotechnical Report) regarding the embankment damage.[3] In a letter dated January 5, 2023, the California Governor’s Office of Emergency Services (Recipient) transmitted the first appeal to FEMA, expressing its support.

On August 3, 2023, the FEMA Region 9 Regional Administrator denied the first appeal, finding that the Applicant did not demonstrate that the work was required as a result of the declared disaster. FEMA explained that photographs showed damages consistent with normal wear and tear over an extended period, the Applicant did not provide predisaster photographs of the road, and the Applicant did not demonstrate routine maintenance of the road. Thus, FEMA stated it could not distinguish between damage resulting from the disaster and damage attributable to deferred maintenance and deterioration. FEMA added that the Applicant’s proposed scope of work contained improvements beyond restoring the road and embankments to predisaster condition. FEMA noted that the Applicant’s Geotechnical Report indicated preexisting damage to the embankments and that the report’s proposed improvements make no distinction between work to address predisaster conditions and post-disaster conditions.

Second Appeal

On October 3, 2023, the Applicant submitted a second appeal, reiterating prior arguments. The Applicant adds that its engineer has assessed that the predisaster condition of the road was adequate for typical traffic conditions and believes that the predisaster maintenance was appropriate and sufficient for the small amount of traffic and the condition of the road. The Applicant states that photographs showing bulldozer tracks and associated cracking establish that fire suppression activities damaged the road.

The Applicant asserts that the Geotechnical Report establishes that the embankment failures were a direct result of the incident rather than pre-existing deterioration. The Applicant states that the affected area had relatively dense predisaster vegetation (i.e., grasses, underbrush, and trees) that would prevent catastrophic slides, until they were cleared of that vegetation and put under the stresses caused by the incident and fire suppression work. The Applicant states that neither the requested retaining wall work, nor the patching would significantly improve the road and embankments beyond pre-existing condition, and the Applicant already withdrew the road reconstruction work for the segment that was improved rather than rebuilt. The Applicant provides photographs showing post-disaster images of road damage; a news article showing an example of bulldozer damage on asphalt; an academic article describing the impact of wildfires on asphalt; an article concerning soil erosion control after a wildfire; and rainfall data from November 2020. On November 29, 2023, the Recipient transmitted the appeal to FEMA, expressing its support.

Discussion

Result of Declared Incident

FEMA has the authority to provide assistance for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster based on its predisaster design and function and in conformity with applicable codes, specifications, and standards.[4] FEMA may also provide assistance for emergency work, such as emergency protective measures.[5] To be eligible for PA funding, work must be required as a result of the declared incident, and the applicant must demonstrate that the damage was directly caused by the declared incident.[6] If an applicant damages property while performing eligible emergency work, the repair of that damage may be eligible as part of that respective emergency work project if certain other conditions are met.[7] It is the applicant’s responsibility to provide documentation to substantiate its claim as eligible and to clearly explain how those records support the appeal.[8]

Here, the Applicant attributes claimed road damage to the fire and to heavy equipment and bulldozers that traversed the road performing fire suppression work. In support, it provides photographs that show bulldozer tracks along the road. These do not demonstrate damage resulting from the wildfire itself. Instead, they indicate the claimed damage resulted from fire suppression efforts. FEMA policy states that if an applicant damages property while performing eligible emergency work, the repair of that damage may be eligible as part of that respective emergency work project if certain conditions are met.[9] In this case, however, the Applicant has not demonstrated it damaged the road while performing eligible emergency work. Instead, the Applicant makes general assertions that the damage occurred as a result of emergency response efforts but does not establish what entity performed the purported eligible work. Therefore, based on the above, the requested work and associated costs for the road are ineligible as the Applicant has neither demonstrated that the damage was a direct result of the disaster nor that it damaged the road during the performance of eligible emergency work.[10]

Improved Property/Natural Features

A natural feature may be an eligible facility if it is improved and maintained and meets all of the following conditions: (1) the natural feature has a designed and constructed improvement to its natural characteristics, such as a terraced slope or realigned channel; (2) the constructed improvement enhances the function of the unimproved natural feature; and, (3) the applicant maintains the improvement on a regular schedule to ensure that the improvement performs as designed.^[11] Alternatively, if an eligible public facility is located on a slope and is damaged as a result of a landslide or slope instability triggered by the incident, FEMA may approve PA funding for the restoration of the integral ground that supports the facility.[12]

Here, the administrative record does not substantiate that the embankments meet the definition of an improved and maintained natural feature. The Applicant states that the embankments had dense vegetation prior to the incident, which is supported by predisaster imagery, and post-disaster photographs show burnt roadside embankments and felled trees. The Applicant requests costs to construct retaining walls, which would constitute a designed and constructed improvement to enhance the function of the embankments. However, the embankments did not have these designed and constructed improvements prior to the disaster, nor has the Applicant demonstrated any other pre-disaster designed and constructed improvement to the embankments. As such, the Applicant also cannot demonstrate that it maintained such improvements on a regular schedule to ensure that the improvements performed as designed. Therefore, the embankments do not meet the conditions of an eligible improved and maintained natural feature. Additionally, since the Applicant has not demonstrated that the work to repair the road is eligible, then work to restore the embankments supporting the road is likewise ineligible under FEMA policy applicable to integral ground.[13]

Conclusion

The Applicant has not demonstrated that the claimed road damage was the direct result of the declared incident or that it damaged the road during the performance of eligible emergency work. Also, the Applicant has not demonstrated that the embankments are eligible facilities, or eligible for restoration work as integral ground to a disaster-damaged eligible facility. Therefore, this appeal is denied.