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Second Appeal Summary
PA ID# 000-92007; West Virginia Department of Natural Resources
DSR ID# 75546; Greenbriar River Trail
Citation: Appeal Brief; Second Appeal; West Virginia Department of Natural Resources; FEMA-1096-DR-WV, PA 000-92007
Cross-Reference: DSRs #75546; Alternate Use Facilities; Abandoned Railroad Beds; National Trail Systems Act; Railroad Revitalization Regulatory Reform Act of 1976
Summary: Following the flooding that resulted in declaration FEMA-1096-DR-WV, FEMA prepared 24 DSRs for repair of the Greenbriar River Trail (Trail), a hiking/bicycling trail located on an abandoned rail bed. The original DSRs provided funding to restore the facility to rail bed standards. When proposed plans and specifications were submitted; however, the reviewers found that FEMA's authority was limited to providing funding to repair to pre-disaster conditions and use. Funding was adjusted to restore to alternate use standards. The first appeal to the deobligation stated that FEMA has the duty to restore to rail bed standards, that failure to do so might result in revocation of the lease between the WVDNR and the West Virginia Rail Maintenance Authority, and that the WVDNR had incurred engineering and design expenses based on the original eligibility determination. That appeal was denied, because FEMA funding is limited to that required for restoration to the pre-disaster use of a damaged facility, and FEMA had reimbursed WVDNR for all reported expenditures resulting from the preparation of plans and specifications. The second appeal made the same arguments, plus the argument that restoration to rail bed standards was required by provisions of the National Trail Systems Act (NTSA) and the Railroad Revitalization and Regulatory Reform Act of 1976 (RRRRA).
- Should FEMA restore recreational facilities in the "Rail to Trail" system (NTSA) to rail bed standards?
- Does the NTSA and the RRRRA require the former rail beds to be maintained to rail bed standards?
- No. FEMA regulations clearly state that damaged facilities are to be restored to the pre-disaster condition based on pre-disaster use.
- No. A legal review of those statutes shows they do not require such maintenance, only that they be maintained in public ownership.
- Pursuant to 44 CFR section 206.226 (i)(1), repairs to a facility being used for purposes other than those for which it was designed will be based on restoring that facility to the immediate predisaster alternate purpose.
- An in-depth legal review shows that neither the NTSA nor the RRRRA requires maintenance of an abandoned rail bed used for recreational facilities to be restored to rail bed standards.