Greenbriar River Trail

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1096-DR
ApplicantWest Virginia Department of Natural Resources
Appeal TypeSecond
PA ID#000-92007
PW ID#75546
Date Signed1998-09-15T04:00:00
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).

Issue:
  1. Should FEMA restore recreational facilities in the "Rail to Trail" system (NTSA) to rail bed standards?
  2. Does the NTSA and the RRRRA require the former rail beds to be maintained to rail bed standards?
Findings:
  1. No. FEMA regulations clearly state that damaged facilities are to be restored to the pre-disaster condition based on pre-disaster use.
  2. No. A legal review of those statutes shows they do not require such maintenance, only that they be maintained in public ownership.
Rationale:
  1. 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.
  2. 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.

Appeal Letter

September 15, 1998

Mr. John W. Pack, Jr.
Director, West Virginia
Office of Emergency Services
Building 1, Room EB-80
1900 Kanawha Boulevard, East
Charleston, WV 25305-0360

Dear Mr. Pack:

This is in response to Mr. Carl Bradford's letter of June 1, 1998 forwarding a second appeal to the de-obligation of funding on behalf of the West Virginia Department of Natural Resources (WVDNR).

During FEMA-1096-DR-WV disaster operations, 24 Disaster Survey Reports (DSRs) were prepared to provide funding to restore the Greenbriar River Trail (Trail) to rail bed standards. When plans and specifications were submitted to the Federal Emergency Management Agency (FEMA) for review, the determination was made that eligible funding was limited to that necessary to restore the facility to its use immediately prior to the disaster (a hiking/bicycling trail). Funding in the amount of $1,704,049 was de-obligated, and funding in the amount of $735,646 was approved for restoration of the hiking/bicycling trail.

The WVDNR appealed the de-obligation, contending that (1) FEMA had both the authority and duty to restore the facility to rail bed standards; (2) FEMA had approved such funding as a result of 1985 damages from FEMA-753-DR-WV; (3) the National Trails Systems Act (NTSA) and the Railroad Revitalization and Regulatory Reform Act of 1976 (RRRRA) required maintenance of the facility to rail bed standards, and (4) FEMA was in breach of contract because costs were incurred in developing plans and specifications as a result of the original DSRs.

As discussed in the attached second appeal analysis, FEMA's authority allows the agency to provide Federal funding for restoration of a disaster damaged facility to its pre-disaster use, in this instance, a trail. This finding is consistent with those of the appeal to denial of funding for restoration to rail bed standards following flooding in 1985 (copy attached). A detailed legal review of the NTSA and the RRRRA showed that the applicable intent of those acts was to maintain the rights-of-way in a rail bank, not maintain recreational facilities to a railroad standard.

FEMA recognizes that the subgrantee incurred costs for plans and specifications prepared as a result of the initial determinations. DSR #75546, which was prepared to fund restoration of the hiking/bicycling trail, contained $101,882 to reimburse the reported costs for engineering and design work.

Having reviewed the information submitted with the second appeal, I find no basis on which to reverse the findings of the Regional Director. Additionally, the findings are consistent with those on similar facilities that have been damaged in declared disasters in other states. The appeal is denied.

Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.

Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

Enclosure

cc: Rita Calvan
Regional Director
FEMA Region III

Appeal Analysis

BACKGROUND

The Greenbriar River Trail (Trail) is a 77-mile long recreational facility located in Pocahontas and Greenbriar Counties in West Virginia, and is located on the site of a former rail line. Approximately 35 years ago, the C&O Railroad abandoned the property, removing all ties, rails and switching equipment. At that time, the property was transferred to the West Virginia Rail Maintenance Authority (WVRMA), a division of the West Virginia Department of Transportation. Subsequently, the property was leased to the West Virginia Department of Natural Resources (WVDNR) for use as a hiking and bicycling trail. The trail is open to the public, and receives light to moderate use.

During FEMA-1096-DR-WV disaster operations, 24 Damage Survey Reports (DSRs) totaling $1,704,049 were approved (spring of 1996) to repair the trail based upon a cross-section that would re-establish a railroad grade. In the winter of 1996, the Grantee forwarded to FEMA Region III preliminary plans and specifications for review. As a result of this review, FEMA staff advised the WVDNR that funding for repairs would be that only necessary to restore the facility's use as a hiking and bicycling trail, not as a railroad.

As a result of a joint inspection in June 1997, the sum of $1,704,049 was de-obligated, and DSR #75546 was approved in the amount of $735,646. The latter amount was the estimated cost of repairing the trail to a condition suitable for hiking and bicycling, not to railroad standards.

First Appeal
The first appeal was submitted to FEMA on October 14, 1997. On December 16, clarification of several legal issues was requested. These were received February 18,1998. On March 30, 1998, the first appeal was denied, based upon the regulation that limits eligible FEMA funding to that necessary to restore the pre-disaster use of a damaged facility. The subgrantee also argued that FEMA was in breach of contract in that WVDNR had expended funds for design, plans and specifications based on the original approved DSRs; however, in DSR #75539, FEMA had allowed $101,882 for such work. These were the total expenses reported by the applicant at the time of the joint reinspection, and plans were complete at that time. Finally, the subgrantee argued that the failure of FEMA to restore to railroad standards could result in the forfeiture of the property back to the lessor - the WVRMA. There was no evidence provided that such was the case. Additionally, while the terms of the lease may require WVDNR to comply with certain requirements; only FEMA is responsible for determining eligibility and assistance allowed under the regulations as authorized by the Robert T. Stafford Act Public Law 93-288, as amended, ("the Stafford Act").

Second Appeal
By letter dated June 1, 1998, the West Virginia Office of Emergency Services transmitted a second appeal to the de-obligation of funding to restore the trail to railroad standards. The basis for the appeal was the same as for the first appeal, and can be summarized as follows:
  1. FEMA determination to provide funding to restore the facility to its pre-disaster use is incorrect. FEMA has both the authority and duty to restore the trail to rail bed standards under Title 44, Code of Federal Regulations 206.226
  2. After similar damages from disaster FEMA-753-DR-WV in 1985, FEMA agreed to restore the trail to the railroad bed design.
  3. The lease agreement between the West Virginia Rail Maintenance Authority and the West Virginia Department of Natural Resources is in compliance with the mandates and policies of both the National Trails System Act and the Railroad Revitalization and Regulatory Act of 1976.
  4. The de-obligation was a breach of contract by FEMA, as the WVDNR expended funds for plans and specifications to restore the damaged areas to railroad bed standards.
DISCUSSION

Alternate Facility Use: The subgrantee stated that FEMA has (1) erroneously interpreted the law and (2) erroneously applied the term "alternative use facility" to the Trail. In regard to the first statement, the subgrantee is entitled to make an opinion on legal interpretation of the Stafford Act; however, that opinion is not necessarily correct. Section 321 of the Stafford Act states:
The President may prescribe such rules and regulations as may be necessary and proper to carry out the provisions of this Act and may exercise, either directly or through such Federal agency as the President may designate, any power or authority conferred to the President by this Act.By Executive Order 12673 of March 23, 1989, the President designated FEMA the authority to prescribe those rules and regulations. Final regulations were published in the Federal Register dated January 23, 1990. FEMA clearly has the legal right to publish regulations related to eligibility and funding of the programs authorized in the Stafford Act.

The intent of the Stafford Act is to provide supplemental assistance to eligible applicants to assist in an orderly and timely restoration of facilities and associated functions that have been adversely impacted by a declared major disaster. The eligibility criteria for restoration of damaged facilities that address this subject are covered in Title 44, Code of Federal Regulations, Section 206.226. That section provides a general basis for eligibility, but also provides information on specific situations that may impact funding. The section begins
Work to restore eligible facilities on the basis of the design of such facilities as they existed immediately prior to the disaster and in conformity with the following is eligible: (emphasis added)One of those subsections clearly states:
  1. Restrictions-(1) Alternative use facilities. If a facility was being used for purposes other than those for which it was designed, restoration will only be eligible to the extent necessary to restore the immediate predisaster alternate purpose. (emphasis added)
In the instance of the Trail, the immediate predisaster alternate purpose was as a hiking /biking trail. That had been the function of the Trail for years. In complying with its mission to assist in the restoration of damaged related facilities and functions, FEMA has provided funding to restore that function. FEMA does not have the authority (or duty) to provide funding to restore a facility to a use it may have had 30 years ago. FEMA regulations and findings have consistently upheld the alternative use concept as a basis of providing funding to repair damaged facilities to a level to reestablish the predisaster use when that use differs from that for which they were originally designed.

Although not pertinent to this determination, it should be noted that the contention that the Trail's design prior to the 1996 flood was as a railroad is questionable. While the original design may have been as a railroad, the track, ties, switches and other appurtenances necessary for the facility to function as a railroad were removed over 25 years ago. Several bridges which are a component of the trail are not of adequate width or design to be capable of carrying loads associated with modern rail traffic. Inspection of undamaged portions of the Trail shows the general condition of the trail and bridges are clearly not consistent with that of a railroad. There is no evidence that the facility has been maintained or upgraded for immediate return to rail service. Further, repair of the facility from previous damages has not been given a high priority. Repairs to damages from the 1985 disaster were not completed for more than five years after the disaster, and repairs to damages from the 1996 flooding has not yet begun.

Previohethat in an analogous case, following flood damage to the Trail in 1985, FEMA agreed to restore the trail to the railroad bed design; however, that is not correct. A review of the files shows that as a result of flooding in 1985 (FEMA-0753-DR-WV), the Trail suffered damages similar to those that occurred in the 1996 event. At that time, FEMA determined that the use of the Trail was for recreation, not a railroad, and repairs were limited to restoration as a recreational Trail. A first appeal was waived, and a second appeal was submitted directly to FEMA Headquarters. A response dated November 16, 1988, (copy attached) denied that appeal, stating that restoration to rail standards was not eligible, and noting that:
"The FEMA regulation which is relevant in the context of this appeal, is 44, CFR 205.75(a)(9). The regulation provides in pertinent part:

Facilities which were . . being used for other purposes than originally designed, may be eligible for assistance only to the extent necessary to restore immediate predisaster capacity for such use."
That regulation is essentially the same as 44 CFR 206.226 (i)(1), and the findings of the appeal from FEMA-753-DR-WV are consistent with findings of this appeal.

The National Trails System Act (NTSA) and the Railroad Revitalization and Regulatory Reform Act (RRRRA) of 1976. The subgrantee contends that the NTSA defines the use of the rail beds as an interim and not alternate use; therefore, FEMA should not use the "Alternative Use" regulation to determine the eligible level of repair. A detailed legal review and analysis of the NTSA shows that it does not specify standards to which a trail has to be maintained in order to protect its future ability to be used as a railroad. It merely states that if there is an established railroad right-of-way for future activation of rail service, than an interim use, such as a hiking/biking trail, will not be treated as abandonment of the right-of-way if that interim use is subject to restoration or reconstruction for railroad purposes. The intent is to maintain the rights-of-way in public ownership. The statement that "the property cannot lawfully be maintained merely as a hiking/biking trail" has no basis in the NTSA. The "interim" versus "alternate" issue is not relevant to the appeal to fund the Trail's repair to a railroad standard. "Interim use" is the terminology used by the NTSA to indicate any use other than as a railroad that would permit a railroad to be restored or reconstructed in the future. "Alternate use" in FEMA regulations is appropriate because the facility is presently being used for a purpose other that for which it was designed.

The RRRRA also addresses the interim use of the rail beds; however, as with the NTSA, it simply encourages the preservation of established railroad rights-of-way for future reactivation, but does not mandate any maintenance or repair standard.

The subgrantee cites to a case, Preseault v. I.C.C., to make the point that Federal law specifically encouraged the development of trails on an interim basis to preserve established railroad rights-of-way for future reactivation of rail service. The eligibility determination does not conflict with those findings. In restoring the trail for hiking/biking purposes, FEMA is in complete compliance with the requirements of the NTSA.

Breach of Contract. The subgrantee contends that significant expenses were incurred in engineering and design work undertaken to restore the trail to railroad standards, based on the original DSRs. The subgrantee further contends that FEMA did not reimburse WVDNR for lost opportunity costs of labor and time spent on this work that could have been expended on other projects.

In DSR #75546, FEMA included $101,882 for costs incurred in the preparation of plans and specifications to restore the facility to rail bed standards. That was the amount reported by WVDNR at the time of the reinspection that resulted in the determination that the Trail was a recreational facility, and funding would be limited to that necessary to restore it to its predisaster use. FEMA Region III staff has committed to the WVDNR to work with that entity to ensure that all eligible costs related to work done on the plans and specifications are addressed.

CONCLUSION

It is a fundamental principle of Federal appropriations law that Federal officials cannot approve the expenditure of appropriated funds for unauthorized purposes. FEMA has determined that under the provisions of the Stafford Act and implementing regulations, the agency is authorized only to provide funding to restore the Trail to its predisaster function, a recreational facility. In doing so, FEMA is in complete compliance with the provisions of the National Trails Systems Act. This finding is consistent with those related to funding for repairs of similar disaster damaged facilities in other parts of the U.S. The appeal is denied.
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