Appeal Brief | Appeal Letter | Appeal Analysis | Back
Second Appeal Analysis
PA ID# 001-99001-00; Adams County Board of Supervisors
PW ID# PW 209; Scope of Work
From May 3 through June 17, 2011, the Mississippi River experienced severe flooding which resulted in loss of clay gravel surface material, dirt fill material, deep rutting, and numerous “soft spots” on an Adams County Board of Supervisors’ (Applicant) road known as Jackson Point Road (facility). Based on the Applicant’s force account labor and equipment 100 percent completion date of September 15, 2011, FEMA drafted Project Worksheet (PW) 209 to document damage and eligible costs associated with washouts on a 4.5 mile length of the facility to include the roadway surface atop a three-section box culvert area known as Narrows. The site inspection occurred in October 2011 but damage to the box culvert was not identified to FEMA’s Project Specialist at that time nor prior to PW completion.
On August 7, 2012, the Applicant requested that the scope of work in PW 209 be revised to replace the box culvert. The request was made eleven months after the initial repair was completed. FEMA denied the request because the Applicant did not demonstrate the culvert’s damage was attributable to the declared disaster.
In its first appeal, dated April 9, 2013, the Applicant asserted that it provided documentation that proved the destruction of the culvert was the result of the disaster event. The Applicant argued that the facility was completely inundated by flood waters at the time of FEMA’s site inspection. Therefore, it was impossible to discover the destruction of the area around the box culverts. The Applicant asserted that the additional damage was latent and not discoverable until after the PW was drafted. The Applicant stated that its engineer’s narrative confirms that the damage was latent. Finally, the Applicant asserted that FEMA erroneously found that the pictorial history showing multi-year inundation and a total inundation in 2009 contributed to the culvert’s damage. The Applicant stated that its audit records and engineer reports show that the culvert had no instances of damage due to the inundation of flood waters until the declared disaster (FEMA-1983-DR-MS).
On February 14, 2014, the Region IV Regional Administrator (RA) denied the first appeal based on his determination that the water levels were sufficiently low when FEMA drafted PW 209; therefore, FEMA staff would have been able to identify a collapsed portion of the box culvert and any embankment subsidence. The RA also noted that PW 209 included a photo of the project that indicated the floodwaters had receded and that the claimed damage was not visible. Finally, the RA stated that the Applicant provided no documentation in addition to its appeal letter to support its position.
In its second appeal, dated May 27, 2014, the Applicant requests additional scope of work in the amount of $1,106,214.49 be added to PW 209 or, in the alternative, FEMA obligate $719,192.77 for a substitute bridge to serve as Stafford Act § 406 Hazard Mitigation. The Applicant assert that, after Disaster 1983, it repaired the facility as it had after previous floods. However, the downstream portion of the facility continued to sink and slough. The Applicant provides signed documents from the County Engineer and County Road Manager. The County Engineer’s letter states that Disaster 1983 caused damage to the culvert. The letter states, “[a]pparently the apron and downstream section of the triple barrel box bridge was undermined when the water went out of the Narrows as evident by the loss of section of the roadway at the discharged end of the box. This allowed the barrel joint to shift and allow further undermining.” The County Road Manager’s memorandum states, “[b]ased upon my experience, the damage to the culvert was caused by an extremely high water level and it could take up to twelve months for the damage to be noticeable.”
On October 14, 2014, FEMA hosted a conference call with the Applicant and Grantee. Following the conference call, the Applicant submitted additional documentation, including maintenance records, inspection reports, and additional pictures of the culvert.
Scope of Work
Pursuant to the Stafford Act § 406, FEMA Public Assistance funding may be available to a state or local government for the repair, restoration, reconstruction or replacement of damaged or destroyed facilities under a major disaster. In addition, Title 44 Code of Federal Regulations § 206.223(a)(1) states that an item of work must be required as the result of the disaster event in order to be eligible for Public Assistance funding. FEMA policy provides that the scope of work describes the work that is necessary to repair the damage or replace the facility and provides the cost estimate. If additional damage is discovered once the PW is completed, the Applicant must document the damage, show how the damage is disaster-related, and request a re-inspection by FEMA.
In October 2011, FEMA conducted a site visit of the facility. During the site visit, FEMA did not document damage to the culvert. The Applicant asserts that additional damage caused by FEMA-DR-1983-MS was latent and not discovered until after the completion of PW 209. The Applicant requested a change in scope of work to address additional damage to its culvert in August 2012. While the Applicant did document the additional damage, it failed to demonstrate that the additional damage is disaster-related. Neither the County Engineer’s letter nor the County Road Manager’s memorandum provide analysis or explanation as to the conclusions that:
1) FEMA-DR-1983-MS caused damage to the culvert and 2) it could take up to twelve months to detect the additional damage. In addition, the County Engineer’s letter acknowledges the facility experienced an inundation of water after floods during the previous five years. If the Applicant’s assertion regarding latent damage is correct, it is feasible that any or all of these flooding incidents contributed to the culvert’s damage. Moreover, the additional documentation that the Applicant provided does not conclusively demonstrate that the damage was disaster-related. The last inspection report on record was issued in 2006, five years before the flood and six years before the damage occurred. Several intervening flood events could have resulted in damage to the culvert. Without more definite evidence, such as an engineering report, that connects the damage to the culvert to this particular disaster, FEMA cannot provide funding for the repair work requested by the Applicant.
In June 2012, the Applicant took pictures of the culvert and road atop the culvert. The Applicant submitted these pictures to refute the RA’s determination that photos taken during the site visit demonstrate that waters had receded and that the claimed damage was not visible. The Applicant’s June 2012 pictures show cracks and severe deterioration of the road above the culvert. However, this damage is not present in FEMA’s October 2011 pictures. FEMA’s pictures do not demonstrate that the road was inundated with water, and, in fact, support the RA’s assertion that “water levels were sufficiently low… to identify a collapsed portion of the box culvert and any embankment subsidence.” Considering that the pictures taken by FEMA in October 2011 were taken closer to the disaster event than the pictures taken by the Applicant in June 2012, FEMA’s reliance on the October 2011 pictures was appropriate. Based on the pictorial evidence and the lack of documentation demonstrating that the culvert was damaged by the declared disaster, FEMA is unable to approve a revised scope of work for PW 209.
406 Hazard Mitigation
FEMA policy states that funding for Stafford Act § 406 Hazard Mitigation measures may be approved if the original facility and its function will be restored and the mitigation work is “still needed, is technically feasible, and will be performed as part of the overall project.” The Applicant completed the work outlined in PW 209 in September 2011. Since the project has been completed and FEMA is not approving the revised scope of work, the hazard mitigation work would not be performed as part of the overall project and is therefore ineligible.
Pursuant to 44 C.F.R. § 206.223, the Applicant failed to demonstrate that the damage to its culvert is the result of FEMA-DR-1983-MS. Accordingly, FEMA is unable to approve a revised scope of work for PW 209. In addition, because the project has been completed, FEMA cannot fund mitigation measures to replace the culvert with a bridge.
 Letter from County Engineer, Jordan, Kaiser & Sessions, LLC to County Administrator, Adams County (May 16, 2014) [hereinafter Letter from County Engineer].
 Memorandum from Road Manager, Adams County, MS Road Department to County Administrator, Adams County (May 14, 2014).
 The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 102, 42 U.S.C. § 5172 (2007).
 44 C.F.R. § 206.223(a)(1) (2011).
 See Public Assistance Guide, FEMA 322 at 101 (June 2007).
 See Letter from County Engineer.
 Recovery Policy RP9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act) at 4 (Mar. 30, 2010) (emphasis added).