Debris Removal - Vegetative

Appeal Brief

Appeal Letter

Appeal Analysis

Background

On October 24, 2005, heavy rains and winds from Hurricane Wilma downed and damaged trees at Butler Farms Tract K (Tract K) and Butler Farms South (South Tract) in the City of Coral Springs, Florida.  Tract K and the South Tract are narrow strips of land located adjacent to a canal and between a utility easement and a housing development.  Each section is approximately 15 feet wide.  In total, the two tracts are approximately three-quarters of a mile long.  Prior to Hurricane Wilma, there were approximately 500 Australian Pine Trees on the two narrow sections of land.  Hurricane Wilma damaged many of the trees, causing them to fall onto the adjacent canal, private property, and houses.

At a site visit shortly after the disaster, but before the trees were removed, FEMA determined that 155 out of 312 trees were damaged at Tract K (50 percent) and 110 out of 188 trees were damaged at the South Tract (59 percent).[1]  In an email dated February 7, 2006, the Applicant stated that it was aware that the removal of standing trees was not eligible, and that only fallen trees were eligible, thus indicating that the standing trees were the ones that FEMA determined to be ineligible.[2]  On January 29, 2007, FEMA drafted PW 3027 Version 0 finding removal of 50 percent of the trees at Tract K and 41 percent of the trees at the South Tract ineligible. 

On May 13, 2009, the FEMA closeout team performed an additional site visit, reviewed load tickets, and validated all invoices.  FEMA then prepared PW Version 6 on October 23, 2009.  In the PW, a FEMA debris specialist determined that all debris, including standing trees, were eligible and that the additional approved costs were “due to the reinstatement of unsupported contract deductions” in previous versions of the PW and reflected actual rather than estimated costs.[3]  FEMA obligated PW 3027 Version 6 for $335,553.88.

On April 1, 2012, the Office of Inspector General (OIG) issued audit report FEMA Public Assistance Grant Funds Awarded to the City of Coral Springs, Florida – Hurricane Wilma (DA-12-15).  The OIG questioned the eligibility of $187,699.00 in debris removal costs on PW 3027.  The OIG found that FEMA did not apply the 50 percent and 41 percent reduction in costs as stated in PW Version 0 and FEMA also funded $45,500.00 in standing tree removal at Tract K and $32,500.00 in standing tree removal at the South Tract in error.[4] 

FEMA concurred with the OIG’s finding.  On July 20, 2012, FEMA prepared PW Version 7 to deobligate $187,699.00 from PW 3027.

First Appeal

The Applicant submitted a first appeal letter dated September 28, 2012, appealing the denial of $187,699.00 in debris removal costs.[5]  The Applicant argued that removal of 50 percent of the damaged trees in Tract K and 41 percent of the trees in the South Tract were eligible because FEMA’s closeout team determined them to be eligible.  The Applicant explained that the debris removal contractors were concerned about the hazards posed by the standing trees during the removal operations and that standing trees needed to be removed to create pathways for the heavy machinery.  In a letter dated January 10, 2013, the Grantee supported the Applicant’s appeal.

On December 8, 2014, the Region IV Regional Administrator (RA) denied the first appeal, agreeing with the OIG that FEMA’s initial site inspection determined that removal of 50 percent of the trees at Tract K and 41 percent of the trees at the South Tract were not eligible for FEMA funding and that the PW should be adjusted accordingly.  The RA stated that FEMA neither inspected nor approved removal of standing trees as part of the eligible scope of work, and therefore $78,000.00 to remove standing trees was not eligible.  The RA also pointed out that the Applicant did not provide an engineering report or other documentation demonstrating the hazardous nature of the standing trees.

Second Appeal

On March 12, 2015, the Applicant submitted its second appeal for $187,699.00 in debris removal costs.  The Applicant explained that removal of standing trees was required to protect personnel from falling trees and to create pathways for the heavy machinery needed for the work on the narrow section of land.  The Applicant asserted that if downed trees were removed, the remaining standing trees would be undermined due to the tight root balls and soil removal around the root systems and susceptible to falling onto private homes or personnel and equipment completing the debris removal mission.  The density of the debris also threatened to cause a flood hazard were the debris to clog the bordering canal.  The Applicant stated that FEMA performed a detailed final review of all costs at closeout, including costs for removing standing trees, and accepted them all as eligible.  The Applicant claimed that FEMA purposefully reversed its earlier PW Version 0 determination in Version 6, declaring all costs eligible.  The Applicant notes that the audit report does not indicate the OIG performed any level of independent analysis of the costs at issue and contains no reason to reverse FEMA’s determination to approve the costs as eligible in Version 6 of the PW.  Furthermore the Applicant states that, PW 3027 Version 7 does not indicate that FEMA conducted any meaningful review of the OIG’s findings.

The Applicant also states that “the United States District Court for the Southern District of Florida (which has jurisdiction over the City of Coral Springs) has ruled that Stafford Act Section 705(c) acts as a statutory bar that ‘prohibits FEMA from deobligating funds issued by FEMA’ when the three prongs of this section are met.”[6]  The Applicant explains that the three prongs are met in this case because the costs were approved on PW 3027 version 6, FEMA has never questioned the costs as unreasonable, and the City completed the purpose of the grant by removing the debris. 

The Grantee forwarded the appeal to FEMA Region IV on March 26, 2015, supporting the appeal.  On April 7, 2015, FEMA Region IV transmitted the second appeal to FEMA Headquarters.

On August 12, 2015, the Applicant, which included individuals who witnessed the damage and subsequent debris removal operations, presented its appeal at FEMA Headquarters.  During that meeting, the Applicant reiterated that the Australian Pines on Tract K and the South Tract were about 70 feet tall with a very shallow root ball about 12 feet across and noted that the trees were growing approximately seven feet apart, which resulted in “one big spider web of roots.”[7]  Australian Pines are unique in that when they are downed by wind, the trees fall over and pull the root ball out of the ground.[8]  The trunks do not break from the roots like typical trees with deeper root systems in stable soil.[9]  This was exacerbated by the wet soil conditions on the bank of the canal.  The Applicant noted that the contractor initially tried to remove only the fallen trees, but because of the entangled roots, determined that the standing trees would become unstable resulting in a hazard to the workers and equipment removing the trees.  The contractor determined that this was too dangerous, as stated in affidavits provided to FEMA, and informed the Applicant that it would have to stop work.[10]  The Applicant then gave the contractor approval to remove both the standing and fallen trees, and no contract modification was needed.  During the meeting, the Applicant also provided FEMA with color photos of the damaged trees and a report entitled Australian Pine Management Plan for Florida which documented the extensive shallow root systems of the Australian Pine.[11]

Discussion

Standing Tree Removal

FEMA regulation allows the reimbursement of debris removal from public property when it is necessary to eliminate immediate threats to life, public health, and safety, or eliminate immediate threats of significant damage to improved public or private property.[12]  The term “immediate threat” describes imminent danger.[13]  “Eligible debris removal activities include the clearance of trees and woody debris.”[14] 

In PW 3027 Version 0, FEMA determined that 155 fallen trees in Tract K and 110 fallen trees in the South Tract were an immediate threat to life, public health, and safety, and an immediate threat to the adjacent canal and private property.  At the time, FEMA determined that the standing trees were not an immediate threat because FEMA was not aware that removal of the fallen trees would cause the standing trees to become unstable due to wet soil conditions and entangled root balls.  At closeout, a FEMA debris specialist visited the site and with knowledge of the entangled root balls, determined that costs for the removal of standing trees were eligible, but did not sufficiently document the new information on PW 3027 Version 6.  At a meeting with FEMA Headquarters on August 12, 2015, the Applicant explained the particular challenges of Australian Pines, including the shallow, overlapping root systems and how they impacted the debris removal operation on the narrow strip of land at Tract K and the South Tract.  The Australian Pine Management Plan for Florida and Silvics of North America, Volume 2:  Hardwood, (hereinafter Silvics of North America) reports confirm the Applicant’s assertions and statements made in affidavits concerning the hazardous nature of the standing trees.  Particularly, Australian Pines frequently form “very dense stands,”[15] with an “extensive shallow lateral root system.”[16]  “A very dense mat of adventitious roots may be formed in response to wet conditions.”[17]  Due to the unique nature of Australian Pines entangled root systems and the narrow tracts of land with wet soil, removal of only the fallen trees would have resulted in the standing trees becoming unstable. This would have caused imminent danger to the contractors, the canal, and private property, on which they might fall.  The Applicant has demonstrated with adequate documentation that the removal of standing trees was required, as they posed an immediate threat to life, safety, and both public and private property.  Therefore costs for the removal of both standing and fallen trees are eligible.

Stump Removal

 “Generally, stump removal is not considered eligible for reimbursement, except if the stump itself is determined to be a hazard, as when the tree has been uprooted.”[18]  On second appeal, the Applicant provided sufficient documentation to demonstrate that the standing trees presented a hazard.  Due to the shallow root systems of Australian Pines, the root ball is typically uprooted when the tree falls, thus also presenting a hazard.  The Applicant removed stumps of the standing trees because the root systems were intertwined with the roots of the fallen trees.  The standing trees and their stumps became unstable as fallen trees were removed, thus presenting a hazard to contractors and equipment as the standing trees threatened to fall.  Stump removal was also needed to allow for equipment access on the narrow strip of land adjacent to the canal.  Therefore, FEMA Headquarter finds stump removal to be eligible.

Actual vs. Estimated Costs

FEMA initially stated that 50 percent of the trees in Tract K were eligible and 59 percent of the trees in the South Tract were eligible.  PW 3027 Version 0 noted in the scope of work that at the time of closeout, the Applicant would need to provide additional documentation to verify the amount of debris and number of trees that are both eligible and ineligible under the FEMA PA Program.[19]  At closeout, the Applicant provided an invoice from Phillips and Jordan listing $45,500.00 in standing tree removal costs at Tract K and $32,500.00 in standing tree removal costs at the South Tract.[20]  As these are actual costs, they replace the need to adjust the PW using the estimated percentage costs stated in Version 0.  In recommending the deduction of both 50 percent and 41 percent of the costs and $78,000.00 in actual costs, the OIG recommended deducting the cost of standing tree removal twice.  FEMA then deducted these costs from the PW twice.  No such deductions are necessary as the removal of standing trees is eligible.

705(c)

FEMA finds all debris removal costs to be eligible.  Therefore, an analysis of 705(c) implications is not necessary.

Conclusion

Through pictures, affidavits, and explanations supported by scientific reports provided on second appeal, the Applicant has demonstrated the unique hazards posed by standing Australian Pines at Tract K and the South Tract.  FEMA finds the removal of $187,699.00 in standing trees, stumps and debris to be eligible.