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Second Appeal Brief
PA ID# 005-99005-00; Arthur County
PW ID# 230; Roads, Pre-Disaster Conditions
Conclusion: Arthur County (Applicant) did not demonstrate routine predisaster maintenance of its gravel road network. As such, FEMA cannot verify predisaster conditions nor that damages were a direct result of the disaster.
From May 6 to June 17, 2015, Nebraska experienced severe storms, straight-line winds, and flooding. FEMA prepared Project Worksheet 230 to document work to repair 23.77 miles of non-contiguous damage to the Applicant’s unimproved road network with an estimated repair cost of $1,622,346.68. Following its review of the project, FEMA notified the Applicant of its decision to deny all funding. FEMA based its determination on the Applicant’s inability to demonstrate routine road maintenance prior to the disaster, and that the damages occurred as a result of the disaster. On first appeal, the Applicant requested the full estimate of project costs and argued that it had a routine maintenance program prior to the disaster, though it only added new surface aggregate on an “as-needed” basis. The Regional Administrator (RA) denied the appeal and found that the support documentation submitted by the Applicant did not enable a verification of predisaster conditions and determination the damages were disaster-related. On second appeal, the Applicant states that all of its claimed damages are disaster-related, that it has a routine road inspection and maintenance program, but that the soil characteristics of its road network make it impossible to account for exact predisaster road conditions.
Authorities and Second Appeals
- 44 C.F.R. §§ 206.223(a)(1), 206.226.
- Public Assistance Guide, at 33.
- Village of Waterford, FEMA-4020-DR-NY, at 4.
- City of Napa, FEMA-1628-DR-CA, at 2.
- Per 44 C.F.R. § 206.226, FEMA may provide funding to restore an eligible facility on the basis of the design of that facility as it existed immediately prior to the disaster. The PA Guide states that for facilities such as gravel roadways, which require routine maintenance to maintain their designed function, it may be possible to review predisaster maintenance or inspection reports to verify the predisaster condition and assess eligible disaster damage. It is the applicant’s responsibility to demonstrate that damages are disaster-related.
- The only support documentation the Applicant provided showing predisaster maintenance was its repair material purchase invoices from 2012-2014. These documents do not show where or in what manner the Applicant used the material to maintain its road network.
- The Applicant did not provide other documentation (such as road maintenance or inspection reports) that could be used to demonstrate routine maintenance of its roads or establish predisaster conditions.