Roads, Pre-Disaster Conditions

Appeal Brief

Summary Paragraph

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.

Headnotes

• 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.

Appeal Letter

Appeal Analysis

Background

From May 6 through June 17, 2015, Nebraska experienced severe storm events, straight-line winds, and flooding.  The President issued a major disaster declaration on June 25, 2015; Arthur County (Applicant) was added to the list of designated counties on August 14, 2015.[1]  On September 1, 2015, the Applicant submitted a request for Public Assistance (PA) to repair damaged sustained by its network of gravel roads.  Site inspections with representatives from the Nebraska Emergency Management Agency (NEMA) (Grantee) and FEMA followed soon after.

On January 27, 2016, FEMA prepared Project Worksheet (PW) 230 to document $1,622,346.68 in Category C (roads and bridges) repair work.  This amount was an estimate of costs to replace 41,839 cubic yards (CY) of road surfacing material.  FEMA agreed to use an Applicant-provided average cost of $38.75 per CY for the repair material, inclusive of labor and equipment costs.  The total also included $1,085.43 in Direct Administrative Costs.  The damage statement recorded 23.77 miles of non-contiguous road damage at 77 separate locations.[2]  The description of each site included GPS coordinates for start and end points of the damages, and thus recorded the actual length of each damaged road section.  The Project Specialist used a standardized estimate for width (18 feet) and depth (0.5 feet).  FEMA based the latter on the Applicant’s asserted road repair standard of 6-inches of half mud rock, half crushed concrete mix.

On March 14, 2016, FEMA issued a PA Determination Memo to notify the Applicant of its denial of funding for the project.  FEMA based its determination on the Applicant’s inability to demonstrate that damages occurred as a result of the disaster.  The PA Determination Memo stated that photographs from the site inspections did not depict the damages recorded on PW 230, and the Applicant’s predisaster records from 2012-2014 showed that it purchased relatively little repair material in proportion to the length of its road network.  FEMA concluded that this was evidence of an inability to maintain the road network, which indicated that damages to the roads likely pre-dated the disaster.  FEMA also noted that the Applicant was unable to identify the damages that occurred during the event or how much material at each location/site would be needed during a January 2016 discussion.[3]

First Appeal

The Applicant submitted the first appeal on June 8, 2016 for the original road repair estimate of $1,622,346.68.  The Applicant stated that its employees made temporary repairs at all sites in the months between the disaster and the site inspections, thereby covering evidence of road damage in the site inspection photos.  The Applicant also argued that it has a maintenance program of grading and leveling the roads, but that it only adds new aggregate for “as-needed” repairs.  Thus, the Applicant noted that some of the damaged sites may have had less than .5 ft. of aggregate while others had much more to explain its use of an average cost for a given length of road versus an exact amount of material loss.[4]  The Applicant acknowledged that such estimates may overstate the actual amount of material needed to make repairs, but stated that FEMA developed the quantities in the PW.  The Grantee supported the appeal and forwarded it in a letter dated July 1, 2016.

In its August 1, 2016 Final Request for Information, FEMA requested the Applicant support its claim that road damages resulted from the disaster, and specifically requested before and after photos of the damaged sites to do so.  FEMA also asked for documentation of the temporary repairs made to each site immediately after the disaster.  In its response, the Applicant provided no documentation pertaining to the basis of its claim, but did provide information pertaining to the temporary repairs made after the disaster.

On October 19, 2016, the Regional Administrator (RA) denied the appeal and explained that there was insufficient documentation in the record to verify the predisaster condition of the roads, which precluded determining the damages were disaster-related.  The RA quoted a second Applicant statement from the “roundtable” discussion (wherein the Applicant stated that it had not applied 6-inches of surfacing material since 1999) as evidence of 16 years of erosion prior to the disaster.  Additionally, the RA found that the Applicant lacked a routine system of inspection, repair, and maintenance and noted that the amount of material in the 2012-2014 invoices was only enough to repair 2.6 of the 203 miles the Applicant claimed it maintained at a 6-inch standard.  These facts did not support a conclusion that the Applicant’s roads were in good repair prior to the disaster.

Second Appeal

On December 7, 2016 the Applicant submitted the second appeal for approval of the project.[5]  The Applicant states that: (1) FEMA misquoted its second “roundtable” statement (instead, it had stated that using 6-inches of surfacing material had been the repair standard since 1999); (2) all of its claims are for disaster-related damages; and (3) it has always implemented routine inspections, repair, and maintenance of its gravel road network, including the recovery of displaced material and road grading operations.  The second appeal statement makes it clear that the Applicant only adds new surfacing material when it cannot recover enough existing material near eroded areas.[6]  The Applicant argues that FEMA’s use of the 2012-2014 purchase records to determine predisaster road conditions is not valid, as there was no significant storm damage during this period.  Finally, the Applicant states that accounting for the exact conditions of the roads prior to the disaster “would be nearly impossible” due to the dynamic nature of the soil, but that predisaster conditions were evident to the FEMA assessment team during site inspections, and FEMA personnel determined the dimensions of the damaged sites.[7]  The Grantee expressed support for the appeal in its January 20, 2017 transmittal letter.

Discussion

To be eligible for financial assistance, an item of work must be required as the result of the disaster.[8]  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.[9]  For facilities such as gravel roadways, which require regular maintenance to maintain their designed function, it may be possible to review predisaster maintenance or inspection reports to verify the predisaster condition and to assess eligible disaster damage.[10]  It is the applicant’s responsibility to demonstrate that damages are disaster-related.[11]

Beyond statements made in its appeals, the only information the Applicant provided pertaining to predisaster road maintenance was its repair material purchase invoices from 2012-2014.  These invoices show purchase and delivery of road surfacing material.  However, they do not document where or in what manner the Applicant used the material to maintain its road network, nor that routine maintenance of the damaged road sections was performed prior to the disaster.  Moreover, despite being requested, the Applicant did not provide other documentation (such as road maintenance, inspection reports, or pre- and post-disaster photographs, etc.) demonstrating routine maintenance of its roads.  As such, the Applicant has not documented the predisaster conditions of its roads.[12]  Consequently, FEMA cannot determine the claimed damages are disaster related.  Therefore, the requested repairs are ineligible.

Conclusion

Based on the information provided, FEMA cannot verify the predisaster condition of the Applicant’s roads as required by 44 C.F.R. § 206.226.  The Applicant has not provided documentation, including maintenance and/or inspection records, to demonstrate that damages were a direct result of the disaster.  Accordingly, work to repair the roads identified in PW 230 is ineligible for PA.