From May to June 2015, flooding of the Red River and its tributaries inundated low-lying roads in Bossier Parish (Applicant). The Applicant claimed damage to several sites with a total estimated cost for repairs of $1,789,368.80. In June and August 2015, representatives from FEMA, the State of Louisiana Governor’s Office of Homeland Security and Emergency Preparedness (Recipient), and the Applicant conducted joint site visits. FEMA inspectors observed and pre-event Google images demonstrated that the roadways were in a substandard condition prior to the event.
On March 8, 2016, FEMA issued a Determination Memorandum informing the Applicant that it intended to obligate Project Worksheet (PW) 89 for $187,908.00 for three sites and determined seven other sites were ineligible due to predisaster conditions, including, but not limited to, extensive alligator cracking and previous patching throughout the claimed lengths of road.
Ineligible estimated costs totaled $1,601,460.80.
On April 7, 2016, the Applicant submitted an appeal for $1,601,460.80.
In its appeal, the Applicant acknowledged the roads had pre-existing conditions but contended the request was for only those portions that were inundated and where signs of damage had started once waters receded. The Applicant argued that extended periods of flooding can cause damage regardless of whether the road is in excellent condition or in need of repair. The Recipient transmitted, with support, the Applicant’s appeal to FEMA on June 7, 2016. It argued that visual inspections of the roadway surfaces were unfair and do not account for damage to the substructure caused by prolonged submersion. The Recipient requested that FEMA conduct further investigations and allow the Applicant to provide additional documentation to support its position.
On August 17, 2016, FEMA issued a Final Request for Information (RFI) noting the administrative record was insufficient to support the Applicant’s assertion that damages were the direct result of the disaster because images indicated that the roadways had similar pre-disaster damage. FEMA requested the Applicant provide any relevant information to support its position.
The Final RFI informed the Applicant that the administrative record would close at the issuance of the first appeal decision and as such FEMA would not consider further documentation should the Applicant file a second appeal.
The Applicant responded on September 19, 2016
with no specific damage information but expanded upon its previous arguments. The Applicant indicated that Bossier Parish had experienced three (3) flood events since 2009, and that during all of the flood events the same roads were impacted by overtopping of floodwaters. In addition, it provided a report on the effects of flooding from Hurricanes Katrina and Rita on New Orleans roadways
and a report on the effects of the 2011 Missouri River flooding on geo-infrastructure systems, including paved and unpaved roadways, in western Iowa.
On December 22, 2016, FEMA issued its first appeal decision.
FEMA denied the appeal because the Applicant did not demonstrate that the claimed roadway damages were the direct result of the disaster. The Applicant received notice of the first appeal decision on January 3, 2017.
On March 8, 2017 the Applicant submitted its second appeal.
The Applicant argues the FEMA representatives who participated in the joint site visits were not experienced in paved road design, construction or maintenance. The Applicant describes an extensive pavement reconstruction program it initiated in 2005 and asserts the alligator cracking was actually temperature cracks, a difference only a trained pavement professional would be able to recognize. The Applicant contends the roadways did not have extensive alligator cracking before the disaster and only a few areas showed post-winter fatigue. With its second appeal, after closure of the administrative record, the Applicant submitted additional documentation and laboratory test data.
The Applicant argues that the floodwaters weakened the materials in the pavement, reducing the design life of the roads such that repairs will need to occur in the near future. The Recipient supported the Applicant’s second appeal, noting the difficulty assessing roadways as damages may be underground.
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 423(a) provides “[a]ny decision regarding eligibility for, from, or amount of assistance under this title may be appealed within 60 days after the date on which the applicant for such assistance is notified of the award or denial of award of such assistance.”
FEMA’s implementing regulations require that applicants file an appeal with the Recipient within 60 days after receipt of notice of the agency action that is to be appealed, at which point the Recipient must forward the appeal, along with a written recommendation, to the Regional Administrator within 60 days.
Failure by either the applicant or the Recipient to comply with these requirements renders the appeal untimely and the applicant’s appeal rights lapse. Neither the Stafford Act nor 44 C.F.R. provides FEMA with authority to grant time extensions for filing appeals.
The Applicant received notice of the first appeal decision on January 3, 2017 and, pursuant to 44 C.F.R. §206.206(c)(1), had 60 days to file its second appeal with the Recipient. The Applicant did not submit its second appeal to the Recipient until March 8, 2017, 64 days after receiving notice of the appealable action. Accordingly, FEMA finds that the Applicant’s second appeal is untimely and consequently denied. Timeliness aside, as described below, the second appeal also is not meritorious on the substantive issue and would otherwise be denied.
Direct Result of Disaster
The Stafford Act § 406(e) authorizes “repairing, restoring, reconstructing, or replacing a public facility or private nonprofit facility on the basis of the design of such facility as it existed immediately prior to the major disaster.”
Eligible work must be required as a direct result of the disaster;
in contrast, work related to “loss of service life, normal deterioration, hidden damage or aging of a facility is not disaster-related damage.”
It is the applicant's responsibility to provide documentation to substantiate that damage was the result of the disaster.
The Applicant has not provided documentation to substantiate specific disaster related damage. Nor has the Applicant proffered documentation to distinguish pre-existing substandard conditions or damage caused by several other flood events from damage caused by the declared May to June 2015 floods. Moreover, even if the Applicant were able to demonstrate that floodwaters from the declared disaster, as opposed to other flood events, weakened and reduced the design life of the roads, related work would still be ineligible for reimbursement because “FEMA does not provide funding for reduction of service life.”
The Applicant did not file its second appeal within the required timeframe established by
Stafford Act § 423(a) and 44 C.F.R. § 206.206(c)(l). In addition, the Applicant has not provided documentation to justify that the disaster caused the claimed damages. Consequently, the second appeal is denied.
Project Worksheet 89, Bossier Parish,
Version 0 (Jan. 13, 2016).
Letter from Infrastructure Branch Chief, to Assistant Dep. Dir, Public Assistance, La. Governor’s Off. of Homeland Sec. and Emergency Preparedness (Mar. 8, 2016).
Letter from Bossier Parish Eng’r, to Assistant Dep. Dir., Pub. Assistance, La. Governor’s Off. of Homeland Sec. and Emergency Preparedness, at 1 (Apr. 7, 2016).
Letter from Acting Recovery Div. Dir., FEMA Region VI, to Dir., La. Governor’s Off. of Homeland Sec. and Emergency Preparedness (Aug. 17, 2016) (hereinafter Final RFI
Letter from Bossier Parish Eng’r, to Appeal Manager, La. Governor’s Off. of Homeland Sec. and Emergency Preparedness (Sept. 19, 2016).
(Attachment: Kevin Gaspard et al., Louisiana Dept. of Transportation and Development, Technical Assistance Report No. 07-2TA, Impact of Hurricane Katrina on Roadways in the New Orleans Area at 25-26 (2007).
. (Attachment: Pavana Vennapusa et al., Iowa State University, “Western Iowa Missouri River Flooding - Geo-Infrastructure Damage Assessment, Repair and Mitigation Strategies, IHRB Project TR-638 at 169 (2013).
Letter from Reg’l Adm’r, FEMA Region VI, to Dir., La. Governor’s Off. of Homeland Sec. and Emergency Preparedness and Parish Treasurer, Bossier Parish (Dec. 22, 2016) (letter informed the Applicant that any second appeal must be submitted to Recipient within 60 days of the Applicant’s receipt of the first appeal decision).
United States Postal Service, Delivery Notification, Tracking No. 70122210000061696825 (Jan. 3, 2017).
Letter from Bossier Parish Eng’r, to Dep. Dir., Disaster Recovery, La. Governor’s Off. of Homeland Sec. and Emergency Preparedness (Mar. 8, 2017).
Letter from Branch Mgr, Prof’l Service Indus., Inc., to Bossier Parish Police Jury (Feb. 3, 2017). The Final RFI
advised the Applicant that the administrative record would close after the issuance of the first appeal decision. Test data submitted after the administrative record closed cannot be considered. See
FEMA Second Appeal Analysis, City of Ida Grove
, FEMA-4187-DR-IA, at 4 (Sep. 29, 2016).
Letter from Dep. Dir. Disaster Recovery, La. Governor’s Off. of Homeland Sec. and Emergency Preparedness, to Asst. Admin, Recovery Directorate FEMA (May 5, 2017).
The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 106-390, § 423, 42 U.S.C. § 5189a (2015).
Title 44 Code of Federal Relations (44 C.F.R.) §§ 206.206(c)(1)-(2) (2014).
FEMA Second Appeal Analysis, Broward Cty. Sch. Bd of Fla.,
FEMA-1609-DR-FL, at 3 (Aug. 22, 2016);
FEMA Second Appeal Analysis, Twp. of Vernon, FEMA-4021-DR-NJ, at 3 (Dec. 7, 2016); FEMA Second Appeal
Analysis, St. Thomas Univ., FEMA-1609-DR-FL, PW 8956, at 3 (June 8, 2017).
44 C.F.R. § 206.223(a)(1).
FEMA Second Appeal Letter, Jefferson County
, FEMA-1791-DR-TX at 2-3 (June 19, 2012).
44 C.F.R. § 206.206(a); FEMA Second Appeal Analysis, Village of Waterford,
FEMA-4020-DR-NY, at 4 (Sep. 4, 2014) (stating “[t]he Applicant has the burden of substantiating its claims”).
FEMA Second Appeal Letter, Jefferson County
, FEMA-1791-DR-TX at 3 (June 19, 2012).