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Second Appeal Analysis
PA ID# 201-65125-00; Sherman Township
PW ID# PW 414 ; Roads, Direct Result of Disaster
From May 4 to June 21, 2015, severe storms with heavy rainfall caused flooding in numerous areas in eastern Kansas, including Sherman Township (Subrecipient) in Washington County. The President issued a major disaster declaration on July 20, 2015. The Subrecipient submitted a request for Public Assistance (PA) on August 7, 2015 to repair flood damages to its roads.
The Kansas Division of Emergency Management (Recipient) prepared Project Worksheet (PW) 414 to document Category C (roads and bridges) work to repair damages to dirt or gravel roads at nine separate sites.
The scope of work (SOW) included contract and force account labor and equipment to recover or replace lost surface aggregate, repair ditches and ruts, and grade the roadways at each site, and reflected the fact that the Subrecipient completed some restoration work prior to site inspections. Estimated costs for the project totaled $77,156.13.
On May 31, 2016, FEMA issued a PA Determination Memorandum notifying the Subrecipient that the project was ineligible for funding.
FEMA found that the Subrecipient failed to demonstrate the damages were a direct result of the disaster, and reduced funding to $0.00. FEMA noted that photographs of the roads appeared to show normal wear and tear, and there was no indication that the Subrecipient closed its roads to traffic, which demonstrated the damages were not the result of the disaster. Further, compared to the Subrecipient’s annual road repair budget, FEMA found the estimated cost for the repairs and the quantity of repair material required to be excessive, which demonstrated a lack of predisaster maintenance. Finally, FEMA found the Subrecipient failed to provide documentation to support the hourly rate used to calculate the costs of force account labor and Direct Administrative Costs (DAC).
The Subrecipient appealed on July 18, 2016 for the full cost of the project, and claimed the damages to its roads were the direct result of the disaster.
The Subrecipient argued: (1) data for the area showed heavy rainfall during the incident period, which would lead a reasonable person to conclude the damages were storm-related; (2) FEMA’s reliance on site photographs in making the eligibility determination was unreasonable, which is why FEMA and Recipient representatives inspected the sites in person; (3) it was unable to place barricades to close the damaged roads; (4) furthermore, FEMA had no published policy correlating the lack of road closures with project eligibility; and (5) estimated costs for repair material did not exceed its average annual costs for such materials, as FEMA stated.
The Recipient’s September 15, 2016 transmittal letter expressed support for the appeal and reiterated several of the Subrecipient’s arguments.
The Recipient also argued: (1) the site photographs FEMA examined likely depicted disaster-related damages; (2) its project specialist examined the damages very closely and left detailed descriptions in the PW, which were not discussed in FEMA’s determination; and (3) FEMA appeared to be using a new, unreasonable standard for documentation, which was not required for previous PA claims.
FEMA issued a Final Request for Information (RFI) expressing concern that the administrative record lacked documentation to support the claim.
FEMA attached satellite photographs of the nine road damage sites, taken in 2012 and 2014, and stated the photographs showed damages and worsening conditions over time. FEMA asserted the photographs were evidence of pre-existing site damage, and requested detailed documentation that demonstrated the sites had been maintained according to a list of specific road maintenance items.
FEMA also requested: (1) photographs or other documents demonstrating predisaster road conditions; (2) clarification of the dimensions for each site listed in the PW; (3) justification that the work claimed was reasonable and necessary; (4) an explanation of previously submitted documentation (budgets, invoices, payroll information, and the force account work log); (5) clarification of the coordinates noted on the site photographs, which did not comport with those listed on the PW; and (6) a description of each appeal enclosure explaining how it supported the claim.
In response to the Final RFI, the Subrecipient stated that FEMA’s examination of the satellite photographs was inconclusive.
Regarding the other information requested in the Final RFI, the Subrecipient stated: (1) FEMA’s request for documents showing varied road maintenance items was “not realistic and create[s] a standard no township could ever meet;”
(2) the PW clearly described the damage dimensions, however, it was the project specialist’s decision to combine separate damage locations into a single quantity for each site; (3) the annual budgets and material purchase invoices demonstrated predisaster road maintenance; (4) the force account payroll information was provided to support the hourly labor rate used to calculate post-disaster repair costs and DAC; (5) the force account work log showed the locations of post-disaster repairs; and (6) it could not explain any discrepancy between the coordinates noted on the site photographs and those in the PW, as the photographs were prepared by the project specialist.
In a decision dated April 7, 2017, the FEMA Region VII Regional Administrator (RA) denied the appeal and determined the Subrecipient failed to demonstrate the damages were a direct result of the disaster.
The RA found the Subrecipient failed to provide documentation that may have established predisaster conditions, as the annual budgets and force account payroll information did not contain the detail required to show planned maintenance at specific locations. Additionally, the RA noted discrepancies in the damage dimensions recorded in the PW,
which prevented FEMA from developing a precise estimate of costs for repair materials. The damages and the estimated costs in the SOW were therefore ineligible, as was the associated DAC claim. Finally, the RA found the other arguments offered by the Subrecipient did not enable the verification of predisaster conditions at the sites on appeal.
In a letter dated May 26, 2017, the Subrecipient appeals the denial of $77,156.13 in estimated project costs, and argues that FEMA’s documentation requirements are unrealistic, too complicated, and were not required for funding during previous disasters.
Noting statewide numbers of PA denials for the disaster and more lenient eligibility standards for prior disasters, the Subrecipient asserts that FEMA has effectively changed the rules for receiving grant assistance.
The Subrecipient denies responsibility for any discrepancies in the PW damage description, and states it provided FEMA with detailed information to support the identification of damages. Finally, the Subrecipient states its belief that the first appeal eligibility determination was based primarily on unreliable satellite photographs versus the project specialist’s description of damages. In a July 25, 2017 transmittal letter, the Recipient expresses support for the appeal.
The Recipient reiterates the Subrecipient’s second appeal arguments, and states that the appeal documentation provides substantial evidence of disaster-related damage, predisaster maintenance, and the reasonableness of the estimated costs.
FEMA provides PA funds to eligible subrecipients for the repair, restoration, reconstruction, or replacement of facilities damaged or destroyed by major disasters.
To be eligible for PA funding, an item of work must be required as a result of the disaster.
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.
For facilities such as roadways and culverts, which require routine maintenance to maintain their designed function, it may be possible to review predisaster maintenance or inspection records to verify predisaster conditions and to assess eligible disaster damage.
It is the subrecipient’s responsibility to demonstrate damages are disaster-related.
The Subrecipient provided annual budgets for the years preceding and encompassing the disaster. The budgets show the Subrecipient apportioned all annual expenses into one of two categories: “general” or “roads.”
For each year represented, the Subrecipient never allocated less than 92 percent of its total budget to its roads; the data also show the Subrecipient executed the budget for its roads every year from 2011 to 2015.
Moreover, the line items under the “roads” budget category are numerous, and detailed enough to constitute generalized items of work (e.g., repairs, repair material purchases, force account and contracted labor, etc.). FEMA agrees with the Subrecipient that the budgets demonstrate the prioritized funding and execution of an annually-recurring (i.e., routine) predisaster road maintenance program.
However, nothing in them documents specific items of maintenance work, which would enable FEMA to assess the predisaster condition of the road sites on appeal.
Additionally, the Subrecipient provided six predisaster invoices showing the purchase of over 1,100 tons of replacement road surfacing material between April and June, 2014.
As with the annual budgets, the invoices demonstrate the performance of road repair work prior to the disaster. However, they do not document where or in what manner the Subrecipient used the material it purchased. Nothing in the record associates the repair material represented in the invoices with maintenance of the sites on appeal.
Moreover, the Subrecipient’s road network is comprised of both gravel and dirt roads. Surface aggregate loss was an element of the damage at seven of the nine sites on appeal,
but the PW also recorded rutting, scouring, and erosion damage to dirt roads. The predisaster material purchase invoices do not assist FEMA in assessing the cause of this damage, and the Subrecipient has not provided other documentation demonstrating the predisaster condition of the dirt roads on appeal.
FEMA recognizes road maintenance as one of the primary historical reasons a township exists as a subdivision of local government in Kansas.
Nevertheless, here, the Subrecipient did not document the predisaster condition of its roads. Consequently, FEMA cannot determine the claimed damage is disaster related. Therefore, the requested repairs and their associated costs, totaling $77,156.13, are ineligible.
Based on the information available, FEMA cannot verify the predisaster condition of the Subrecipient’s roads, as required by 44 C.F.R. § 206.226. Accordingly, the appe
Project Worksheet 414, Sherman Twp., Version 0 (Apr. 5, 2016). As depicted in the PW damage description, each of the sites lay between identifiable points (intersections) specified with geographic coordinates. At some sites, damage occurred at multiple, non-contiguous locations between these points; nevertheless, for each site the PW recorded a single cumulative length of “intermittent” damages. Where applicable (at 7 of the 9 sites), the PW also recorded the dimensions of surface aggregate (gravel) loss.
The total claim included $25,638.14 for work completed, $50,810.34 for work to be completed, and $707.65 in Direct Administrative Costs (DAC).
Letter from Infrastructure Branch Dir., FEMA Region VII, to Dep. Dir., Kan. Div. of Emergency Mgmt. (KDEM) and Tr., Sherman Twp. (May 31, 2016).
Letter from Tr., Sherman Twp., to Public Assistance, KDEM, at 3 (July 18, 2016) [hereinafter Subrecipient First Appeal
Additionally, the Subrecipient stated that a change in farming practices compounded the damages to its roads by depositing excess soil on local fields, which washed into and filled culverts and drainage ditches during the storm. The Subrecipient submitted documentation with the appeal that included daily rainfall data for Washington County during the incident period, annual budgets for fiscal years (FYs) 2013 to 2015, road repair material purchase invoices, and force account documentation (payroll information and a work log).
Letter from Dep. Dir., KDEM, to Reg’l Adm’r, FEMA Region VII, at 1 (Sept. 15, 2016).
Letter from Dir., Recovery Div., FEMA Region VII, to Dep. Dir., KDEM and Tr., Sherman Twp. (Dec. 19, 2016).
at 1. FEMA requested documentation from the three years prior to the disaster that showed: (1) specific locations maintained; (2) areas repaired; (3) materials added; (4) regular maintenance done to the crown, slope, and shoulders of the roads (including but not limited to pulling the shoulders, removal of high shoulders, mowing of high vegetation, actively removing secondary ditches, breaking of sod and vegetation, and removal of unsuitable materials, etc.); and (5) work done to maintain the listed width of the claimed roads.
Letter from Tr., Sherman Twp., to Appeals Branch, FEMA Region VII, at 1 (Jan. 4, 2017). With regard to FEMA’s assessment of the satellite photographs, the Subrecipient stated further that any evidence of site deterioration was most likely due to the time of year the later photographs were captured (i.e., during
the 2014 wheat harvest). The Subrecipient asserted that similar damages occur each year, but would have been repaired by the time the earlier photographs were taken (i.e., after
the 2012 wheat harvest). The Subrecipient also stated some of the photographs showed locations in Nebraska.
at 1. The Subrecipient included a map of its road network with damage locations and sites depicted.
Letter from Acting Reg’l Adm’r, FEMA Region VII, to Dep. Dir., KDEM and Tr., Sherman Twp., at 1 (Apr. 7, 2017).
FEMA First Appeal Analysis, Sherman Twp.
, FEMA-4230-DR-KS, at 5 (Apr. 7, 2017). Referring to the site inspection, FEMA also asserted that the project specialist’s notes appeared to record information provided by the Subrecipient. On second appeal, both the Subrecipient and Recipient dispute the assertion. There is no corroborating information in the administrative record to support either position; therefore, this analysis does not consider it in the eligibility determination.
Letter from Tr., Sherman Twp., to Asst. Adm’r, Recovery Directorate, FEMA Headquarters, at 3 (May 26, 2017). The Subrecipient submitted attachments with its second appeal letter, after the administrative record had closed. Some of the attachments may constitute new information submitted on second appeal. In the Final RFI, FEMA informed the Subrecipient that further documentation would not be considered following issuance of the first appeal decision. Per FEMA Recovery Directorate Manual, PA Program Appeal Procedures
(Mar. 29, 2016), the information attached to the Subrecipient’s second appeal request cannot be considered in this analysis.
at 3. The Subrecipient asserts FEMA denied 67 of 322, or 21 percent, of the Category C projects related to this disaster declaration (FEMA-4230-DR-KS).
Letter from Dep. Dir., KDEM, to Asst. Adm’r for Recovery, FEMA Headquarters, at 1 (July 25, 2017).
The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406, 42 U.S.C. § 5172 (2015).
Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2014).
 Public Assistance Guide
, FEMA 322, at 33 (June 2007). The first appeal decision states that FEMA’s Public Assistance Program and Policy Guide (PAPPG)
, though not applicable to this disaster, “makes clear a strong preference for photographic documentation of damaged sites,” and that “photographic evidence of damages will be heavily weighted when determining disaster related damage.” For purposes of clarity, photographs are not a requirement, nor does the lack of photographs weigh against a subrecipient.
; see also
FEMA Second Appeal Analysis, Vill. of Waterford
, FEMA-4020-DR-NY, at 4 (Sept. 4, 2014) (stating the Subrecipient “has the burden of substantiating its claims”).
E.g., Sherman Twp., FY 2013 Budget Certificate (Oct. 18, 2012).
Pertinent to the appeal, for FYs 2014 and 2015 (the years preceding and encompassing the incident period), the Subrecipient allocated 96.5 and 95.0 percent of its budget towards its road network, respectively; Sherman Twp., FY 2014 Budget Certificate (Oct. 25, 2013) and Sherman Twp., FY 2015 Budget Certificate (Oct. 24, 2014). In the same years, the Subrecipient executed 81.3 and 102.5 percent of its “roads” budget, respectively (for actual funds expended in FY 2015, refer to FY 2017 Township budget data, available at Kan. Dep’t of Administration, Municipal Budgets – FY 2017 – Townships
(last visited Mar. 1, 2018)).
 Sherman Twp.
, FEMA-4230-DR-KS, at 4 (stating “there is clearly some expenditure on the [Subrecipient’s] roads from year to year”).
 Subrecipient First Appeal
, at Enclosure 7.
 Contra, e.g.
, FEMA Second Appeal Analysis, Lowe Twp.
, FEMA-4230-DR-KS (Feb. 1, 2018) (determining the predisaster invoices provided by the Subrecipient documented the predisaster maintenance of several of the culverts on appeal).
PW 414, Sherman Twp. (Version 0). The damage descriptions for sites 6 and 7 did not record surface aggregate loss; accordingly, the SOW stated no new aggregate was required for either site.
FEMA Second Appeal Analysis, Arthur Cty.
, FEMA-4225-DR-NE, at 3 (Apr. 25, 2017) (determining the subrecipient had not demonstrated the predisaster condition of its roads, and thus had not shown the reported damage was a direct result of the disaster).