Appeal Brief | Appeal Letter | Appeal Analysis | Back
Second Appeal Brief
PA ID# 055-50258-00; City of Napa
PW ID# (PWs) 205 and 229 ; Predisaster Conditions, Direct Result of Disaster
Conclusion: The City of Napa (Applicant) has not demonstrated the 15 pipe segments damaged by the earthquake were not restored to predisaster condition, or that it was not feasible to repair the pipe segments so that they could perform as they did immediately prior to the disaster, and has not shown the 17 water line breaks discovered after December 16, 2014 were hidden damages resulting directly from events that occurred during the incident period.
During the incident period of August 24 through September 7, 2014, a 6.0 magnitude earthquake and subsequent aftershocks severely damaged the Applicant’s potable water system. FEMA reimbursed the Applicant for eligible repairs of numerous water line breaks that occurred between August 24 and December 16, 2014. The Applicant requested Public Assistance (PA) for replacement of 15 pipe segments and for temporary water leak repairs after December 16, 2014. FEMA prepared PW 205 for $0.00, for replacement of 15 line segments that had been previously repaired, determining predisaster function had been restored by the repairs. FEMA also prepared PW 229 for $0.00, for the repair of water line breaks after December 16, 2014, determining the Applicant provided no documentary proof that the breaks were caused by the earthquake, and the damages were reported after the regulatory deadline. The Applicant consolidated its appeal of both FEMA determinations on August 21, 2015. For PW 205 the Applicant claimed the repaired pipe segments were not restored to predisaster function. For PW 229, the Applicant argued water line breaks after December 16, 2014 were a result of the disaster and were timely reported. The California Governor’s Office of Emergency Services (Grantee) supported both appeals. The FEMA Region IX Regional Administrator (RA) denied the appeals on October 14, 2016. For PW 205 the RA determined the Applicant failed to establish that any of the pipe segments met the criteria set forth in Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.226(f)(1). For PW 229 the RA determined (1) the Applicant failed to show the reported breaks were the direct result of the disaster; (2) the reported breaks did not constitute hidden damage caused by the disaster and work to repair them did not constitute additional work per the PA Guide; (3) the Applicant failed to meet the regulatory requirement of reporting disaster damage within 60 days of the Kickoff meeting; and, (4) the Applicant failed to provide an extenuating circumstance for which an extension of the reporting period would be justified. In its second appeal the Applicant and Grantee request that FEMA reconsider its denial of $3,399,849.09 for repairs to the damaged water pipes.
Authorities and Second Appeals
- Stafford Act § 406(a).
- 44 C.F.R. §§ 206.201(j), 206.202(d)(1)(ii), 206.202(f)(2), 206.223(a)(1), 206.226, 206.226(f)(1), 206.32(f).
- PA Guide, at 29, 30, 33, 85, 139.
- Fact Sheet 9580.6, at 3.
- Jefferson County, FEMA-1791-DR-TX, at 2-3.
- City of Tallahassee, FEMA-1785-DR-FL at 6.
- Lewis and Clark Rural Water System, FEMA-1984-DR-SD, at 5.
- Nobles Cooperative Electric, FEMA-4113-DR-MN, at 5 (July 23, 2015).
- Stafford Act § 406(a), as implemented by 44 C.F.R. § 206.223 authorizes FEMA to provide financial assistance for an item of work that results from an emergency or major disaster. Per C.F.R § 206.226(f)(1), a facility is considered repairable when disaster damages do not exceed 50 percent of the cost of replacing a facility to its predisaster condition, and it is feasible to repair the facility so that it can perform the function for which it was being used as well as it did immediately prior to the disaster.
- The Applicant has not provided documentation to substantiate that the repaired water line segments were not restored to their predisaster conditions, or that it was not feasible to repair the pipes so that they could perform as they did immediately prior to the disaster.
- Per 44 C.F.R. § 206.223(a)(1), an item of work must be required as the result of the major disaster event. The PA Guide notes FEMA will recognize damage that occurs after the close of the incident period if it is shown to have resulted directly from events that occurred during the incident period.
- The Applicant has not demonstrated the 17 breaks in the water lines discovered after December 16, 2014 were hidden damages resulting directly from events that occurred during the incident period.