Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4472
Applicant	West Turin (Town of)
Appeal Type	Second
PA ID#	049-81094-00
PW ID#	DI 370591
Date Signed	2022-10-14T16:00:00

Summary Paragraph

From October 31 to November 1, 2019, severe winds and flooding impacted the Sugar River near the Town of West Turin’s (Applicant) highway department town barn (Town Garage).  In its damage description for a debris removal project, the Applicant reported that the disaster uprooted trees that fell into the river, eroded 50 feet of river embankment, and washed away gravel and sand stockpiles.  The Applicant later discovered 200 feet of river embankment erosion rather than the 50 feet originally reported.  While awaiting a permit to remove dislodged trees and sediment buildup causing redirected river flow and erosion, the Applicant dumped large rock onto the embankment as an emergency protective measure.  The Applicant requested an extension to the damage identification deadline and inclusion of a separate damage inventory for the riverbank erosion.  FEMA denied the request, stating the Applicant did not timely identify the damages or provide supporting documentation of extenuating circumstances causing the delay.  The Applicant appealed, asserting that its damage description for debris removal timely identified embankment erosion.  FEMA issued a request for information seeking clarification on whether the Applicant sought funding for permanent or emergency work.  In response, the Applicant categorized the claimed work as emergency work and noted that, “the embankment continues to erode after each significant rain event and is a threat to damaging the [Town Garage].”  FEMA denied the appeal, finding the Applicant did not demonstrate the erosion posed an immediate threat to the Town Garage, despite timely identifying the disaster damages.  The Applicant submits its second appeal, asserting the proposed repairs to the natural feature will prevent further erosion that could threaten a sewer line and the Town Garage within five years.

Authorities and Second Appeals

• Stafford Act § 403(a)(3).
• 44 C.F.R. §§ 206.201(b), 206.206(a), 206.221(c), 206.225(a)(3).
• PAPPG, at 42-43, 57.
• N.Y. / Env’t Prot., Dept. of, FEMA-4020-DR-NY, at 3.

Headnotes

• To be eligible, emergency work must eliminate or lessen immediate threats to lives, public health or safety, or threats of significant additional damage to improved public or private property in a cost-effective manner.  An immediate threat is a threat of additional damage or destruction from an incident that can reasonably be expected to occur within five years of the declared incident.  The burden to substantiate appeals with documented justification falls exclusively to the applicant and hinges upon the applicant’s ability to not only produce its own records, but to clearly explain how those records support the appeal.
  • The Applicant has not demonstrated that the proposed work on the natural feature must be done to eliminate or lessen an immediate threat of significant additional damage to improved property in a cost-effective manner.

Conclusion

The Applicant has not demonstrated that the proposed river embankment repairs and improvements are required to eliminate or lessen an immediate threat to improved property in a cost-effective manner.  Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From October 31 through November 1, 2019, severe storms, straight-line winds, and flooding impacted the Town of West Turin (Applicant).[1]  High winds and downed trees exacerbated flooding conditions in the Sugar River near the Applicant’s highway department town barn (Town Garage) at 5968 James Street.  The Applicant used the 60-65 feet of land between the Town Garage and river to park vehicles and stockpile gravel and other materials.

The Applicant assessed and reported damages to FEMA in February 2020.  While the Town Garage remained undamaged, the Applicant provided a damage description indicating that the disaster uprooted nearby trees that fell into the river, eroded the river embankment behind the Town Garage, and washed away gravel and sand stockpiles.  FEMA documented this damage description in Grants Manager Project 135711 for Category A debris removal work and noted the Applicant’s description of erosion to a length of approximately 50 feet of the river embankment.[2]  After winter weather conditions and statewide COVID-19 shutdowns subsided, the Applicant evaluated the full extent of damages to the embankment, parking lot, and storage area near the Town Garage in May 2020, and discovered 200 feet of river embankment erosion rather than the 50 feet originally reported.  The Applicant later submitted a formal request for an extension to the damage identification deadline and inclusion of a separate damage inventory for the riverbank erosion.

On May 26, 2021, FEMA denied the Applicant’s request and found all proposed river embankment repairs ineligible for Public Assistance (PA) funding.  FEMA stated that the Applicant did not identify the damages within the regulatory timeframe, provide supporting documentation of extenuating circumstances preventing it from identifying the damages for over six months following the incident period, or demonstrate that the disaster directly caused the damages.

First Appeal

The Applicant submitted its first appeal on July 23, 2021, requesting approval of work to repair 200 feet of river embankment near the Town Garage for an estimated cost of $250,000.00.  The Applicant reiterated that winter weather conditions and COVID-19 shutdowns delayed its full identification of damages and asserted that it timely identified 50 feet of embankment erosion which FEMA incorrectly included within a Category A debris removal project.  The Applicant explained that the disaster dislodged trees into the river, which accumulated sediment buildup, causing the river to whirlpool backwards and divert the force of the river towards the embankment, which caused additional erosion.  In a letter dated September 20, 2021, the New York State Division of Homeland Security and Emergency Services (Recipient) transmitted and recommended approval of the Applicant’s appeal.  The Recipient emphasized that the claimed work is not a new damage report, but rather a correction.  The Recipient stated that, due to a lack of a permit to work in the river and remediate the problem of the redirected river flows caused by dislodged trees and sediment buildup, the Applicant dumped large rock from the top of the river embankment as an emergency protective measure.[3]

FEMA issued a request for information (RFI) seeking clarification on whether the Applicant sought PA funding for permanent or emergency work.  If claiming permanent work, FEMA requested documentation establishing that the 200-foot section of embankment is an improved and maintained natural feature or otherwise qualifies as an eligible facility.  If claiming emergency work, FEMA requested documentation demonstrating that the work will cost-effectively eliminate or lessen an immediate threat of significant additional damage to improved property.  In its RFI response, the Applicant clarified that it sought PA funding for Category B emergency work and provided a cost estimate and scope of work.[4]  The Applicant noted that, “the embankment continues to erode after each significant rain event and is a threat to damaging the Town [Garage].”[5]

The FEMA Region II Regional Administrator denied the appeal, finding the proposed river embankment work ineligible for PA funding as emergency work.  While disaster damages were found to have been timely identified when the Applicant reported 50 feet of riverbank erosion, FEMA concluded the Applicant did not demonstrate the erosion posed an immediate threat to the Town Garage.[6]

Second Appeal

The Applicant submits its second appeal by letter dated May 18, 2022, requesting $777,400.00 to repair and improve the 200-foot river embankment as emergency work.  The Applicant asserts that the proposed work, including construction of a vegetated live crib and excavation of a river bypass channel,[7] will prevent further erosion to the natural feature that could threaten a sewer line and the Town Garage within five years and states:

The embankment continues to erode after each significant rain event, indicating that a larger event such as a 5-year flood could now erode far enough into the bank to damage the [Town Garage].  The [Applicant] has identified that the damage to the embankment erodes the integral ground supporting the sewer line, [Town Garage], storage area and parking lot.[8]

The Applicant states that some events, such as Tropical Storm Fred, have already caused additional damage to the river embankment.  In a letter dated July 15, 2022, the Recipient expresses support for the appeal.  The Recipient notes that the Applicant’s failure to repair the river embankment within two years of the disaster does not mean an immediate threat does not exist within five years, reasoning that it makes sense for the Applicant to continue working with FEMA to get prior approval for the work if additional damage to improved property is not expected until three or four years after the disaster.

 

Discussion

FEMA is authorized to provide PA funding for emergency work which must be done immediately to eliminate or lessen immediate threats: (1) to lives, public health, or safety; or (2) of significant additional damage to improved public or private property in a cost-effective manner.[9]  An immediate threat is a threat of additional damage or destruction from an incident that can reasonably be expected to occur within five years of the declared incident.[10]  For flood incidents specifically, an immediate threat is a threat from a five-year flood (a flood that has a 20 percent chance of occurring any given year).[11]  For other incidents, an immediate threat means imminent danger from an incident that can reasonably be expected to occur within five years of the declared incident.[12]  The burden to substantiate appeals with documented justification falls exclusively to the applicant and hinges upon the applicant’s ability to not only produce its own records, but to clearly explain how those records support the appeal.[13]

Based on the repair and improvement plans proposed by the Applicant, the requested funding constitutes ineligible permanent work to improve an ineligible facility (i.e., an unimproved and unmaintained natural feature) and extends beyond what would be considered emergency repair and stabilization (which generally has a completion deadline of within six months from the declaration date).[14]  However, the Applicant maintains its claim for the proposed work falls under Category B emergency protective measures.[15]  Regarding the purported emergency work, the Applicant states that the river embankment continues to erode after significant rain events but does not establish the existence of an immediate threat to improved property caused by the disaster.  A long-term increased risk of erosion to the claimed river embankment does not equate to an immediate threat to the surrounding property caused by the disaster.  The Applicant does not offer specific documentation (e.g., hydraulic models, documented damages to improved property from Tropical Storm Fred due to the river embankment conditions, etc.) substantiating its assertion that improved property is in an immediate threat from a 5-year flood event.  Without specific information substantiating its assertion, the Applicant has not demonstrated an immediate threat to the Town Garage or sewer line is reasonably expected to occur within five years of the disaster.  The Applicant also has not substantiated how its $777,400.00 repair and improvement proposal addresses any alleged immediate threat in a cost-effective manner.  Furthermore, the Applicant describes dislodged trees and sediment diverting the river flow and causing the erosion but does not explain how its removal of this debris from the river and placement of large rock along the river embankment inadequately addresses any alleged immediate threat.

 

Conclusion

The Applicant has not demonstrated that the proposed river embankment repairs and improvements are required to eliminate or lessen an immediate threat to improved property in a cost-effective manner.  Therefore, this appeal is denied.

 

[1] The President declared the event a major disaster on December 19, 2019.

[2] On December 8, 2021, FEMA obligated Public Assistance funding under Grants Manager Project 135711 to remove tree debris from the river behind the Town Garage.

[3] Memorandum from N.Y. State Div. of Homeland Sec. and Emergency Servs., DR 4472 First Appeal of Damage Inventory List Item, at 3 (Aug. 31, 2021) (noting that a permit to work in the river was not issued until June 30, 2021, and this placement of large rock ensured that there were no further damages from any subsequent events before a permit was issued to allow the necessary work).

[4] The cost estimate and scope of work submitted by the Applicant indicated a proposed cost of $777,400.00.

[5] Letter from Superintendent, Town of West Turin, to Branch Chief, FEMA Region II (undated).

[6] FEMA also analyzed the project as permanent work for the sake of clarity and completeness and found the proposed work similarly ineligible, concluding the river embankment is a natural feature that is neither improved nor maintained.

[7] See Letter from Project Manager, Anchor QEA, to Highway Superintendent, Town of West Turin (Jan. 17, 2022) (describing the repair and improvement plan and attaching a vegetated crib wall concept drawing, which depicts a graded box-like arrangement of timber filled with rock and native soil backfill and covered in topsoil).

[8] Letter from Superintendent, Town of West Turin, to Disaster Assistance Manager, N.Y. State Div. of Homeland Sec. and Emergency Servs., at 1 (May 18, 2022).

[9] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 403(a)(3), Title 42 United States Code § 5170b(a)(3) (2018); Title 44 Code of Federal Regulations (44 C.F.R.) §§ 206.201(b), 206.225(a)(3) (2019); Public Assistance Program and Policy Guide, FP-104-009-2, at 42-43, 57 (Apr. 1, 2018) [hereinafter PAPPG].

[10] 44 C.F.R. § 206.221(c); PAPPG, at 43.

[11] PAPPG, at 43.

[12] Id.

[13] 44 C.F.R. § 206.206(a); FEMA Second Appeal Analysis, N.Y. / Env’t Prot., Dept. of, FEMA-4020-DR-NY, at 3 (July 21, 2020).

[14] The river embankment is a natural feature that the Applicant neither improved nor maintained.  The repair and improvement plan proposed by the Applicant includes permanent improvements to this natural river embankment by excavating and constructing a vegetated live crib to protect the stream bank, improve in-stream habitat function, and promote riparian re-vegetation; and also excavating a seasonally activated bypass channel to improve hydraulic connection to an existing relic channel.  Even when conducted during a time frame in which emergency work may be eligible, the proposed work constitutes permanent work extending beyond what would be considered emergency repair and stabilization.

[15] See generally, PAPPG, at 42 (although a facility must be eligible for temporary repairs and mold remediation, facility eligibility is not applicable to other emergency work).