Immediate Threat

Appeal Brief

Appeal Letter

Appeal Analysis

Background

From February 27 to March 14, 2021, severe storms, flooding, landslides, and mudslides caused damages throughout the state of Kentucky.[1] Paintsville Utilities (Applicant) stated that the incident caused erosion of the north and south embankments along a river. FEMA formulated Grants Manager Project 188236 to document the estimated costs to repair and stabilize the embankments, totaling $13,592,112.34. FEMA conducted a site inspection on October 4, 2021, documenting erosion damage on the embankments. FEMA did not document damage to underground water and sewer (utility) lines that were located under the embankments. 

FEMA transmitted a Request for Information (RFI) on January 25, 2022, which requested information regarding the proposed stabilization plan and supporting documentation to validate the work was required as a result of the declared incident. In response, the Applicant stated that the eroded embankments served as structural components for the claimed underground utility lines. The Applicant also provided a Preliminary Engineering Analysis (PEA) from June 8, 2021, to support its claim. The report noted the existence of the erosion to the embankments and recommended a repair method of sheet piling with anchors, to armor the embankments. The report stated that the location of the utility lines was not known.

FEMA issued a Determination Memorandum on May 4, 2022, denying all requested costs. FEMA found that because the Applicant did not establish that the utility lines were damaged from the disaster, the embankments were not eligible for repair and stabilization work as they were not integral ground to a disaster-damaged eligible facility. 

First Appeal 

The Applicant submitted a first appeal in a letter dated June 30, 2022, claiming that the embankments were damaged as a direct result of the disaster and that repairs were necessary to restore the integrity of nearby utility lines. The Applicant stated the embankments were an eligible facility as an improved natural feature, and that they additionally served as integral ground for the utility lines. The Applicant stated that if the project was found ineligible as permanent work, it should be funded as emergency work due to the instability and inevitable failure of the embankments, which would result in future damage to the utility lines. The Applicant provided an affidavit from an engineer stating that the current embankments (due to being eroded) removed lateral support for the lines and that a future flood event within the next five years would be substantial enough to cause further failure of the embankments, threatening the utility lines. The Kentucky Emergency Management (Recipient) forwarded the Applicant’s appeal in a letter dated July 6, 2022, in support of the Applicant’s position.

FEMA issued an RFI dated February 28, 2023, requesting plans, design specifications, blueprints, or other documents used to design and construct the embankment in accordance with applicable codes and standards; evidence of routine maintenance at the relevant sites; and results of any surveys or exploratory drilling completed in accordance with the PEA’s recommendations for surveying and potholing, to determine the precise locations and depths of nearby utility lines. 

The Applicant responded, in a letter dated March 30, 2023, confirming that between 2016 and 2017, the Applicant and its engineering firm designed and inspected the construction project for the utility lines. The Applicant provided its as-built utility line inspection logs, dated 2016-2017, and also verified that it buried the utility lines at a minimum depth of 30 inches below ground in accordance with the Kentucky Administrative Regulations for Water Supply and Distribution. The Applicant provided sworn statements from the Applicant’s consultant engineering firm and the Applicant’s General manager, attesting that the embankments’ erosion was not present in prior events and that the area was regularly maintained.[2]

The FEMA Region 4 Regional Administrator, in a letter dated July 6, 2023, denied the Applicant’s first appeal. FEMA found the Applicant had not demonstrated that the embankment was an eligible facility separate from nearby utility lines. Further, FEMA determined the Applicant had not shown that the damaged embankments served as integral ground to eligible facilities, nor that nearby utility lines were negatively impacted due to the erosion.

Second Appeal

The Applicant, in a letter dated September 5, 2023, filed a second appeal reiterating first appeal arguments, resubmitting documents submitted on first appeal, and resubmits its alternate project proposal. The Recipient forwarded the appeal in a letter dated September 15, 2023, in support of the Applicant’s position.

Discussion

Improved Property/Natural Feature

FEMA has the authority to provide assistance for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster.^[3] An eligible facility includes an improved and maintained natural feature.[4] A natural feature is improved and maintained if it meets all of the following conditions: (1) the natural feature has a designed and constructed improvement to its natural characteristics, such as a terraced slope or realigned channel; (2) the constructed improvement enhances the function of the unimproved natural feature; and, (3) the applicant maintains the improvement on a regular schedule to ensure that the improvement performs as designed.^[5] Alternatively, if an eligible public facility is located on a slope and is damaged as a result of a landslide or slope instability triggered by the incident, FEMA may approve PA funding for the restoration of the integral ground that supports the facility.^[6] It is the applicant’s responsibility to provide documentation to substantiate its claim as eligible and to clearly explain how those records support the appeal.^[7]

Here the Applicant claims that the embankments are an improved and maintained natural feature and thus, eligible facilities. However, the Applicant’s documentation does not substantiate that the embankments have a designed or constructed improvement to their natural characteristics. Rather, the documentation demonstrates that the Applicant installed the utility lines at least 30 inches underground and buried the lines between existing mature trees and dense vegetation.  The Applicant’s predisaster logs show that once the Applicant completed the installation of the utility lines, it placed the dirt back into the trenches where the pipes were buried, without any designed or constructed improvement made to the embankments’ natural characteristics.[8] Moreover, post-disaster photographs of the embankments show substantial wild vegetative growth, additional information that contradicts the Applicant’s assertion the embankments had designed or constructed improvements. Therefore, the embankments do not constitute eligible improved and maintained natural features.

The Applicant alternatively suggests that the embankments are eligible as integral ground supporting the utility lines. However, the damages identified by the Applicant were to the embankments rather than to the utility lines. Therefore, as Applicant has not substantiated that an eligible facility (i.e., the utility lines) purportedly supported by the embankments was damaged, the embankments are not eligible for PA funding for repair and stabilization under FEMA policy applicable to integral ground. 

Based on the above, the embankments are not eligible facilities, nor are they eligible for repair and stabilization work as claimed integral ground to the undamaged utility lines.[9]

Immediate Threat

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.^[10] 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.^[11] FEMA considers the urgency with which the applicant proceeds with work when evaluating eligibility.[12] 

As an alternative to its argument concerning eligibility of the repairs and stabilization as permanent work, the Applicant states the requested repair and stabilization work is eligible as emergency work to eliminate or lessen an immediate threat. The Applicant provides a sworn statement from its engineer that states future high-water events will further reduce the stability of the embankments and “[i]t is inevitable that there will be a flood event within the next [five] years that will be substantial enough to cause further failure of the [embankments] that [will] result in failure of [the] utility lines.”[13] Next, the Applicant provides its PEA report, which identifies embankment failure, but acknowledges that only a visual inspection was conducted, and states that additional geotechnical information should be collected to substantiate that failure.[14] Based on the above, the Applicant has not substantiated the requested work constitutes eligible emergency work; a long-term increased risk of erosion does not equate to an immediate threat.[15] 

Furthermore, despite the Applicant’s claim that the embankments’ erosion poses an immediate threat to the utility lines, the Applicant has not yet completed the repair and stabilization work more than a year and a half after the disaster.[16] Therefore, the lack of urgency shown by the Applicant in completing the repairs and stabilization raises additional concern regarding the eligibility of the work as emergency work.

The Applicant has not substantiated that the requested work is eligible emergency work as the Applicant has not demonstrated it must be done to eliminate or lessen an immediate threat.

Conclusion

FEMA finds that the embankments are not eligible facilities, nor are they eligible for repair and stabilization work as claimed integral ground to the undamaged utility lines. Moreover, the work is not eligible as emergency work because the Applicant has not demonstrated it must be done to eliminate or lessen an immediate threat. Therefore, this appeal is denied.