Immediate Threat

Appeal Brief

Appeal Letter

Appeal Analysis

Background

From November 8 through 25, 2018, wildfires caused damage throughout California. Los Angeles County (Applicant) experienced damage and requested Public Assistance (PA) funding for post-fire debris flow investigations, mapping, and reporting (collectively referred to as debris flow mapping), and other work.[1] The Applicant began post-fire debris flow mapping as early as November 8, 2018, with most work completed by March 2019.[2] The Applicant requested force account labor (FAL) overtime and force account equipment (FAE) costs associated with performing the work. FEMA prepared Grants Manager Project 89698 to document the requested costs, noting that the Applicant’s staff researched the burn area to determine the amount of sediment each area may produce, modeled each area to determine the debris flow path, determined the impact to nearby structures, created maps reflecting the information, and provided the information to the public.[3] 

FEMA issued a Determination Memorandum (DM) on November 30, 2020, denying the requested funding for debris flow mapping and other work. FEMA found that the Applicant did not conduct the post-fire debris flow mapping in immediate response to or in anticipation of the declared incident, but rather it was carried out prospectively in case of a possible future threat separate from the declared incident. 

First Appeal 

The Applicant appealed FEMA’s DM in a letter dated January 28, 2021, requesting $141,648.17 for work associated with debris flow mapping.[4] The Applicant argued that it performed the post-fire debris flow mapping in immediate response to the declared incident and to prevent immediate threats to life, property and public health and safety. The Applicant provided a letter from its Department of Public Works (DPW), which explained that the overlap between the fire and the severe storm season required an immediate response because the effects of the fire made the area more susceptible to flooding.[5] The Applicant explained it built temporary barriers to protect residents from debris flows. The California Office of Emergency Services (Recipient) forwarded the Applicant’s appeal, with its support, on March 10, 2021. 

FEMA Region 9 issued a Request for Information (RFI) on June 7, 2021, and requested, among other documents, detailed descriptions of the temporary barriers, including GPS locations, dimensions and materials, mapping data that demonstrated the immediate threat necessitating the barriers, and documents demonstrating the work and costs necessary to build the barriers. The Applicant responded to the RFI in a letter dated July 13, 2021 and included a mapping activity memorandum and labor activity memorandum, among other documents. 

On August 23, 2023, the FEMA Region 9 Regional Administrator denied the requested costs for debris flow mapping on the same basis as that stated in the DM.[6] Furthermore, FEMA stated that the Applicant’s repeated reference to a possible storm event that could lead to post-fire debris flows and damage demonstrated the immediate threat to be alleviated was tied to a potential future storm, rather than the declared incident.

Second Appeal

The Applicant submits a letter dated October 27, 2023, appealing FEMA’s denial of $141,648.17 in post-fire debris flow mapping costs. The Applicant argues that it has demonstrated that the work was conducted to eliminate an immediate threat resulting from the declared incident. The Applicant provides a detailed description of the temporary barriers used and states that debris flow mapping was necessary to install the barriers. It submits a report, which explains that the threshold for rainfall that could cause a high hazard for debris flow is 0.4 inches in a 15-minute period. The Applicant also provides a document prepared by FEMA, Flood Risks Increase after Fires, which explains that the debris flow risk remains significantly higher after a fire until vegetation is restored, which can take up to five years.[7] Finally, the Applicant resubmits the previously provided letter from its DPW. In the letter, the Applicant’s DPW explains how a team of DPW engineers and technical professionals were reassigned to investigate the debris flow from the fire and conducted work to protect homes from debris flow. 

The Recipient forwarded the Applicant’s appeal to FEMA in a letter dated December 21, 2023. The Recipient explains that, because the fires occurred at the beginning of the winter storm season, the debris flow resulting from the fire-damaged hillsides represents an immediate threat to nearby homes.

In a letter dated May 15, 2024, FEMA issued a Request for Information (RFI) seeking documentation to support the claim that the post-fire debris flow mapping constituted eligible emergency protective measures required to eliminate or lessen an immediate threat resulting from the disaster. Specifically, FEMA requested correlations between the maps provided as Exhibits 1 and 2 to the second appeal; information regarding the temporary barriers placed; and clarification regarding how the Applicant reported potential debris flow to homeowners.

In a letter dated June 14, 2024, the Applicant responded to FEMA’s request and provided 10 exhibits.[8] The Applicant provided revised maps with labels indicating the location of the maps and the temporary barriers installed[9] as well as photographs and videos of the barriers installed.[10] The Applicant clarifies that it did not request funding for the placement of the barriers because it used ineligible force account labor, equipment and materials, and did not separately track the costs.[11] Finally, the Applicant provided a declaration that clarified how it informed homeowners of debris flow risks, explaining that the Applicant provided advice to approximately 500 homeowners regarding the potential threats to their homes and informed these homeowners of ways to mitigate the risk, such as placing sand bags, boarding up exterior glass, or sheltering in place or evacuating during storms.[12] The Applicant also listed the various measures it took to disseminate the debris flow maps and evacuation information, such as providing the maps and information to local law enforcement and placing the information on its public website.

Discussion

FEMA is authorized to provide PA funding for emergency work to eliminate or lessen immediate threats to lives, public health, or safety or to eliminate or lessen immediate threats of significant additional damage to improved public or private property in a cost-effective manner.[13] The declared incident must have caused the immediate threat to exist.[14] However, the threat itself can be from any type of incident; it is not limited to the type of incident that caused the initial damage or threat.[15] FEMA considers the urgency with which the Applicant proceeds with work when evaluating eligibility of emergency work.[16] To be eligible, costs must be directly tied to the performance of eligible work.[17] It is the applicant’s responsibility to substantiate its claim as eligible and to clearly explain how those records support the appeal.[18]

Here, the Applicant states that effects of the wildfire made the area more susceptible to flooding and related hazards. As a result, it incurred FAL overtime and FAE costs immediately after the disaster, conducting post-fire investigations, mapping, and reporting to the public of potential debris flow forecasts. In its RFI response letter on second appeal, the Applicant explained it utilized the debris flow mapping to determine the locations where barriers were necessary to protect life and property from debris flows based on the level of threat identified by the debris flow maps. The Applicant provided updated road maps, labelling road names and locations where the Applicant installed barriers, which clearly correspond to the risk areas identified in the debris flow maps. These maps demonstrate the Applicant placed barriers in areas having a light, moderate, or large likelihood for increased debris flow based on the threat level indicated on the debris flow maps. In sum, the Applicant has demonstrated the debris flow mapping was necessary for and associated with the installation of temporary barriers to save lives and protect public property. 

The Applicant has also provided information related to the process for identifying and notifying homeowners of the potential impact of debris flow based on the threat identified during the debris flow mapping process.[19] This included using the debris flow maps to provide written and verbal advice to approximately 500 homeowners during field visits. The administrative record includes copies of the Post-Burn Mudflow Protective Advice forms the Applicant gave to homeowners to advise them of ways to mitigate threats to their home, such as the placement of sandbags, boarding up exterior glass, and the need to shelter in place or evacuate during heavy storms.

Additionally, the Applicant explained that it posted specific information regarding the fire, including an interactive version of the debris flow maps, on its website and participated in community meetings, during which it provided additional advice. Further, the Applicant described how its Public Works staff used an electronic notification system to send weather forecasts to residents who requested a pre-storm warning.  Additionally, the Applicant provided a copy of the Watershed Emergency Response Team Final Report, a detailed report that communicated crucial information to multiple federal, state and county agencies, including first responders who utilized evacuation lists to identify areas of concern for its Road and Flood Maintenance staff to monitor during events based on the debris flow mapping.

FEMA policy recognizes that an immediate threat can be from a type of incident (i.e., flooding) that is different from the type of incident that caused the initial damage or threat (i.e., fire).[20]Through the additional documentation provided with the second appeal RFI response, the Applicant has demonstrated the debris flow mapping was necessary to eliminate or lessen an immediate threat resulting from the declared incident. Thus, eligibility is not precluded because the measures addressed flooding rather than fire. Additionally, FEMA notes that the Applicant acted urgently in response to the potential threat. Therefore, based on the above, the Applicant has demonstrated that the requested FAL overtime and FAE costs are directly tied to the performance of eligible work.

Conclusion

The Applicant demonstrated the debris flow mapping was required to eliminate or lessen an immediate threat resulting from the declared incident and the requested FAL overtime and FAE costs are directly tied to the performance of eligible work. Therefore, this appeal is granted.