Improved Property

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4332
Applicant	The Museum of Fine Arts of Houston
Appeal Type	Second
PA ID#	201-UHVJ7-00
PW ID#	PW 3350
Date Signed	2022-02-17T17:00:00

Summary Paragraph

From August 23 to September 15, 2017, flooding from Hurricane Harvey caused erosion along an embankment on the Buffalo Bayou adjacent to the Museum of Fine Arts, Houston (Applicant).  FEMA prepared Project Worksheet (PW) 3350 for an estimate of $662,778.00 in Public Assistance funding (PA) to repair the erosion.  FEMA denied the project as the embankment was an unimproved natural feature and not an eligible facility.  The Applicant appealed, citing to work conducted on the embankment in 1992 with its Bayou Bend project developing rip-rap revetment.  FEMA Region IV denied the first appeal as the documentation provided did not substantiate that the embankment was routinely maintained to ensure it functioned as designed.  The Applicant filed a second appeal, reiterating prior first appeal statements and attesting that the embankment was maintained as needed.

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A).
• 44 C.F.R. § 206.201(c).
• PAPPG at 14-15.
• Belgrade (Twp. of), FEMA-4390-DR-MN, at 2; Republic Cnty., Highway Dep’t, FEMA-4230-DR-KS, at 3; Union Cnty., FEMA-4361-DR-KY, at 2.

Headnotes

• A natural feature is improved and maintained if it meets all 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 the improvement performs as designed.
  • The Applicant has not substantiated that it maintains the improvements on a schedule to ensure the improvements perform as designed.  Therefore, the embankment is not an improved and maintained natural feature and is not an eligible facility under the PA program. 

Conclusion

FEMA finds that the Applicant has not demonstrated that the embankment is an eligible facility.  This appeal is therefore denied.      

Appeal Letter

Appeal Analysis

Background

From August 23 to September 15, 2017, flooding from Hurricane Harvey impacted the Museum of Fine Arts, Houston (Applicant).[1]  FEMA prepared Project Worksheet (PW) 3350 for an estimate of $662,778.00 in Public Assistance (PA) funding to repair erosion on the embankment that ran along the perimeter boundary of the Applicant’s property.[2]  FEMA originally found the Applicant was not legally responsible for repairs to the embankment.  In a first appeal decision dated December 19, 2019, however, FEMA determined that the Applicant had established legal responsibility to repair the embankment.[3] 

On June 4, 2021, FEMA denied the project in a Determination Memorandum (DM), finding that the claimed embankment did not have a designed and constructed improvement to its natural characteristic, and therefore, was an unimproved, natural feature, which did not meet the definition of an eligible facility under the PA program.

First Appeal

The Applicant appealed in a letter dated July 28, 2021, asserting that the embankment was an improved and maintained natural feature and therefore eligible under the PA program.  First, the Applicant stated that the embankment had a designed and constructed revetment (retaining wall) to prevent erosion, along with vegetation to stabilize the slope.  It noted this was done to ensure a stable foundation and boundary for the museum’s infrastructure.  The Applicant provided records of an improvement project in 1992, including letters, reports, and invoices from contractors and engineers showing plans and costs to repair the embankment and outlining improvements made to the embankment.  FP 104-009-2

Second, the Applicant provided affidavits from its Head of Gardens and Landscape Operations (Head of Gardens) and Founding Director Emeritus (Founding Director Emeritus) of Bayou Bend Collection and Gardens which attest to the regular maintenance of the property.  The Head of Gardens affirmed he and five full-time gardeners care for the 14-acre property that comprises historic gardens, lawns, and areas of natural, native vegetation.  The Head of Gardens conceded that while the majority of the activity was dedicated to caring for the historic gardens, they routinely worked in the areas of natural landscaping, including the embankment.  The Head of Gardens acknowledged that he did not issue work tickets, or manage the day-to-day work through such tickets.  The Founding Director Emeritus confirmed that meeting minutes also do not reference ongoing maintenance of the embankment because existing staff accomplished the work within annual budgetary allocations.  The Texas Division of Emergency Management (Grantee) transmitted the first appeal in a letter dated August 13, 2021, supporting the appeal.

FEMA sent the Applicant a Request for Information (RFI) on September 1, 2021, requesting additional documentation showing the embankment was a maintained, engineered flood control work.  FEMA stated that based on the records provided on first appeal, it appeared the embankment was not an improved and maintained natural feature, and because the most recent maintenance records pre-dated the distater by 15 years, FEMA requested documentation that the facility was maintained on a regular schedule. 

On September 10, 2021, the Applicant responded to the RFI reiterating first appeal statements on the eligibility of the embankment as an improved, maintained facility.  The Applicant included and cites to a “no objection” letter from the Harris County Flood Control District (HCFCD), explaining that that repair work from the event would not affect the floodplain, as well as a floodplain impact analysis report.[4]  The Applicant emphasized that no maintenance requirements were placed on the embankment project, and as a nonprofit it neither employed inspection and maintenance staff nor kept logs to the same degree as a local government.

Last, the Applicant also cites to the 2006 publication of National Cooperative Highway Research Program (NCHRP) REPORT 568, a report which provides recommendations for various construction practices for roadways. The Applicant, citing to this report, asserts that there is no maintenance required for rip-rap armored embankments.

On November 2, 2021, the FEMA Region VI Regional Administrator denied the appeal, finding that the Applicant had not provided documentation showing any work was done on a regular schedule prior to the incident to ensure the embankment performed as designed.  Therefore, FEMA determined the embankment was not an improved and maintained natural feature that met the definition of an eligible facility.

Second Appeal

The Applicant submitted a second appeal in a letter dated December 27, 2021, which reiterates prior first appeal statements.  Additionally, the Applicant reiterates that from 1967-1992 it invested substantial resources in the repair and development of the embankment, including the employment of gardeners/groundskeepers.  The Applicant states that the December 19, 2019, first appeal decision on this project found that the Applicant provided evidence of regular and routine maintenance to the embankment.  The Grantee transmitted the appeal in a letter dated January 4, 2022, in support of the Applicant’s position.

 

Discussion

FEMA has the authority to provide PA funding to a state or local government for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster.[5]  A natural feature may itself be an eligible facility if it is improved and maintained and meets all 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 the improvement performs as designed.[6]

Here, the Applicant substantiates that the embankment had designed and constructed improvements such as the rip-rap revetment to enhance the embankment’s function.  However, the Applicant on second appeal acknowledges that, “[it] cannot however provide any data to substantiate that [it] performed repairs other than on an as-needed basis.”[7]  The Applicant provides affidavits that affirm it maintains the grounds and vegetation around the embankment by assigning staff to maintain the property, but does not provide documentation substantiating maintenance performed on the embankment, or when/how often this occurred to verify it was completed on a schedule.[8]  Photographs of the pre-disaster condition of the embankment show significant vegetative growth along the embankment itself, suggesting no regular maintenance was done in those areas.  Based on the Applicant’s concession that it performs maintenance on an “as-needed” basis, as well as the documentation submitted, the Applicant has not demonstrated that it maintains the improvement on a schedule to ensure the improvement performs as designed.[9]

 

Conclusion

The Applicant has not demonstrated that the embankment is an eligible facility.  This appeal is therefore denied.

 

[1] The President issued a major disaster declaration on August 25, 2017. 

[2] It is also listed as FEMA Grants Manager Project 10888.

[3] FEMA First Appeal Decision, The Museum of Fine Arts of Houston, FEMA-4332-DR-TX (Dec. 19, 2019). 

[4] Letter from Watershed Coordinator, Harris Cnty. Flood Control Dist., to Stantec Consulting, Inc. (Dec. 2, 2020).

[5] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 406(a)(1)(A), Title 42, United States Code § 5172(a)(1)(A) (2012). 

[6] Title 44 Code of Federal Regulations § 206.201(c) (2016); Public Assistance Program and Policy Guide, FP-104-009-2,  at 14-15 (Apr. 1, 2018). 

[7] Applicant Second Appeal, at 2. 

[8] See FEMA Second Appeal Analysis, Belgrade (Twp. of), FEMA-4390-DR-MN, at 2 (June 8, 2020) (“An

applicant must provide more than post-disaster statements or opinions to substantiate predisaster maintenance.

documentation or other evidence must be submitted.”); FEMA Second Appeal Analysis, Republic Cnty. Highway

Dep’t, FEMA-4230-DR-KS, at 3 (July 26, 2017) (finding that, based only on the Applicant’s statements that it had

an informal maintenance program and that repairs were done on an as needed basis, FEMA could not conclude the

Applicant had a predisaster maintenance program.).

[9] See FEMA Second Appeal Analysis, Union Cnty., FEMA-4361-DR-KY, at 2-3 (Dec. 17, 2021) (finding that the Applicant had not demonstrated that it has maintained the embankment on a schedule to ensure that the improvement performs as designed, when the Applicant provided only limited inspection records to substantiate maintenance and additionally alleged that little maintenance could be done on a grass/dirk embankment).  Regarding the Applicant’s argument concerning FEMA’s December 19, 2019 first appeal response, the Agency notes that the eligibility issue addressed in the first appeal response letter determination pertained to work, not facility eligibility–FEMA found the Applicant established legal responsibility to repair the embankment.  The decision included an analysis of general predisaster maintenance, finding that the Applicant had performed regular and routine repairs on the property, to verify legal responsibility; FEMA did not, however, specifically analyze the issue of maintenance of a natural feature or find that the embankment was an eligible facility.