Improved Property, Legal Responsibility, Project Documentation and Closeout

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4361
Applicant	Union (County)
Appeal Type	Second
PA ID#	225-99225-00
PW ID#	PW 181
Date Signed	2021-12-17T17:00:00

Summary Paragraph

From February 21 to March 21, 2018, Kentucky experienced damage as a result of severe storms, tornadoes, flooding, landslides and mudslides.  Union County (Applicant) reported damage to 520 linear feet of an Ohio River embankment adjacent to the Blackburn Boat Ramp.  FEMA prepared Project Worksheet 181, obligating $685,246.00 for repair of the embankment and a hazard mitigation proposal.  Upon review of a request to change the scope of work, FEMA sent a Request for Information to the Applicant, asking for documentation regarding site plans, maintenance records and documentation regarding improvements and maintenance to the 100-foot section of the embankment.  The Applicant responded, providing engineering and design approval documentation, along with an appropriations report.  FEMA determined that the previously approved scope of work was not eligible for funding and issued a Determination Memorandum, finding that the embankment was not an eligible facility, that the claimed damages were not a result of the disaster, and that the Applicant was not legally responsible for the repair of the embankment.  The Applicant submitted its first appeal, asserting that the embankment was an eligible facility and that the Applicant was legally responsible for the work.  The FEMA Region IV Regional Administrator denied the first appeal, finding that the embankment was not an eligible facility, the Applicant was not legally responsible for the repairs, and Section 705(c) of the Stafford Act did not bar FEMA from deobligating funding.  The Applicant submits a second appeal, reiterating previous arguments. 

Authorities and Second Appeals

• Stafford Act §§ 406(a), 705(c).
• 44 C.F.R. §§ 206.201(c), 206.223(a).
• Jefferson City, 4451-DR-MO, at 4.
• Monroe Cnty. Eng’r, GMP 100455, FEMA-4424-DR-OH, at 2.
• PAPPG, at 20.
• Recovery Policy FP-205-081-2.

Headnotes

• A natural feature may be an eligible facility if: 1) the natural feature has a designed and constructed improvement to its natural characteristics; 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.
  • The Applicant has not provided documentation to demonstrate that it has maintained the embankment on a regular schedule to ensure that the improvement performs as designed.

• Section 705(c) of the Stafford Act provides that a state or local government is not liable for reimbursement or any other penalty for any payment made pursuant to the Stafford Act if the payment was authorized in the approved agreement specifying the costs, the costs were reasonable and the purpose of the grant was accomplished.
  •  The Applicant did not begin the approved scope of work, and accordingly, the purpose of the grant has not been accomplished.  Therefore, Section 705(c) does not prohibit FEMA from deobligating previously awarded funding.

Conclusion

FEMA finds that the Applicant has not demonstrated that the embankment is an eligible facility or that the Applicant was legally responsible for the work to repair it.  FEMA also finds that it was not barred by Section 705(c) of the Stafford Act from deobligating $32,884.72 in previously drawn down funds.  Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From February 21 to March 21, 2018, severe storms, tornadoes, flooding, landslides and mudslides caused damage throughout Kentucky.  Union County (Applicant) reported damage to 520 linear feet of Ohio River embankment adjacent to the Blackburn Boat Ramp.  FEMA prepared Project Worksheet 181, obligating $685,246.00 for repair of the embankment and for a hazard mitigation proposal.  Upon review of a request to change the scope of work (SOW), FEMA sent a Request for Information to the Applicant, asking for documentation regarding site plans, maintenance records and documentation regarding improvements and maintenance to the embankment.  The Applicant responded, providing engineering and design approval documentation, along with an appropriations report.  FEMA issued a Determination Memorandum, finding that the previously approved SOW was not eligible for funding because the embankment was not an eligible facility, that the damages were not a result of the disaster, and that the Applicant was not legally responsible for the repair of the embankment.

First Appeal

The Applicant appealed and stated it was irrelevant whether the embankment was an improved natural feature because it was eligible under FEMA policy as integral ground supporting the parking lot of the boat ramp, which was an eligible facility.  The Applicant argued, in the alternative, that the embankment was an improved natural feature.  Regarding whether the claimed damages were a result of the disaster, the Applicant argued that the erosion could have only been caused by flooding, and that no other flooding event occurred before the disaster other than FEMA-DR-4278-KY in 2016, where the Applicant did not claim damages to the embankment.  The Applicant added that FEMA noted the damage when preparing the project.

The Applicant addressed the question of legal responsibility, arguing that FEMA had previously found that the embankment was the legal responsibility of the Applicant during preparation of the PW.  The Applicant also provided a 1997 letter from the Kentucky Department of Fish and Wildlife Resources (KDFWR) to demonstrate that it had legal responsibility to conduct maintenance of the boat ramp.  The letter stated that KDFWR would accept the Applicant’s offer to spray Johnson grass, and expressed the “hope that an agreement can be reached with the Union County Fiscal Court for the long term maintenance of this facility.”[1]  The Kentucky Emergency Management (Grantee) transmitted the Applicant’s appeal on February 26, 2021.

The FEMA Region IV Regional Administrator denied the first appeal, finding that the embankment was not integral ground to the boat ramp.  Rather, it was located adjacent to the boat ramp.  FEMA further determined that the Applicant could not demonstrate that the embankment was an improved and maintained natural feature.  The Applicant provided no proof of routine maintenance, and the photographs the Applicant provided showed a declining amount of riprap over time, implying that no maintenance had been performed since the riprap was first placed.  FEMA also found that the Applicant had not provided documentation of an agreement demonstrating that the Applicant was legally responsible for maintaining the embankment.  FEMA found that the letter from KDFWR expressed hope that an agreement could be reached, but that it did not constitute an actual agreement transferring legal responsibility to the Applicant.  Finally, FEMA found that it was not prohibited by Section 705(c) of the Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act from recouping $32,884.72 in previously drawn down funds because the scope of work was incomplete and the purpose of the grant was not accomplished.

Second Appeal

The Applicant submitted a second appeal on September 21, 2021 reiterating previous arguments.  The Applicant acknowledges that it cannot provide a copy of the executed Memorandum of Agreement or other documentation demonstrating its responsibility for maintenance of the embankment, but states it is, at a minimum, de facto responsible for its maintenance.  The Grantee forwarded the Applicant’s appeal to FEMA.[2]

 

Discussion

Improved Property

FEMA may provide funding to a State or local government for the repair, restoration, reconstruction or replacement of a public facility damaged by a major disaster.[3]  A natural feature may itself be an eligible facility if it is improved and maintained and meets all of the following conditions: (1) the natural feature has a designed and constructed improvement to its natural characteristics; (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.[4] 

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 restoration of the integral ground that supports the otherwise eligible facility.[5]  Integral ground is natural or improved ground upon which an eligible facility is located and that is essential to support the structural integrity and utility of the facility.[6]

The Applicant asserts that the embankment is an improved and maintained natural feature, but has only provided limited inspection records of the boat ramp that do not demonstrate maintenance of the embankment.  The Applicant states in its first appeal that little maintenance can be performed on a grass/dirt embankment and none was required before this incident.[7] Accordingly, the Applicant has not demonstrated that it has maintained the embankment on a schedule to ensure that the improvement performs as designed.  Therefore, the Applicant has not shown the embankment is itself an eligible facility..

The Applicant also claimed that the embankment was integral ground supporting the boat ramp.  However, the Applicant only claimed damage to the embankment, and acknowledges that the boat ramp was not damaged.[8]  Since the potentially eligible facility (the boat ramp) was not damaged by the disaster, then any integral ground supporting it would not be eligible.[9] 

Legal Responsibility

For repair work to be eligible for funding, the work must be the legal responsibility of an eligible applicant.[10]  To determine legal responsibility for facility restoration, FEMA evaluates whether the Applicant claiming the costs had legal responsibility for disaster-related restoration of the facility at the time of the incident based on ownership and the terms of any written agreements.[11]

The Applicant has not submitted documentation to show it is the owner of the boat ramp, nor otherwise legally responsible for disaster-related restoration of the facility.  It provided a 1997 letter from the KDFWR stating that KDFWR would accept the Applicant’s offer to spray Johnson grass, and expressed hope that the Applicant would provide long term maintenance.  However, this letter does not constitute a written agreement making the Applicant legally responsible for the embankment/boat ramp.  The Applicant argues that, in the absence of being able to demonstrate on paper that it was legally responsible for maintenance of the boat ramp, it is at least de facto responsible.  However, FEMA policy requires an applicant to show ownership or a written agreement as valid proof of legal responsibility.  Therefore, the Applicant has not provided documentation to demonstrate that it is legally responsible to repair the embankment.

Project Documentation and Closeout

Section 705(c) of the Stafford Act provides that a state or local government is not liable for reimbursement or any other penalty for any payment made pursuant to the Stafford Act if the payment was authorized in the approved agreement specifying the costs, the costs were reasonable, and the purpose of the grant was accomplished.[12]  FEMA’s policy clarifying Section 705 requirements states that the purpose of a grant is accomplished if the applicant completes the scope of work and demonstrates compliance with post-award terms and conditions of the award.[13]  In this case, where the record does not indicate that the Applicant has begun the previously approved SOW, FEMA finds that the purpose of the grant has not been accomplished.  Therefore, Section 705(c) does not prohibit FEMA from deobligating previously awarded funding.

 

Conclusion

FEMA finds that the Applicant has not demonstrated that the embankment is an eligible facility or that the Applicant was legally responsible for the work to repair it.  FEMA also finds that it was not barred by Section 705(c) of the Stafford Act from deobligating $32,884.72 in previously drawn down funds.

 

 

[1] Letter from Dir., Eng’g Div., Ky Dep’t of Fish & Wildlife Res., to Judge Exec., Union Cnty. (Aug. 7, 1997).

[2] Email from Recovery Branch Manager, Ky. Emergency Mgmt., to Pub. Assistance Appeals, Recovery Div., FEMA Region IV (Sept. 21, 2021).

[3] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 406(a)(1)(A), 42 U.S.C. § 5172(a)(1)(A) (2018).

[4] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.201(c) (2017); Public Assistance Program and Policy Guide, FP 104-009-2, at 14-15 (Apr. 1, 2018) [hereinafter PAPPG].

[5] PAPPG, at 128.

[6] Id.

[7] Email from Recovery Branch Manager, Ky. Emergency Mgmt., to Pub. Assistance Appeals, Recovery Div., FEMA Region IV (Feb. 26, 2021), First Appeal Attach. at 4.

[8] Id. at 5.

[9] See FEMA Second Appeal Analysis, Monroe Cnty. Eng’r, GMP 100455, FEMA-4424-DR-OH, at 2-3 (Nov. 10, 2021).

[10] 44 C.F.R. § 206.223(a)(3).

[11] PAPPG, at 20.

[12] Stafford Act § 705(c), 42 U.S.C. § 5205(c).

[13] See Recovery Policy FP-205-081-2, Stafford Act Section 705, Disaster Grant Closeout Procedures, at 5 (June 2, 2021).