Improved Property/Natural Features

Appeal Brief

Appeal Letter

Appeal Analysis

Background

From July 26 through August 11, 2022, Kentucky experienced severe storms and flooding.[1] The University of Kentucky (Applicant), requested Public Assistance (PA) funding to repair an embankment within Robinson Forest, between Clemons Fork Road and Ridge Road. The Applicant claimed that flooding caused the embankment failure and stated that it intended to repair the embankment using fill and installing a railing and cribbing system to create a more stable embankment. FEMA documented estimated repair costs of $602,150.26 in Grants Manager Project 707082. FEMA conducted a site inspection on March 16, 2023, noting an embankment failure due to overland flooding that flowed downhill between Ridge Road and Clemons Fork Road. The site inspection report (SIR) included photographs and video of the locations, which showed dense vegetation in the area. The Applicant sent a letter to FEMA on June 29, 2023, stating that it routinely mowed, graded, graveled, and cleared debris from its roadways to keep its forest open for public use and educational activities. 

On November 16, 2023, FEMA issued a Request for Information seeking clarification on the rail and cribbing system, photographs, and an engineering design for the project. The Applicant responded on November 21, 2023, stating that the proposed rail and cribbing had not yet been constructed due to limited funding, and referring FEMA to the documentation already provided.

On March 7, 2024, FEMA issued a Determination Memorandum denying the requested $602,150.26 in repair costs for the embankment. FEMA found that the Applicant did not document the predisaster condition of the embankment or that it was integral to the road.

First Appeal

The Applicant submitted its first appeal, explaining that Robinson Forest operates as a research forest, which is intended to have minimal human interaction. The Applicant indicated that the main section of Clemons Fork Road, where the embankment failure occurred, was under continuous water quality monitoring downstream, and noted that there were no records of an embankment failure before the disaster. The Applicant stated that Robinson Forest is a natural environment, and it performs limited maintenance to reduce human interaction. Furthermore, it claimed that due to research obligations, it was committed to pursuing natural options for the disaster repairs, but none were available. Lastly, the Applicant indicated that the damage site supports the road and embankment above the research camp and that the requested railing and cribbing were necessary for resiliency purposes. On May 10, 2024, Kentucky Emergency Management (Recipient) transmitted the Applicant’s appeal, expressing its support.

On December 16, 2024, the FEMA Region 4 Regional Administrator denied the appeal. FEMA stated that the Applicant did not provide documentation regarding the predisaster condition of the embankment, such as documentation of inspection or maintenance activities, to demonstrate that the damage was the result of the disaster. FEMA further found that the Applicant did not demonstrate that the claimed embankment was integral ground to an eligible facility.

Second Appeal

The Applicant submitted a second appeal on February 13, 2025, reiterating previous arguments and emphasizing that the embankment is integral ground to roads in Robinson Forest. On February 15, 2025, the Recipient transmitted the appeal to FEMA, expressing its support. 

Discussion

FEMA may provide PA for the repair, restoration, reconstruction, or replacement of an eligible facility damaged or destroyed by a major disaster on the basis of its predisaster design and function.^[2] A natural feature may 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, 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.^[3] 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.[4] Integral ground refers to only the ground necessary to physically support a facility.[5] 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.[6]

To repair the embankment erosion, the Applicant requests PA funding to replenish the embankment with fill and install a railing and cribbing system. However, the Applicant does not claim that the embankment has any designed or constructed improvement to its natural characteristics, such as a retaining wall or subsurface drainage systems. The Applicant also acknowledged that it performed limited maintenance prior to the disaster to limit human interaction with the natural environment. Thus, the Applicant has not demonstrated that the embankment is an improved and maintained natural feature. Moreover, installing the proposed railing and cribbing system would constitute a new, designed improvement intended to enhance the function of the natural embankment. As such, the proposed work exceeds the scope of restoring the embankment to its predisaster design and function.[7]

The Applicant alternatively claims the embankment serves as integral ground for Robinson Forest roads and facilities, and thus its repair should be eligible. However, the Applicant has not demonstrated that the embankment is integral ground to Ridge Road, or any other eligible facility damaged as a result of the disaster. The Applicant did not submit a geotechnical report, engineering assessment, or other supporting documentation to demonstrate that the damaged site is integral ground to an eligible facility. Consequently, the embankment is not eligible as integral ground.

Conclusion

The embankment is not an eligible facility as an improved and maintained natural feature or integral ground that supports an eligible facility damaged by the disaster. Additionally, the work to repair the embankment is not required to restore an eligible facility to its predisaster condition. Therefore, this appeal is denied.