Improved Property/Natural Features

Appeal Brief

Summary Paragraph

From August 18 through 19, 2021, Tropical Storm Fred impacted New York. The Town of Brutus (Applicant) requested Public Assistance (PA) funding to repair damage along the Erie Canal Trail (Canal). FEMA denied funding, finding that the Canal was an unimproved natural feature and therefore ineligible for PA funding. FEMA noted that the Applicant did not provide documentation demonstrating the predisaster design of the Canal or that it was maintained on a regular schedule. The Applicant appealed, stating that the Canal was built in 1848, had undergone restoration projects, and is regularly maintained. FEMA denied the appeal, finding that while the Applicant demonstrated that the Canal is an improved natural feature, the Applicant did not demonstrate that the Canal was maintained on a regular schedule, and therefore it was ineligible for PA funding. The Applicant submits its second appeal, reiterating its prior arguments and providing additional documentation. 

Authorities

• Stafford Act § 406(a)(1)(A).
• 44 C.F.R. § 206.201(c).
• PAPPG, at 55-56, 64, 170, 179, 214.

Headnotes

• The term facility is defined as any publicly or privately owned building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature. An eligible facility includes water control facilities (e.g., dams, reservoirs, canals), parks and recreational facilities, or an improved and maintained natural feature.
  • The Applicant has demonstrated that the Canal is a man-made facility eligible for PA funding.

Conclusion

FEMA finds that the Applicant has demonstrated, through additional documentation, that the Canal is an eligible facility that is maintained and is therefore eligible for PA funding.

Appeal Letter

Appeal Analysis

Background

From August 18 through 19, 2021, Tropical Storm Fred impacted New York.[1] The Town of Brutus (Applicant) requested Public Assistance (PA) funding to repair a streambank along the Erie Canal Trail (Canal). The Applicant asserted that rainfall from the storm caused soil erosion along the Canal trail in two locations. Consequently, the Applicant requested PA funding to repair the damaged area by installing riprap. On December 20, 2022, FEMA conducted a site inspection of the Canal and recorded its finding in the site inspection report.[2] To support its requests the Applicant submitted documentation including post-disaster photographs, a proposed scope of work, a cost estimate, and a design drawing of the restoration plan. FEMA prepared Grants Manager Project 667830 to document the claimed damage. 

On March 9, 2023, FEMA issued a Request for Information (RFI) asking the Applicant to provide supporting documentation demonstrating that the Canal was an improved natural feature. In response, the Applicant submitted post-disaster photographs of the area, a drawing of the Canal improvement plans dated 1848, and a restoration plan dated May 26, 2022. 

On January 11, 2024, FEMA issued a Determination Memorandum denying funding. FEMA found that the Canal is an unimproved natural feature and therefore ineligible for PA funding. FEMA noted that the Applicant did not provide documentation demonstrating the predisaster design or capacity of the Canal. FEMA also found that the Applicant did not provide documentation establishing that the Canal was maintained on a regular basis. 

First Appeal

On March 11, 2024, the Applicant submitted its first appeal, requesting $27,000.00 to restore damage to the Canal. The Applicant explained that the Canal was constructed in 1848, with man-made, engineered components. Specifically, the Applicant pointed to the embankment construction and the relocation of North Brook along the southerly base of the heel path. The Applicant also stated that the tow path and the heel path were constructed as levees to confine water to the former Erie Canal. The Applicant stated that it performed maintenance tasks, such as maintaining a stable trail, removing trees, and mowing during the summer on a weekly basis. The Applicant also noted it performed multiple Centerport Aqueduct maintenance and restoration projects from 2015 until 2022. The Applicant stated that in 2017, it partnered with Cayuga County to re-water the section of the improved canal where the heel path embankment damages occurred, to allow for recreational boating such as canoes and kayaks, as well as terrestrial trail improvements. The Applicant asserted that, because the heel path acts as an earthen levee for the Canal, restoring the damaged heel path is essential to the re-watering project. To support its appeal, the Applicant submitted documentation including photographs that it claimed showed the original stone armoring, drawings, a restoration plan, a cost summary, and an aerial photograph. On May 10, 2024, the New York State Division of Homeland Security and Emergency Services (Recipient) forwarded the Applicant’s first appeal to FEMA with its support. 

On August 22, 2024, FEMA sent an RFI asking for documentation, such as inspection reports, maintenance schedules, or work orders, demonstrating that the Applicant regularly maintained the Canal prior to the disaster. The Applicant responded on September 3, 2024, stating that it maintained the Canal and performed inspections on a regular basis as part of its normal work schedule. The Applicant stated that maintenance tasks included tree removals to maintain the trail and canal bed and levees, weekly mowing during the summer along the trail path, and repairs to the damaged stonework at the aqueduct in 2018 and 2020. 

In a letter dated November 29, 2024, the FEMA Region 2 Regional Administrator denied the appeal. FEMA found that the Canal is an improved natural feature, but that the Applicant did not demonstrate that it was maintained on a regular schedule, and therefore it was ineligible for PA funding.                                                                                                                                               

Second Appeal

The Applicant submitted its second appeal in a letter dated January 27, 2025, reiterating its prior arguments. To support its appeal, the Applicant resubmitted documentation provided with the first appeal. The Applicant also submitted new documentation consisting of a letter from its engineer stating that the Canal is a man-made feature, and a letter from the Applicant’s Highway Supervisor certifying that the Town completed maintenance to the Canal before the disaster.[3] In a letter dated March 21, 2025, the Recipient transmitted the appeal to FEMA with its support.

Discussion

FEMA may provide funding to a local government for the repair of public facilities damaged by a major disaster.[4] The term facility is defined as any publicly or privately owned building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature.[5] Eligible facilities include water control facilities (e.g., dams, reservoirs, canals) and parks and recreational facilities.[6] 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.[7] 

Here, the Applicant provided documentation including design drawings and photographs of the original stone armoring, which indicate the that the Canal was a built system. Also, on second appeal, the Applicant provided new documentation that includes a letter from an engineer stating that the Canal is a man-made feature. Additionally, the Applicant demonstrated it performed a series of maintenance tasks since 2010, such as maintaining a stable trail path, removing trees, mowing during the summer on a weekly basis, and undertaking restoration projects from 2015 until 2022. For example, in 2017, the Applicant explained that it partnered with Cayuga County to re-water the section of the Canal where the heel path embankment damages occurred. Therefore, the Applicant has demonstrated that the Canal is an eligible facility and that it is maintained. Thus, the Canal is eligible for PA funding.

Conclusion

FEMA finds that the Applicant has demonstrated, through additional documentation, that the Canal is an eligible facility that is maintained and is therefore eligible for PA funding.