Improved Property/Natural Features, Immediate Threat, Landslides and Slopes Stabilization

Appeal Brief

Appeal Letter

Appeal Analysis

Background

From February 15, 2023 to February 20, 2023, severe storms, straight-line winds, flooding, landslides, and mudslides caused damage throughout the state of Kentucky.[1] The University of Kentucky (Applicant) requested Public Assistance (PA) funding for an embankment at six locations along the North Fork of the Kentucky River in the Applicant’s Robinson Forest. The Applicant requested $401,396.12 in funding to restore and stabilize the embankment with natural soil, rock, and vegetation. FEMA prepared Grant Manager Project 729389 to document work and costs claimed. 

On February 8, 2024, FEMA performed a site inspection to document the damage, including damage descriptions and photographs. The Applicant provided a letter, dated March 8, 2024, stating that it regularly performed general maintenance which included visual inspections and mowing. On September 19, 2024, FEMA issued a Determination Memorandum denying the requested $401,396.12, finding that the Applicant did not demonstrate the embankment was an improved natural feature. Additionally, FEMA noted that the Applicant did not demonstrate that the claimed embankment failure placed any other eligible facilities at risk.

First Appeal

On November 15, 2024, the Applicant submitted a first appeal, asserting that the embankment was an improved natural feature that it maintained. The Applicant stated it intended to build back the embankment to enhance the site’s predisaster condition. The Applicant claimed that it monitored and maintained Robinson Forest because the area is used for public, educational purposes, including at its Robinson Center. The Applicant explained continued erosion could impede, limit, or prevent public access to the programs. Additionally, it stated that five buildings were at risk of damage from future flooding and erosion and so the embankment restoration was eligible for funding because it is integral ground to an eligible facility. On November 25, 2024, the Kentucky Emergency Management (Recipient) transmitted the appeal to FEMA with a letter stating its support.

On April 4, 2025, the FEMA Region 4 Regional Administrator denied the first appeal, finding the Applicant did not demonstrate that the embankment was a natural feature and so it was not an eligible facility. 

Second Appeal

On June 1, 2025, the Applicant submitted a second appeal, reiterating prior arguments. The Applicant provides aerial drone images of the Robinson Center, emphasizes that five buildings in those images are close to the riverbank and at risk of damage if the erosion is not repaired, and claims the loss of embankment stability threatens the continued safe operation of the Robinson Forest.[2] On June 9, 2025, the Recipient transmitted the appeal to FEMA, expressing its support.

Discussion

Improved Property/Natural Features

FEMA has the authority to provide assistance for the repair, restoration, reconstruction, or replacement of a facility damaged or destroyed by a major disaster.^[3] A natural feature may be an eligible facility if it is improved and maintained and: (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.^[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 the restoration of the integral ground that supports the 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]

Here, the Applicant claims that the embankment is an improved and maintained natural feature because it consistently monitors, maintains, and utilizes the Robinson Center, Robinson Forest, and the embankment for educational and research purposes. However, photographs of the embankment show a natural riverbank, and the Applicant has not provided documentation demonstrating that it has a designed and constructed improvement that enhances its natural function. Although the Applicant provided a letter describing its maintenance activities, it has not provided documentation, such as maintenance logs, predisaster photographs, or inspection reports, demonstrating that it maintained any improvement to the embankment on a regular basis to ensure that the embankment performs as designed. Accordingly, the embankment does not constitute an improved and maintained natural feature and it is not an eligible facility.

Alternatively, the Applicant claims that the embankment is integral ground to an eligible facility because it is located near several Applicant-owned buildings. However, the Applicant has not demonstrated that the embankment is integral ground to any of the buildings. While aerial images of the Robinson Center show numerous buildings located close to the river, the Applicant has not provided an engineering report or other documentation to demonstrate that the embankment is integral ground to any of the buildings. Further, the Applicant does not claim that any of the buildings were damaged during the event. Therefore, the Applicant has not demonstrated that the embankment is integral ground to an eligible facility which was damaged as a result of a landslide or slope instability triggered by the incident.

Immediate Threat

If a landslide or other slope instability is triggered by the incident and poses an immediate threat to life, public health and safety, or improved public or private property, emergency protective measures to stabilize the slope may be eligible.^[7] To be eligible for PA, applicants are responsible for showing that emergency work is required due to an immediate threat resulting from the declared incident.^[8] An immediate threat is a threat of additional damage or destruction from an incident that can reasonably be expected to occur within five years of the declared incident.^[9] The declared incident must have caused the immediate threat to exist.^[10]

The Applicant also claims that the loss of riverbank stability poses an immediate threat to the continued safe operation of Robinson Forest. The Applicant states five of its buildings are at risk of damage from future flooding and embankment erosion if the embankment is not repaired. However, the photographs do not demonstrate that the embankment erosion poses an immediate threat to public health and safety or improved property. A long-term increased risk of erosion to the river embankments does not equate to an immediate threat to surrounding property caused by the disaster.^[11] Accordingly, the Applicant has not demonstrated that the work to restore the embankment is eligible as emergency work.

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 restore the embankment does not address an immediate threat caused by the disaster and, therefore, is not eligible as emergency work. Therefore, this appeal is denied.