Legal Responsibility

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4461
Applicant	Village of Cahokia Water and Sewer
Appeal Type	Second
PA ID#	163-UY807-00
PW ID#	GMP 127363
Date Signed	2023-03-24T16:00:00

Summary Paragraph

During the incident period, February 24 through July 3, 2019, severe storms caused flooding which damaged sewer lines within the Village of Cahokia. The Village of Cahokia Water and Sewer (Applicant) requested Public Assistance (PA) funding for work completed to restore the sewer lines at six sites within the Village of Cahokia to their predisaster condition. FEMA issued a determination memorandum, which denied the entire project, finding the work was not required as a direct result of the declared incident. The Applicant filed a first appeal, stating the work was required due to the incident as flooding raised and separated sewer line joints. The Illinois Emergency Management Agency (Recipient) forwarded the appeal with its supporting letter. FEMA issued a Request for Information (RFI), seeking documentation substantiating the work at Sites 3 and 4 was the Applicant’s legal responsibility. The administrative record does not contain receipt of the RFI, nor a response from the Applicant. The FEMA Region 5 Regional Administrator partially granted the appeal. FEMA found that the work to restore all six sites was required as a direct result of the declared incident. However, FEMA denied the work at Sites 3 and 4, finding the Applicant was not legally responsible for the work. The Applicant filed a second appeal stating it is legally responsible for the work as both sites are within sewer and water pipe easements. The Applicant submitted ordinances from the Village of Cahokia on easements, the land plats which map the easements for water and sewer and contractor survey maps and photographs marking the easements to substantiate its statements. The Recipient forwarded the appeal in support of the Applicant’s position.

Authorities and Second Appeals

• 44 C.F.R. §206.223(a)(3).
• PAPPG, at 20.

Headnotes

• For repair work to be eligible for financial assistance, the work must be the legal responsibility of the eligible applicant.
  • Here the Applicant has provided sewer hook-up records and mapping which substantiates that it is legally responsible for restoring pipes on private property within established easements.

Conclusion

FEMA finds the Applicant has demonstrated that it was legally responsible for the work to repair damage at Sites 3 and 4. Therefore, this appeal is granted in the amount of $201,785.00.

Appeal Letter

Appeal Analysis

Background

During the incident period, February 24 through July 3, 2019, severe storms caused flooding throughout the State of Illinois.[1] The Village of Cahokia Water and Sewer Department (Applicant) stated that flooding caused high ground water levels which ultimately collapsed its sewer system within the Village of Cahokia. The Applicant identified six sites where sewer pipes collapsed from the incident.[2] The Applicant requested Public Assistance (PA) funding for completed work to replace collapsed manholes and damaged sections of sewer line pipes at those six sites. On December 9 and 13, 2019, FEMA performed site inspections and took photographs of Sites 2 and #5 to document conditions. The Site Inspection Reports noted damage to pipes, washout of concrete manholes and asphalt surfaces and gravel base due to high waters from flooding. Additional photos provided by the Applicant showed exposed and broken sewer pipes, along with damage road surfaces above the lines. FEMA wrote Grants Manager Project 127363 to capture claimed damages, work completed, and requested costs for the six sites totaling $565,420.00. However, FEMA issued a Determination Memorandum, dated March 8, 2021, denying the Applicant’s request for PA funding for all six sites. FEMA found that the Applicant had not substantiated through documentation that the work was required as a result of the declared incident. FEMA found that maintenance records indicated a gap in maintenance of the Facility prior to the incident, 2016-2019, and post disaster photographs showed instances of potholes and alligator cracking that indicate predisaster conditions resulted in damages.

First Appeal

The Applicant filed a first appeal with the Illinois Emergency Management Agency (Recipient) on May 5, 2021. The Applicant provided a technical engineering report, which showed high waters from flood raised ground and subsequent lowering of ground water caused pipes to separate at the joints. This technical report also noted that the system was in good working order predisaster. The Recipient forwarded the Applicant’s appeal to FEMA on June 15, 2021, along with its letter of support.

FEMA transmitted a Request for Information (RFI) on May 4, 2022, requesting documentation to substantiate the claim that work conducted on Sites 3 and 4 was the legal responsibility of the Applicant. The administrative record does not include a receipt of the RFI, nor a response from the Applicant.

The FEMA Region 5 Regional Administrator, in a letter dated October 24, 2022, partially granted the appeal. FEMA found that the Applicant had substantiated the work required to repair damages was the direct result of the incident for all six sites. However, FEMA denied the work and associated costs at Sites 3 and 4, determining that the Applicant had not demonstrated it was legally responsible for restoring the pipes because they were located on private property.

Second Appeal

The Applicant filed a second appeal with the Recipient, stating that the work at Sites 3 and 4 was within a public works easement and explaining that the area where fencing was removed and returned was necessary to allow contractors space to place fill material removed from the ground during restoration of the sewer system. The Applicant included, as part of its appeal: 1) ordinances from the local government on utility easements and how they are established; 2) as-built mapping of easement schematics; 3) land plat and survey data from its contractor on the width of easements in residential areas; and 4) documentation of the dates on which private property plumbing was connected to the public sewer lines. The Recipient transmitted the appeal with its letter, dated February 7, 2023, in support of the Applicant’s position.

 

Discussion

To be eligible for financial assistance, an item of work must be the legal responsibility of an eligible applicant.[3] 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.[4] 

On second appeal, the Applicant submitted documentation to demonstrate that it has legal responsibility for repairs to sewer line pipes located at Sites 3 and 4. This documentation includes: 1) ordinances granting authority to the Applicant to construct, install, operate, and maintain public sewer lines on private property, and authorizing residences to connect to the public system; 2) historical records of private residences connecting to public sewer line systems, easement maps, and documentation establishing easements to the Applicant for the construction and maintenance of public utility services; and 3) land plats and photographs from the Applicant’s contractor which show the location of the sewer line easements in relation to Sites 3 and 4.  The land plats show that for Site 3, there is a 20-foot wide rear easement for access to the sewer lines. For Site 4, the rear access easement is 15 feet wide. The photographs marked the easements, which align with the work that the Applicant completed and confirm that this work occurred within the Applicant’s easements. FEMA therefore finds that has substantiated legal responsibility for the areas of work at Sites 3 and 4 performed by the Applicant’s contractor to repair the damage as both fall within the bounds of the respective site easements.

 

Conclusion

The Applicant has demonstrated that it was legally responsible for the work to repair damage at Sites 3 and 4.  Therefore, this appeal is granted in the amount of $201,785.00.

 

 

[1] The President issued a major disaster declaration on September 19, 2019.

[2] The six sites are located at: East 5^th Street and St. Cecelia Drive; Lot 123 Pheasant Run/Circle Creek Drive; 1707 and 1701 Andrews; 1902 Jerome Lane; 218 Nadine, and 2389 Highway 157 (hereinafter Sites 1, 2, 3, 4, 5 and 15 respectively).

[3] Title 44 of the Code of Federal Regulations § 206.223(a)(3) (2018).

[4] Public Assistance Program and Policy Guide, FP 104-009-2, at 20 (Apr. 1, 2018).