Public Interest, Improved Property

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4476
Applicant	Nashville-Davidson
Appeal Type	Second
PA ID#	037-52004-00
PW ID#	GMP 150481
Date Signed	2022-02-11T17:00:00

Summary Paragraph

On March 3, 2020, severe storms, tornadoes, straight-line winds, and flooding caused damage in Tennessee.  Nashville-Davidson County (Applicant) requested Public Assistance for the cost to remove 10,000 cubic yards of vegetative debris from Donelson Field (the Field).  FEMA prepared Grants Manager Project 150481 to document the project, but issued a Determination Memorandum, denying assistance.  FEMA found that the Field was natural, unimproved land and debris removal from this type of land is ineligible.  The Applicant appealed, stating that the Field is a watershed development property, is used by local farmers to harvest hay, and asserted that the debris removal eliminated immediate threats to public health and safety by preventing debris from entering an adjacent river and road.  The FEMA Region IV Regional Administrator denied the first appeal, stating that the Field is unimproved property or agricultural land; thus, debris removal from it is not in the public interest.  The Applicant submits a second appeal, asserting that the Field is improved property used for recreational purposes and that debris removal eliminated public safety concerns.

Authorities and Second Appeals

• Stafford Act §§ 403(a), 407(a).
• 44 C.F.R. §§ 206.221(d), 206.224.
• PAPPG, at 44-45.

Headnotes

• Per Stafford Act §§ 403(a) and 407(a) and 44 C.F.R. § 206.224, FEMA is authorized to provide Public Assistance funding for debris removal as long as it in the public interest; that is, necessary to eliminate immediate threats to life, public health, and safety, to eliminate immediate threats of significant damage to improved property, or to ensure economic recovery of the affected community to the benefit of the community-at-large.
  • The Applicant has not demonstrated that the debris posed an immediate threat.

• The PAPPG, at 44, provides that removal of debris from improved public property and public rights-of-way is eligible.  Per 44 C.F.R. § 206.221(d), improved property means a structure, facility or item of equipment which was built, constructed, or manufactured.

• The PAPPG, at 45, provides that debris removal from agricultural land or natural, unimproved areas is ineligible.
  • Here, the Applicant has not demonstrated that debris removal from the Field is in the public interest because the Field is not improved property.  Therefore, debris removal from the Field is ineligible.

Conclusion

FEMA finds that the Applicant has not demonstrated that the Field is improved property, but instead is agricultural land or a natural, unimproved area.  In addition, the Applicant has not demonstrated that the debris posed an immediate threat.  Therefore, debris removal from the Field is not in the public interest.  This appeal is denied.

 

Appeal Letter

Appeal Analysis

Background

On March 3, 2020, severe storms, tornadoes, straight-line winds, and flooding caused damage in Tennessee.  Nashville-Davidson County (Applicant) requested $364,816.43 in Public Assistance (PA) funding for the cost to remove 10,000 cubic yards of vegetative debris from Donelson Field (the Field).  FEMA prepared Grants Manager Project 150481 to document the project, but on February 22, 2021, issued a Determination Memorandum, denying assistance.  FEMA found that the Field was natural, unimproved land and debris removal from such land is ineligible for PA.  In support, FEMA referred to a report from the U.S. Army Corps of Engineers (USACE) stating that the Field was unimproved property that could only be described as hay fields, and that the debris did not pose an immediate threat.

First Appeal

On April 23, 2021, the Applicant submitted a first appeal, stating that it was legally responsible to maintain the Field and that the Field supports the Applicant’s watershed development plan.  Further, debris removal eliminated public safety concerns by preventing debris from entering the adjacent Stones River and US Route 70.  The Applicant stated that the Stones River is a floodway that requires careful management, and since the Field is part of a watershed development property, then it should be considered an eligible facility.  The Applicant noted that it acquired the Field in May 2019, and explained that greenway trails are part of future development and that the Field is used by local farmers to harvest hay.  The Tennessee Emergency Management Agency (Grantee) transmitted the first appeal to FEMA, requesting FEMA’s consideration.

On August 30, 2021, the FEMA Region IV Regional Administrator denied the first appeal, finding that the Field is unimproved property or agricultural land; thus, debris removal from it was not in the public interest.  FEMA cited the USACE report indicating the Field was unimproved property and that the debris was minimal and did not present an immediate threat.  FEMA added that the Applicant did not provide documentation to demonstrate that the Field was improved or maintained as a watershed development property to mitigate flooding from the river.  Finally, FEMA explained that the Applicant alternatively argued that the Field was used for agricultural purposes, but neither unimproved nor agricultural lands are eligible facilities, nor is debris removal from them in the public interest.

Second Appeal

On October 29, 2021, the Applicant submitted its second appeal, stating that the Field is improved property, that FEMA inappropriately categorized it as agricultural land, and that debris removal eliminated public safety concerns by preventing debris from entering the Stones River and US Route 70.  The Applicant asserts that the Field is an active site and provides a photograph of the Field with a trashcan to show that it is used by the local community and maintained by its Parks Department.  The Applicant explained that the Field has multiple uses, including harvesting hay once per year, but states that calling the property agricultural land is inappropriate considering current (public use and watershed conservation) and future usage (possible greenway trails) of the site.

The Applicant contends that it acted in the public interest by removing the debris that posed an immediate public safety threat.  The Applicant explains that FEMA declared two additional disasters after this event.  Therefore, had the Applicant not removed the debris, then it would have been blown onto the highway or into the river during the subsequent events.  This could have created a hazard on the road, or impacted flood control efforts and watershed development.  The Grantee transmitted the second appeal to FEMA, requesting FEMA’s consideration.

 

Discussion

FEMA is authorized to provide PA funding for debris removal as long as it is in the public interest; that is, necessary to eliminate immediate threats to life, public health, and safety, to eliminate immediate threats of significant damage to improved property, or to ensure economic recovery of the affected community to the benefit of the community-at-large.[1]  Removal of debris from improved public property and public rights-of-way is eligible.[2]  Improved property means a structure, facility or item of equipment which was built, constructed, or manufactured.[3]  Debris removal from agricultural land or natural, unimproved areas is ineligible.[4] 

The Applicant argues that the Field is improved and maintained, but the only documentation provided in support is a picture of the Field with a trashcan.  The placement of a trashcan that is periodically emptied in an otherwise empty Field is not enough of an improvement for FEMA to reasonably conclude that the Field is improved property.  The Applicant notes that improvements such as greenway trails may be added to the Field in the future.  However, in its current state, the Field is a natural, unimproved area or else it is agricultural land since it is used to harvest hay.

The Applicant alternatively argues that the Field is used for watershed development, but besides providing a floodmap of the area, does not provide documentation to support that it is used or maintained for this purpose.  Finally, the Applicant has argued that debris removal eliminated a threat to the Stones River and US Route 70 due to the Field’s proximity to the river and the highway.  However, the Applicant has not demonstrated that the debris posed an immediate threat.  FEMA previously found the debris to be minimal, and the Applicant did not remove debris from the road or the river, but instead from an adjacent, unimproved area or hay field.  Therefore, debris removal from the Field is not in the public interest and ineligible for assistance.

 

Conclusion

FEMA finds that the Applicant has not demonstrated that the Field is improved property, but instead is agricultural land or a natural, unimproved area.  In addition, the Applicant has not demonstrated that the debris posed an immediate threat.  Therefore, debris removal from the Field is not in the public interest and is ineligible for public assistance.  This appeal is denied.

 

[1] Robert T. Stafford Disaster Relief and Emergency Assistance Act §§ 403(a), 407(a), 42 United States Code §§ 5170b(a), 5173(a) (2018); Title 44 Code of Federal Regulations (44 C.F.R.) § 206.224(a) (2019).

[2] Public Assistance Program and Policy Guide, FP 04-009-02, at 44 (Apr. 2018) [hereinafter PAPPG].

[3] 44 C.F.R. § 206.221(d).

[4] PAPPG, at 45.