Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4363
Applicant	Indiana Department of Natural Resources
Appeal Type	Second
PA ID#	000-U0841-00
PW ID#	Disaster Inventory 233392
Date Signed	2020-09-16T16:00:00

Summary Paragraph

From February 14 to March 4, 2018, severe storms and heavy rains caused flooding throughout Indiana.  The Applicant requested PA funding for the removal of sand debris in Area 2 of the Kankakee Fish and Wildlife Area (FWA), with estimated costs totaling $400,000.00.  FEMA created Damage Inventory (DI) 233392 to capture the requested debris removal.  FEMA issued a Determination Memorandum concluding that the removal of sand was ineligible because it was not in the public interest; the debris was located in an unimproved area and was not posing a threat of significant damage.  The Applicant appealed, asserting that Area 2 is an improved and maintained property that serves public health and safety.  The Applicant later submitted a revision to the scope of work, reducing the amount of debris removal to focus on critical areas.  The FEMA Region V Regional Administrator denied the first appeal.  FEMA determined that the Applicant had not demonstrated debris removal was necessary to alleviate an immediate threat, nor had it demonstrated that work to remove the debris was necessary as a direct result of the disaster.  The Applicant submitted a second appeal, again revising the amount of debris claimed.  The Applicant asserts it can provide predisaster maintenance records and includes photographs and historical documentation for the FWA. 

Authorities and Second Appeals

• Stafford Act §§ 403(a)(3)(A), 407.
• 44 C.F.R. §§ 206.223(a), 206.224(a).
• PAPPG, at 19, 44.
• Debris Management Guide, FEMA 325, at 5-6.

Headnotes

• FEMA is authorized to provide PA funding for the cost of removing debris resulting from a major disaster.  Debris removal work must be necessary to eliminate or lessen immediate threats of significant additional damage to improved public or private property.
  • Post-disaster photographs in the administrative record do not show debris representing an immediate threat to improved property.
• An item of work must be required as a result of the disaster.  For debris removal to be eligible, an applicant must demonstrate that the debris causing an immediate threat was generated by the declared incident.
  • The Applicant has not provided information demonstrating the predisaster condition of Area 2.  Therefore, FEMA cannot determine whether debris removal was required as a direct result of the disaster.

Conclusion

FEMA finds that there is no evidence of debris representing an immediate threat to improved property.  Additionally, the Applicant has not provided information demonstrating the predisaster condition of Area 2.  Therefore, FEMA cannot determine if debris removal was required as a direct result of the disaster.  As a result, this appeal is denied.

 

Appeal Letter

Appeal Analysis

Background

From February 14 to March 4, 2018, severe storms and heavy rains caused flooding throughout Indiana.  The Indiana Department of Natural Resources (Applicant) owns and operates the Kankakee Fish and Wildlife Area (FWA) located in Starke County.  The Applicant requested Public Assistance (PA) through the Indiana Department of Homeland Security (Grantee) for the removal of sand debris in Area 2 of the FWA.[1]  The  Applicant claimed that the disaster deposited 34,834 cubic yards (CY) of sand over 6.5 acres of Area 2 and requested assistance for debris removal at an estimated cost of $400,000.00.

FEMA created Damage Inventory (DI) 233392 to capture the requested debris removal from Area 2.  On August 1, 2018, FEMA conducted a site inspection and found that the sand deposits appeared to be in natural, unimproved land that was heavily wooded, and could not validate any damage or threat from the debris to any structures or improved property.  On November 6, 2018, FEMA sent a Request for Information (RFI) to the Applicant asking for maintenance records and evidence that the claimed debris was impacting improved property.  FEMA explained the Applicant also needed to establish how much sand was in the area before the event for FEMA to be able to determine if the debris was disaster related.  On November 30, 2018, the Applicant replied and provided various information about Area 2, including a contract for previous sand removal.  The Applicant stated that providing two years of maintenance records would be impracticable.[2]

On February 8, 2019, FEMA issued a Determination Memorandum to the Grantee and Applicant.  FEMA concluded that the removal of sand from Area 2 was ineligible for assistance because it was not in the public interest since the debris was located in an unimproved, woody area and was not posing a threat of significant damage.

 

First Appeal

On April 9, 2019, the Applicant appealed FEMA’s determination, but after consultation with the Grantee, submitted a revision to the first appeal on May 31, 2019.  The Applicant reiterated its request for $400,000.00 associated with removal of 34,834 CY of sand debris.  The Applicant asserted that the Kankakee FWA is an improved and maintained property that serves public health and safety and the buildup of debris from the disaster significantly diminished its flood storage capability, which therefore posed a safety threat to the public.  On June 6, 2019, the Grantee concurred and transmitted the appeal.  The Grantee stated that it was in the public interest to remove the debris and thus provide more flood water storage protecting life, health and safety.    

On August 6, 2019, the Grantee transmitted a request to change the scope of work by reducing the amount of debris removal from Area 2.  The Applicant requested sand debris removal from 1.5 acres of the property, down from the original 6.5 acres.  The Applicant explained that the scope was revised to focus only on critical areas to allow the property to achieve its property management goals and would also reduce the number of trees to be cut for equipment access.  The Applicant did not include a cost estimate because it planned on bidding the project work in fall 2019.

On September 4, 2019, FEMA issued an RFI to the Grantee and Applicant requesting: (1) photographs showing that the debris caused an immediate threat to improved property; (2) dimensions of the sand to be removed, or an explanation of how the total amount of debris was calculated; and (3) maintenance records, logs, or other documentation from 2016 and 2017 demonstrating that Area 2 was maintained prior to the disaster.  In response to the RFI, the Applicant provided additional photographs, a breakdown of how the total cubic yardage was calculated, and an explanation that maintenance performed from 2013 to 2015 had Area 2 functioning properly so no additional maintenance was needed in the years preceding the disaster.

In a letter dated December 23, 2019, the FEMA Region V Regional Administrator (RA) denied the first appeal.  FEMA found that the Applicant had not provided adequate documentation to demonstrate that debris removal in Area 2 was necessary to alleviate an immediate threat caused by the disaster, so it was not eligible emergency work.  Additionally, FEMA determined the Applicant did not provide information to establish the predisaster capacity of Area 2 or that the Applicant maintained it on a regular schedule prior to the disaster.  Therefore, FEMA determined that debris removal was not eligible as permanent work.

 

Second Appeal

The Applicant submitted a second appeal indicating that the quantity of debris removal for which funding is sought is now 8,663 CY based on its most recent estimate.  The Applicant asserts that FEMA changed guidance regarding what information to provide, specifically maintenance records, in the time period before the disaster to establish the predisaster condition of Area 2.  The Applicant asserts that even though it told FEMA that providing two years of predisaster maintenance records was impracticable, it was not impossible and that it could have tried to accommodate FEMA’s request.[3]  The Applicant provides additional information with the second appeal, including photographs and historical documentation regarding construction and maintenance of the FWA up to 2016.

On May 28, 2020, the Grantee transmitted the appeal, expressing support for the Applicant’s claim.  The Grantee emphasizes that Area 2 is an improved and maintained property that provides multiple public services related to water control and environmental management.[4]

 

Discussion

Debris Removal

The Robert T. Stafford Disaster Relief and Emergency Assistance Act authorizes FEMA to provide financial assistance in the form of grants to a state or local government for the cost of removing debris resulting from a major disaster from publicly and privately-owned lands or waters.[5]  Debris removal work must be in the public interest, which is defined in part as work necessary to eliminate or lessen immediate threats of significant additional damage to improved public or private property.[6] 

None of the photographs from the Site Inspection Report or otherwise provided by the Applicant show sand or vegetative debris blocking water passage through canals, culverts or otherwise presenting an immediate threat to improved property in Area 2.  Therefore, debris removal work from Area 2 is not in the public interest.

 

Result of Declared Incident

To be eligible for PA funding, an item of work must be required as a result of the disaster.[7]  For debris removal, the Applicant must demonstrate that the debris causing an immediate threat was generated during the declared incident period and directly by the declared incident.[8]

Here, the Applicant claims that 8,663 CY of debris was deposited by the disaster (after previously claiming two different amounts of CY).  However, the Applicant has also stated that “sand removal is a constant, ongoing process.”[9]  The Applicant has not provided information demonstrating the predisaster condition of Area 2, specifically, the quantity of sand that was present immediately prior to the incident period.  FEMA is unable to determine what, if any, amount of the debris claimed by the Applicant was deposited by the disaster, and therefore cannot determine that debris removal work is eligible.

The Applicant’s second appeal focuses heavily on difficulty and confusion about working with FEMA during project development.  Despite these initial issues, FEMA made it clear in multiple RFIs and the first appeal decision the types of documentation that might establish predisaster condition, such as predisaster maintenance records, or logs showing that these structures were inspected and found to be free of debris.[10]  Therefore, the Applicant has not satisfied its burden to substantiate that the sand in Area 2 was deposited as a direct result of the disaster and not as a result of other events.

 

Conclusion

FEMA finds that there is no evidence of debris representing an immediate threat to improved property.  Additionally, the Applicant has not provided information demonstrating the predisaster condition of Area 2.  Therefore, FEMA cannot determine if debris removal was required as a direct result of the disaster.  As a result, this appeal is denied.

 

[1] Note that Area 1 is covered under a separate project.

[2] E-mail from Chief Budget Officer, Ind. Dep’t of Nat. Res. to Program Delivery Manager, FEMA re: Tree and Sand Removal Project #46496 (Nov. 30, 2018, 1525 CST).

[3] Letter from Chief Budget Officer, Ind. Dep’t of Nat. Res. to Dir. of Emergency Mgmt., Ind. Dep’t of Homeland Sec., at 3 (undated) [hereinafter Applicant’s Second Appeal Letter].

[4] The Grantee requests that FEMA approve debris removal of 34,834 CY of sand at a cost of $400,000.00.  This reflects the initial project estimate and does not account for the updated debris estimate from the August 6, 2019 request to revise the scope of work nor the latest debris estimate from the Applicant’s second appeal letter.

[5] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act, as amended, § 403(a)(3)(A), 42 U.S.C. 5170b(a)(3)(A) and § 407, 42 U.S.C. 5173 (2017).

[6] Id. § 206.224(a); Public Assistance Program and Policy Guide, FP 104-009-2, at 44 (Apr. 1, 2018) [hereinafter PAPPG]; Debris Management Guide, FEMA 325, at 5-6 (July 2007).

[7] 44 C.F.R. § 206.223(a)(1).

[8] PAPPG, at 19.

[9] Applicant’s Second Appeal Letter, at 4.

[10] See E-mail from Program Delivery Manager, FEMA to Chief Budget Officer, Ind. Dep’t of Nat. Res., re: Tree and Sand Removal Project #46496 (Nov. 6, 2018, 0835 CST); E-mail from Appeals Analyst, FEMA Region V to Fin. Dir., Ind. Dep’t of Nat. Res., re: Request for Information – First Appeal Indiana DNR, FEMA-4363-IN DI 233392 (Sept. 4, 2019, 0827 CST); and Letter from Reg’l Adm’r, FEMA Region V, to Dir. of Emergency Mgmt., Ind. Dep’t of Homeland Sec. and Chief Budget Officer, Ind. Dep’t of Nat. Res., at 7 (Dec. 23, 2019).