Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4402
Applicant	Marquette (Town of)
Appeal Type	Second
PA ID#	047-49525-00
PW ID#	PW 565
Date Signed	2021-07-09T16:00:00

Summary Paragraph

From August 17 through September 14, 2018, straight-line winds, tornadoes, flooding, and landslides affected the Town  of Marquette (Applicant), which requested PA funding for multiple roads damaged by flooding and high velocity water flow.  FEMA created Project Worksheet (PW) 565 to document the requested road repair work.  FEMA approved funding work to repair three roads, but denied funding for five roads because FEMA could not establish the damage was caused as a result of the disaster, and there were insufficient maintenance records to substantiate that damages were disaster-related and not due to deferred maintenance.  The Applicant appealed, asserting that the damages were caused by the disaster.  To support its claim, the Applicant submitted predisaster work receipts for road maintenance.  FEMA issued a request for information (RFI) for additional documents or photographs to substantiate the condition of the roads prior to the disaster.  The Applicant responded with road ratings and photographs.  The FEMA Region V Regional Administrator partially granted the appeal, approving PA funding for two roads as the Applicant had substantiated the work was disaster-related.  The Applicant submitted a second appeal for the three remaining roads reiterating its arguments made on first appeal. 

Authorities and Second Appeals

• Stafford Act § 406.
• 44 CFR § 206.223(a).
• PAPPG, at 19, 133, 135.

Headnotes

• Per 44 C.F.R. § 206.223(a)(1), to be eligible for financial assistance, an item of work must be required as the result of the disaster.  The PAPPG, at 19, provides that the applicant is responsible for showing that work is required to address damage caused by the disaster.  FEMA does not provide PA funding for repair of damage caused by deterioration or deferred maintenance.  The PAPPG, at 133, states that FEMA requires documentation to support that the work is eligible.  And per page 135, FEMA accepts a variety of documentation to establish predisaster condition of a facility (e.g., facility maintenance records, inspection/safety reports).

• Here, the Applicant has not provided documentation to demonstrate that the work to repair the remaining three roads was required as a result of the disaster and not due to preexisting deterioration or deferred maintenance.

Conclusion

The Applicant has not demonstrated that the work to repair damages to the three roads was required as a result of the disaster.  Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From August 17 through September 14, 2018, severe storms, flooding, and high velocity water flow impacted the Town of Marquette (Applicant), Wisconsin.  FEMA created Project Worksheet (PW) 565 to record the Applicant’s requested work to repair seven roads, containing eleven sites.[1]  The damage claimed included gravel, base, and road surface washouts.  Repairs included ditch clearing, and replacement of asphalt, gravel, and chip and seal. 

On April 28, 2020, FEMA issued a Determination Memorandum denying Public Assistance (PA) funding for sites at five of the roads.  FEMA determined that the claimed damages for the five roads were consistent with routine aging and deferred maintenance.[2]  

 

First Appeal

The Applicant submitted a first appeal dated June 12, 2020.  The Applicant contended that the disaster caused damage to roads, city-wide.  The Applicant provided work receipts, which it asserted demonstrated predisaster maintenance performed on the five roads at issue.  In a transmittal letter dated August 31, 2020, the Wisconsin Division of Emergency Management (Grantee) expressed support for the appeal.

On October 6, 2020, FEMA sent a Request for Information (RFI) to the Applicant asking for documentation, photographs, inspection reports, or other information demonstrating the preexisting condition of the sites, and that the claimed damage was caused directly by the declared disaster.  On October 30, 2020, the Applicant responded to the RFI with pictures and pavement rating reports.  

On January 14, 2021, the FEMA Region V Regional Administrator partially granted the appeal.  FEMA determined that the Applicant demonstrated that damage to two of the roads was the result of the disaster, and the roads were eligible for PA funding.[3]  However, FEMA found the available documentation did not substantiate that work to repair the remaining three roads (Island, Mud Lake, and Whirry) was required as a result of the declared incident.

 

Second Appeal

The Applicant submitted a second appeal letter dated February 10, 2021, requesting PA funding for the remaining three roads (Island, Mud Lake, and Whirry) using the previously submitted work receipts as support for its claim.  The Applicant states that the disaster caused damage to the roads.  However, the Applicant also acknowledges that Island Road is heavily used by farm equipment, especially during the time frame of the disaster, and that heavy farm equipment caused the rutting and cracking on Island Road, and damage to Mud Lake and Whirry Roads.  The Applicant also states that Island Road was subject to deterioration, due to use by the Department of Natural Resources’ equipment.[4]  Photographs of Island Road show pavement cracks, potholes, and surface wear.  The Grantee expresses support for the Applicant’s appeal in its transmittal letter.

 

Discussion

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.[5]  To be eligible, work must be required as a result of the declared incident.[6]  FEMA requires documentation to support that the work is eligible and accepts a variety of documentation to establish predisaster condition of a facility (e.g., facility maintenance records, inspection/safety reports).[7] The applicant is responsible for showing that work is required to address damage caused by the disaster.[8]  FEMA does not provide PA funding for repair of damage caused by deterioration.[9]   

The Applicant submitted receipts dated from 2009 through 2020 listing supply purchases for road repair that include a 2012 receipt for $278.46 in gravel for Mud Lake Road, and a 2009 receipt for $286.08 in gravel for Whirry Road.  While receipts and maintenance records are not required in order to receive FEMA assistance, they may be helpful to demonstrate that the damage was directly caused by the incident.[10]  In this case, the information on the receipts does not provide sufficient detail to confirm the performance of normal maintenance activities and distinguish between pre-existing damage and damage caused by the incident.  Further, the Applicant acknowledged that the roads were damaged by heavy farm equipment use prior to, and during the disaster, particularly Island Road which the Applicant acknowledged was damaged by both farm equipment and the Department of Natural Resources’ use of the road.  

The documentation provided does not differentiate between damages caused by aging, wear and tear, and heavy farm equipment traffic and disaster damage.  Therefore, the Applicant has not demonstrated the work to repair damages to the three roads was required as a result of the declared incident.

 

Conclusion

The Applicant has not demonstrated that the work to repair damages to the three roads was required as a result of the disaster.  Therefore, this appeal is denied.

 

[1] Referenced in Grants Manager as Grants Manager Project 76118.   

[2] FEMA Determination Memorandum, Town of Marquette, Project 76118, DI 245440 at 3 (Apr. 28, 2020).

[3] Letter from FEMA Region V Adm’r to, Adm’r, Wis. Emergency Mgmt., and [Chairman], Town of Marquette, at 1 (Jan. 14, 2021)

[4] Letter from, Chairman, Town of Marquette, to Wis. State Public Assistance, at 1 (Feb. 10, 2021).

[5] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 406(a)(1)(A), 42 U.S.C. § 5172 (a)(1)(A) (2018).

[6] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a) (2017).

[7] Id. at 133, 135. 

[8] Public Assistance Program and Policy Guide, FP-104-009-2, at 19 (Apr. 2018).

[9] Id.

[10] Id. at 116.