Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4332
Applicant	Galveston (County)
Appeal Type	Second
PA ID#	167-99167-00
PW ID#	PW 6783
Date Signed	2022-06-02T16:00:00

Summary Paragraph

From August 23 to September 15, 2017, Hurricane Harvey severely impacted the State of Texas.  The Applicant requested PA to repair its Paul Hopkins Park Pedestrian Bridge (Facility).  FEMA formulated Project Worksheet 6783 to document damage and estimate repair costs for the Facility.  The Applicant requested a repair versus replacement analysis, and FEMA found that the Facility was not eligible for replacement.  FEMA transmitted a Determination Memorandum finding that the work done to repair the damage was not required as a result of the declared incident.  The Applicant appealed, stating that a previous bridge condition report, and previously submitted documentation and photos, support that the work to repair the Facility was required as a result of the disaster.  The Region VI Regional Administrator denied the Applicant’s first appeal finding that the bridge report provided were inconclusive and did not confirm that the damage to the Facility was the result of the event.  The Applicant filed a second appeal reiterating its claim that the damage to the Facility was caused by the incident, providing photographs of the Facility as support.  Furthermore, the Applicant states that FEMA’s site inspectors noted disaster damage, and FEMA’s cost estimator and the Applicant’s engineer estimates support a replacement under the 50 percent rule.

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A).
• 44 C.F.R. § 206.223(a).
• PAPPG, at 19, 133.
• Belgrade (Township of), FEMA-4390-DR-MN, at 2; Conway Hosp., FEMA-4394-DR-SC, at 3.

Headnotes

• To be eligible for PA funding, work must be required as a result of the disaster.
  • The Applicant’s engineer survey reports, while providing descriptions of the deteriorated state of the bridge, do not provide specificity into the nature of the cause of the damage.
  • The maintenance work orders provided are limited, and only document the maintenance issues presented, and do not show what work was done to repair the bridge.
  • The Applicant’s documentation does not substantiate that the work done to repair damage to the Facility was required as a result of the disaster.

Conclusion

The Applicant has not demonstrated that the work was required as a result of the disaster.  This appeal is denied.

Appeal Letter

Appeal Analysis

Background

From August 23 to September 15, 2017, flooding, high winds and severe storms from Hurricane Harvey affected the State of Texas.[1]  The County of Galveston (Applicant) requested Public Assistance (PA) to repair the Paul Hopkins Park Pedestrian Bridge (Facility).  The Facility is a 120-foot timber pedestrian bridge over Dickinson Bayou, with a width of approximately 5 feet between the timber railings.  The middle span is covered by a wooden canopy which is supported on timber piling.  The Applicant’s engineer provided a description of damage which included missing material, tilting of roofing, and warping of decking and fasteners.[2]  FEMA captured the request in Grants Manager Project (GMP) 73217 with a repair estimate of $140,687.89.  

To demonstrate the damage to the Facility was caused by the disaster, the Applicant provided a Bridge Condition Survey Report Following Hurricane Harvey (Bridge Report) dated September 18, 2018.  The report described the condition of the bridge and concluded that, “signs of potential damage on the bridge, such as, posts being out of plumb, impact damage and members no longer properly seated on their bearings as a result of high water levels, debris and high winds that can be possibly associated with hurricane Harvey event.”[3]  This report concluded that the bridge was unsafe for pedestrian traffic until repairs could be made; the bridge was subsequently closed on September 21, 2018.[4]

On May 29, 2019, FEMA requested additional documentation including: 1) a certified engineer’s report stating that the damage is the direct result of the declared event; 2) historical records, including maintenance and/or inspection records, indicating the predisaster condition of the bridge; and 3) documentation establishing the date of construction, design criteria, and contemporaneous standards in place.  On June 27, 2019, the Applicant responded with a revised version of the Bridge Report, a statement from the Applicant’s Park Director on maintenance, and rental request showing predisaster use of the Facility. 

In a letter dated March 23, 2020, the Texas Division of Emergency Management (Grantee) forwarded a request by the Applicant for FEMA to determine if the Facility met the criteria for replacement under the repair versus replacement 50 percent rule.[5]  FEMA responded in a letter dated November 23, 2020, that based on the Applicant’s estimates, the Facility did not meet the criteria for replacement under FEMA policy. 

On February 11, 2021, the FEMA Building Assessment Team (BAT) analyzed cost issues identified by the Applicant in response to FEMA’s repair versus replacement assessment.  The BAT noted that surveys stated damage the inspectors observed visually but did not provide substantiating details that would connect the damage to the disaster.[6]  For example, the BAT noted from the Bridge Report that the bridge was out of plumb and provided a psi live load rating, but no measurements were provided to show how far it was out of plumb or how that psi value was determined.[7]

FEMA transmitted a Determination Memorandum (DM) via Grants Manager to the Applicant on June 30, 2021, denying the total project costs.  FEMA found that the requested work to restore the Facility was not required as a direct result of the disaster.[8]    

First Appeal

The Applicant’s August 30, 2021 appeal stated that its engineering report from 2018, and previously submitted documentation and photos, support that the work to repair the Facility is required as a result of the disaster.  Furthermore, the Applicant requested FEMA reevaluate its prior 50 percent calculation and approve replacement costs of $385,000.00.  The Grantee forwarded the appeal to FEMA in a letter dated September 15, 2021.

FEMA transmitted an RFI to the Grantee and Applicant, requesting a cost estimate that aligned with the damage description and scope of work, contained enough detail for FEMA to validate the costs, and supports the request for $385,000, including repair and replacement estimates.  FEMA also requested documentation supporting that the work to repair the damage was required as a result of the disaster, including documentation showing the predisaster condition, and routine maintenance, of the Facility.

The Applicant responded on October 18, 2021, stating that it had replaced the Facility, and provided contract documentation and pay receipts to support the actuals costs of replacing the Facility.  The Applicant also included a statement from the Director of the Department of Parks and Cultural Services (DPCS), detailing maintenance procedures.

The Region VI Regional Administrator denied the Applicant’s first appeal in a letter dated January 20, 2022.  FEMA found that the Applicant did not establish that the damage to the Facility was the direct result of the event as the Bridge Report was inconclusive, the Applicant did not provide any predisaster inspections of the Facility, and only provided one maintenance record from 2017 as well as the statement from the Director of its DPCS.  Additionally, FEMA noted that the work order conducted one month after the incident showed only five lost deck boards being replaced as opposed to the bridge requiring full replacement.[9]

Second Appeal

The Applicant’s second appeal, dated February 24, 2022, reiterates that the damage to the Facility was caused by the incident, and provides photographs of the Facility as support.  Furthermore, the Applicant states that FEMA’s site inspectors noted disaster damage, and FEMA’s cost estimator and the Applicant’s engineer estimates support a replacement under the 50 percent rule.  The Grantee forwarded the Applicant’s appeal to FEMA in a letter dated March 4, 2022, in support of the Applicant’s position. 

 

Discussion

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.^[10]  To be eligible, work must be required as a result of the declared incident.^[11]    FEMA does not provide PA funding for the repair of damage caused by deterioration and deferred maintenance.^[12]  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).[13]  It is the applicant’s responsibility to demonstrate the damage was caused directly by the declared incident, and where pre-existing damage exists, to distinguish that damage from the disaster-related damage.^[14] 

Here the Applicant states that work to restore the Facility was required as a result of the incident.  However, while the Bridge Report describes the damaged state of the Facility, it does not demonstrate that the damages were caused as a direct result of the declared incident.  In describing damage to various sections, the Bridge Report offers unsupported conclusions that tie damage to the incident, without objective information to support them.  For instance, it notes that, “[t]here are signs of damage on the bridge such as the posts being out of plumb, impact damage and members no longer properly seated on their bearings which are indicative of damage due to high water levels, debris and high winds associated with events such as Hurricane Harvey.”[15]  This report was written 12 months after the fact, which the Applicant also stated on first appeal “ma[d]e it difficult for the engineer to put their seal on the exact cause of the damages.”[16] 

In order to distinguish between predisaster deterioration or damage, and disaster caused damage, FEMA requested documentation demonstrating the predisaster condition of the Facility.  The Applicant submitted a statement from the Director of DPCS which noted that maintenance occurs “when work is needed” and that no documentation was kept prior to the disaster.[17]  This statement, without additional documentation, does not substantiate a maintenance record nor indicate the predisaster condition of the Facility to help distinguish between the work required as a result of the disaster versus any preexisting damage.[18]  Additionally, the documentation from the post-disaster work orders showed the replacement of five deck boards, rather than supporting the Applicant’s claim that the entire Facility needed to be replaced.[19]  Therefore, the Applicant’s documentation does not substantiate that work to restore the Facility was required as the direct result of the declared incident.[20]

 

Conclusion

The Applicant has not demonstrated that the work was required as a result of the declared incident.  This appeal is denied.

 

 

[1] The President signed a formal disaster declaration, FEMA-4332-DR-TX on August 25, 2017. 

[2] See Paul Hopkins Bridge Damage Description and Dimension Assessment, Grants Manager Project # 73217 (July 2, 2019).

[3] See Bridge Condition Survey Report Following Hurricane Harvey: Paul Hopkins Park Bridge, at 22 (Sept. 18, 2018). 

[4] Id. at 23; See also Work Order ID 9116 which provides the date the bridge was closed off to the public.

[5] See Public Assistance Program and Policy Guide, FP 104-009-2, at 100 (Apr. 2018) [hereinafter PAPPG].  See also Letter from Public Assistance Branch Chief, Recovery Div., FEMA, to Chief, Texas Div. of Emergency Mgmt., at 3 (Nov. 23, 2020). The Applicant’s request estimated the cost of repair to be 51 percent of the cost of replacement ($82,452.96 vs. $176,564.20) totalling 46.7 percent, which is under the 50 percent threshold for a facility to be considered for replacement.

[6] See FEMA Building Assessment Team Analysis at 5-6.  Additionally, the report concluded that the Applicant’s engineer cost estimates included additional costs that are not considered in the repair versus replacement analysis including, nationwide permit costs, cofferdam estimates and various stand-by crews without justification. See PAPPG at 100 regarding costs not included in the numerator for the repair versus replacement calculation.

[7] Id., at 6. 

[8] The Determination Memorandum (DM) was dated June 28, 2021. The Applicant viewed the DM on July 1, 2021. 

[9] See Letter from Reg’l Adm’r, FEMA to Chief, Texas Div. of Emergency Mgmt., Grants Adm’r, Galveston Cty., at 3 of 3 (Jan. 20, 2022).  Note: As the determination rendered the work ineligible, the issue of repair v. replacement was considered moot and not discussed further.

[10] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 406(a)(1)(A), 42 U.S.C. § 5172 (a)(1)(A) (2012).

[11] Title 44 Code of Federal Regulations (C.F.R.) § 206.223(a)(1) (2016).

[12] Stafford Act §406(a)(1)(A).

[13] PAPPG at 135

[14] Id., at 19; FEMA Second Appeal Analysis, Conway Hosp., FEMA-4394-DR-SC, at 3 (July 7, 2021).

[15] See Bridge Condition Survey Report Following Hurricane Harvey: Paul Hopkins Park Bridge, at 25 (June 20, 2019).

[16] Letter from Grants Adm’r, Galveston County, to Reg’l Adm’r, FEMA, at 1-2 (Aug. 30, 2021). 

[17] Letter from Dir., Galveston Cty. Parks & Cultueral Services, to Grants Manager, Galveston Cty., (Oct. 13, 2021). 

[18] See FEMA Second Appeal Analysis, Belgrade (Township of), FEMA-4390-DR-MN, at 2 (June 8, 2020) (“An applicant must provide more than post-disaster statements or opinions to substantiate predisaster maintenance; documentation or other evidence must be submitted.”).

[19] See Work Order ID 4490.  Specifically, this work order from September 12, 2017, during the incident period, identified only 5 missing boards on the bridge.

[20] Based on the determination reached in this appeal decision, the issue of repair versus replacement is considered moot.