Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4332
Applicant	City of Beaumont
Appeal Type	Second
PA ID#	245-07000-00
PW ID#	GMP 39170
Date Signed	2022-09-08T16:00:00

Summary Paragraph

From August 23-September 15, 2017, Hurricane Harvey caused damage in Texas.  The City of Beaumont (Applicant) reported damage to natural earth embankments at Lawson Canal (Canal) as a result of floodwaters from the event.  FEMA prepared Grants Manager Project 39170 to document the Applicant’s claim for repairs, estimated at $187,248.00.  FEMA requested that the Applicant provide maintenance records to demonstrate that the Canal was maintained on a regular basis prior to the event.  The Applicant replied, stating that maintenance was not required until after the disaster.  On September 1, 2021, FEMA issued a Determination Memorandum, finding that the Applicant did not provide documentation to substantiate its claim that the Canal was damaged as a result of the declared incident.  On November 29, 2021, the Applicant submitted a first appeal, stating that site inspectors determined that, besides the areas breached by the floodwaters, the rest of the Canal was in good condition.  Accordingly, the Applicant maintained the Canal as necessary to serve its purpose, and no maintenance documentation was necessary.   On April 4, 2022, the FEMA Region VI Regional Administrator denied the appeal, finding that without evidence regarding the predisaster condition of the Canal, FEMA could not conclude that the claimed damage was caused by the disaster.  On May 27, 2022, the Applicant submitted a second appeal, reiterating prior arguments.

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A).
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 19, 135.
• Conway Hosp., FEMA-4394-DR-SC, at 3.

Headnotes

• To be eligible for Public Assistance funding, work must be required as a result of the declared incident.
  • The Applicant stated that the site inspection report indicated that the Canal was in good condition outside of the damaged areas; however, the Applicant did not provide any additional documentation to distinguish the disaster related damage from the Canal’s predisaster condition, such as pictures or inspection reports indicating the levees were functioning as designed.  Consequently, the Applicant has not established the damages claimed are a result of the disaster.

Conclusion

FEMA finds that the Applicant has not demonstrated that the work to repair the claimed damage was required as a result of the declared incident.

 

Appeal Letter

Appeal Analysis

Background

From August 23-September 15, 2017, Hurricane Harvey caused damage in Texas.  In the City of Beaumont (Applicant), heavy rain and flooding from the event caused the Neches River to rise, flooding Lawson Canal (Canal) and the surrounding area.  The Canal was constructed in or around 1900 as the Applicant’s main source of drinking water as it diverted fresh water from the Neches River to a treatment plant.  In 2002, the Applicant laid a water main at the bottom of the Canal as the preferred method of water delivery.  The Canal is approximately 2.1 miles long and today is a static waterway that protects the surrounding area.[1]  The Applicant reported damage to two sites along the Canal’s natural earth embankment (levees), claiming that heavy rains from the event inundated the Canal, eroding the embankment, and causing a breach between the Canal and the surrounding marsh.  The Applicant claimed flooding eroded levee vegetation at one site and exposed a pipe at the other.

On August 21, 2018, and February 22, 2019, FEMA performed site inspections, noting, among other things, that the levees were in good condition with the exception of the two damaged sites, the Applicant had no set maintenance program, and the Applicant noted that the levee in general had started to erode.[2]  On April 8, 2020, FEMA sent a Request for Information to the Applicant, requesting that the Applicant provide maintenance records to demonstrate that the Canal was maintained on a regular basis prior to the event.  The Applicant replied, stating that that the pipe requires minimal maintenance besides occasional flushing of the line, which is only required if flow rates drop below predicted levels.  Likewise, maintenance to the Canal was not required until after the disaster.

On September 1, 2021, FEMA issued a Determination Memorandum, finding that the Applicant did not provide documentation to substantiate its claim that the Canal was damaged as a result of the declared incident.

First Appeal

On November 12, 2021, the Applicant submitted a first appeal, stating that during project formulation, FEMA did not express concern that maintenance documentation was insufficient and that the project would be found to be ineligible.  The Applicant asserted that site inspectors determined that, besides the areas breached by the floodwaters, the rest of the Canal was in good condition.  Accordingly, the Applicant maintained the Canal as necessary to serve its purpose, and no maintenance documentation was necessary.  The Applicant provided a technical memorandum with the construction cost estimate for intended repairs, a report of recent crests of the Neches River in Beaumont, e-mail correspondence, maintenance monthly reports for Lawson Pump Station and other facilities, and an invoice for mowing and canal cleaning.  The Texas Division of Emergency Management (Recipient) transmitted the appeal to FEMA, recommending its approval.

On April 4, 2022, the FEMA Region VI Regional Administrator denied the appeal, finding that the Applicant did not demonstrate that the claimed damage was a result of the disaster.  FEMA explained that the Applicant’s technical memorandum documented how the repairs would be done, but not how the damage occurred.  Also, the site inspection report documented the damage claimed by the Applicant, but the evidence was strictly post-event.  FEMA also observed that the exposed pipe and erosion was still surrounded by natural vegetation.  Therefore, without evidence regarding the predisaster condition of the Canal, FEMA could not conclude that the damage was caused by the disaster.

Second Appeal

On May 27, 2022, the Applicant submitted a second appeal, reiterating prior arguments.  The Recipient transmitted the appeal to FEMA, recommending its approval.

 

Discussion

FEMA may provide Public Assistance (PA) funding to a local government for the repair of a public facility damaged by a major disaster.^[3]  To be eligible, work must be required as a result of the declared incident.^[4]  FEMA does not provide PA funding for the repair of damage caused by deterioration or deferred maintenance.^[5]  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).[6]  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.^[7]

The Applicant states that the work to repair the Canal was required as a result of the disaster.  However, while the site inspection report indicated that the Canal was in good condition outside of the damaged areas, it does not establish the predisaster condition of the damaged areas to support that the damage was attributable to the disaster.  The Applicant provided several documents in support of its appeal, including a technical memorandum and monthly maintenance reports.  The technical memorandum states how the repairs would be conducted, but not how the damage occurred.  The maintenance records are not specific to the Canal, instead indicating work to other facilities and the Applicant notes that the Canal does not require maintenance.  In this case, the Applicant did not provide any documentation to distinguish the claimed disaster related damage from the Canal’s predisaster condition, such as maintenance records, pictures or inspection reports indicating the levees were functioning as designed.  Consequently, the Applicant has not established the damages claimed are a result of the disaster.

 

Conclusion

FEMA finds that the Applicant has not demonstrated that the work to repair the claimed damage was required as a result of the declared incident.  Therefore, this appeal is denied.

 

[1] Grants Manager Project 39170, Beaumont, City of (Aug. 25, 2021).

[2] FEMA Region VI, Site Inspection Report, Damage No. 101525, at 1, 5 (Feb. 22, 2019).

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

[4] Title 44 Code of Federal Regulations § 206.223(a)(1) (2016).

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

[6] Id., at 135.

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