Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4461
ApplicantPenny Slough Drainage District
Appeal TypeSecond
PA ID#000-UQCZK-00
PW ID#GMP 130514
Date Signed2023-03-13T16:00:00

Summary Paragraph

From February 24 to July 3, 2019, severe storms and flooding impacted western Illinois. The Penny Slough Drainage District (Applicant) claimed that the disaster caused erosion, scour, and sediment accumulation in large earthen drainage ditches. FEMA created Grants Manager Project 130514 to capture permanent work and costs for sediment removal from the ditches and repair of an embankment on one ditch. The Applicant provided predisaster maintenance records to support its claim. FEMA denied funding for the project, determining that the Applicant did not provide documentation demonstrating the predisaster capacity of the ditches or that it had performed routine predisaster maintenance. Acting on the Applicant’s behalf, the Henry County Office of Emergency Management (OEM) submitted a first appeal disputing FEMA’s determination and asserting that the Applicant provided documentation supporting its claim. In response to a Request for Information, the Applicant provided U.S. Army Corps of Engineers (USACE) inspection reports and documents associated with the original design of its drainage system, among other items. The FEMA Region V Regional Administrator denied the appeal. FEMA found that the Applicant had not provided documentation demonstrating that the requested work was necessary as a result of the disaster. The Henry County OEM submitted a second appeal on the Applicant’s behalf, reiterating its earlier assertions.

Authorities and Second Appeals

  • Stafford Act § 406(a)(1)(A).
  • 44 C.F.R. § 206.223(a)(1).
  • PAPPG, at 19, 117.
  • Big Slough Drainage District, FEMA-4461-DR-IL, at 3

Headnotes

  • To be eligible, work must be required as a direct result of the declared incident. Restoring the predisaster carrying capacity or storage capacity of engineered channels may be eligible, but only if the applicant provides documentation to establish: (1) the predisaster capacity of the facility; and (2) that the applicant maintains the facility on a regular schedule.
    • The Applicant’s supporting documentation does not include recent or multi-year survey data that would establish a basis for determining how much material was deposited in the ditch channels by the disaster.
    • Furthermore, the documentation provided does not establish predisaster maintenance of the ditch channels on a regular basis or predisaster maintenance of the ditch embankment, which could establish the embankment’s predisaster condition.
    • Finally, predisaster USACE inspection reports provided with the appeal do not assist in establishing the predisaster maintenance of the drainage ditch channels or the predisaster condition of the embankment.

Conclusion

The Applicant has not demonstrated the requested work is necessary as a result of the declared incident. Therefore, this appeal is denied.

Appeal Letter

Alicia Tate-Nadeau

Director

Illinois Emergency Management Agency

2200 S. Dirksen Parkway

Springfield, IL 62703

 

Ron Hulslander

Commissioner

Penny Slough Drainage District

14769 Illinois Highway 92

Geneseo, IL 61254

 

Re: Second Appeal – Penny Slough Drainage District, PA ID: 000-UQCZK-00, FEMA-4461-DR-IL, Grants Manager Project (GMP) 130514, Result of Declared Incident

 

Dear Ms. Tate-Nadeau and Mr. Hulslander:

This is in response to the Illinois Emergency Management Agency’s (Recipient) letter dated October 24, 2022, which transmitted the referenced second appeal on behalf of Penny Slough Drainage District (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $291,409.00 for work to restore drainage ditches.

As explained in the enclosed analysis, I have determined that the Applicant has not demonstrated the requested work is necessary as a result of the declared incident. Therefore, this appeal is denied.

This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

 

                                                                                              Sincerely,

                                                                                                    /S/

                                                                                              Tod Wells

                                                                                              Deputy Director for Policy

                                                                                              Public Assistance Division

 

Enclosure

cc: Thomas C. Sivak

Regional Administrator

FEMA Region V

Appeal Analysis

Background

From February 24 to July 3, 2019, severe storms and flooding impacted areas in western Illinois.[1] The Penny Slough Drainage District (Applicant) requested Public Assistance (PA), claiming damage to its drainage system in Henry and Whiteside Counties. Specifically, the Applicant claimed that prolonged flooding and soil saturation during the disaster caused erosion or scour damage and sediment accumulation in large earthen drainage ditches. The Applicant uses the ditches to drain water from nearby agricultural areas. FEMA developed Grants Manager Project (GMP) 130514, a Category D Water Control Facilities project, to document permanent work and costs to rebuild the embankment at one ditch and to remove sediment in all ditches.

FEMA inspected the claimed damage sites, noting that the ditches had been maintained within the previous five years, “followed by bi-annual repairs.”[2] In notations to photographs taken during the site inspections, FEMA recorded erosion in ditch embankments, washed out areas, a beaver dam, and “sediment islands” in the ditch channels.[3] FEMA noted that the amount of sediment in some areas could not be determined due to murky water.[4] In support of the Applicant’s claim, the Henry County Office of Emergency Management (OEM) submitted predisaster maintenance records. The records included contractor’s invoices, handwritten timesheets, and cost summaries dated to the three-year period between 2016 and 2018. In a memorandum dated March 2, 2020, the Henry County OEM stated that the records demonstrated routine predisaster “maintenance, upkeep and repairs to [the Applicant’s] earthen structures.”[5]

FEMA denied funding for GMP 130514 on February 18, 2021.[6] FEMA stated that the Applicant provided only the March 2, 2020 memorandum to substantiate its claim, and did not provide accompanying supporting documentation. Thus, FEMA determined that the Applicant had not provided documentation demonstrating the predisaster capacity of the drainage ditches, or that it performed routine predisaster maintenance of the ditches, as required by PA policy.

First Appeal

Acting as an agent for the Applicant, the Henry County OEM submitted a first appeal on April 18, 2021, requesting FEMA reverse its earlier decision.[7] The Henry County OEM stated that it submitted the Applicant’s predisaster maintenance records with the March 2, 2020 memorandum, and that these records were overlooked by FEMA.[8] In a transmittal letter dated April 23, 2021, the Illinois Emergency Management Agency (Recipient) recommended FEMA accept and consider the Applicant’s predisaster maintenance records.

On September 9, 2021, FEMA issued a Request for Information requesting documentation, such as as-built drawings and design and survey information demonstrating the predisaster capacity of the drainage ditches. It also requested additional predisaster maintenance documentation specific to the ditches at issue, and post-disaster inspection or survey information establishing the amount of sediment deposited in the ditches as a result of the disaster. Finally, it requested clarification as to the amount in dispute and the items of work and costs in the Applicant’s claim, including contract bidding documents showing estimated costs of $291,409.00 for the project.[9]

In a response dated October 7, 2021, the Applicant provided technical drawings and reports documenting a pump station inspection and levee system repairs completed by the U.S. Army Corps of Engineers (USACE) in 1997 and 1998, respectively. The Applicant also submitted additional reports documenting predisaster USACE inspections of the drainage system occurring approximately every four to five years between 2003 and 2016, as well as a post-disaster USACE inspection that took place in November 2019. Finally, it provided historical documentation describing the drainage and levee system, including maps and an Operation and Maintenance Manual detailing improvements made in 1946.[10] The Applicant clarified that the amount on appeal was $291,409.00.

The FEMA Region V Regional Administrator denied the appeal on May 31, 2022. FEMA determined that the documentation the Applicant provided did not demonstrate a program of routine predisaster ditch maintenance, and that the Applicant had not provided documentation recording the predisaster capacity of the ditches. It noted that Google Earth images captured in 2015 showed pre-existing damage of the type the Applicant claimed was caused by the disaster. Therefore, FEMA found that the Applicant had not adequately documented “the predisaster capacity and condition” of the ditches, and that this “prevent[ed] FEMA from determining if the requested repairs are for damages caused by the declared incident.”[11]

Second Appeal

On August 25, 2022, the Henry County OEM submitted a second appeal on the Applicant’s behalf, again requesting FEMA reverse its earlier eligibility decision.[12] It disputes FEMA’s findings on first appeal and asserts that the documentation provided includes “the original specifications of the drainage system,” and demonstrates a routine predisaster ditch maintenance program.[13] The Recipient transmitted the second appeal on October 24, 2022, recommending FEMA consider the information the Applicant provided.

 

Discussion

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.[14] To be eligible, work must be required as a direct result of the declared incident.[15] Restoring the predisaster carrying capacity or storage capacity of engineered channels may be eligible, but only if the applicant provides documentation to establish: (1) the predisaster capacity of the facility; and (2) that the applicant maintains the facility on a regular schedule.[16] Documentation supporting predisaster capacity includes survey data that is either recent or covers a multi-year period such that FEMA is able to determine the amount of new material reasonably attributable to the incident.[17] Documentation supporting regular maintenance includes a written maintenance plan and/or activity logs documenting regular intervals of activity.[18]

The Applicant claims that the disaster deposited 97,039 cubic yards of sediment along 82,232 feet of the engineered ditch channels, to an average depth of 2.5 feet. To establish the predisaster capacity of the ditches, it provides a USACE letter describing the original specifications of the drainage system.[19] However, the documentation provided does not include recent or multi-year survey data that would establish a basis for determining how much material was deposited by the disaster. Without a predisaster baseline, FEMA cannot determine how much sediment was deposited by the disaster.[20]

The Applicant also claims that the disaster damaged 18,836 linear feet of a ditch embankment. To demonstrate maintenance of both the ditch channels and embankments, it provides predisaster maintenance documentation that includes invoices and handwritten timesheets dated between 2016 and 2018, with cost summaries showing expenses totaling $73,040.45. The documents demonstrate maintenance activities performed over a three-year period preceding the disaster. However, the handwritten timesheets generally do not include descriptions of the work performed, listing only dates and times. For the majority of the entries, it is unclear what type of maintenance took place.[21] Similarly, invoices from an excavating service list the dates, hours, and type of equipment used. As with the timesheets, many do not contain information as to type of work performed, and where such information is provided, the invoices lack specificity.[22] None provide the work location. Other invoices do provide a reasonable description of the work performed, but appear to detail maintenance activities that are unrelated to the claimed damages, e.g., work to remove vegetation from the Applicant’s levees or to repair water pumps.[23] FEMA noted these issues in the first appeal decision,[24] however, on second appeal the Applicant has not provided additional clarifying information.[25]

Finally, the predisaster inspection reports provided with the appeal do not assist in establishing the predisaster maintenance of the drainage ditch channels or the predisaster condition of the embankment. USACE’s most recent inspection occurred on October 6, 2016, more than two years prior to the incident period, and does not appear to have assessed the “interior drainage system,” including the drainage ditches at issue.[26] Therefore, FEMA determines that the Applicant has not provided documentation establishing: (1) the predisaster capacity of the drainage ditches; (2) maintenance of the ditch channels on a regular basis; or (3) maintenance of the ditch embankment at issue, which could establish the embankment’s predisaster condition.

 

Conclusion

The Applicant has not demonstrated the requested work is necessary as a result of the declared incident. Therefore, this appeal is denied.

 

[1] The President issued a major disaster declaration on September 19, 2019.

[2] FEMA, Site Inspection Report, Penny Slough Drainage Dist., Damage Inventory No. 366390, at 1 (Jan. 21, 2020).

[3] E.g., FEMA, Site Inspection Photo Pages, Penny Slough Drainage Dist., Damage Inventory No. 366390, at 18-22 (Mar. 2, 2020).

[4] E.g., Id. at 22-26.

[5] Memorandum from Dir., Office of Emergency Mgmt. (OEM), Henry Cty., to Program Delivery Manager, FEMA, at 1 (Mar. 2, 2020).

[6] FEMA, Eligibility Determination Memorandum, Penny Slough Drainage Dist., Project No. 130514 (Feb. 18, 2021). FEMA denied PA funding totaling $414,882.00 for the project, however, it recorded this amount in error; see FEMA Region V, Admin. Record Index, at 1 (May 31, 2022) (noting that the cost estimate for an unrelated project had been uploaded to the record for GMP 130514 and used as the basis for the amount in dispute in the Determination Memorandum).

[7] Letter from Dir., OEM, Henry Cty., to Pub. Assistance Program, Ill. Emergency Mgmt. Agency, at 1 (Apr. 18, 2021).

[8] Id. at 2.

[9] Email from Pub. Assistance Appeals and Audits, FEMA Region V, to Comm’r, Penny Slough Drainage Dist. and Dir., Henry Cty. OEM, at 1 (Sept. 9, 2021, 1218 CDT). FEMA also requested documentation related to U.S. Army Corps of Engineers (USACE) authorities for funding repairs to the Applicant’s drainage system.

[10] The response also included: (1) a May 18, 2020, USACE email describing elements of the drainage and levee system that fall under the authority of the USACE Rehabilitation and Inspection Program; and (2) a September 29, 2021, letter from USACE stating that the Applicant is not eligible for assistance under the Rehabilitation and Inspection Program due to deficiencies noted during inspections of the drainage and levee system conducted in 2012, 2016, and 2019.

[11] FEMA First Appeal Analysis, Penny Slough Drainage District, FEMA-4461-DR-IL, at 5 (May 31, 2022) [hereinafter First Appeal Determination]. FEMA also stated that while the Applicant’s levees fall under the authority of USACE’s Rehabilitation and Inspection Program, the “interior drainage system,” including the drainage ditches, do not; Id. at 1.

[12] The Henry County OEM stated that it received the First Appeal Determination on June 27, 2022.

[13] Letter from Dir., OEM, Henry Cty., to Reg’l Adm’r, FEMA Region V, at 1 (Aug. 25, 2022) [hereinafter Applicant Second Appeal].

[14] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 406(a)(1)(A), Title 42, United States Code § 5172 (a)(1)(A) (2018).

[15] Title 44 Code of Federal Regulations § 206.223(a)(1) (2018); Public Assistance Program and Policy Guide, FP 104-009-2, at 19 (Apr. 1, 2018) [hereinafter PAPPG].

[16] PAPPG, at 117.

[17] Id. (emphasis in original text deleted).

[18] Id.

[19] See Letter from Chief, Emergency Mgmt. Div., Rock Island Dist. USACE, to Penny Slough Drainage and Levee Dist., at 1 (Apr. 17, 2021). Original design specifications are also provided in the Operation and Maintenance Manual the Applicant provided with its response to the Request for Information; see Rock Island Eng’r Dist., U.S. Eng’r Office, Operation and Maintenance Manual for Completed Local Flood Protection Works, Penny Slough Levee Project, at Plate 3 (Sept. 1946). However, this information describes improvements to the drainage system as they were constructed in 1946. They do not reflect recent or multi-year survey data, and thus cannot be used to establish the predisaster baseline discussed above.

[20] See FEMA Second Appeal Analysis, Big Slough Drainage District, FEMA-4461-DR-IL, at 3 (Jan. 17, 2023).

[21] The Henry County OEM provided the handwritten timesheets with its letter of March 2, 2020. The timesheets list the name of the individual vendor that performed the work, but contain no other identifying information. The majority of the timesheet entries are as described above, however a few entries include brief references to the task performed, e.g., “paint gate 2” or “cut tree.”

[22] See, e.g., Ballegeer Excavating, Inc., Invoice No. 17227, at 1 (Apr. 25, 2018). This invoice includes eight hours of work to “[c]lean ditches with longstick excavator,” but does not state which ditch was cleaned or how much (if any) sediment material was removed.

[23] See, e.g., Wild Land Brush Service, LLC, Invoice No. 1976, at 1 (Jan. 3, 2017).

[24] See First Appeal Determination, at 4.

[25] Additionally, in the second appeal letter, the Henry County OEM states that it “provided statements and offered sworn affidavits from [the Applicant’s] duly appointed Commissioners … to corroborate the daily activities undertaken in their tireless pursuit of drainage system performance;” Applicant Second Appeal, at 2. However, documentation fitting this description does not appear in the administrative record. The administrative record index, provided to the Applicant as an appendix to FEMA’s First Appeal Determination, does not list any such documentation, either.

[26] See USACE, Flood Damage Reduction Segment/System Inspection Report, Penny Slough Drainage & Levee Dist., at 1 (Dec. 12, 2016) (recording that the “Contents of Report” do not include the Applicant’s “Interior Drainage System”). Further, a map of the inspected areas shows that the USACE inspectors’ focus was on the drainage system’s outlets along the Rock River versus the inland levees and drainage ditches; Id. at 34.

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