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Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4337
ApplicantFort Pierce
Appeal TypeSecond
PA ID#111-24300-00
PW ID#PW 2977
Date Signed2021-04-05T16:00:00

Summary Paragraph

During the incident period of September 4 to October 18, 2017, Hurricane Irma caused damage in Florida.  In Fort Pierce (Applicant), the Melody Lane seawall and its adjacent sidewalk (Facility) sustained damage.  The Applicant requested Public Assistance (PA) through the Florida Division of Emergency Management (Grantee) for the cost of repairs.  FEMA created Project Worksheet 2977 to document the damage.  FEMA issued a determination memorandum finding that rust, corrosion, and deterioration of the seawall reflected damage caused by deferred maintenance and that the Applicant failed to provide documentation demonstrating the damage was disaster-related, so the work to repair the Facility was ineligible.  The Applicant appealed, asserting that the seawall was intact and functioning before the disaster and that the disaster caused the damage.  The FEMA Region IV Regional Administrator denied the first appeal.  FEMA determined the Applicant did not demonstrate that damage to the Facility was caused by the disaster and was not due to preexisting deterioration or deferred maintenance.  Therefore, the work to repair the damage was ineligible.  The Applicant submitted a second appeal asserting the damage was caused by the declared incident and was not due to deferred maintenance or deterioration.  The Applicant states that the seawall was operating as intended prior to the disaster and that rust is typical in saltwater environments, so rust alone is not indicative of deferred maintenance.

 

Authorities and Second Appeals

  • Stafford Act § 406(a).
  • 44 C.F.R. § 206.223(a)(1).
  • PAPPG, at 19, 133, and 135.

 

Headnotes

 

Conclusion

FEMA finds that the Applicant has not demonstrated that the damage was a result of the disaster and not caused by deterioration or deferred maintenance.  Therefore, this appeal is denied.

 

Appeal Letter

Jared Moskowitz

Director

Florida Division of Emergency Management

2555 Shumard Oak Blvd.

Tallahassee, Florida 32399-2100

 

Re:       Second Appeal – Fort Pierce, PA ID: 111-24300-00, FEMA-4337-DR-FL, Project Worksheet 2977 – Result of Declared Incident

 

Dear Mr. Moskowitz:

This is in response to a letter from your office dated January 4, 2021, which transmitted the referenced second appeal on behalf of Fort Pierce (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 $1,345,881.00 for repairs to the Melody Lane seawall and its adjacent sidewalk.

As explained in the enclosed analysis, I have determined that the Applicant has not demonstrated that the damage was a result of the disaster and not caused by deterioration or deferred maintenance.  Therefore, this appeal is denied.

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

 

                                                                     Sincerely,

                                                                       /S/

                                                                     Ana Montero

                                                                     Division Director

                                                                     Public Assistance Division

                                                                       

cc:  Gracia Szczech  

Regional Administrator

FEMA Region IV

Appeal Analysis

Background

From September 4 to October 18, 2017, Hurricane Irma caused damage throughout Florida, including Fort Pierce (Applicant).  The Applicant owns the Melody Lane seawall and its adjacent sidewalk (Facility).  The Applicant requested Public Assistance (PA) through the Florida Division of Emergency Management (Grantee) for repairs to the Facility.  FEMA created Grants Manager Project 30155 and later Project Worksheet (PW) 2977 to document claimed damage, the scope of work for repair, and estimated costs.[1]

On September 18, 2019, FEMA issued a determination memorandum finding that rust, corrosion, and deterioration of the seawall reflected damage caused by deferred maintenance and the Applicant failed to provide documentation demonstrating that the damage was disaster-related, so the work to repair it was ineligible. 

 

First Appeal

On November 7, 2019, the Applicant appealed, asserting that the seawall was intact and functioning before the disaster and that the disaster caused the claimed damage.  The Applicant acknowledged that some of the seawall’s sheet piling had corrosion, but added that the bordering Indian River Lagoon’s constant water level is well below any visible corrosion, which in turn allows the sidewalk and roadway substructure to remain intact.  Therefore, the Applicant claimed that high winds and wave velocity during the hurricane accelerated the disintegration of the sheet piling, which resulted in the eroding of the infrastructure support causing the failure of the sidewalk and threatening the roadway.  The Applicant also provided a letter regarding the Facility’s maintenance plan in response to FEMA’s determination that deterioration of the seawall reflected damage caused by deferred maintenance, stating that it performed routine maintenance inspections and addressed all deficiencies accordingly.  The Grantee supported the first appeal in a December 27, 2019 letter.

In a first appeal decision dated September 9, 2020, the FEMA Region IV Regional Administrator denied the first appeal.  FEMA determined that the Applicant did not demonstrate that damage to the Facility was caused by the disaster, rather than preexisting deterioration or deferred maintenance.  Therefore, the work to repair the damage was ineligible.  FEMA explained that photographs reflected extensive rust, corrosion, and deterioration of the steel sheet piles, and the Applicant did not provide documentation to validate its maintenance plan.

 

Second Appeal

The Applicant submitted a second appeal on November 6, 2020, asserting that the damage was caused by the declared incident, not deferred maintenance or deterioration, and requesting $1,345,881.00 in PA funding for repair costs.  The Applicant provides a 1990 engineering manual from the United States Army Corps of Engineers and a video of wave action from the hurricane causing water to overtop the seawall.  The Applicant asserts that wave action resulted in forces that exceeded the design criteria of the seawall, so the failure of the seawall would have occurred regardless of whether the steel panels were corroded.  It claims that since corrosion of steel sheet piles in saltwater environments is typical, it is not evidence of deferred maintenance.  The Applicant states that there are no recommended maintenance plans for steel sheet piles within a seawall and the only cost-effective maintenance option is to replace the steel panels.  It also adds that the seawall was designed with a 40-year life span, was in its 30th year of operation, was functioning as intended prior to the event, and did not require replacement.  On January 4, 2021, the Grantee transmitted the second appeal to FEMA, recommending its approval.

 

Discussion

Section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act authorizes FEMA to reimburse eligible applicants for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster.[2]  To be eligible for financial assistance, an item of work must be required as the result of the emergency or major disaster event.[3]  The applicant is responsible for showing that work is required to address damage caused by the declared incident.[4]  FEMA requires documentation to support that the work is eligible[5] and accepts a variety of documentation to establish predisaster condition of a facility (e.g., facility maintenance records, inspection/safety reports).[6]  FEMA does not provide PA funding for repair of damage caused by deterioration or deferred maintenance.[7]  

Here, the Facility was in its 30th year of operation[8] and exhibited extensive corrosion[9] indicative of deterioration or deferred maintenance.  The documentation provided by the Applicant, specifically the engineering manual and the video of wave action, does not support the Applicant’s assertion that the seawall would have failed regardless of the deterioration.  More importantly, the documentation provided does not include information such as predisaster pictures, maintenance records, or inspection reports that FEMA would accept to establish the Facility’s predisaster condition.  Consequently, FEMA cannot determine that the damage was disaster-related or instead was caused by preexisting deterioration or deferred maintenance.  Therefore, the Applicant has not demonstrated that the work to repair the damage was required as a result of the disaster.

 

Conclusion

FEMA finds that the Applicant has not demonstrated that the damage was a result of the disaster and not caused by deterioration or deferred maintenance.  Therefore, this appeal is denied.

 

[1] PW 2977 describes damage to 500 LF of steel sheet pile with concrete headwall and 141 LF of concrete sidewalk.  Scope of work consists of sidewalk repairs and replacing the steel sheet pile seawall with a precast concrete pile seawall with total estimated costs of $1,345,881.00.  The project was not approved.

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

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

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

[5] Id. at 133.

[6] Id. at 135.

[7] Id. at 19.

[8] Letter from City Manager, Fort Pierce to Dir., Fla. Div. of Emergency Mgmt., at 5 (Nov. 6, 2020).

[9] Photographs #1 and #2 from the Applicant (Sept. 13, 2017).

Last updated April 7, 2021