Result of Declared Incident

Appeal Brief

Appeal Letter

Appeal Analysis

Background

From February 27, 2021 to March 14, 2021 severe storms, flooding, landslides, and mudslides caused damages throughout the State of Kentucky. The Kentucky Department of Transportation (Applicant) requested Public Assistance (PA) to repair roadside ditch embankment (embankment) damage to five sites on Kentucky Route 3379 (Facility), a rural, asphalt, two lane state road. FEMA documented the work and estimated repair costs of $69,448.20 in Grants Manager Project 187131/Project Worksheet 241. FEMA conducted a site inspection (SI) on August 24, 2021, and prepared five site inspection reports (SIRs), one for each damage site identified.^[1] Each SIR noted damages to the embankment and minimal damages to the surface of the road.^[2] SI photographs showed erosion, road and guardrail undermining, and washout damage to roadside ditch areas directly abutting the road. FEMA reviewed photographs from 2015 of sections of the Facility in the vicinity of the claimed damage, that showed road damage at one site, embankment erosion and road damages at another, and embankment erosion in the areas of the other three claimed damage sites.[3] Additionally, the SIRs noted that the Applicant planned to use rail and cribbing to repair the damage to the embankment. FEMA sent a Request for Information (RFI), requesting predisaster maintenance records for the five sites. The Applicant responded to the RFI stating that it paved the Facility in 2016 and provided a bid request scope of work document for that work. In a Determination Memorandum dated February 17, 2022, FEMA denied the total project cost stating that the Applicant did not provide documentation demonstrating that the damages resulted from the declared disaster. FEMA stated that the Applicant was silent on any maintenance undertaken to address erosion noted in the 2015 historical photographs.

First Appeal 

The Applicant submitted an April 15, 2022 first appeal, referencing previously submitted maintenance documentation and requesting $69,448.20. The Applicant provided a spreadsheet listing maintenance and repair work performed since 2013 at the Facility. The spreadsheet indicated work information, including milepost locations, completion dates, activity types,[4] and costs. The Applicant highlighted work that it asserted applied to the type of work claimed under its appeal. On April 18, 2022, the Kentucky Emergency Management (Recipient) transmitted the Applicant’s appeal recommending FEMA approve the requested funding. FEMA’s Region 4 Regional Administrator denied the appeal on January 13, 2023, finding that the Applicant did not provide sufficient documentation demonstrating that it had maintained or repaired the embankments since 2015, and consequently, the claimed damage appeared to be pre-existing. FEMA stated that documentation provided by the Applicant established that the Facility was regularly maintained; however, the records did not identify any work specific to embankment repair or maintenance at the five sites on appeal.

Second Appeal

In a letter dated March 13, 2023, the Applicant submitted a second appeal. The Applicant states that the 2015 photographs do not show embankment erosion that affects the structural integrity of the Facility. It asserts that in contrast, post-disaster SI photographs show undermining and damage compromising the structural integrity of the Facility. The Applicant notes that FEMA’s first appeal response acknowledges that documentation provided by the Applicant demonstrates the Facility was regularly maintained and that the Applicant performed maintenance to ensure the integrity of the Facility. Finally, the Applicant provides side-by-side pre- and post-disaster photographs of the Facility, comparing the images and asserting the 2015 photographs do not show the claimed disaster damage, while the post-disaster SI photographs show pavement edge damage from flood waters washing away the embankment support material. In a letter dated April 16, 2023, the Recipient transmitted the Applicant’s appeals with its support.

Discussion

FEMA provides PA funding to eligible applicants for the repair, restoration, or replacement of public facilities damaged or destroyed by disasters, including roads and road components like roadside ditches.^[5] To be eligible, an item of work must be required as a result of the declared incident.^[6] The incident may cause damage to roads similar to that which may occur over time, and distinguishing between preexisting damage and damage caused by the incident is often difficult.^[7] FEMA does not provide PA funding for the repair of damage caused by deterioration or deferred maintenance, rather the applicant must demonstrate that the damage was directly caused by the incident.^[8] When evaluating the eligibility of reported road damage, FEMA reviews maintenance records or documentation establishing that the Applicant has a routine maintenance program.^[9] Such documentation may be helpful to establish the predisaster condition of a facility and demonstrate that the damage was directly caused by the incident.^[10]

Here, the Applicant has established the damages at issue were directly caused by the incident. First, FEMA’s SI photographs following the disaster showed erosion, road undermining, and washout damage to the roadside ditch embankments directly abutting the road, along with minor roadway damage. Although predisaster photographs from 2015 showed preexisting damage to embankments in the vicinity of the claimed disaster damage, the Applicant has demonstrated the damage at issue to the five sites in this appeal is not apparent in those photographs. Second, as previously stated in the first appeal decision, the Applicant has provided predisaster documentation that shows it regularly maintained the Facility, including addressing embankment and road damage. In order to differentiate any purported predisaster deterioration from potentially eligible disaster-related damage, the Applicant provided documentation, including a spreadsheet detailing 353 roadway work items, which specified dates, cost, and mileposts for various maintenance and repair work conducted along the damaged section of the Facility between 2013 and 2021, totaling $2,524,396.61.[11]Additionally, the spreadsheet notes 84 entries for miscellaneous shoulder maintenance, totaling $214,854.18, that further supports that the Applicant routinely maintained the road, and in particular, the roadside. Based on the above, the Applicant has demonstrated that the requested work is required to address damage caused by the disaster.

Conclusion

FEMA finds that the Applicant has demonstrated the work to repair damages to the Facility is required as a direct result of the declared incident. This appeal is therefore granted in the amount of $69,448.20, and the Region is directed to take appropriate implementing action.