Result of Declared Incident

Appeal Brief

The Applicant has not demonstrated the claimed damage was the direct result of the declared incident. Therefore, this appeal is denied. 

Appeal Letter

Appeal Analysis

Background

From October 31 to November 1, 2019, severe storms, straight-line winds, and flooding impacted portions of New York, including the Village of Waterville (Applicant). The Applicant requested Public Assistance (PA) to repair its waterworks dam and reservoir system (Facility).  Built in 1920, the Facility consists of a steel water storage tank, a booster pump station, gate houses, sedimentation basins, and two upland dams/reservoirs. On December 28, 2020, FEMA conducted site inspections of the Facility. The site inspection reports noted that floodwaters washed out structures protecting the Facility, resulting in damage to the Facility’s components, including debris deposits, basement flooding, exposed and disconnected piping, sedimentation basin dam and concrete channel damage, and embankment erosion.

FEMA approved Grants Manager Project (GMP) 135174/Project Worksheet (PW) 838 for $808,800.30 in PA to address erosion and make repairs to the Facility. The Facility components approved for repairs by FEMA included: the concrete spillway, maintenance bridge, sedimentation basins, pump stations, sedimentation dams, lower dam outlet channel, and upper and lower dam banks.

In a letter dated September 26, 2022, the Applicant requested a change in Scope of Work (SOW) to include costs to comply with claimed consensus-based codes and standards resulting in upgrades to the damaged portions of the Facility. The Applicant requested an additional $2,441,199.70 for the SOW change. On October 10, 2023, FEMA denied the SOW change request. FEMA found the requested SOW changes were not reasonable to restore the Facility to its predisaster condition noting that the approved SOW included all applicable codes and standards triggered by the damages from the incident. FEMA also determined there was additional damage claimed in the SOW change request that was indicative of the Facility’s age and deferred maintenance/prior condition, and not a result of the disaster.

First Appeal

The Applicant submitted its first appeal in a letter dated December 8, 2023, seeking $2,441,199.70 for costs to repair the Facility.

The Applicant provided a post-disaster report from its engineer (Dodson) and explained that the report recommended and supported the proposed SOW change.[1] The Applicant reiterated it was requesting to bring the damaged components of the reservoir system up to current codes and standards, and not the entire Facility.  The Applicant stated the Facility was well maintained, and although old, it was overall in surprisingly good condition prior to the incident. 

With its appeal, the Applicant provided its Emergency Response Plan, and a New York State Department of Environmental Considerations (NYSDEC) report dated September 9, 2016. The NYSDEC report noted dense bush and mature trees growing on the downstream embankment slope of both dams. The NYSDEC report also stated the upstream embankment of one of the dams showed signs of wave erosion which it recommended monitoring and addressing as part of the dam’s ongoing maintenance plan. Finally, the NYSDEC report documented severe deterioration of the concrete spillway for the reservoir. However, the Applicant claimed the comments made by NYSDEC in the predisaster report pertained to housekeeping items, not safety or structural concerns.

The New York State Division of Homeland Security and Emergency Services (Recipient) transmitted its support for the appeal in a letter dated February 2, 2024. 

On July 11, 2024, FEMA issued a request for information (RFI) asking for maintenance records from prior to the incident; dated pre- and post-disaster photographs of the Facility to illustrate the predisaster condition of the Facility; and complete copies of the codes and standards claimed as applicable. In response to FEMA’s request, the Applicant asserted that NYSDEC conducted inspections every four years and that these reports have consistently documented only minor maintenance needs, such as wave erosion and seepage. With its RFI response, the Applicant provided a photograph from 2008 of a worker mowing the grass. Finally, according to the Applicant, the sedimentation basins, spillway, and chutes were in good condition as documented in the NYSDEC report and it did not receive an order to do any immediate safety-related work on the Facility.

On October 16, 2024, the FEMA Region 2 Regional Administrator denied the appealed amount of $2,441,199.70 for the costs associated with the SOW change request, and further determined that $808,800.30 of previously obligated funds was ineligible, for a total denial of $3,250,000.00. FEMA noted that the 2016 NYSDEC report identified deficiencies in the Facility, such as deterioration of the spillway and vegetative growth along the embankment, and that the Applicant had not taken corrective measures to address them prior to the incident. FEMA also noted that the overgrown vegetation prevented NYSDEC from performing a complete inspection of the Facility in 2016. Additionally, FEMA found the Applicant’s 2008 photograph insufficient to support predisaster maintenance of the Facility. For these reasons, FEMA found the Applicant had not demonstrated that the work resulted from the declared incident. Finally, FEMA found the Recipient had not drawn down any of the $808,800.30 in previously obligated funds and, therefore, FEMA was not precluded under Stafford Act Section 705(c) from deobligating that funding.[2]

Second Appeal

The Applicant submitted its second appeal by letter dated December 6, 2024, requesting $3,250,000.00. The Applicant states that a post-disaster NYSDEC report, which was based on a visual site inspection performed on November 15, 2019, supports its claim that the damage was caused by the disaster. The Applicant further disputes that the predisaster NYSDEC report indicates that the claimed damage was the result of predisaster conditions, given that the NYSDEC did not issue an unsound/unsafe rating in the report. The Applicant states that the vegetative growth identified in the NYSDEC report is an ongoing issue that the Applicant uses its limited resources to control. In support, the Applicant points to a 2008 photograph of a worker trimming the vegetative growth, September 2019 photographs, and a shared service agreement with a neighboring town to mow around the spillway annually in the summer. The Applicant also references a prior second appeal determination from FEMA stating that deferred maintenance alone is not enough of a basis to deny PA funding. Finally, the Applicant reiterates that its proposed SOW changes bring the damaged components of its Facility up to current codes and standards requirements. On January 31, 2025, the Recipient forwarded the Applicant’s second appeal with its support.

Discussion

FEMA may provide PA funding to eligible applicants for the repair, restoration, reconstruction, or replacement of facilities damaged or destroyed by a major disaster on the basis of their predisaster design and function, in accordance with applicable codes and standards.[3] To be eligible for PA funding, work must be required as a result of the disaster, and the applicant must demonstrate that the damage was directly caused by the incident.[4] FEMA does not provide funding for repair of damage caused by deterioration or deferred maintenance.[5] If a facility was functioning prior to the disaster and the disaster caused damage that rendered the facility non-functional, the facility may be eligible provided the predisaster condition was not a significant contributing factor in the cause of failure.[6] 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).[7] It is the applicant’s responsibility to provide documentation to substantiate its claim as eligible.[8] 

The Applicant requests a total of $3,250,000.00 to repair the Facility, based in part on the claimed code-required upgrades. Specifically, the Applicant requests re-obligation of $808,800.30 for funding to repair the Facility that FEMA de-obligated on first appeal and the award of $2,441,199.70 in costs for upgrades denied in response to the SOW change request. 

Here, the record indicates significant issues with the predisaster condition of the Facility, particularly the spillway and dam embankments. A safety inspection was performed by Lamont Engineers prior to the disaster, and the resulting report in January 2016 (Lamont Report) identified numerous deficiencies.[9] The Lamont Report documented that Dam #1 had an insufficient spillway capacity and that the concrete spillway was spalled, cracked and generally in very poor condition.[10] The report also noted that Dam #1 and Dam #3 had an inadequate safety factor, which indicated that the earthen embankments were unstable. The report recommended that, within 24 months, both dams, along with the stilling basin dam be rehabilitated to bring them into conformance with current Dam Safety Regulations. As an alternative, the report recommended that three dams be breached. The NYSDEC also performed an inspection in 2016 and noted similar deficiencies with the concrete spillway, along with excessive vegetative growth along the embankment.[11] The NYSDEC explained that excessive growth can lead to a number of problems, such as erosion, and recommended that the entire dam should be cleared of unwanted vegetation and that these conditions should be addressed as soon as possible. The conditions identified in the predisaster inspection reports, if not addressed, would weaken the Facility’s stability over time, making it more vulnerable to failure.[12]There is no indication that the Applicant took any action to address these concerns.

The Applicant provided some documentation to demonstrate its efforts to address the predisaster concerns identified in earlier reports: a photograph from 2008, photographs from 2019, maintenance contracts for the water storage and water controls from 2018 and 2019, and a shared service agreement. However, none of these documents support the Applicant’s position that it addressed the reports’ concerns or that the Facility’s predisaster condition was stable. Specifically, the 2008 photographs show workers clearing the embankment prior to the 2016 reports and more than 10 years prior to the incident. Additionally, the Applicant has not clearly identified which of the 2019 photographs it provided were taken prior to the disaster, despite claiming that some of them were from September 2019. However, the 2019 photos generally show cracking in the spillway and vegetative growth along the earthen embankment. Likewise, the shared service agreement shows that the Applicant mowed the grass, but it does not demonstrate regular and routine maintenance to the Facility, including clearing overgrown vegetation. 

In its post disaster inspection report, Dodson noted the probable cause of the damage was that the already deteriorated concrete spillway was further undermined during the disaster, resulting in large concrete slabs from the spillway being transported downstream and blocking the channel. This blockage diverted floodwater flow into the sedimentation basins, which resulted in further damage to the Facility, when the sedimentation basin embankments were overtopped. FEMA has determined that the predisaster spillway deterioration and embankment instability significantly contributed to the redirected floodwater flow, resulting in damage to the Facility’s components. This is further supported by the accompanying 2019 photographs that show cracking in the spillway and vegetative growth along the earthen embankments. Thus, the record indicates that the predisaster condition of the Facility was a significant contributing factor to its failure. Consequently, the Applicant has not substantiated the claimed damages to the Facility were a direct result of the disaster rather than a result of pre-existing deficiencies.

Conclusion

The Applicant has not demonstrated the claimed damage was the direct result of the declared incident. Therefore, this appeal is denied.