Result of Declared Incident, Hazard Mitigation

Appeal Brief

Appeal Letter

Appeal Analysis

Background

During the incident period of February 19 to March 30, 2019, severe storms, flooding, landslides, and mudslides impacted the state of Tennessee.[1] The Selmer Utility Division (Applicant) reported damage along a drainage channel adjacent to Selmer Wastewater Treatment Plant Lagoon #3 (Facility) following the disaster.[2] The Applicant stated that floodwater generated by the disaster eroded the channel, compromising the Facility. On July 29, 2019, FEMA conducted a site inspection and found erosion only at the base of the lagoon slope (slope toe) along the channel. FEMA prepared Grants Manager Project 97508 to document repair costs totaling $51,061.33 to replace lost material.[3] The Applicant subsequently requested $6,223,000.00, inclusive of repair costs and additional hazard mitigation upgrades, providing a Preliminary Engineering Report (PER) in support of its cost estimate. The Applicant’s engineer recommended in the PER items of work to stabilize the slope and channel (e.g., slope excavating and grading, vegetative cover on slopes, geomembrane liners, rip rap fill material, velocity dissipation mechanisms, rock checks dams, etc.). The Applicant’s engineer stated in the PER that flooding caused erosion along the channel located at the base of the Facility’s slope. The Applicant’s engineer did not identify other damage to the Facility but explained that if flood events cause further damage, the slope could fail.

FEMA issued a Determination Memorandum on February 9, 2022 denying all requested funding, stating that the Applicant’s engineer did not demonstrate through the PER that the claimed damage occurred as a direct result of the disaster, nor that the Applicant’s proposed scope of work (SOW) consisting of work to stabilize the lagoon slope and the adjacent channel was eligible for Public Assistance (PA) funding.[4] FEMA found that predisaster satellite images indicated the channel had been eroding for some time without any intervention by the Applicant. Also, FEMA stated that the PER did not include any measurements, calculations, or values quantifying the disaster-specific damage. Further, FEMA found that the Applicant did not provide maintenance records or other supporting documentation necessary to differentiate between deferred maintenance and disaster-related damage. Finally, FEMA asserted that the PER recommended several facility improvements but did not explain why FEMA’s proposed SOW was not feasible.

First Appeal 

In a letter dated March 29, 2022, the Applicant appealed the denial of $6,223,000.00 and stated that the channel would be subject to continued erosion that would increase the possibility of slope failure. The Applicant emphasized the consequences to public and private facilities, the environment, and the health and safety if a slope failure occurs. The Applicant also submitted letters from the Town of Selmer’s Mayor, Attorney, and Fire Chief, emphasizing the importance of completing the proposed repairs to prevent the failure of the Facility’s slope in future rain events. The Tennessee Emergency Management Agency (Recipient) supported the Applicant's appeal.  FEMA issued a Request for Information requesting the Applicant provide: (1) predisaster inspection records; (2) documentation regarding improvements and upgrades required by codes and standards; and (3) documentation to demonstrate reasonableness of the proposed upgrades. 

The Applicant responded, providing documentation including predisaster satellite images from 2012 and 2016, resubmitted a web link to drone footage,[5] and provided additional undated photographs. Although the Applicant acknowledged that it did not have any official inspection reports for the channel, the Applicant stated the area was observed on a regular basis as it was mowed and maintained by the plant operator every two weeks. 

On December 8, 2022, the FEMA Region 4 Regional Administrator denied the appeal, finding that the Applicant did not demonstrate that the erosion documented along the channel occurred as a direct result of the incident. FEMA explained that the channel was subject to erosion over time; therefore, annual, or bi-annual inspections were recommended as well as maintenance practices. FEMA noted that the Applicant did not provide inspection or maintenance records for the channel. In addition, FEMA stated that, in the submitted predisaster satellite images, the view of the channel was obstructed and that the 2012 image appeared to show natural erosion along the channel. Thus, FEMA determined that the damage claimed on appeal is not exclusively attributable to the declared disaster. Further, FEMA found that the Applicant’s SOW included improvements to reduce further erosion of the channel but did not demonstrate that the upgrades are required by codes or standards or that they are cost-effective hazard mitigation measures.

Second Appeal

On February 6, 2023, the Applicant submitted a second appeal stating that everything FEMA requested was previously provided by the Applicant’s engineering firm in the PER submitted with the first appeal. The Applicant also provides documentation including: (1) undated photographs; (2) precipitation data from 2000 to 2022; and (3) letters from the Town of Selmer’s Attorney, the Public Works Director, and the Applicant’s engineering firm. The letters emphasize the importance of completing the proposed work to prevent the failure of the Facility’s slope in future rain events. In addition, the engineer’s letter asserts that the channel not only increased its depth during the incident, but also moved closer to the lagoon’s slope, increasing the possibility of slope failure. In a letter dated March 31, 2023, the Recipient supports the appeal.

Discussion

FEMA provides PA funding to eligible applicants for the repair, restoration, reconstruction, or replacement of facilities damaged or destroyed by a major disaster based on the cost to restore a facility to its pre-disaster design (size and capacity) and function in accordance with applicable codes and standards.[6] To be eligible, work must be required as the result of the declared incident.[7] To determine the eligibility of the damage claimed, FEMA may request documentation illustrating the predisaster condition of a facility, e.g., maintenance records and inspection reports.[8] FEMA does not provide funding for repair of damage caused by deterioration or deferred maintenance.[9] It is the Applicant’s responsibility to demonstrate that damage was caused directly by the declared incident.[10]FEMA has the authority to provide PA funding for cost-effective hazard mitigation measures for facilities damaged by the incident.^[11] 

Here, the Applicant claimed that floodwater generated by the disaster eroded a drainage channel, compromising its Facility. However, FEMA noted deterioration in the 2012 predisaster photograph, and based on the type of damage observed, requested documentation to establish the damage was a direct result of the incident. The Applicant did not provide documentation, such as inspection or maintenance records, to support that all the damage was a direct result of the incident rather than the result of deterioration or natural erosion over time. Furthermore, the PER and support letters provided by the Applicant relate to possible future damage rather than demonstrate that the claimed damage was a direct result of the incident. The Applicant has not demonstrated that the requested work is required due to damages caused directly by the incident. Because section 406 hazard mitigation funding is only available for facilities that are damaged by the disaster, the requested hazard mitigation work is also not eligible.[12]

Conclusion

The Applicant did not demonstrate that the requested work is required as a direct result of the incident. Therefore, the appeal is denied.