Result of Declared Incident – Other Federal Agency

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4427
ApplicantMcNairy (County)
Appeal TypeSecond
PA ID#109-99109-00
PW ID#PW 126
Date Signed2021-04-09T16:00:00

Summary Paragraph

During the incident period, February 19 to March 30, 2019, the Applicant experienced severe storms, straight line winds, and flooding, and requested PA funding for eroded unpaved roadways and ditches and clogged culverts.  FEMA met with the Applicant on June 24, 2019, five sites were claimed in Project Worksheet 126 with an estimated total of $195,572.18.  FEMA completed two separate site inspections on July 22 and July 30, 2019 and afterwards requested documentation demonstrating predisaster maintenance of the roads.  The Applicant provided single maintenance records for three of the five sites with no specifics on location or work conducted.  FEMA issued a determination memorandum, denying the full amount claimed as the work was not required as a result of the event; furthermore, the embankments were unimproved natural features.  The Applicant appealed and stated that the sites did not require any maintenance because they did not experience any major issues.  The Applicant stated it had not applied for Natural Resource Conservation Service (NRCS) assistance in the required 60-day timeframe, as such FEMA is only available source of funding.  The Grantee forwarded the appeal in support of the Applicant’s position.  FEMA Region IV Regional Administrator denied the first appeal on January 8, 2021, finding the work was not required as a result of the declared incident.  The Applicant filed a second appeal, explaining how the sites met the three conditions for improved facilities.  The Grantee forwarded the appeal on February 11, stating that the sites under NRCS authority were past the 60-day deadline and should be eligible for PA funding.

Authorities and Second Appeals

  • Stafford Act §§ 102, 406 (a)(1)(A).
  • 44. C.F.R. §§ 206.223(a), 206.226(a)(1).
  • PAPPG, at 17, 19, 53, 116.
  • Republic Cnty. Highway Dep’t, FEMA-4230-DR-KS, at 3; Lake (Cnty.)/Highway Dep’t, FEMA-4390-DR-MN, at 2; City of Fulshear, FEMA-4332-DR-TX, at 3; Belgrade (Township of), FEMA-4390-DR-MN, at 2.

Headnotes

  • Per 44 C.F.R. §206.223(a)(1) and PAPPG at 19, to be eligible for financial assistance, an item of work must be required as the result of the emergency or major disaster event.  Per PAPPG at 116, FEMA reviews material purchase invoices and activity logs and inspects other section of the Applicant’s road system to confirm the performance of normal maintenance activities.
    • The Applicant has not substantiated that the repairs conducted were required as a direct result of the declared incident. 
  • Per 44 C.F.R. §206.226(a)(1) and PAPPG at 17 and 116, if permanent work is under the authority of another Federal Agency, FEMA does not provide assistance to restore that Facility even if that Federal Agency does not provide funding.
    • Even though the Applicant missed the deadline to claim funding from the NRCS, the facilities fall under that agency’s authority and, as such, are not eligible for PA funding.

Conclusion

The Applicant has not demonstrated that the claimed work was required as a result of the disaster.  Furthermore, FEMA finds the facilities under the specific authority of the NRCS are not eligible for PA funding.  Accordingly, this appeal is denied.

Appeal Letter

Patrick C. Sheehan                

Director                                                                      

Tennessee Emergency Management Agency            

3041 Sidco Drive                                           

Nashville, Tennessee 37204  

 

Re:  Second Appeal – McNairy (County), PA ID: 109-99109-00, FEMA-4427-DR-TN, Project Worksheet (PW) 126 –Result of Declared Incident – Other Federal Agency  

 

Dear Mr. Sheehan:

This is in response to your letter dated February 11, 2021, which transmitted the referenced second appeal on behalf of McNairy County (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 $195,572.18 for roadway and embankment repairs from flooding.  

As explained in the enclosed analysis, I have determined that the Applicant has not demonstrated that the claimed work was required as a result of the disaster.  Furthermore, FEMA finds the facilities under the specific authority of the Natural Resource Conservation Service are not eligible for PA funding.  Accordingly, 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

 

Enclosure

cc:  Gracia Szczech  

Regional Administrator

FEMA Region IV

Appeal Analysis

Background

During the incident period of February 19 to March 30, 2019, severe storms, straight line winds, and flooding impacted the state of Tennessee.[1]  On June 24, 2019, FEMA met with McNairy County (Applicant) and documented nine Damage Inventories (DI)(s).  Of the nine presented, FEMA assigned five to Project Worksheet (PW) 126 with an estimated cost of $195,572.18.[2]  The five are identified as:

DI #

Facility Description

Damage Description

Scope of Work

295322

Old Stage Road

Erosion of road embankment and ditch bank

Restore to predisaster condition

295366

Oxford Creek Road

Hurley School Road

Erosion of ditch bank

Restore to predisaster condition

295365

Lakefield Road

Erosion of ditch bank

Unknown

296509

Russom Road

Clogged culvert

Restore to predisaster condition

296510

Huley Kirby Road

Clogged culvert and erosion of road shoulder

Restore to predisaster condition

FEMA conducted site inspections of the five facilities on July 22 and July 30, 2019, to assess damages.  FEMA first observed that the embankments appeared to be unimproved natural features, and additionally summarized that information gathered at the inspections did not demonstrate that the damages to culverts and roadways were due to the disaster.  For instance, FEMA observed that certain damages were similar to what would occur naturally over time.  Consequently, FEMA requested documentation from the Applicant demonstrating the predisaster condition of the facilities and photographs of damages or the repairs completed.  In response, the Applicant provided maintenance records for three of the five facilities in question.[3]  The information related to single instances of work but with no material quantities, or exact location of the work being conducted. 

FEMA issued a determination memorandum on June 30, 2020 denying $195,572.18 in requested restoration costs for the five facilities.  FEMA determined that from the site inspections and the lack of predisaster condition documentation, the Applicant could not clearly show that claimed work was required as a direct result of the disaster.  Furthermore, FEMA found that the embankments were unimproved natural features and not eligible for funding.

 

First Appeal

The Applicant appealed FEMA’s denial of funding in a letter to the Tennessee Emergency Management Agency (Grantee) dated July 23, 2020.  The Applicant stated that the facilities had not experienced any major washing or erosion prior to the disaster, which was why the Applicant had minimal predisaster maintenance documentation.  Furthermore, the Applicant stated repairs were too costly for the Applicant to undertake without FEMA assistance.  Finally, the Applicant stated it missed a deadline to claim reimbursement from the Natural Resource Conservation Service (NRCS) for three of the facilities; therefore, FEMA was the only available Federal funding source.  The Grantee forwarded the letter on July 27, 2020 to FEMA in support of the Applicant’s appeal.

The FEMA Region IV Regional Administrator denied the first appeal on January 8, 2021.  Although FEMA determined that the embankments were part of a constructed roadway and farm drainage system rather than a natural feature, it found the Applicant had not substantiated that the work on the five facilities was required as a direct result of the disaster.  It noted that imagery indicated predisaster damage and deferred maintenance.

 

Second Appeal

The Applicant filed a second appeal explaining its grounds for the requested funding.  First, the Applicant affirms that it maintains all its roads and ditches on a regular basis.  It states that while it does not have one specific person inspecting all roads (due to a limited budget), multiple Applicant-personnel are responsible for road observations and reporting issues as they occur, which the Applicant then immediately addresses.  Second, the Applicant asserts that it missed the opportunity to receive funding for NRCS facilities because FEMA did not notify the Applicant it should apply for NRCS assistance until after the NRCS 60-day deadline.[4]

The Grantee forwarded the Applicant’s appeal in a letter of support dated February 11, 2021.  In addition to previously raised arguments, the Grantee states that FEMA can fund facilities normally under the authority of another Federal agency when that funding is no longer available, citing the Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act sections 312 and 406 for support.[5]  It also relies on Title 44 Code of Federal Regulations (44 C.F.R.) § 206.226(a)(1) to demonstrate that there are exceptions to the general prohibition against FEMA providing PA for facilities under the specific authority of another agency.[6]

 

Discussion

Result of Declared Incident

The Stafford Act authorizes FEMA to fund the cost of repairing, restoring, reconstructing, or replacing a public facility damaged or destroyed by a major disaster.[7]  To be eligible for financial assistance, an item of work must be required as the result of the major disaster event.[8]  Work to repair damage caused by deterioration or deferred maintenance is not eligible for reimbursement.[9]  A disaster may cause minor damage to roads that result in damage similar to that which may occur over time from other causes, such as the age of the road, traffic flow, and frequent rain.[10]  Therefore, distinguishing between pre-existing damage and damage caused by the disaster is often difficult.[11]  To assist in this evaluation, FEMA may review maintenance records or documentation establishing that the applicant had a routine maintenance program.[12]  The Applicant must demonstrate with supporting documentation that damages were directly caused by the disaster.[13]

Here, FEMA’s site inspections did not record specific instances of disaster-related damage.  Either the reports noted that: (1) no damage was found; (2) the work was complete; or (3) that the damage did not appear to be disaster-related and there was no evidence that maintenance had been performed.  Although the Applicant provided predisaster maintenance records to try to establish the relationship between the damages claimed and the disaster, the records provide no specific information on where, when, and what predisaster work the Applicant conducted on three of the five facilities in question.[14]  Furthermore, the Applicant has not provided documentation to substantiate any predisaster maintenance to the remaining two facilities.[15]  As such, the Applicant has not provided documentation to support different conclusions than those noted in FEMA’s site inspections.[16]  Therefore, the Applicant has not demonstrated that the repairs made to the facilities were required as a direct result of the disaster. 

 

Other Federal Agency

FEMA may fund the restoration of public facilities damaged or destroyed by a major disaster.[17]  The Stafford Act defines a “public facility” to include any “non-Federal-aid street, road, or highway” owned by a local government.[18]  Because of this Stafford Act limitation, FEMA policy states that if a facility is under the specific authority of another Federal agency, FEMA does not provide assistance to restore that Facility even if that Federal agency does not provide funding to restore the facility.[19]  While there are exceptions to this general prohibition (i.e., where PA funding for emergency work is allowed),[20] FEMA policy clearly states that permanent work to restore roads and bridges is not eligible when restoration is under the specific authority of another agency.[21]

Here, the Applicant acknowledges that multiple facilities were under the authority of the NRCS.[22]  Therefore, regardless of the Applicant’s inability to obtain funding from the NRCS due to the lapsed filing deadline, the permanent work is not eligible for PA funding because those facilities fall under that agency’s specific authority.[23] 

 

Conclusion

The Applicant has not demonstrated that the claimed work was required as a result of the disaster.  Furthermore, FEMA finds the facilities under the specific authority of the NRCS are not eligible for PA funding.  Accordingly, this appeal is denied.

 

 

[1] The President issued a major disaster declaration on April 17, 2019. 

[2] The remaining four were assigned to Grants Manager Project 99952 and are not currently being appealed.  Note: The scopes of work for the five sites on appeal were not fully developed as eligibility concerns arose early in the process.

[3] Old Stage Road, Hurley School Road and Oxford Creek Road.

[4] The Applicant claimed three facilities were under NRCS authority on first appeal, and then decreased the number to two on second appeal.  The inconsistency of three to two facilities claimed by the Applicant on first and second appeal is not addressed by either the Applicant or the Grantee.  In addition, the facilities are not specifically identified by name or DI#.

[5] Section 312 of the Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act precludes FEMA from providing Public Assistance (PA) to an applicant that has received financial assistance from any other program or from insurance or any other source.  Section 406 of the Stafford Act allows FEMA to provide PA to a local government for the restoration of a public facility damaged or destroyed by a disaster.

[6] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.226(a)(1) (2018) (providing that generally, disaster assistance will not be made available under the Stafford Act when another Federal agency has specific authority to restore facilities damages or destroyed by a disaster) (emphasis added).

[7] Stafford Act § 406(a)(1)(A), Title 42, United States Code (U.S.C.) § 5172 (a)(1)(A) (2018).

[8] 44 C.F.R. § 206.223(a)(1); Public Assistance Program and Policy Guide, FP 104-009-2, FP 104-009-2FPFat 19 (April 2018) [hereinafter PAPPG].

[9] PAPPG, at 19.

[10] Id. at 116.

[11] Id.

[12] See id.; FEMA Second Appeal Analysis, Lake (Cnty.)/Highway Dep’t, FEMA-4390-DR-MN, at 2 (Nov. 30, 2020).

[13] See id.; FEMA Second Appeal Analysis, City of Fulshear, FEMA-4332-DR-TX, at 3 (Aug. 5, 2019).

[14] The maintenance records only identified the roadways by name, and no materials, equipment hours or other information were available to determine what work was done.

[15] Russom Road and Huley Kirby Road.

[16] Although the Applicant states on second appeal that multiple personnel consistently examined roads and immediately reported any issues as they arose, without supporting documentation verifying this, the Applicant has not established it had a predisaster routine maintenance program.  See FEMA Second Appeal Analysis, Belgrade (Township of), FEMA-4390-DR-MN, at 2 (June 8, 2020) (“An applicant must provide more than post-disaster statements or opinions to substantiate predisaster maintenance; documentation or other evidence must be submitted.”).  FEMA Second Appeal Analysis, Republic Cnty. Highway Dep’t, FEMA-4230-DR-KS, at 3 (July 26, 2017) (finding that based only on the Applicant’s statements that it had an informal maintenance program and that repairs were done on an as needed basis, FEMA could not conclude the Applicant had a predisaster maintenance program).

[17] Stafford Act § 406(a)(1)(A), 42 U.S.C. § 5172(a)(1)(A). 

[18] Id. §§ 102(10)(B), 5122(1)(B).

[19] PAPPG, at 17. 

[20] Id. at 52-53, 82.

[21] Id. at 116.

[22] See id. at 53 for eligible activities that are reimbursable under the National Resource Conservation Service Emergency Watershed Protection Program. 

[23] See e.g., id., at 116 (permanent work to public roads that fall within the specific authority of Federal Highway Administration (FHWA) is ineligible for PA, even if FHWA does not provide funding for the work).

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