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Roads, Direct Result of Disaster

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Applicant Lowe Township
Appeal TypeThird
PA ID#201-43205-00
PW ID#(PW) 353
Date Signed2018-02-01T00:00:00
Conclusion: Documentation provided by Lowe Township (Subrecipient) demonstrates routine predisaster maintenance of the Subrecipient’s culverts, and enables FEMA to determine damage to the culvert sites on appeal (sites 1 to 8) was caused by the disaster.  Items of work to restore the sites, as recorded in the approved scope of work (SOW) are therefore eligible for Public Assistance (PA) in the amount of $12,493.91.
Summary Paragraph
From May 4 to June 21, 2015, severe storms caused flash flooding on the Subrecipient’s road network.  FEMA prepared Project Worksheet (PW) 353 to restore culverts at 12 sites, with an estimated total cost of $17,058.96.  The Subrecipient completed restoration of the culverts at sites 1 to 8 before development of the SOW.  In a PA Determination Memorandum, FEMA found the Subrecipient had not demonstrated the damages were the direct result of the disaster.  FEMA removed all funding for the project.  The Subrecipient appealed for the total project cost, and argued the damages were the direct result of the disaster.  The Region VII Regional Administrator (RA) partially granted the appeal and approved funding ($4,565.05) for the culverts at sites 9 to 12; the RA was able to determine that damages evident in post-disaster photographs of the sites matched those described by the PW 353 damage statement.  Work to restore sites 1 to 8 remained ineligible, as the RA determined there was no documentation showing disaster-related damages.  The Subrecipient submits its second appeal for the cost to restore sites 1 to 8 ($12,493.91), and reiterates its first appeal eligibility arguments.
Authorities and Second Appeals
  • Stafford Act § 406.
  • 44 C.F.R. §§ 206.223(a)(1), 206.226.
  • PA Guide, at 33.
  • Village of Waterford, FEMA-4020-DR-NY, at 4.
  • Arthur County, FEMA-4225-DR-NE, at 3.
  • Republic County Highway Department, FEMA-4230-DR-KS, at 3-4.
  • Per 44 C.F.R. § 206.226, FEMA may provide funding to restore an eligible facility on the basis of the design of that facility as it existed immediately prior to the disaster.  The PA Guide states it may be possible to review maintenance records to verify predisaster conditions and assess eligible disaster damages.
    Annual budget data and repair invoices show predisaster repair work, including work at several of the sites on appeal.
    Therefore, the Subrecipient demonstrated routine predisaster maintenance.
    Per 44 C.F.R. § 206.223(a)(1), an item of work must be required as a direct result of a
    Additional documentation shows sites 1 to 8 were completely destroyed by the disaster, and their restoration began without the expectation of Federal assistance.
Along with the determination that the Subrecipient demonstrated predisaster maintenance, these findings allow FEMA to conclude the damages to sites 1 to 8 were a direct result of the disaster

Appeal Letter

Major General Lee Tafanelli
Kansas Division of Emergency Management
2800 SW Topeka Boulevard
Topeka, KS 66611
Re: Second Appeal – Lowe Township, PA ID 201-43205-00, FEMA-4230-DR-KS, Project Worksheet (PW) 353 – Roads, Direct Result of Disaster
Dear Major General Tafanelli:
This is in response to a letter from your office dated May 1, 2017, which transmitted the referenced second appeal on behalf of Lowe Township, Kansas (Subrecipient).  The Subrecipient is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $12,493.91 in Public Assistance funding for the restoration of eight culvert sites located on its gravel road network.
As explained in the enclosed analysis, I have determined that the Subrecipient provided documentation enabling FEMA to conclude the damages to the culverts were a direct result of the disaster.  Accordingly, I am granting the appeal in the amount of $12,493.91.  By copy of this letter, I am requesting the Regional Administrator take appropriate action to implement this determination.
Please inform the Subrecipient of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.
Christopher Logan
Public Assistance Division
cc:  Paul Taylor
      Regional Administrator

Appeal Analysis

From May 4 to June 21, 2015, severe storms with heavy rainfall caused flooding in numerous areas in eastern Kansas, including Lowe Township (Subrecipient) in Washington County.  The President issued a major disaster declaration on July 20, 2015.  The Subrecipient submitted a request for Public Assistance (PA) on August 7, 2015 to repair flood damages to its roads.
FEMA prepared Project Worksheet (PW) 353 to document Category C (roads/bridges) work for the restoration of 12 corrugated metal pipe (CMP) culverts[1] damaged by the flooding, with a total estimated cost of $17,058.96.[2]  The Subrecipient completed some restoration work prior to FEMA’s site inspection and assessment; the approved scope of work (SOW) separated the culvert sites by those that had been restored (site numbers 1 to 8) and those still needing restoration (site numbers 9 to 12).
On June 9, 2016, FEMA issued a Public Assistance (PA) Determination Memorandum notifying the Subrecipient that the project was ineligible for grant funding.[3]  FEMA found the Subrecipient failed to document predisaster maintenance of its culverts, which would enable verification of disaster-related damages.  Additionally, FEMA found the Subrecipient failed to demonstrate that the culverts were damaged beyond repair, as photographs taken during the site visits did not show flood damage to the terrain surrounding the restored culverts, or physical damage to the unrestored culverts.[4]  FEMA reduced funding for PW 353 to $0.00.
First Appeal
In letters dated August 11 and September 8, 2016, the Subrecipient submitted an appeal for the estimated costs to restore all culverts ($17,058.96), and claimed the damages to its culverts were the direct result of the disaster.[5]  The Subrecipient argued: (1) the area had experienced three times the normal amount of rainfall during the incident period, thus the storms were the cause of damages; (2) it completed most of the restorations prior to FEMA’s involvement in the project; (3) FEMA based its decision on an examination of site photographs, which was unreasonable; (4) it did not have the resources to conduct the deliberate culvert inspections that would satisfy FEMA’s documentation requirements; and (5) the culverts were 95 to 100 percent blocked with debris and damaged beyond repair.  The Subrecipient submitted documentation with the appeal, including written statements from contractors hired to repair the culvert sites, annual budgets for fiscal years (FYs) 2013 to 2015, and invoices (with corresponding cancelled checks) showing expenses and payments for culvert repairs.  An October 10, 2016 transmittal letter from the Kansas Division of Emergency Management (Recipient) expressed support for the appeal and reiterated many of the Subrecipient’s arguments.  The Recipient also stated that the PW 353 damage description was prepared by a FEMA project specialist, and clearly demonstrated the damages resulted from the disaster.[6]
In the Final Request for Information (RFI), FEMA expressed confusion over the culvert site numbers noted on the cancelled checks, and asked the Subrecipient to explain their significance to the overall claim.[7]  FEMA also requested a signed copy of the Subrecipient’s 2015 budget and information related to sites 9 to 12.  In response, the Subrecipient provided a brief statement reconciling its site numbers with those used by FEMA, a signed copy of the 2015 budget, and responses to each question regarding sites 9 to 12.[8]
In a decision dated February 2, 2017, the FEMA Region VII Regional Administrator (RA) partially granted the appeal, approving $4,565.05 in PA funding for work to restore culvert sites 9 to 12.[9]  The RA determined photographs of these sites depicted blockage of the CMPs and heavy erosion of the surrounding earth; such damage was consistent with the descriptions in the PW.  However, the RA found the annual budgets and cancelled checks did not contain information describing specific maintenance work; therefore, the previous work done to restore sites 1 to 8, and all remaining costs, remained ineligible.  The RA determined the other indications of predisaster condition offered in the appeal did not support a finding that damages were the direct result of the disaster.
Second Appeal
In a letter dated February 28, 2017, the Subrecipient appeals the denial of funding for culvert sites 1 to 8, with associated costs totaling $12,493.91.[10]  The Subrecipient reiterates its first appeal arguments regarding: (1) above average rainfall in the area during the incident period; (2) the unreasonableness of FEMA’s examination of site photos; (3) the fact that it completed the restoration of sites 1 to 8 before it anticipated Federal assistance; and (4) a lack of resources that would allow it to meet FEMA’s documentation requirements.  Additionally, the Subrecipient concurs with the Recipient’s earlier statement that the damage description in the PW was prepared by FEMA, and is therefore proof that the damages were disaster-related.  The Recipient’s May 1, 2017 transmittal letter expresses support for the appeal and reiterates its first appeal arguments.[11]  Additionally, the Recipient states: (1) FEMA approved PA grant funding for previous disasters using annual budget information as evidence of predisaster road maintenance; (2) FEMA’s reliance on site photographs as the sole eligibility determinant amounts to a new standard for documenting predisaster site conditions; and (3) FEMA failed to consider the contractor statements in the first appeal decision.
FEMA provides PA funds to eligible subrecipients for the repair, restoration, reconstruction, or replacement of facilities damaged or destroyed by major disasters.[12]  To be eligible for PA funding, an item of work must be required as a result of the disaster.[13]  FEMA may provide funding to restore an eligible facility on the basis of the design of that facility as it existed immediately prior to the disaster.[14]  For facilities such as gravel roadways and culverts, which require maintenance to maintain their designed function, it may be possible to review predisaster maintenance or inspection records to verify predisaster conditions and to assess eligible disaster damage.[15]  It is the subrecipient’s responsibility to demonstrate damages are disaster-related.[16]
On first appeal, FEMA determined the Subrecipient did not demonstrate predisaster maintenance of the culvert sites.  The determination was based in part on an examination of the annual budgets, finding they did not contain enough detail to determine the specific type or location of maintenance work completed in a given FY.  However, close scrutiny of the budget data shows the Subrecipient apportioned all expenses into one of two categories: “general” or “roads.”[17]  This indicates the priority the Subrecipient places on public road maintenance; indeed, maintenance of road networks is one of the primary historical reasons a township exists as a subdivision of local government in Kansas.[18]  For each year represented, the Subrecipient never allocated less than 40 percent of its total budget to its roads.[19]  Furthermore, the budget line items related to the “roads” category, which primarily indicate the purchase and installation of new CMP culverts and surface aggregate, are detailed enough to constitute generalized items of work.  The data show the Subrecipient executed its budget for the related line items from 2011 to 2013.[20]  In other words, in the years prior to the disaster, it is clear the Subrecipient earmarked and then spent funds to perform the work described in its annual budgets.  Finally, because it covers multiple successive years, the budget execution data demonstrate the Subrecipient performed work to maintain its roads routinely.  The Subrecipient’s annual budgets therefore document an annual program of prioritized, routine predisaster road maintenance.[21]
FEMA also based the first appeal eligibility determination on the cancelled checks.  Though they reference specific culvert sites, by themselves the checks only show the transfer of funds to various parties for unknown work.  However, each check is associated with a corresponding material purchase invoice, which list the same culvert sites, some of which are on appeal.  Three of the material purchase invoices pre-date the disaster.  Each shows the purchase of new CMP culverts from the Washington County Department of Public Works; corresponding cancelled checks demonstrate proof of payment for the new CMPs.  Notes written on the invoices demonstrate the new CMPs were installed at culvert sites 1, 2, 3, 4, and 5 (or, using the Subrecipient’s site numbers, sites 2, 3, 5, 10, and 12, respectively).  Therefore, as with the annual budgets, the material purchase invoices demonstrate the performance of predisaster road maintenance.  Unlike the budgets, the invoices show such work occurring at several of the sites on appeal.
Additionally, documentation submitted with the original claim, and again on first appeal, supports verification as to the cause of the damages at sites 1 to 8.  Post-disaster invoices dated between July and September 2015 (i.e., the three month period immediately following the disaster) document material purchases and contracted labor to replace these culverts.  FEMA finds it unlikely the Subrecipient would replace the culverts if they were functioning properly, especially in light of its limited budget for road maintenance.[22]  Considering this and the finding of routine maintenance above, FEMA agrees with the Subrecipient that the culverts at sites 1 to 8 were functioning properly, were damaged, and then required replacement. 
With this established, the nature of such damages and the timing of subsequent restorations becomes critical to determining the eligibility of the Subrecipient’s claim.  Damages to the culverts were such that the Subrecipient completely replaced (versus repaired or simply cleared debris from them), indicating – as recorded in the PW – that they were “completely clogged and undermined beyond repair”[23] in the immediate aftermath of the storms.  Furthermore, a pair of post-disaster invoices, dated July 8 and July 14, 2015, show that the Subrecipient replaced the culverts at sites 1, 4, 5, 6, 7, and 8 (or, using the Subrecipient’s site numbers, sites 2, 10, 12, 17, 22, and 23, respectively) immediately after the incident period, but before the disaster declaration on July 20, 2015, i.e., prior to any consideration of PA grant funding.[24] 
In summary, the invoices and corresponding cancelled checks (both pre- and post-disaster), considered with the annual budget for FY 2015, the site photographs, and the Subrecipient’s statements in the appeal letters, demonstrate that: (1) the culverts at sites 1 to 8 sustained irreparable damages; (2) the Subrecipient was compelled to expend its limited resources to restore them, without the expectation of Federal assistance; and (3) the restorations occurred immediately after 4230-DR.  Consequently, FEMA concludes that the damages and subsequent site restorations were directly related to the disaster.
The contractor’s statements support this conclusion.  In the first statement, a contractor provided detailed descriptions of post-disaster damages to sites 1, 4, and 5.[25]  Based on the descriptions, it is evident that conditions at the sites (e.g., damages “caused by overtopping floodwaters,” or a culvert “compromised by flooding that caused a hole 8 feet wide, 15 feet long, and 10 feet deep”[26]) were caused by severe weather, not deferred maintenance.  The second statement, from the contractor that repaired sites 2, 3, and 6 through 10, is less specific as to site location, but clearly refers to conditions at the culvert sites in the aftermath of the disaster.[27]  The second contractor stated: (1) damaged CMPs were 60 to 100 percent blocked with flood-deposited debris; (2) this caused floodwaters to run over the roads, further damaging them; (3) as a result, the culverts had to be replaced; and (4) it was the contractor’s “professional opinion that these culverts and roads were damaged due to extensive storms and flooding.”[28] 
Based on the information available in the administrative record, FEMA is able to determine damages to culvert sites 1 to 8 were the direct result of the disaster.  Per 44 C.F.R. § 206.223(a)(1), associated items of work to restore the sites are therefore eligible.  Accordingly, the appeal is granted and additional funding in the amount of $12,493.91 is approved.[29]

[1] Project Worksheet 353, Lowe Township, Version 0 (Feb. 23, 2017).  FEMA numbered the culverts chronologically from 1 to 12.  The Subrecipient’s numbering system for the culverts differed significantly.  Both sets of numbers were recorded in PW 353.  Except where otherwise noted, this analysis uses the culvert numbers used by FEMA.
[2] Id.  The SOW recorded costs of $12,492.71 for sites 1 to 8, including $187.00 in force account labor, $1,428.00 in force account equipment, $5,720.00 in contract costs, and $5,157.71 for materials (culverts).  These amounts, from the “work completed” summary in the PW, differed from the itemized costs for sites 1 to 8, which add to $12,492.68 (a difference of $0.03, including a $0.01 difference in the itemized amounts listed under culvert site 3).  This discrepancy, though minor, affected the amounts on first and second appeal; Subrecipient First Appeal, infra note 5, at 1-2; Subrecipient Second Appeal, infra note 10, at 1, 4.  Finally, the SOW recorded costs of $4,566.25 for sites 9 to 12, including $2,216.25 for materials (culverts) and $2,350.00 in contract costs.  As with the “work completed” section of the SOW (sites 1 to 8), errors in the SOW and in the first appeal determination affect the current amount on appeal; First Appeal Determination, infra note 9, at 1, 7; Subrecipient Second Appeal, infra note 10, at 1, 4.  This analysis corrects for all discrepancies in the amount(s) on appeal.
[3] Letter from Infrastructure Branch Dir., FEMA Region VII, to Dep. Dir., Kan. Div. of Emer. Mgmt. (KDEM), and Tr., Lowe Twp. (June 9, 2016).
[4] FEMA PA Determination Memorandum, Lowe Twp., at 1 (June 8, 2016).  Contrary to the approved SOW, the PA Determination Memorandum erroneously stated sites 1 to 9 had been restored, and sites 10 to 12 remained unrestored, prior to project development.
[5] Letter from Tr., Lowe Twp., to KDEM (Aug. 11, 2016) [hereinafter Subrecipient First Appeal] and Letter from Tr., Lowe Twp., to KDEM (Sept. 8, 2016) [hereinafter Subrecipient First Appeal Supplemental].  The stated amount on appeal ($17,058.93) did not reflect the $0.03 calculation discrepancy in the PW.  It is corrected above.
[6] Letter from Dep. Dir., KDEM, to Reg’l Adm’r, FEMA Region VII (Oct. 10, 2016) [hereinafter Recipient First Appeal Transmittal].
[7] Letter from Dir., Recovery Div., FEMA Region VII, to Dep. Dir., KDEM, and Tr., Lowe Twp. (Dec. 26, 2016).  Photocopies of the checks included handwritten notations using the Subrecipient’s site numbering system (e.g., “Site 17, 22 and 23 [sic]”).
[8] Letter from Tr., Lowe Twp., to Appeals Branch, FEMA Region VII (Jan. 4, 2017).
[9] Letter from Acting Reg’l Adm’r, FEMA Region VII, to Dep. Dir., KDEM and Tr., Lowe Twp. (Feb. 2, 2017) [hereinafter First Appeal Determination].  The amount awarded for sites 9 to 12 on first appeal ($4,565.05) differed from the amount in the initial project submission ($4,566.25), due to a $1.20 discrepancy in the SOW for sites 9 and 11.  Such errors were not reflected in the original claim, but were re-introduced in the first appeal decision.
[10] Letter from Treasurer, Lowe Twp., to KDEM (Feb. 28, 2017) [hereinafter Subrecipient Second Appeal].  The amount on appeal is the total funding estimate ($17,058.96) minus the amount approved by the RA on first appeal for sites 9 to 12 ($4,565.05).  The stated amount in the Subrecipient’s second appeal letter ($12,493.88) therefore accounts for the $1.20 discrepancy in the SOW for sites 9 to 12 that was introduced in the first appeal determination, but not the earlier $0.03 discrepancy for sites 1 to 8.  The amount above corrects for all discrepancies.
[11] Letter from Dep. Dir., KDEM, to Asst. Adm’r. for Recovery, FEMA (May 1, 2017).
[12] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406, 42 U.S.C. § 5172 (2013).
[13] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2014).
[14] Id. § 206.226.
[15] Public Assistance Guide, FEMA 322, at 33 (June 2007) [hereinafter PA Guide].
[16] Id.; see also FEMA Second Appeal Analysis, Village of Waterford, FEMA-4020-DR-NY, at 4 (Sept. 4, 2014) (stating the Subrecipient “has the burden of substantiating its claims”).
[17] E.g., Lowe Twp., FY 2015 Budget Certificate (Oct. 24, 2014) [hereinafter FY 15 Budget Certificate].
[18] Kansas Historical Society, Kansas Civil Townships and Independent Cities, https://www.kshs.org/p/kansas-civil-townships-and-independent-cities/11308 (last visited Oct. 5, 2017) (stating “[c]ivil townships … are political subdivisions within a county, usually responsible for activities such as road maintenance and fire protection in rural areas”). 
[19] The budget data do not indicate total funding allocation under the “roads” budget category, however, in each case individual line items are clearly related to road maintenance.  Comparing only those line items with the total annual budget (including both “general” and “roads” categories) shows that: in FY 2013, the Subrecipient allocated $20,010.00, or 45 percent of its total budget, to a road grader payment, gravel/rock, and culverts; in FY 2014, Subrecipient allocated $18,144.00, or 42 percent of the budget, to grader blades, culverts, cement, and gravel expenses; and in FY 2015, the Subrecipient allocated $18,051.00, or 40 percent of the budget, to culverts, rock, and gravel expenses.
[20] Data depicting actual funding amounts show the Subrecipient exceeded its budget for line items related to road maintenance in FYs 2012 and 2013; see Lowe Township, FY 2014 Budget Certificate (Undated) and FY 15 Budget Certificate.
[21] FEMA First Appeal Analysis, Lowe Township, FEMA-4230-DR-KS, at 6 (Feb. 2, 2017) (stating “FEMA accepts that the Applicant does minor maintenance that is ongoing and planned”).
[22] Subrecipient Second Appeal, at 3 (stating the Subrecipient “[does] not have resources to go out and replace functional culverts … even having the matching the funds [sic] greatly stresses our financial abilities”).  Accordingly, the culvert restoration costs represented in the invoices, covering just 6 of the 12 sites on appeal, equate to 13 percent of the Subrecipient’s total annual budget for 2015; see FY 15 Budget Certificate, at 1.
[23] PW 353, Lowe Township (Version 0).  Each of the damage descriptions for sites 1 to 8 contained this phrase.  The post-disaster photographs of sites 1 to 8, submitted with the initial PA request, show new CMPs installed at each site; in addition to the invoices and the PW damage description, the photographs are further evidence that the Subrecipient completely replaced the culverts after the disaster.
[24] Recipient First Appeal Transmittal, at Enclosure 8.  The invoices show: (1) contracted labor and equipment to replace culverts at sites 1, 4, and 5, with a total cost of $3,920.00; and (2) the purchase of new CMPs for sites 6 to 8, with a total cost of $1,838.16.  Cancelled checks, corresponding to each invoice, show proof of payment for materials and services.  Additionally, in the first appeal request, the Subrecipient stated it replaced the culverts at all 8 sites prior to FEMA and/or KDEM site assessment visits; Subrecipient First Appeal, at 1.
[25] Email from Dan L’Ecuyer Construction, to KDEM (Sept. 14, 2016).  The Contractor did not use FEMA’s or the Subrecipient’s site numbers in the statement, however the location descriptions that were included (e.g., “three quarter mile [sic] south of 26th road on Heritage”) enable FEMA to locate the sites on the map provided in the administrative record, and identify them as sites 1, 4, and 5 (or, using the Subrecipient’s site numbers, sites 2, 10, and 12, respectively).  Additionally, the post-disaster invoice of July 8, 2015, prepared by the same Contractor, covers repairs to sites 1, 4, and 5, further demonstrating that the Contractor’s statement describes the condition of several of the culvert sites on appeal, in the period immediately following the disaster.
[26] Id.
[27] Email from Double M Buildings, to KDEM (Sept. 8, 2016).  The statement includes the Contractor’s name, which, when cross-referenced with the post-disaster invoices, corresponds to several invoices showing repairs to sites 2, 3, 6, 7, 8, 9, and 10 (or, using the Subrecipient’s site numbers, sites 3, 5, 17, 22, 23, 8, and 13, respectively).
[28] Id.
[29] The facts of this appeal are distinguishable from the facts of similar Category C projects previously appealed, specifically FEMA Second Appeal Analysis, Arthur Cty., FEMA-4225-DR-NE (Apr. 25, 2017) and FEMA Second Appeal Analysis, Republic Cty. Hwy. Dep., FEMA-4230-DR-KS (Jul 26, 2017).  In Arthur Cty., the Subrecipient claimed eligibility of flood damage repairs to numerous sites on its dirt and gravel road network, and submitted predisaster material purchase invoices as proof of maintenance.  However, unlike the facts of Lowe Twp., in Arthur Cty., the Subrecipient did not provide documentation, other than the material purchase invoices, which might have demonstrated a routine maintenance program, thereby enabling the verification of predisaster conditions.  FEMA upheld the RA’s denial.  In Republic Cty. Hwy. Dep., the Subrecipient claimed eligibility of flood damage repairs to a triple-span bridge.  However, unlike the facts of Lowe Twp., in Republic Cty. Hwy. Dep., the Facility in question had a documented predisaster record of deferred maintenance, including well-established structural deficiencies determined to be the proximate cause of the Facility’s failure during the disaster.  FEMA upheld the RA’s denial.
Last updated May 28, 2020