Waterway Debris Removal - Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4461
Applicant	Big Slough Drainage District
Appeal Type	Second
PA ID#	000-UEMC2-00
PW ID#	GMP 121870
Date Signed	2023-01-17T17:00:00

Summary Paragraph

Between February 24 – July 3, 2019, severe storms and flooding impacted the Big Slough Drainage District (Applicant) which it stated caused sediment to wash into four drainage channels (Facilities) obstructing drainage.  FEMA developed Grants Manager Project 121870 to capture damages, the requested method of repair and removal of debris, and costs.  FEMA conducted sites inspections of the Facilities noting vegetation growth on sediment in the channels.  FEMA sent two requests for information (RFI) asking whether there was an immediate threat and inquiring about the pre-disaster condition and capacity of the channels respectively.  The Applicant stated the silt and sediment would constitute an immediate threat if not removed, and later provided contract invoices of maintenance.  FEMA determined the work was ineligible, as the Applicant had not substantiated the debris was deposited by the incident or constituted an immediate threat.  The Applicant filed a first appeal, stating that the debris was deposited by the event and was an immediate threat, and requesting that one the four Facilities be reclassified as a permanent work project.  FEMA sent an RFI to the Applicant requesting documentation substantiating the pre-disaster capacity and condition of the Facility, the source of debris deposited was from the incident, and how it constituted an immediate threat.  The Applicant submitted previously submitted documentation and one image of one drainage channel in response.  The FEMA Region V Regional Administrator denied the Applicant’s first appeal stating that the Applicant had not substantiated that the debris, silt, and sediment deposited was the result of the disaster or that it was an immediate threat.  The Applicant filed a second appeal reiterating first appeal arguments.

Authorities and Second Appeals

• Stafford Act § 406, 407.
• 44 C.F.R. §§ 206.221(c), 206.223(a)(1), 206.224(a).
• PAPPG at 9, 19-20, 42-43, 52-53, 117, 133.
• Republic Cnty. Highway Dep’t, FEMA-4230-DR-KS, at 3, Brunswick, FEMA-4451-DR-MO, at 3.

Headnotes

• Restoring the pre-disaster carrying or storage capacity of engineered channels may be eligible, but only if the Applicant provides documentation to establish: 1) the pre-disaster capacity of the facility; and 2) that the Applicant maintains the facility on a regular schedule.
  • The Applicant has not substantiated the pre-disaster capacity of the Facilities, or that they were regularly maintained.
• Debris removal from waterways that is necessary to eliminate the immediate threat to life, public health and safety, or improved property is eligible  for PA funding.  Removal of debris in a waterway that does not meet this criterion is not eligible, even if the debris is deposited by the incident.
  • The Applicant has not substantiated through documentation that the work was required to eliminate an immediate threat to life, property or public health and safety.

Conclusion

The waterway debris removal work for Damage Line Items (DI) 350151, 350152, 350153 is ineligible as the Applicant has not demonstrated: (1) the basis for the immediate threat determination; or (2) the debris claimed was deposited by the incident and was not pre-existing.  Further, the permanent work to DI 350150, a water control facility, is ineligible as the Applicant has not provided documentation to establish: (1) the predisaster capacity of the facility; or (2) that the Applicant maintains the facility on a regular schedule.  Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

During the incident period, February 24 – July 3, 2019, severe storms and flooding impacted the State of Illinois, including Henry and Whiteside Counties, where the Big Slough Drainage District (Applicant) is located.[1]  The Applicant stated flooding caused sand and silt to wash into four drainage channels which obstructed drainage.  These damage locations are Van Damme Road to Thunder Road Canal (Damage Inventory Line Item (DI) 350150); Cocquits Bridge to Townhall Road Canal (DI 350151); Van Damme Road to Osage Road Canal (DI 350152) and Urick Branch Canal (DI 350153) (collectively referred to as “Facilities”).

FEMA developed Grants Manager Project (GMP) 121870 to capture damages, the Applicant’s intended method of repair involving removal of silt and sediment, and realigning segments along 16 miles of drainage channels, at a cost of $126,094.40.   FEMA, on January 16 and 22, 2020, conducted sites inspections of the Facilities.  The notes accompanying the site inspection photographs indicated the presence of sediment and growing vegetation on that sediment.  FEMA’s site inspectors recorded the Applicant’s claim that the disaster deposited approximately 48,333.2 cubic yards of sediment along a total area 87,000 feet in length by 10 feet wide by 1.5 feet deep between the Facilities.

FEMA sent a Request for Information (RFI) on April 7, 2020, asking whether the debris in the channels created an immediate threat of flooding.  The Applicant responded the same day stating that the silt prevented proper flow, which would damage the banks of the channels and noted this would block them and cause future flooding.  On August 12, 2020, FEMA sent a second RFI requesting specific documentation detailing the predisaster condition of the channels, as well as written maintenance plans and records indicating regular maintenance at least from 2016 through 2018.  The Applicant provided 15 contract invoices and activity logs showing vegetative removal and ditch cleaning for the timeframe in question.

On February 28, 2021, FEMA determined the work was ineligible as the Applicant had not demonstrated that the debris removal was required due to an immediate threat to improved property resulting from the declared disaster.  

First Appeal

The Applicant filed a first appeal in a letter dated April 27, 2021, stating that the debris removal was necessary and driven by the declared incident.  The Applicant noted that it performed a risk screening that identified 140 people, 61 structures, roads, natural gas pipeline crossings, and numerous broadband and communication junctions within the drainage district.  The Applicant estimated that more than $8 million in property damages may have occurred if the drainage district had been inundated with flooding.  Next, the Applicant requested that DI 350150 be recategorized as permanent work due to extensive repair and reshaping required.  The Illinois Emergency Management Agency (Recipient) forwarded the Applicant’s appeal in a letter dated June 15, 2021.

FEMA Region V transmitted an RFI to the Applicant on May 2, 2022 requesting the following: (1) documentation to demonstrate that the disaster deposited the debris, which obstructed channels; (2) documentation substantiating the immediate threat stated in its first appeal letter; (3) recent or multi-year survey data showing the predisaster carrying capacity of the Facilities; (4) predisaster maintenance documentation showing regular maintenance; and (5) as-built drawings, engineering and design documents, or construction records to demonstrate Portland Creek, which rests within 350150, has a designed and constructed improvement to its natural characteristics.  The Applicant responded on May 31, 2022, with multiple previously submitted documents.[2] 

The FEMA Region V Regional Administrator, in a letter dated June 30, 2022, denied the Applicant’s first appeal.[3]  FEMA found that the Applicant did not provide documentation to substantiate the amount of sediment deposited can be attributed to the event.  Additionally, FEMA found that the Applicant had not substantiated that the debris presented an immediate threat to life, improved property, or public health and safety.

Second Appeal

The Applicant filed a second appeal, in a letter dated August 31, 2022, reiterating first appeal arguments.  The Recipient transmitted the second appeal to FEMA in a letter dated October 24, 2022.

 

Discussion

Waterway Debris Removal – DI 350151, 350152, 350153 (Emergency Work)

FEMA is authorized to provide Public Assistance (PA) funding for debris removal from publicly owned waters when it is necessary to eliminate the immediate threat to life, public health and safety, or improved property.[4]  An immediate threat is the threat of additional damage or destruction from an incident that can reasonably be expected to occur within five years of the declared incident.[5]  Removal of debris in a waterway that is not required to address an immediate threat is not eligible, even if the debris is deposited by the incident.[6]  For FEMA to determine that debris removal from waterways is eligible, the Applicant must provide documentation that: (1) establishes legal responsibility; (2) includes the basis of the immediate threat determination; (3) identifies locations, types, and quantities of debris; and (4) demonstrates the debris claimed was deposited by the incident and was not pre-existing.[7]  The applicant must provide more than statements or opinions to substantiate its claims; documentation or other evidence supporting its position must be submitted.[8]

Here, the Applicant claims that the debris deposited by the incident created an immediate threat and that a risk survey shows that more than $8 million in property damages may have occurred if not for the work completed.  However, the Applicant has not provided that risk survey or other documentation that substantiates: (1) how that sediment would put properties at risk (i.e., the basis for the immediate threat determination); or (2) the debris claimed was deposited by the incident and was not pre-existing.  Therefore, the Applicant has not demonstrated that the debris removal from the waterways is eligible for PA funding.

Result of Declared Incident – DI 350150 (Permanent Work)

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.^[9]  To be eligible, work must be required as a direct result of the declared major disaster or emergency.^[10]  Restoring the predisaster carrying or storage capacity of engineered channels may be eligible, but only if the applicant provides documentation to establish: (1) the predisaster capacity of the facility; and (2) that the applicant maintains the facility on a regular schedule.[11]  Documentation supporting predisaster capacity includes survey data that is either recent or covers a multi-year period such that FEMA is able to determine the amount of new material reasonably attributable to the incident.[12]  Documentation supporting regular maintenance includes a written maintenance plan and/or activity logs documenting regular intervals of activity.[13] 

The Applicant claims sediment and debris along the channels were deposited by the event, requiring removal of sediment and permanent repair of DI 350150.  The documentation the Applicant provided however does not establish the predisaster capacity of the Facilities (including DI 350150), or that they were maintained on a regular schedule.  The Applicant did not provide any survey data, or multi-year survey data, which would provide a basis to determine how much material was deposited by the declared incident.  Without a predisaster baseline, via that survey data, FEMA cannot determine how much sediment was deposited by the incident.

In addition, the maintenance documentation provided included invoices which lack specificity on where along the channels the work was conducted.  And while the length of the channels is noted in the invoices and logs, no information is available describing the quantity of debris collected.  The Applicant, in lieu of a maintenance plan, provided a signed document communicating that this work is conducted “as needed,”[14] or when required, and not done in regular intervals.  As such, this documentation does not demonstrate a regular maintenance plan for these Facilities (including DI 350150).[15]

The Applicant has not substantiated the predisaster capacity of the Facilities, or that they were regularly maintained.  Therefore, FEMA cannot establish how much sediment was deposited at DI 350150 as a result of the declared incident.

 

Conclusion

The waterway debris removal work for DIs 350151, 350152, 350153 is ineligible as the Applicant has not demonstrated: (1) the basis for the immediate threat determination; or (2) the debris claimed was deposited by the incident and was not pre-existing.  Further, the permanent work to DI 350150, a water control facility, is ineligible as the Applicant has not provided documentation to establish: (1) the predisaster capacity of the facility; or (2) that the Applicant maintains the facility on a regular schedule.  Therefore, this appeal is denied.

 

[1] The President issued a major disaster declaration on September 19, 2019. 

[2] The documentation submitted in response to the Request for Information included the Applicant’s first appeal letter, site inspection reports, photographs, maps, FIRMettes, logs and invoices for maintenance and debris estimates, and other project files.

[3] This decision examined work eligibility for DI 350150 under both emergency work (Debris Removal) and permanent work (Water Control Facilities).

[4] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 407(a), Title 42, United States Code (42 U.S.C.) § 5173(a) (2018); Title 44, Code of Federal Regulations (44 C.F.R.) § 206.224(a) (2018); Public Assistance Program and Policy Guide, FP 104-009-2, at 52 (Apr. 2018) [hereinafter PAPPG].

[5] 44 C.F.R. § 206.221(c); PAPPG, at 43.

[6] PAPPG, at 52.

[7] Id. at 53.

[8] FEMA Second Appeal Analysis, Brunswick, FEMA-4451-DR-MO, at 3 (Mar. 21, 2022)

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

[10] 44 C.F.R. § 206.223(a)(1); PAPPG at 19.

[11] Id. at 117.

[12] Id.

[13] Id.

[14] See Maintenance Record Verification Form, Office of Emergency Management, Henry Cty. (Jan. 28, 2020)

[15] FEMA Second Appeal Analysis, Republic Cty. Highway Dep’t, FEMA-4230-DR-KS, at 3 (July 26, 2017) (finding that, based 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 regular maintenance program).