Improved Property – Landslide and Slope Stabilization – Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Desastre	4451
Applicant	Jefferson City
Appeal Type	Second
PA ID#	051-37000-00
PW ID#	PW 277
Date Signed	2021-09-09T16:00:00

Summary Paragraph

Flooding occurred near Jefferson City’s (Applicant) sewer line but did not damage the sewer line.  However, citing a threat of sewer line failure due to riverbank erosion, the Applicant requested Public Assistance (PA) funding to restore and improve the riverbank.  FEMA issued a Determination Memorandum denying all funding for the project as the riverbank was an unimproved natural feature.  The Applicant appealed, arguing the riverbank was improved property and the repairs were eligible nonetheless as emergency protective measures.  FEMA issued a request for information (RFI) seeking documentation demonstrating: (1) the riverbank was improved and maintained; (2) the slope was integral to supporting the sewer line; and (3) the sewer line faced an immediate threat.  The Applicant’s RFI response: (1) noted improvements to structures atop and behind the riverbank; (2) stated surrounding material supported the sewer line; and (3) argued an immediate threat existed because erosion left manholes exposed and the sewer line with little cover remaining.  The FEMA Region VII Acting Regional Administrator denied the first appeal, finding the work ineligible as an emergency protective measure because the Applicant did not explain how conditions posed an immediate threat to the sewer line, and ineligible as permanent work because the riverbank was an undeveloped natural feature and not integral ground supporting a damaged facility.  The Applicant submits its second appeal, citing arguments and information previously submitted.  The Missouri State Emergency Management Agency recommends that FEMA uphold its ineligibility determination.

Authorities and Second Appeals

• Stafford Act §§ 403(a)(3), 406(a)(1)(A).
• 44 C.F.R. §§ 206.201(b)-(c), 206.221(c), 206.225(a)(3).
• PAPPG, at 14-15, 42-43, 57, 128.
• Mill Valley, FEMA-4308-DR-CA, at 4.

Headnotes

• A natural feature may be an eligible facility if it meets all of the following conditions: (1) the natural feature has a designed and constructed improvement to its natural characteristics, such as a terraced slope or realigned channel; (2) the constructed improvement enhances the function of the unimproved natural feature; and (3) the applicant maintains the improvement on a regular schedule to ensure that the improvement performs as designed.
  • The Applicant did not improve and maintain the riverbank.
• If an eligible facility is located on a slope and is damaged as a result of a landslide or slope instability triggered by the incident, FEMA may approve PA funding for restoration of integral ground that supports the facility.
  • The disaster did not cause damage to an eligible facility located on the riverbank.
• To be eligible, emergency protective measures must: (1) eliminate or lessen immediate threats to lives, public health or safety; or (2) eliminate or lessen immediate threats of significant additional damage to improved public or private property through measures which are cost effective.
  • The Applicant has not demonstrated that riverbank erosion posed an immediate threat to the sewer line that justified emergency work.

Conclusion

Riverbank permanent repairs are ineligible for PA funding because the riverbank is neither an eligible facility, i.e., improved feature, nor integral ground supporting a damaged eligible facility.  In addition, the Applicant has not demonstrated that riverbank erosion posed an immediate threat to the sewer line that justified emergency work.  Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

Missouri experienced severe storms, tornadoes, and flooding during the period of April 29 to July 6, 2019.[1]  Flooding occurred along a Missouri River riverbank in an area where Jefferson City (Applicant) operated a 36-inch sanitary sewer gravity line.  The sewer line itself was not damaged.  However, citing a threat of sewer line failure due to riverbank erosion, the Applicant requested Public Assistance (PA) funding to restore and improve the riverbank with rip-rap.  Pre-bid conference notes indicated integral support of the sewer line remained from its installation in the 1960s and any disturbance of this would require contractors to support, re-bed, and protect it.[2]  FEMA prepared Project Worksheet (PW) 277 to document the Applicant’s proposed scope of work (SOW) for restoring the riverbank.[3] 

FEMA issued a July 20, 2020 Determination Memorandum denying all PA funding for PW 277 on the grounds that both the facility and work were ineligible.  FEMA found the riverbank was an unimproved natural feature, restoration work was not a result of the disaster due to pre-existing erosion, and the Applicant was not legally responsible for the repairs.

 

First Appeal

The Applicant submitted its first appeal letter to the Missouri State Emergency Management Agency (Grantee) on September 8, 2020, contending the riverbank repairs should be eligible for PA funding.  The Applicant requested reimbursement of $1,133,731.80 in actual costs and argued that manmade changes to the property such as a railroad switch yard, gravel maintenance roads, and the sewer line rendered the site developed rather than an unimproved property.  Alternatively, the Applicant contended the repairs were eligible as emergency protective measures to prevent a break in the sewer line.  It argued such a break would have resulted in an uncontrolled release of untreated sewage into the Missouri River (causing an immediate threat to public health) and caused damage to private property through basement backups (causing an immediate threat of significant additional damage to improved property).  The Applicant also submitted photographs and a memorandum[4] to support its claim that riverbank damages were a result of the disaster, and cited a Missouri Department of Natural Resources operating permit and a 1966 agreement granting the Applicant permission to install and maintain its sewer line on private property as evidence of legal responsibility for the claimed work.  In a transmittal letter dated October 6, 2020, the Grantee expressed support for the appeal.

FEMA issued a request for information (RFI) on December 22, 2020, citing concerns that the administrative record lacked documentation to show: (1) the riverbank was improved and maintained in some way prior to the disaster; (2) the slope was integral to supporting the sewer line and stable prior to the disaster; and (3) the sewer line faced an immediate threat of damage.

The Applicant responded to the RFI in a letter dated February 4, 2021.  First, the RFI response described installation and backfill of the sewer line in the 1960s, upgrading the gravel maintenance road and armoring a separate portion of the riverbank with rip-rap in 2008, installing a sewer liner in 2009, and inspection and sealing of manholes on April 30, 2019.  Second, to demonstrate the slope was integral to the sewer line and stable prior to the disaster, the Applicant stated that the manholes are not structural piers or supports and the sewer line is supported by its surrounding material (bedding, haunching, and backfill).  The Applicant stated that slope failure results in failure of the material supporting the pipeline and leads to failure of the pipeline.  Third, the Applicant stated the riverbank was excessively eroded and the slope was gone, leaving the manholes exposed and the pipeline with little cover remaining and no protection for a rising river level or excessive rainfall.  Accordingly, the Applicant needed to prevent catastrophic failure, water pollution, and sewer main flooding.[5]  The RFI response indicated that limited cover remained over the sewer line.[6]

The FEMA Region VII Acting Regional Administrator denied the first appeal in an April 5, 2021 decision.  FEMA noted the structures cited atop and behind the riverbank in the Applicant’s RFI response did not improve the natural characteristics and enhance the function of the riverbank.  The riverbank was a natural, unimproved property dependent on centuries-old vegetation for any stability and was not improved prior to the disaster.[7]  FEMA found the sewer line was not damaged, as the sewer line bedding remained intact, and the documentation provided did not establish that the riverbank was integral to the pipe.  Because the riverbank is neither an improved property nor integral ground to a damaged facility, FEMA found it was ineligible for permanent work.  FEMA also determined the Applicant did not demonstrate that riverbank erosion posed an immediate threat to the sewer line that justified emergency work. [8]  The Applicant’s RFI response cited the threat of a rise in the river or excessive rainfall, but did not clearly explain how this would pose an immediate threat of collapse to the sewer line, and FEMA concluded the sewer line still had bedding after the disaster, further rebutting the Applicant’s claim that slope failure would result in failure of the sewer line.[9]   

 

Second Appeal

The Applicant submits its second appeal by letter dated May 27, 2021, citing arguments and information it previously submitted.[10]  The Applicant also contends that neither routine maintenance nor partial slope repair could have protected the sewer line.[11]  In a transmittal letter dated June 14, 2021, the Grantee recommends that FEMA’s ineligibility determination be upheld.  The Grantee states that the Applicant did not provide additional documentation supporting that it maintained the riverbank.

 

Discussion

Improved Property/Landslide and Slope Stabilization

FEMA has the authority to provide grant funding to a state or local government for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster.[12]  A natural feature may be an eligible facility if it is improved and maintained and meets all of the following conditions: (1) the natural feature has a designed and constructed improvement to its natural characteristics, such as a terraced slope or realigned channel; (2) the constructed improvement enhances the function of the unimproved natural feature; and (3) the applicant maintains the improvement on a regular schedule to ensure that the improvement performs as designed.[13]  If an eligible public facility is located on a slope and is damaged as a result of a landslide or slope instability triggered by the incident, FEMA may approve PA funding for restoration of the integral ground that supports the facility.[14]

Although the Applicant points to structures atop and behind the riverbank (the railroad switch yard, gravel maintenance roads, and the sewer line), these structures do not improve the natural characteristics and enhance the function of the riverbank.  As the Applicant documents, the riverbank consisted of large woody vegetation that had existed for centuries.[15]  The Applicant has not demonstrated the riverbank had a designed and constructed improvement to its natural characteristics, had a constructed improvement that enhanced the function of the unimproved natural feature, or that the Applicant maintained any riverbank improvement on a regular schedule.  In addition, the sewer line was not damaged, so even if the riverbank were integral ground, the work requested is not tied to an eligible facility damaged as a result of the disaster.  Accordingly, the work is ineligible for PA funding.[16]

 

Immediate Threat

FEMA is authorized to provide PA funding to local governments for certain emergency work regardless of facility eligibility.[17]  This includes certain emergency protective measures, as long as they: (1) eliminate or lessen immediate threats to lives, public health or safety; or (2) eliminate or lessen immediate threats of significant additional damage to improved public or private property through measures which are cost effective.[18]  An immediate threat is a threat of additional damage or destruction from an event which can reasonably be expected to occur within five years.[19]

The Applicant cited the threat of a rising river level or excessive rainfall as immediate threats to the sewer line because of a limited amount of remaining ground cover but it did not explain how the pipe was in immediate danger of failure.  The documentation shows that the sewer line’s support bedding remained intact following the disaster.[20]  FEMA’s previous RFI asked the Applicant to explain how the conditions posed an immediate threat and the first appeal denial explained that the Applicant had not demonstrated an immediate threat existed.  In previous correspondence and the second appeal request, the Applicant has not demonstrated that riverbank erosion posed an immediate threat to the sewer line that justified emergency work.

 

Conclusion

Riverbank permanent repairs are ineligible for PA funding because the riverbank is neither an eligible facility, i.e., improved feature, nor integral ground supporting a damaged eligible facility.  In addition, the Applicant has not demonstrated that riverbank erosion posed an immediate threat to the sewer line that justified emergency work.  Therefore, this appeal is denied.

 

[1] The President declared a major disaster on July 9, 2019.

[2] Pre-bid Conference Notes, Project No. 31169—Missouri River Bank Stabilization at Wears Creek, at 1, 3 (Dec. 4, 2019) [hereinafter Addendum 1].

[3] The corresponding Grants Manager Project number is 113385.

[4] Missouri River Bank Stabilization Technical Memorandum from P.E. Wastewater Div. Dir., Jefferson City Dep’t of Pub. Works, to Dir. of Fin. and Info. Tech. Services, Jefferson City Dep’t of Pub. Works (Apr. 10, 2020) (stating, “flood waters flanked the large woody vegetation that had existed along the bank line for centuries and caused extensive accelerated erosion as the waters flowed back into the Missouri River.  This scour removed the large trees which were providing vital bank stabilization.”) [hereinafter April 10 Memorandum].

[5] Letter from City Adm’r, Jefferson City, to Supervisor, FEMA Region VII, PA Appeals and Audits Section, at 1 (Feb. 4, 2021) [hereinafter RFI Response]; see Missouri River Bank Stabilization Plans from P.E., HDR, to Dir., Jefferson City Dep’t of Pub. Works (Nov. 15, 2019) (including a topographic and bathymetric survey map.  Bathymetric surveys are a type of hydrographic survey used to measure the depth of a water body as well as map the underwater features of a water body to illustrate the land that lies below.).

[6] RFI Response, at 1.

[7] April 10 Memorandum.

[8] FEMA went on to find that, even if the Applicant had established an immediate threat to the sewer line, the provided documentation did not demonstrate that claimed repairs were limited to the threatened area and were the least costly option.  Additionally, FEMA determined the riverbank was not the legal responsibility of the Applicant and the claimed restoration work was not required as a direct result of the disaster.  FEMA concluded the proposed SOW repaired preexisting erosion that had been approaching the sewer line for many years, noting the private land the sewer line traversed had been eroding for years prior to the disaster and no entity took measures to correct this previous erosion or delay further erosion.  Because these determinations resulted in the project being found ineligible for PA funding, FEMA concluded any remaining issues to be moot.

[9] FEMA First Appeal Analysis, Jefferson City, FEMA-4451-DR-MO, at 4 (Apr. 5, 2021) (citing FEMA Second Appeal Analysis, Laguna Beach, FEMA-1952-DR-CA, at 2-3 (May 1, 2013) (finding that the available documentation did not provide substantial information to conclude the surface soils covering the pipe were essential to the support of the pipe or that further erosion of these materials would have threatened the stability of the pipe)).

[10] Letter from City Adm’r, Jefferson City, to Acting Reg’l Adm’r, FEMA Region VII, at 1 (May 27, 2021) (stating “[n]o additional information is necessary to make our case.  We simply need to direct you back to the information already provided.”).

[11] Based on the determinations reached in this second appeal decision, the issues of legal responsibility, whether damages and work are a direct result of the declared incident, SOW, and potential cost discrepancies are moot and therefore not discussed further in this decision.

[12] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 406(a)(1)(A), Title 42, United States Code (42 U.S.C.) § 5172(a)(1)(A) (2018).

[13] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.201(c) (2018); Public Assistance Program and Policy Guide, FP-104-009-2, at 14-15 (Apr. 1, 2018) [hereinafter PAPPG].

[14] PAPPG, at 128. 

[15] April 10 Memorandum.

[16] See FEMA Second Appeal Analysis, Mill Valley, FEMA-4308-DR-CA, at 4 (June 18, 2020) (finding permanent work to an upslope hillside ineligible for PA funding as integral ground because the slope stabilization work was not tied to an eligible facility damaged as a result of the disaster).

[17] Stafford Act § 403(a)(3), 42 U.S.C. § 5170b(a)(3); 44 C.F.R. § 206.201(b); PAPPG, at 42 (stating that, for local governments, the facility must be eligible in order for temporary repairs and mold remediation to be eligible, but noting that facility eligibility is not applicable to other emergency work).

[18] 44 C.F.R. § 206.225(a)(3); PAPPG, at 42-43, 57.

[19] 44 C.F.R. § 206.221(c); PAPPG, at 43.

[20] Addendum 1, at 1, 3.