Improved Property, Landslides and Slope Stabilization

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Desastre	4479
Applicant	Greenville
Appeal Type	Second
PA ID#	045-30850-00
PW ID#	4479
Date Signed	2022-06-07T16:00:00

Summary Paragraph

From February 6-13, 2020, severe storms, tornadoes, straight-line winds, and flooding caused damage in South Carolina.  The Applicant reported damage to city parks, including embankment damage alongside a section of the Swamp Rabbit Trail (SRT).  The Applicant proposed repairing the embankment at an estimated cost of $29,645.25, as well as mitigation work to reinforce the embankment.  FEMA issued a Determination Memorandum, denying the requested costs to repair the embankment alongside the SRT as well as the mitigation.   FEMA found that the riverbank was unimproved and that the erosion was not affecting the integral ground supporting the trail.  The Applicant appealed, stating that the SRT sustained damage as a result of the disaster and was at risk of a complete collapse due to significant riverbank erosion.  The FEMA Region IV Regional Administrator denied the first appeal, finding that the Applicant did not substantiate that the embankment was either an improved and maintained natural feature, or integral ground supporting an eligible facility.  Thus, neither the claimed repair cost nor the proposed mitigation was eligible.  The Applicant submits a second appeal, asserting that the embankment is maintained and improved property and that the work to repair it is eligible as part of the restoration of an eligible facility.

Authorities and Second Appeals

• Stafford Act § 406(a).
• 44 C.F.R. § 206.201(c).
• PAPPG, at 14-15, 128.

Headnotes

• Per the PAPPG, at 14-15, a natural feature may itself 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; (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.
• Per the PAPPG, at 128, 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 Public Assistance funding for restoration of the integral ground that supports the otherwise eligible facility.
  • The Applicant has not demonstrated that the embankment is an improved and maintained natural feature.  Additionally, since the SRT was not damaged as a result of the disaster, then the work to repair the integral ground supporting the SRT is not eligible for assistance

Conclusion

FEMA finds that the Applicant has not demonstrated that the embankment was an eligible facility (i.e., an improved and maintained natural feature).  The Applicant has also not demonstrated that the embankment was integral ground supporting an eligible public facility that was damaged by a landslide or slope instability triggered by the incident.

 

Appeal Letter

Appeal Analysis

Background

From February 6-13, 2020, severe storms, tornadoes, straight-line winds, and flooding caused damage in South Carolina.  The City of Greenville (Applicant) reported damage to various parks throughout the City.  At a section of the Swamp Rabbit Trail (SRT), a 20-mile multi-use rail trail, the Applicant reported shoulder and embankment damage as a result of severe surface water flooding from the adjacent Reedy River.  The Applicant proposed repairing the shoulder and embankment at an estimated cost of $29,645.25 and also proposed possible mitigation by armoring the riverbank to protect against collapse of the trail into the river estimated at $139,947.00.  FEMA prepared Project Worksheet 96 to document the project.

On February 19, 2020, FEMA issued a Determination Memorandum, denying $29,645.25 in estimated repair costs.  FEMA found that the riverbank was unimproved and that the erosion was not affecting the integral ground supporting the SRT.  FEMA also found the proposed mitigation to be ineligible since the work to repair disaster-related damage was deemed ineligible.

First Appeal

On January 13, 2021, the Applicant submitted a first appeal, stating that the SRT did sustain damage and was at risk of complete collapse as a result of the disaster.  The Applicant noted that additional bank stabilization work was eligible and could be added as mitigation.  The Applicant provided an economic impact study of the SRT, a business journal article highlighting SRT usage and economic benefits, and a maintenance contract to demonstrate that the site is improved and regularly maintained property.  The South Carolina Emergency Management Division (Grantee) transmitted the first appeal to FEMA, recommending its approval.

On July 2, 2021, FEMA sent a Request for Information to the Applicant, requesting documentation demonstrating that the embankment was integral to the SRT, as well as demonstrating the stability of the embankment both before and after the disaster.  On August 31, 2021, the Applicant responded, providing pre- and post-disaster pictures, a letter from its engineer certifying that the erosion was undermining the SRT, a proposal for repair to prevent collapse of the the SRT, and a post-erosion site survey.

On November 8, 2021, the FEMA Region IV Regional Administrator denied the first appeal, finding that the Applicant did not substantiate that the embankment was either an improved and maintained natural feature, or integral ground supporting an eligible facility.  Thus, neither the claimed repair cost nor the proposed mitigation was eligible.  FEMA explained that the Applicant did not demonstrate, through sketches and dimensions, the actual integral ground required to support the SRT.  And a topographic map provided by the Applicant did not illustrate the specific location where the threatened loss to the asphalt surface and road base was likely to occur.  Further, the photographs provided by the Applicant did not substantiate either predisaster stability or indicate damage to the SRT that would otherwise demonstrate the embankment to be integral to its structural integrity.

Second Appeal

On January 5, 2022, the Applicant submitted a second appeal, asserting that: the affected non-sloped ground above the riverbank and alongside/under the SRT is maintained and improved property; the SRT is constructed on a combination of both natural and improved ground; the site was stable but the flood caused significant loss of large trees and vegetation, resulting in the loss of slope stabilization; and the work is eligible as it is part of the restoration of an eligible facility.  The Applicant provides: the approved contract describing the bank stabilization work it will conduct, now estimated at $245,368.50; a letter from its engineer explaining that the SRT’s integral ground was compromised; a landscape maintenance contract; and a picture of repairs in progress.  The Grantee transmitted the second appeal to FEMA, recommending its approval.

 

Discussion

FEMA may provide funding to a state or local government for the repair, restoration, reconstruction or replacement of a public facility damaged by a major disaster.[1]  A natural feature may itself 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; (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.[2]  Alternatively, 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 Public Assistance funding for restoration of the integral ground that supports the otherwise eligible facility.[3]  Integral ground is natural or improved ground upon which an eligible facility is located and that is essential to support the structural integrity and utility of the facility.[4]

The Applicant submits predisaster maintenance records for the embankment indicating normal maintenance activities such as mowing grass and removing litter.  However, this does not demonstrate that the embankment meets the conditions of an improved natural feature, which would qualify it as an eligible facility.  In addition, the Applicant did not demonstrate disaster-related damage to the SRT, or any other eligible facility supported by the embankment.  Although the disaster caused erosion to the ground adjacent to the SRT, predisaster photographs indicate that there may have been preexisting separation between the SRT and the adjacent ground.  The Applicant did not provide documentation to allow FEMA to distinguish those preexisting conditions from disaster-related damage.  Since there is no documentation demonstrating damage to an eligible facility as a result of the disaster, then the work to repair the integral ground supporting the SRT is not eligible for assistance.

 

Conclusion

FEMA finds that the Applicant has not demonstrated that the embankment was an eligible facility (i.e., an improved and maintained natural feature).  The Applicant has also not demonstrated that the embankment was integral ground supporting an eligible public facility that was damaged by a landslide or slope instability triggered by the incident.  Therefore, this appeal is denied.

 

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

[2] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.201(c) (2019); Public Assistance Program and Policy Guide, FP 104-009-2, at 14-15 (Apr. 1, 2018) [hereinafter PAPPG].

[3] PAPPG, at 128.

[4] Id.