Result of Declared Incident

Appeal Brief

Appeal Letter

Appeal Analysis

Background

During the incident period of April 28, 2019, to July 12, 2019, severe storms, straight-line winds, tornadoes, flooding, landslides, and mudslides caused damage in the state of Kansas.[1] Fall River State Park is a 980-acre facility located in Greenwood County, Kansas. The park, situated on Fall River Lake, is managed by the Kansas Department of Wildlife, Parks, and Tourism (Applicant). During the event, torrential rainfall created fast-rising water levels with strong currents and wave action on the lake. The Applicant stated that floodwaters damaged the Park’s Fredonia Bay playground, which was inundated for an extended period. The Applicant requested $74,500.00 in Public Assistance (PA) funding to replace damaged playground equipment and the playground’s rubber safety surface. FEMA prepared Grants Manager Project 707067, listing damage to two slides, the transfer point, and the poured-in-place safety surface composed of a half-inch depth of recycled rubber material.

On September 1, 2022, FEMA conducted a site inspection. FEMA stated in the Site Inspection Report (SIR) that the playground was built in 2006 and documented 16 pictures of the damaged playground and safety surface that it took at the time of the September 1, 2022 inspection.[2] The Applicant’s contractor installed a half-inch depth of pour-in-place safety surface over the existing surface (i.e., an in-kind replacement) in May 2023 at a cost of $24,912.00.[3]

On August 14, 2023, FEMA denied the Applicant’s request for PA funding in a Determination Memorandum, finding that the Applicant did not demonstrate that the playground was damaged as a result of the declared event. FEMA explained that the damage recorded in the SIR was indicative of damage occurring from years of normal playground use, rather than the result of a single flood event.

First Appeal

On October 10, 2023, the Applicant submitted a first appeal, stating that the playground damage was a result of flooding from the event. The Applicant stated that during the flood, the playground equipment and safety surface were covered in accumulated debris, which further damaged the playground due to wave action. The Applicant added that the equipment was inspected by Certified Playground Safety Inspectors and by playground companies, which all concluded that the equipment and surfacing was damaged by the flood and needed replacing. The Applicant stated that it would be held liable if the safety surface did not meet industry guidelines. The Applicant added that playground equipment may last over 20 years and this playground had not reached its useful life at the time of the disaster. 

The Applicant provided post-disaster pictures of the flooded playground, as well as a letter from a playground company, explaining that after a flooding, plastic components and surfacing must be replaced. The playground company added that any flooded surfacing must be replaced due to sediment getting in and affecting the fall height performance. On December 5, 2023, the Kansas Division of Emergency Management (Recipient) transmitted the first appeal to FEMA, expressing its support.

On January 29, 2024, FEMA sent the Applicant a Request for Information, requesting documentation demonstrating the predisaster and post-disaster condition of the playground. On February 27, 2024, the Applicant replied, providing, among other things, two predisaster images of the playground from 2016 and 2017.

On April 25, 2024, the FEMA Region 7 Regional Administrator partially granted the first appeal, finding that that the documentation demonstrated the playground transfer step and deck were damaged as a result of the declared incident; therefore, the work to remove and replace them was found eligible with an estimated cost of $18,441.00. FEMA explained that the post-disaster SIR pictures showed significant corrosion to the transfer step and deck, which was not seen in the 2016 predisaster image. However, FEMA denied $56,059.00 associated with removing and replacing the playground slides and rubber safety surface. FEMA stated that the Applicant had not demonstrated those items were damaged as a result of the declared incident, rather than pre-existing damage or deterioration.

Second Appeal

On May 29, 2024, the Applicant submitted a second appeal, reiterating its first appeal arguments and asserting that FEMA’s denial was partially due to inaccurate water elevations. The Applicant provides lake water level data from May-July 2019, a flood map, as well as previously provided information. On July 15, 2024, the Recipient transmitted the appeal to FEMA.

Discussion

FEMA may provide funding to a local government for the repair of public facilities damaged by a major disaster.[4] To be eligible, work must be required as a result of the declared incident, and the applicant must demonstrate that damage was caused directly by the declared incident.[5] FEMA does not provide funding for repair of damage caused by deterioration or deferred maintenance.[6] It is the applicant’s responsibility to substantiate its claim as eligible.[7] If the applicant does not provide sufficient documentation to support its claim as eligible, FEMA cannot provide PA funding for the work.[8]

Here, the Applicant claims that two playground slides and the safety surface were damaged as a result of the disaster-caused flooding. Specifically, the Applicant states the slides warped and cracked due to sitting in floodwater. The Applicant asserts the floodwater also undermined the rubber safety surface, causing loss of function and creating a safety hazard to children using the playground. Pictures of the playground taken during the disaster show that the playground was flooded and that vegetative debris such as tree trunks and branches were present on and around the playground. Additionally, the Applicant has demonstrated with the May-July 2019 water level data provided on second appeal that playground sate in the disaster floodwater for an extended period.

Pictures available in the administrative record help to establish the predisaster condition of the playground. The 2016 predisaster image shows: (1) pre-existing damage to one slide – a crack where it is fastened to the vertical pole; and (2) minor pre-existing wear and tear to high-use areas of the safety surface, specifically at the base of a slide. The 2017 predisaster image, though taken from further away than the 2016 photograph, shows the playground to be in overall good condition. Overall, the predisaster pictures show the safety surface and playground slides in good condition except for a pre-existing crack to one slide.

The SIR pictures document the post-disaster condition of the playground and show the playground, particularly the safety surface, to be in significantly worse condition than it was predisaster,[9] indicating that the damage occurred after 2016 and was likely the result of sitting in floodwater for an extended period of time. Further, the Applicant provided documentation indicating that plastic components such as the slides must be replaced after flooding (as well as the surfacing) because they are susceptible to damage and possible structural failure from pollutants present in the floodwater. Therefore, the Applicant has demonstrated that the damage to the slides and safety surface was a direct result of the declared incident, and the replacement was required as a result of the disaster.

Conclusion

The Applicant has demonstrated that the playground slides and safety surface were damaged as a result of the disaster. Therefore, this appeal is granted.