Result of Declared Incident, Time Limitations/Extensions

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4449
Applicant	Lakeside Village Improvement District
Appeal Type	Second
PA ID#	087-U8U6Q-00
PW ID#	PW 239/ GMP 121548
Date Signed	2022-04-26T16:00:00

Summary Paragraph

From April 28 to July 12, 2019, Kansas experienced severe storms, straight line winds, tornadoes, flooding, landslides and mudslides.  The Kansas Division of Emergency Management (Grantee) requested funding for permanent repairs to gravel and asphalt roads owned and maintained by the Lakeside Village Improvement District (Applicant).  In a Determination Memorandum, FEMA advised the Applicant that the permanent repair of the two asphalt roads requested were ineligible because the claimed damages were not demonstrated to be a direct result of the disaster.  The Applicant submitted a first appeal, stating that the roadway damage was a direct result of the disaster because following the disaster the roads were used as haul roads for water supply when the village lost its water supply due to the storm.  The Applicant explained that heavy trucks carrying water used this route six times a day, seven days a week from March 2019 to February 2020.  The FEMA Region VII Acting Regional Administrator denied the first appeal, finding that the damages to two claimed roads, Main Street and Glenwood Drive, were ineligible as they were not identified and reported within the 60-day regulatory timeframe.  FEMA also found that the maintenance records and photos provided did not demonstrate the predisaster condition of any of the roads.  The Applicant’s second appeal identifies 5 roads at issue: (1) a segment of Main Street; (2) Clear Crest Lane; (3) Wood Crest Lane; (4) Glenwood Drive; and (5) Park Hill Drive.  The Applicant submits two village maps with highlighted routes that the vehicles had to take.  The Applicant argues that the roads were in good repair prior to the disaster, and that the heavy use as haul roads caused the damage.

Authorities and Second Appeals

• 44 C.F.R. §§ 206.202(d)(1), 206.223(a)(1).
• PAPPG, at 19-20, 83, 134-135.
• FEMA Policy FP 104-009-13, Public Assistance Guidance on Inundated and Submerged Roads, (Apr. 8, 2021), at 2, 6, and 7.

Headnotes

• An applicant must report damages within 60 days of the Recovery Scoping Meeting. 
  • The Applicant did not report damages within the 60-day time period to four of the roads on appeal, therefore those repair costs are not eligible for PA funding.
• An applicant must demonstrate that an item of work is required as a result of the declared incident. Where damage occurs on roads that have been inundated by flood water, FEMA may provide funding for the repair of damage caused by flood water, and/or for road surface damage caused by emergency vehicles performing eligible emergency work, or single-access roads that were required to be reopened for emergency response purposes due to lack of detour/alternate routes, provided that all other PA eligibility requirements are met, including the requirement to provide documentation to support claimed damage.
  • The Applicant did not demonstrate that the work to repair the fifth road was required as a result of the declared disaster, and therefore, it is not eligible for PA funding.

Conclusion

FEMA finds that the damages to four of the roads were not reported within the 60-day regulatory timeline. For the fifth road, the Applicant has not demonstrated that the work to repair the road is a result of the declared incident.  Therefore, the appeal is denied.

Appeal Letter

Appeal Analysis

Background

Between April 28 and July 12, 2019, Kansas experienced severe storms, straight-line winds, tornadoes, flooding, landslides, and mudslides.[1]  The Kansas Division of Emergency Management (Grantee) created Grants Manager Project (GMP) 121548 to document repairs to 19 gravel and asphalt roads owned and maintained by the Lakeside Village Improvement District (Applicant).  FEMA denied Public Assistance (PA) funding totaling $157,052.00 for repairs to two of the 19 roads because the Applicant had not demonstrated that the claimed damage resulted from the disaster. 

First Appeal

The Applicant’s first appeal identified three roads at issue: Main Street, Glenwood Drive, and Park Hill Drive.  The Applicant stated that the roadway damage was a direct result of the disaster because following the disaster the roads were used as haul roads for water supply when the village lost its water supply.  The Applicant explained that heavy trucks carrying water used this route six times a day, seven days a week from March 2019 to February 2020.  The Applicant provided documentation showing it re-paved the roads in 2015, photos of the roads from 2017 and 2021, and a map of the route the water trucks used during the water-hauling operation.  The Grantee transmitted the first appeal, with its support to FEMA on October 1, 2021. 

On November 24, 2021, the Acting FEMA Region VII Regional Administrator denied the appeal.  FEMA determined that the damages specifically to Main Street and Glenwood Drive were ineligible as they were not identified and reported within the 60-day regulatory timeframe.  FEMA also found that the maintenance records and photos provided did not demonstrate the that the claimed damages occurred as a result of the disaster.

Second Appeal

The Applicant submits its second appeal in a letter dated December 20, 2021.  The Applicant identifies five roads at issue in its appeal: (1) a partial section of Main Street (2) Clear Crest Lane; (3) Wood Crest Lane; (4) Glenwood Drive; and (5) and Park Hill Drive.[2]  The Applicant argues that the conditions of the roads prior to the event were not the reason for the failure of the roads; rather, it was the extremely high volume of heavy truck traffic during the water mission.  The Applicant provides an email referencing the National Guard water shuttle mission.[3]  This email identifies the National Guard as expressing concern that the trucks it was using in the mission may tip over due to the damages the trucks were causing to the roads.  The Grantee concurred in its January 26, 2022 transmittal of the appeal to FEMA.

 

Discussion

Time Limitations/Extensions

An applicant’s Authorized Local Representative is responsible for representing the applicant and for ensuring that the applicant has identified all eligible work and submitted all costs for disaster-related damages for funding.[4]  The Applicant has 60 days following its Recovery Scoping Meeting (RSM) with FEMA to identify and to report damage to FEMA.[5] 

The Applicant’s RSM was completed on August 27, 2019.  The action log within the FEMA Grants Manager system included the Damage Description and Dimensions (DDD), Scope of Work, and cost estimate approved by the Grantee on behalf of the Applicant.  A detailed Site Inspection Report (SIR) was prepared on December 11, 2019, which was then presented to the Applicant’s Authorized Representative for review to affirm the accuracy of claimed damages.  During this review, the Applicant physically initialed each page of the report.  However, damages to a partial section of (1) Main Street, (2) Clear Crest Lane, (3) Wood Crest Lane, and (4) Glenwood Drive were not included in the SIR, or in the DDD.  The available documentation demonstrates that the Applicant was aware of ongoing damage to its roads from the water supply mission as early as September 2019.[6]  There is no other indication in the available documentation that the Applicant identified damage to the four roads prior to claiming them on second appeal.  Therefore, FEMA determines that the Applicant did not identify the damage to the above four roads within 60 days of the RSM, as required.  Consequently, work to repair the four roads is ineligible for PA funding.

Result of the Declared Incident

To be eligible, an item of work must be required as a result of the declared incident.[7]  The applicant is responsible for showing that work is required to address damage caused by the disaster.[8]  Where damage occurs on roads that have been inundated by flood water, FEMA may provide funding for the repair of damage caused by flood water, and/or for road surface damage caused by emergency vehicles performing eligible emergency work, or single access roads that were required to be reopened for emergency response purposes due to lack of detour/alternate routes, provided that all other PA eligibility requirements are met, including the requirement to provide documentation to support claimed damage.[9]  To determine the eligibility of the damage claimed, FEMA may request documentation illustrating the predisaster condition of a facility, e.g., maintenance records and inspection reports.[10]  FEMA does not provide PA funding for repair of damage caused by deterioration, deferred maintenance, the applicant’s failure to take measures to protect a facility from further damage, or negligence. [11] 

The Applicant claimed that the “key reason for the failure of the roads was the weight of the 18-wheel water shuttle trucks, the design of the drive system of the trucks (multiple solid rear axles) and the extremely high volume of traffic by these Hippos across…streets in Lakeside Village”.[12]   The Applicant states that ‘[t]he roads were saturated and the heavy trucks drove this route six times a day, seven days a week from March 2019 to February 2020.” [13]  The Applicant argues that if it were not for the heavy rains and flooding, it would not have lost its water and required water to be brought in.[14] 

The Applicant claimed that Park Hill Drive (the only asphalt roadway which was identified within 60 days of the RSM) was in good condition prior to the disaster.  In support of this, the Applicant submits a proposal and invoice from Approved Paving LLC, which the Applicant states shows that the Applicant had its roads “chip and sealed.”[15]  The invoice does not document where these repairs were conducted.  No evidence of routine maintenance or regular inspections of the roads is provided.[16]  In addition, the Applicant did not provide any predisaster photographs or other useful documentation showing the condition of the road prior to the disaster.  Although the Applicant states that the damage resulted from multiple causes, including the heavy vehicle use following saturation by flood water, given the lack of information provided by the Applicant, FEMA is unable to determine the predisaster condition of Park Hill Drive, and the Applicant has not demonstrated the claimed damage occurred as a direct result of the disaster.

 

Conclusion

FEMA finds that the damages to four of the roads were not reported within the 60-day regulatory timeline.  For the fifth road, the Applicant has not demonstrated that the work to repair the road is a result of the declared incident.  Therefore, the appeal is denied

 

[1] On June 20, 2019, the President issued a major disaster declaration for the areas affected. 

[2] Letter from Bd. President, Lakeside Vill. Improvement Dist., to FEMA, at 2-3 (Dec. 20, 2021) [hereinafter Applicant’s Second Appeal].

[3] Email from Emergency Manager, Jefferson Cty., Kan., to Response and Recovery Branch Dir., Kan. Div. of Emergency Mgmt., et. al, at 1 (Sept. 23, 2019, 1800 CST) [hereinafter Email from Emergency Manager].

[4] Title 44 Code of Federal Regulations (44 C.F.R) § 206.202(d)(1) (2018).

[5] 44 C.F.R § 206.202(d)(1)(ii); Public Assistance Program and Policy Guide, FP 104-009-2, at 134 (Apr. 1, 2018) [hereinafter PAPPG].

[6] Email from Emergency Manager.

[7] 44 C.F.R. § 206.223(a)(1); PAPPG, at 19.

[8] Id. at 19.

[9] FEMA Policy FP 104-009-13, Public Assistance Guidance on Inundated and Submerged Roads, at 2, 6, and 7 (Apr. 8, 2021). In some cases, if an applicant damages property while performing eligible emergency work, the damages may be eligible for repair as part of that respective project if the damage was due to severe conditions resulting from the incident, unavoidable, and not due to improper or excessive use. See PAPPG, at 83.

[10] PAPPG, at 134-135.

[11] Id. at 19-20.

[12] Applicant’s Second Appeal, at 4.

[13] Letter from Bd. President, Lakeside Vill. Improvement Dist., to FEMA, at 1 (undated) .

[14] Id. at 2.

[15] Id. at 3.

[16] The chip seal referenced in the invoices would not be enough to cover the two miles identified; FEMA First Appeal Analysis, Lakeside Vill. Improvement Dist., FEMA-4449-DR-KS (Nov. 24, 2021).