Immediate Threat, Landslides and Slope Stabilization, Result of Declared Incident, Legal Responsibility

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4332
Applicant	Harris County
Appeal Type	Second
PA ID#	201-99201-00
PW ID#	GMP 137582
Date Signed	2022-12-22T17:00:00

Summary Paragraph

From August 23 – September 15, 2017, heavy rains and extreme flooding from Hurricane Harvey inundated Harris County.  Harris County (Applicant) requested Public Assistance (PA) for repairs it performed to the Baker Street Jail’s (Jail) parking lot, and adjacent embankment.  FEMA sought documentation to establish the Applicant’s legal responsibility.  In a Determination Memorandum, FEMA denied PA because the Applicant did not demonstrate that it was legally responsible for the work.  The Applicant appealed, requesting $452,669.66 and asserting that its jurisdictional authority established its legal responsibility to perform the work due to an immediate threat to life, health and safety, and improved property.  On September 20, 2021, FEMA notified the Applicant and the Texas Division of Emergency Management (Recipient) of additional eligibility issues and requested documentation to demonstrate that the embankment was an eligible facility and to support the Applicant’s legal responsibility for the work.  FEMA did not receive a response.  On January 14, 2022, the FEMA Region VI Regional Administrator denied the appeal.  The Applicant submitted a second appeal, reiterating its first appeal arguments and asserting that it provided documentation demonstrating that parking lot repairs and slope stabilization work were required by the disaster.  The Recipient transmitted the second appeal in a March 29, 2022 letter, with support.  In a June 27, 2022 letter to the Applicant, FEMA requested further information and documentation.  The Applicant responded in a July 27, 2022, letter, referencing previously provided and additional documentation. 

Authorities and Second Appeals

• Stafford Act §§ 403(a)(3) and 406(a)(1)(A).
• 44 C.F.R. §§ 206.206(a), 206.221(c) and (h),, 206.223(a), and 206.225(a)(3).
• PAPPG, at 14-15, 19, 20, 42-43, 57, 128, and 133.
• West Turin (Town of), FEMA-4472-DR-NY, at 3.

Headnotes

• FEMA may provide PA funding for emergency protective measures that eliminate or lessen immediate threats: (1) to lives, public health, or safety; or (2) of significant additional damage to improved public or private property in a cost-effective manner.
  • The Applicant has not demonstrated the existence of an immediate threat resulting from the disaster to lives, public health or safety, or improved property as it relates to the Jail or parking lot.
• FEMA may provide funding for the repair of a public facility damaged by a major disaster that is the legal responsibility of the applicant requesting assistance.
  • Although the deed for the parking lot was in a different name than that of the Applicant at the time of the disaster, FEMA determines the other entity was a component, or department, under the Applicant.  As such, the Applicant owned the parking lot at the time of the disaster and had legal responsibility to repair the parking lot at the time of the declared incident. 
• If an eligible facility located on a slope is damaged as a result of a landslide or slope instability triggered by the declared incident, restoration of the integral ground may also be eligible.
  • The Applicant has demonstrated that the parking lot was damaged as a result of the slope instability (i.e., embankment erosion) triggered by the disaster, and that a portion of the disaster-damaged embankment was integral ground that supported the parking lot.

Conclusion

The Applicant has not demonstrated its requested work constituted eligible emergency protective measures.  Conversely though, the Applicant has demonstrated that: (1) it had legal responsibility for the eligible facility, the parking lot, at the time of the disaster; (2) slope instability triggered by the declared incident damaged the parking lot; and (3) work to repair the parking lot and restore the integral ground that supports the parking lot is eligible.  The eligible work for slope stabilization approved through this appeal is limited to only that ground which is integral to stabilize the parking lot.

 

Appeal Letter

Appeal Analysis

Background

From August 23 – September 15, 2017, heavy rains and extreme flooding from Hurricane Harvey inundated Harris County (Applicant).[1]  FEMA created Grants Manager Project 137582 to document the Applicant’s request for Public Assistance (PA) to repair the Baker Street Jail (Jail) parking lot, and stabilize the adjacent Buffalo Bayou embankment.  In support of its request, the Applicant provided insurance and procurement documents, photographs, as well as invoices for the completed repairs totaling $452,669.66.  During project formulation, FEMA issued a request for information (RFI), seeking documentation to establish the Applicant’s legal responsibility for the repairs.  In response, the Applicant provided post-disaster dated documents, including a December 3, 2018 Special Warranty Deed,[2] showing that ownership of the Jail and parking lot were conveyed from the Harris County Community Supervision and Corrections Department (CSCD) to the Applicant after the disaster.  In a June 4, 2021 Determination Memorandum, FEMA denied funding, finding that the Applicant had not demonstrated it was legally responsible to perform the requested work at the time of the incident.   

First Appeal

The Applicant appealed in an August 6, 2021 letter, requesting reimbursement of $452,669.66 for the parking lot repairs and embankment stabilization work.  The Applicant asserted that heavy rainfall from the disaster inundated Buffalo Bayou, eroding and washing out more than 25,500 cubic yards of dirt and aggregate material from the embankment directly adjacent to the Jail and its parking lot.  The Applicant maintained that it performed emergency bank stabilization work due to an immediate threat to life, health and safety, and improved property.  In support of its emergency work claim, the Applicant stated that it completed the stabilization work within approximately one month following the disaster and argued that a FEMA memorandum recognizing exigent and emergency circumstances following this disaster established that the repairs constituted emergency work.[3]  The Applicant further explained that the Jail is within its jurisdiction, and thus, it was legally responsible for safeguarding and protecting its citizens, including the Jail’s population, and that it was legally responsible for the embankment stabilization because “there was no guarantee that the embankment washout would not have caused additional damage to the [Jail] or parking lot.”[4]  The Texas Division of Emergency Management (Recipient) transmitted the appeal, with support, on August 30, 2021.

In a September 20, 2021 RFI, FEMA notified the Applicant that it had not provided documentation to demonstrate that the embankment was an eligible facility, or support its claim of legal responsibility to conduct the work.  FEMA did not receive a response.  On January 14, 2022, the FEMA Region VI Regional Administrator denied the appeal, finding that the Applicant did not demonstrate that the embankment was an eligible facility as an improved and maintained natural feature, and that the Applicant did not have legal responsibility for the work at the time of the declared incident. 

Second Appeal

In a March 15, 2022 letter, the Applicant submitted a second appeal, reiterating its request for reimbursement of $452,669.66 for the parking lot repairs and embankment stabilization work, restating its first appeal arguments and adding that it had provided documentation demonstrating that the Jail’s parking lot and the embankment were damaged by the declared incident and the repair and stabilization work was required as a result.  The Applicant points to provided site photographs that it asserts show the washout damage encroaching on one of the Jail’s support columns that also rendered portions of the parking lot unusable, leaving a section of the parking lot overhanging the ground beneath.  The Applicant contended that its pre- and post-event, and post-repair photographs provide a top-down view of the damage, showing the section of the parking lot where the damage occurred, and the repair work performed.  The Recipient transmitted the second appeal in a March 29, 2022 letter, supporting the Applicant’s right to appeal and requesting FEMA’s review.[5]

In a June 27, 2022 letter, FEMA requested further information and supporting documentation to resolve the second appeal.  FEMA requested: 1) detailed descriptions and dimensions of the claimed damage and associated scope of repair work; 2) documentation demonstrating that the damages claimed were caused directly by the declared disaster and that the requested work was required as a result of the disaster, such as ground-level, pre- and post-disaster photographs or other records that distinguish between any preexisting damage and damage caused by the disaster, and/or documentation supporting the predisaster condition of the parking lot and embankment; 3) information demonstrating that the parking lot was damaged by a landslide or slope failure triggered by the declared disaster, evidence of the pre- and post-disaster stability of the embankment, and documentation indicating that the embankment is essential to support the structural integrity and utility of the parking lot; and 4) documentation to show that claimed costs are directly tied to the performance of eligible work, including information supporting how invoices are directly tied to the performance of work required by the disaster.

The Applicant responded in a July 27, 2022 letter, referencing previously provided documentation and new information, including a copy of the Jail’s maintenance log, an engineering briefing document, including pre-disaster aerial and post-disaster ground level images, and a United States Army Corps of Engineers regional general permit application comprised of various pre- and post-construction forms, a mitigation checklist, repair design documents, and photographs of damages and completed work.  The Applicant also referred to previously submitted invoices stating which contractors performed what work at the site.

 

Discussion

Immediate Threat

FEMA may provide PA funding for emergency protective measures that eliminate or lessen immediate threats: (1) to lives, public health, or safety; or (2) of significant additional damage to improved public or private property in a cost-effective manner.^[6]  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.[7]  The applicant is responsible for providing documentation to support its claim as eligible.[8]  The burden to substantiate appeals with documented justification falls exclusively to the applicant and hinges upon the applicant’s ability to not only produce its own records, but to clearly explain how those records support the appeal.[9]

Regarding the purported emergency work, the Applicant states that the embankment washout could have caused additional damage to the Jail or parking lot, but does not establish the existence of an immediate threat caused by the disaster.  First, although post-disaster photographs show parking lot damage, embankment erosion, and flooding, none substantiate the Applicant’s claim that washout damage encroached the Jail’s support column.  While a ground level photograph shows the support columns were inundated with flooding, it does not depict any damage to the column or the area surrounding the column.  Additionally, another ground-level photograph includes a notation, “Exposed column,” yet, does not show the column.  Therefore, the Applicant has not demonstrated the existence of an immediate threat resulting from the disaster to lives, public health or safety, or improved property as it relates to the Jail.  Second, the Applicant does not offer specific documentation to support its assertion that additional damage to the parking lot resulting from the disaster is reasonably expected to occur within five years of the disaster.  Consequently, the Applicant has not demonstrated its parking lot repairs or slope stabilization work constituted eligible emergency protective measures.[10]

Legal Responsibility/Landslides and Slope Stabilization

FEMA may provide funding for the repair of a public facility (i.e., a facility that a local government owns or has legal responsibility for maintaining) damaged by a major disaster.^[11]  For repair work to be eligible for funding, the work must be required to address damage caused by the declared incident and the legal responsibility of the applicant requesting assistance.^[12]  To determine legal responsibility for facility restoration, FEMA evaluates whether the applicant claiming the costs had legal responsibility for disaster-related restoration of the facility at the time of the incident based on ownership and the terms of any written agreements.^[13] 

If an eligible facility is located on a slope and is damaged as a result of a landslide or slope instability triggered by the declared incident, FEMA determines the stability of the slope that supports the facility before it approves PA funding to restore the facility.[14]  Restoration of the integral ground that supports the facility may also be eligible.[15]  Integral ground refers only the ground necessary to physically support a facility.[16]

Here, the eligible facility at issue is the parking lot.  The Applicant previously submitted the Special Warranty Deed, dated December 3, 2018, which states that ownership of the Jail and parking lot was conveyed from the CSCD to the Applicant after the disaster.  However, in reviewing the documentation in the administrative record, FEMA determines that the CSCD is not a separate entity from the Applicant, but rather is a component, or department, under the Applicant.^[17]  As such, the Applicant owned the parking lot at the time of the disaster and had legal responsibility to repair the parking lot at the time of the declared incident. 

Next, post-disaster ground-level photographs show damage to the parking lot’s curbing that resulted from loss of embankment material beneath one corner of it due to a disaster-caused landslide.  The photographs show the parking lot suffered damage as a direct result of the embankment erosion below it, including sections of the parking lot’s curbing laying downhill from the parking lot where embankment material washed away as well as damage to the concrete curbs and car stops.  Further, a cross-sectional diagram provided by the Applicant indicates that the embankment was necessary to physically support the parking lot.  The diagram also depicts that the embankment’s predisaster condition did not indicate any instability.  Accordingly, the Applicant has demonstrated that the parking lot was damaged as a result of the slope instability (i.e., embankment erosion) triggered by the disaster, and that a portion of the disaster-damaged embankment was integral ground that supported the parking lot.  Therefore, work to repair the parking lot and restore the integral ground that supports the parking lot is eligible.  However, the eligible work for slope stabilization approved through this appeal is limited to only that ground which is integral to stabilize the parking lot.

 

Conclusion

The Applicant has not demonstrated its requested work constituted eligible emergency protective measures.  Conversely though, the Applicant has demonstrated that: (1) it had legal responsibility for the eligible facility, the parking lot, at the time of the disaster; (2) slope instability triggered by the declared incident damaged the parking lot; and (3) work to repair the parking lot and restore the integral ground that supports the parking lot is eligible.  The eligible work for slope stabilization approved through this appeal is limited to only that ground which is integral to stabilize the parking lot.  Therefore, this appeal is partially granted.[18] 

 

[1] On August 25, 2017, the President declared a major disaster (FEMA- 4332-DR-TX).

[2] Special Warranty Deed between Harris Cnty. Cmty. Supervision and Corrections Dep’t (CSCD) and Cnty. of Harris, State of Tex. (Dec. 3, 2018) [hereinafter Special Warranty Deed] (in which CSCD granted, sold, and conveyed to the Applicant “all of that certain land and improvements located at 1307 Baker Street” for the sum of $10.00).

[3]See generally, Memorandum from Assistant Administrator, Recovery Directorate, FEMA, to Fed. Coordinating Officer, FEMA-4332-DR-TX, et al., Exigent and Emergency Conditions for FEMA-4332-DR-TX (Sep. 10, 2017) [hereinafter Exigency and Emergency Conditions Memorandum] (authorizing the temporary allowance of noncompetitive procurement due to exigent and emergency circumstances).   

[4] Letter from Analyst, Budget Mgmt. Dep’t, Harris Cnty. Vice Chancellor, to Tex. Div. of Emergency Mgmt., Tex. A&M Univ. Sch. Sys., at 3 (Aug. 6, 2021).

[5] Neither the Applicant nor the Recipient contests FEMA’s first appeal determination finding that the Applicant did not demonstrate the embankment is an eligible facility as an improved and maintained natural feature.  Accordingly, FEMA limits its second appeal analysis to the remaining issues.

[6] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 403(a)(3), Title 42, United States Code (U.S.C.) § 5170b(a)(3) (2012); Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.225(a)(3) (2016); Public Assistance Program and Policy Guide, FP 104-009-2, at 42-43, 57 (Apr. 2018) [hereinafter PAPPG].

[7] 44 C.F.R. § 206.221(c); PAPPG, at 43.

[8] PAPPG, at 133.

[9] See 44 C.F.R. § 206.206(a); FEMA Second Appeal Analysis, West Turin (Town of), FEMA-4472-DR-NY, at 3 (Oct. 14, 2022).

[10] The Applicant cites to the Exigent and Emergency Conditions Memorandum to support its argument that the completed work constituted emergency work.  While this memorandum generally acknowledges wide-scale destruction resulting from the disaster that resulted in exigent and emergency circumstances, it does not relate to “immediate threats” or the Jail, parking lot, or embankment at issue in this appeal.  It simply allows for the temporary allowance of noncompetitive procurement due to the exigent and emergency circumstances. 

[11] Stafford Act § 406(a)(1)(A), 42 U.S.C. § 5172(a)(1)(A); see 44 C.F.R. § 206.221(h) and PAPPG, at 14-15 (defining eligible public facility). 

[12] 44 C.F.R. § 206.223(a); PAPPG, at 19-20.

[13] PAPPG, at 20. 

[14] Id., at 128

[15] Id.

[16] Id.

[17] See Harris County, Texas, Harris County A-Z, Harris County Community Supervision & Corrections Department, https://cscd.harriscountytx.gov/Pages/default.aspx (last visited Nov. 3, 2022).

[18] The issue of eligibility of costs for the approved work is remanded to FEMA Region VI Public Assistance for review.  The Applicant may submit a first appeal pursuant to 44 C.F.R. § 206.206 if FEMA issues a revised determination memorandum denying costs (in whole or in part) associated with the approved work.