Result of Declared Incident

Appeal Brief

Summary Paragraph

Flooding, landslides, and mudslides from severe storms caused extensive damages in the State of Kentucky from February 27 to March 14, 2021. The Kentucky Department of Transportation (Applicant) requested Public Assistance (PA) to repair embankment damage along State Road KY-2034 at four sites. FEMA’s site inspection report noted no road damage was being claimed and that the Applicant would use rail and cribbing to restore the embankment along the four sites. FEMA issued a Request for Information requesting predisaster maintenance records to verify predisaster conditions. The Applicant responded stating that the embankments’ erosion undermined the road and carried material away from existing cribbing. The Applicant also provided predisaster work orders. FEMA denied funding for repair costs for sites 1, 2, and 4. FEMA stated that the Applicant had not provided documentation to support the claim that embankment damage was a direct result of the disaster, noting that documentation on record showed ongoing, predisaster erosion damages. The Applicant appealed the denial of repairs costs for site 4. FEMA denied the appeal finding that the Applicant did not demonstrate that embankment repairs were required as a result of the disaster. FEMA stated that embankment erosion was consistent with long-term deterioration. FEMA added that the records did not show the embankment was inspected or maintained before the disaster and that the Applicant did not provide documentation to differentiate between pre-existing and disaster-related damage. The Applicant’s second appeal states that photographs show damage to the road’s pavement and embankment. Also, the Applicant asserts that the claimed repair is necessary to restore the structural integrity of an eligible road. 

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A).
• 44 C.F.R. §§ 206.201(c), 206.206(a), 206.221(h), 206.223(a)(1), 206.226.
• PAPPG, at 51-52, 55-56, 63-64, 145, 169-170, 181.

Headnotes

• An eligible facility includes any non-Federal aid roads and improved and maintained natural feature. 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 to restore the integral ground that supports the facility. To be eligible for PA funding, work must be required as a result of the disaster. 
  • The Applicant has not demonstrated that the embankment is itself an eligible facility or is integral ground that supports an eligible disaster-damaged facility. Additionally, the Applicant has not demonstrated that work to repair the embankment was required as the result of the disaster.

Conclusion

FEMA finds that the Applicant has not demonstrated that the embankment is itself an eligible facility or is integral ground that supports an eligible disaster-damaged facility, nor that the requested work was required as the result of the disaster. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

Flooding, landslides, and mudslides from severe storms caused extensive damages in the State of Kentucky from February 27 to March 14, 2021.[1] The Kentucky Department of Transportation (Applicant) requested Public Assistance (PA) funding to address embankment damage along State Road KY-2034 at four sites. FEMA documented the estimated repair costs of $221,234.32 in Grants Manager Project 240248. The documented damaged sites and estimated repair costs are the following:

FEMA conducted a site inspection (SI) and noted in its report that no road damage was being claimed by the Applicant for the fourth site, and that the Applicant would use rail and cribbing to restore the embankment along the four sites. FEMA issued a Request for Information (RFI) in March 2022, requesting predisaster maintenance records (e.g., work orders and invoices) to verify predisaster conditions. Additionally, FEMA requested documentation demonstrating that the road at each site was damaged by the disaster. The Applicant responded, stating that the embankment’s erosion undermined the road and carried away material. The Applicant also provided predisaster work orders for the areas in question, which included completion dates from March 2013 to June 2022.

FEMA issued a Determination Memorandum dated June 10, 2022, denying all estimated repair costs for sites 1, 2, and 4, totaling $174,504.26. FEMA stated that the Applicant had not provided documentation to support the claim that embankment damage was a direct result of the disaster, noting that the SI report for those three sites and historical photographs appeared to show ongoing, predisaster erosion damages.[2]

First Appeal 

The Applicant appealed on August 9, 2022, requesting $95,179.81 for repairs at site 4.[3] The Applicant stated that its predisaster work orders demonstrated that it routinely maintained this site. The Applicant stated that FEMA referred to photographs showing pre-existing conditions, but never provided the referenced photographs to the Applicant, and that site 4 was not included in FEMA’s RFI. The Applicant also stated that site 4 showed erosion of the natural streambank, which was eligible for repairs if it was affecting the structural stability of the road. The Applicant provided post-disaster photographs it claimed showed damage to the road’s pavement due to erosion of the embankment. On August 10, 2022, Kentucky Emergency Management (Recipient) transmitted the Applicant’s first appeal recommending approval.

On September 8, 2023, the FEMA Region 4 Regional Administrator denied the appeal, finding that the Applicant did not demonstrate that embankment repairs were required as a result of the disaster. FEMA stated that post-disaster photographs provided by the Applicant, as well as those FEMA took during the SI, did not show disaster-related damage. FEMA stated the photographs indicated that embankment erosion was caused by long-term deterioration, as opposed to a single, recent event. FEMA also noted that while the predisaster documentation in the record showed that miscellaneous road shoulder maintenance occurred in November 2020, the predisaster records did not indicate where that maintenance was performed or delineate what specific work was completed. FEMA added that the predisaster records did not show that the embankment at issue or surrounding areas were inspected or maintained prior to the disaster. Based on the above, FEMA determined that the Applicant had not provided documentation to differentiate between pre-existing and disaster-related damage.

Second Appeal

On November 3, 2023, the Applicant submitted a second appeal, reiterating its request for work to repair and stabilize the embankment at site 4, stating that post-disaster photographs show clear damage to the road’s pavement and embankment. The Applicant also states that documentation to establish predisaster condition is not required here because there is ample evidence that the disaster caused the damage.[4] The Applicant asserts it provided FEMA with complete work orders for this specific route as a result of its routine maintenance program, and that the predisaster work orders do not show any prior need for repairs. The Applicant states that the eligibility of its claimed costs is supported by FEMA policy which states that work to repair scour or erosion damage to a channel or stream bank is eligible if the repair is necessary to restore the structural integrity of an eligible road, culvert, or bridge. On November 6, 2023, the Recipient transmitted the Applicant’s appeal with its support.

Discussion

FEMA may provide PA funding to eligible applicants for the repair, restoration, or replacement of public facilities damaged or destroyed by major disasters on the basis of its predisaster design and function, in conformity with applicable codes and standards.[5] An eligible facility includes any non-Federal aid roads and improved and maintained natural features.[6] A natural feature is improved and maintained if: (1) it 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.[7] Unimproved properties, such as a hillside or slope, are not an eligible facilities.[8] 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 PA funding to restore the integral ground that supports the facility.[9]

To be eligible for PA funding, work must be required as a result of the disaster.^[10] It is the applicant’s responsibility to demonstrate that claimed damage was directly caused by the declared incident, and where pre-existing damage exists, to distinguish that damage from the disaster-related damage.[11] When necessary to validate damage, the applicant may be required to provide predisaster photographs of the impacted site or documentation supporting the predisaster condition of the facility (e.g., facility maintenance records, inspection/safety reports).[12] If the applicant does not provide documentation to support its claim as eligible, FEMA cannot provide PA funding for the work.[13] 

FEMA requested predisaster maintenance records to distinguish pre-existing erosion (as noted in the SI report and observed by FEMA in predisaster photographs) from claimed disaster-related erosion. Although the Applicant provided predisaster maintenance records related to its roads, these did not relate specifically to the embankment at issue to support its predisaster condition and validate the claimed disaster-related damage. Furthermore, due in part to the absence of such records relating to the embankment at issue, the Applicant has not demonstrated that the embankment had designed and constructed improvements to its natural characteristics that were maintained on a regular schedule. Therefore, the embankment is an unimproved natural feature, and does not constitute an eligible facility.

Additionally, the Applicant-provided  records do not assist FEMA in validating claimed disaster-related damage to the road’s pavement at site 4. Notably, FEMA’s SI report stated there was no road damage being claimed by the Applicant and the record does not indicate that the Applicant has requested PA funding for any purported damage to the road at site 4. Furthermore, the post-disaster photographs do not show damaged pavement at site 4, in contrast to the Applicant’s assertion. Therefore, the embankment does not constitute integral ground that is eligible for PA funding as it is not tied to an eligible facility damaged as a result of the disaster. 

Based on the above, the Applicant did not demonstrate the embankment is itself an eligible facility or that it is integral ground that supports an eligible disaster-damaged facility, nor that the requested work was required as a result of the disaster.

Conclusion

The Applicant has not demonstrated that the embankment is itself an eligible facility or is integral ground that supports an eligible disaster-damaged facility, nor that the requested work was required as the result of the disaster. Therefore, this appeal is denied.