Direct Result of Disaster

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-4332
ApplicantCity of Fulshear
Appeal TypeSecond
PA ID#157-27876-00
PW ID#PW 13742
Date Signed2019-08-02T00:00:00

Summary Paragraph

Between August 23 and September 15, 2017, severe storms and flooding from Hurricane Harvey impacted Texas.  The City of Fulshear (Applicant) requested $80,000.00 in Public Assistance (PA) for repairs to a 2,300-foot portion of Redbird Lane (Facility), a two-lane asphalt road.  Based on the results of two inspections, FEMA determined that the project was ineligible for funding, because the damage was pre-existing and due to normal age-related deterioration.  FEMA also determined that other than minor repairs, no maintenance had been performed since the last major update to the Facility in April-June 2013.  The Applicant appealed for a revised amount of $167,913.55.  The appeal letter noted that a professional consultant performed a pavement condition survey in March 2017 and found the Facility to have a fair rating, needing only minor maintenance and repairs. The City Engineer also claimed that the road was overlaid in 2015, and that the damage on appeal was caused by hydrostatic pressure from standing flood water and an overflowing river nearby.  In response to a Request for Information, the Applicant stated that it had no additional maintenance records on file after 2013, because it had limited staffing prior to November 2016 and did not document the work that it performed.  It also could not produce records to verify its City Engineer’s claim that the road was resurfaced in 2015.  On February 20, 2019, the FEMA Region VI Regional Administrator denied the first appeal, reiterating FEMA’s initial determination, noting that pre-and post-disaster images showed similar damage, and stating that frequent flooding events in the years preceding the disaster made it difficult to associate any particular damage with individual events.  The Applicant submitted a second appeal reiterating its prior arguments and emphasizing that the type of rehabilitation performed in 2013 would provide a reasonable life expectancy of 15 years, with an overlay or surface re-seal within 7 to 10 years (after the date of the disaster).

 

Authorities and Second Appeals

  • Stafford Act, § 406(a)(1).
  • 44 C.F.R. §§ 206.206(a), 206.223(a)(1).
  • PAPPG, at 19, 115-16.
  • Republic Cty. Highway Dep’t, FEMA-4230-DR-KS, at 3; Vill. of Waterford, FEMA-4020-DR-NY, at 4; Pulaski Cty., FEMA-4250-DR-MO, at 4.

 

Headnotes

  • An item of work must be required as the result of a major disaster.  Damage that results from a cause other than the designated event, such as deterioration or deferred maintenance, is not eligible.  The applicant must substantiate with supporting documentation that damage was the result of the disaster.
    • The Applicant did not document typical maintenance and operations tasks after the last major work on the Facility in 2013, and post-disaster inspections indicated age-related deterioration.  FEMA could not distinguish the damage in pre– and post–disaster photographs, and repeated prior flooding events made it difficult to tie damage to any particular event.

 

Conclusion 

The Applicant has not demonstrated that the damage to its roads was a direct result of the disaster, rather than pre-existing deterioration or deferred maintenance.  Therefore, the appeal is denied.   

 

 

 

Appeal Letter

W. Nim Kidd, MPA, CEM

Chief, Texas Division of Emergency Management

Vice Chancellor – The Texas A&M University System

1033 LaPosada Drive, Suite 370

Austin, TX 78752

 

Re:  Second Appeal–City of Fulshear, PA ID 157-27876-00,

FEMA-4332-DR-TX, Grants Manager Project 13742 – Direct Result of Disaster

 

Dear Chief Kidd:

 

This is in response to a letter from your office dated May 16, 2019, which transmitted the referenced second appeal on behalf of the City of Fulshear (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s decision to deny funding for the repair of Redbird Lane documented in Grants Manager Project 13742.

 

As explained in the enclosed analysis, the Applicant has not demonstrated that the damage to Redbird Lane was a direct result of the disaster, rather than pre-existing deterioration or deferred maintenance.  Accordingly, the appeal is denied.

 

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

 

Sincerely,

 

 /S/

 

Tod Wells

Acting Director

Public Assistance Division

 

Enclosure

 

cc:  George A. Robinson  

Regional Administrator

FEMA Region VI

 

Appeal Analysis

Background

 

Between August 23 and September 15, 2017, severe storms and flooding from Hurricane Harvey impacted Texas.  The City of Fulshear (Applicant) subsequently requested $80,000.00 in Public Assistance (PA) for repairs to a 2,300-foot portion of Redbird Lane (Facility), a two-lane asphalt road.  The road was flooded for a period of three to four days during the incident period and accommodated heavy vehicles during debris removal operations.

 

FEMA conducted two site inspections in response, on January 23 and April 30, 2018.  It documented settled or scoured base material and cracked asphalt surfacing in its first inspection. FEMA also learned that the site experienced numerous flooding events in the previous three years, due to its design and proximity to a nearby river.  In its follow-up inspection, FEMA concluded that the damage appeared to be normal age-related deterioration of asphalt rather than the result of the disaster.  It also noted evidence of minor maintenance work consisting of sealed cracks and erosion holes filled with new asphalt. 

 

Based on these inspection findings, FEMA determined that the project was ineligible for funding on May 30, 2018.  Specifically, FEMA found the damage was normal age-related deterioration, and noted that the Applicant had not conducted maintenance beyond minor repairs since the last major update to the Facility in April 2013, when the road was overlaid with asphalt.  Additionally, the two areas of the road that failed during the incident period had pre-existing cracking and deterioration and showed no noticeable signs of maintenance.

 

First Appeal

 

The Applicant appealed for a revised amount of $167,913.55, based on newly identified damage.[1]  It first noted that a professional consultant performed a pavement condition survey in March 2017 and found the Facility to have a fair rating, needing only minor maintenance and repairs.  It also argued that the minor maintenance it performed following the 2013 rehabilitation work was sufficient, since the industry standard in Texas for the lifetime of a hot-mix asphalt roadway is typically 15 years, with a routine surface overlay expected after 7 to 10 years. 

 

The Texas Division of Emergency Management (Grantee) transmitted the appeal with its own letter of support and an attached letter from the Applicant’s contracted City Engineer.  In its letter, the City Engineer attributed the damage to hydrostatic pressure from 2 to 8 feet of flood water that stood for days, entered every crack and crevice, and greatly degraded the strength of the pavement.  It stated that the pavement was also damaged by overflowing floodwater from the nearby Brazos River.  Finally, the City Engineer noted that the Applicant overlaid the road pavement two years before the disaster (i.e., in 2015).

 

FEMA transmitted a Request for Information seeking, among other things: repair and maintenance records; evidence that the road was overlaid in 2015; detailed maps and images of the Facility; information about prior flooding events; and further evidence of disaster-related damage from the Brazos River.  The Applicant provided more information but stated that it had no additional maintenance records on file, because it had limited staffing prior to November 2016 and did not document the work that it performed.[2]  It also could not produce records to verify its City Engineer’s claim that the road was resurfaced in 2015.  It further acknowledged that the Facility was consistently flooded during large rainfall events in preceding years, and that staff would follow up with site visits and road closures and provide patching where necessary.

 

On February 20, 2019, the FEMA Region VI Regional Administrator (RA) denied the first appeal.[3]  The RA found that the road was most recently rehabilitated in 2013 (not 2015 as claimed by the City Engineer), with only minor maintenance activity afterwards.  The RA could not examine this activity in detail due to the absence of maintenance records.  The RA did however compare post-disaster images with pre-disaster images, including photographs from the March 2017 pavement condition survey, and observed similar damage.  Finally, given the frequent flooding events between 2013 and 2017, FEMA could not associate any particular damage with individual events.

 

Second Appeal

 

The Applicant appealed the RA’s determination, reiterating the same arguments from its first appeal.[4]  The Applicant again emphasized the fair condition of its roads and that, per area standards, no major work was required on the road for at least 7 to 10 years after its resurfacing in 2013.[5]

 

Discussion

 

An item of work must be required as the result of a major disaster event to be eligible for PA funding.[6]  Damage that results from a cause other than the designated event, such as deterioration or deferred maintenance, is not eligible.[7]  Roadwork to repair potholes or fatigue cracking is also generally ineligible as this type of damage is rarely caused directly by one incident.[8]  The applicant must substantiate with supporting documentation that damage was the result of the disaster.[9]  Maintenance records may help verify the pre-disaster condition of the facility, allowing the applicant to distinguish the work that resulted from the disaster.[10] 

 

The Applicant completed its most recent rehabilitation work on the Facility on June 2, 2013.[11]  All other work on the Facility after June 2013 consisted of minor maintenance in the form of crack seal and pothole patching.[12]  The Applicant’s staff did not document this work, relying instead on verbal instructions for typical operations and maintenance tasks.[13]  Therefore, the Applicant could not demonstrate, through maintenance records, the pre-disaster condition of the Facility, or distinguish the work that resulted from the disaster.

 

FEMA’s site inspections and review of photo-imagery also did not support a finding of disaster-related damage.  In its site inspections and post-disaster photographs, FEMA observed erosion, straight-line cracking, and pavement fatigue, consistent with normal age-related deterioration.[14]  Pre-disaster photographs from the Applicant’s pavement condition survey in March 2017 showed similar damage, particularly in areas now identified by the Applicant as disaster-damaged.  In both sets of photographs, the sections with claimed disaster-related damage showed no noticeable maintenance.

 

Finally, the Applicant acknowledges the Facility was exposed to repeated flooding between 2013 and 2017.[15]  Yet, it has not provided any documentation allowing FEMA to distinguish disaster-related damage from damage caused by the prior repeated flooding events. 

 

Therefore, the Applicant has not demonstrated that the damage was a direct result of the disaster.  Instead, the record indicates that the damage was a result of pre-existing deterioration or deferred maintenance.

 

Conclusion

 

The Applicant has not demonstrated that the damage to its roads was a direct result of the disaster, rather than pre-existing deterioration or deferred maintenance.  Therefore, the appeal is denied.

 

 

[1] Letter from Dir. Of Pub. Works, City of Fulshear, and Asst. City Mgr., City of Fulshear, to FEMA (July 24, 2018) [hereinafter Applicant’s First Appeal].

[2] Letter from Dir. of Pub. Works, City of Fulshear, to Chief, Tex. Div. of Emergency Mgmt. (Nov. 26, 2018) [hereinafter Applicant’s RFI Response].

[3] FEMA confirmed the Applicant’s receipt of the decision on February 25, 2019.

[4] Letter from Dir. of Pub. Works, City of Fulshear, to Chief, Tex. Div. of Emergency Mgmt. (Apr. 22, 2019).

[5] On second appeal, the Applicant asserts that its pavement consultant rated its Facility “fair to good.”  Id., at 2.  However, based on the information provided on first appeal, the Facility’s rating of 69 falls within the “56-70” range for a “fair” condition, rather than the “86-100” range for a “good” condition.  Applicant’s First Appeal, at 5-6.

[6] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 406(a)(1), 42 U.S.C. § 5172(a)(1) (2012) (authorizing funding to address disaster-related damage); Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2016).

[7] Public Assistance Program and Policy Guide, FP 104-009-2, at 19, 115-16 (Apr. 26, 2018) [hereinafter PAPPG]; FEMA Second Appeal Analysis, Republic Cty. Highway Dep’t, FEMA-4230-DR-KS, at 3 (July 26, 2017).

[8] PAPPG, at 116.

[9] 44 C.F.R. § 206.206(a); FEMA Second Appeal Analysis, Vill. of Waterford, FEMA-4020-DR-NY, at 4 (Sep. 4, 2014).

[10] PAPPG, at 115-16; FEMA Second Appeal Analysis, Pulaski Cty., FEMA-4250-DR-MO, at 4 (Feb. 22, 2018).

[11] Applicant’s RFI Response, at 2 (stating that the Applicant’s staff “do not have any records to indicate there was an overlay” in 2015).

[12] Applicant’s First Appeal, at 8.

[13] Id., at 5.

[14] See FEMA Region VI, DR4332 TX – Fort Bend County – Red Bird Lane, City of Fulshear, Texas, at 1 (Apr. 30, 2018) [Critical Infrastructure Site Visit Report].

[15] Applicant’s RFI Response, at 3.

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