Immediate Threat

Appeal Brief

Summary Paragraph

From February 11-21, 2021, severe winter storms impacted areas in Texas. The President issued a major disaster declaration authorizing Public Assistance (PA) for Category B (emergency protective measures) work in many areas, including in Georgetown, Texas. The City of Georgetown (Applicant) submitted a claim for work associated with repairing damage to its electrical distribution system, including tree trimming work near electrical lines. FEMA created Grants Manager Project 187852 to document the Applicant’s claim, but subsequently determined that PA funding for the work was not authorized under the disaster declaration. FEMA denied funding for the project. The Applicant submitted a first appeal, asserting that it performed the tree trimming work to mitigate a public safety hazard. FEMA denied the appeal, finding that the Applicant had not demonstrated its claimed costs were associated with eligible emergency protective measures. The Applicant submitted a second appeal. It states that ice accumulation on trees and tree limbs during the disaster presented an immediate threat of damage to its electrical power lines; the resulting potential for power outages also presented an immediate threat to the local populace due to cold temperatures.

Authorities and Second Appeals

• Stafford Act §§ 403, 406(a)(1)(A).
• 44 C.F.R. § 206.201(b), (i).
• PAPPG, at 51, 97-99, 115, 140, 176.
• Memorandum, Simplifying the PA Program Part 2, at 2-3.

Headnotes

• Debris clearance work related to providing access to essential community services is eligible as a Category B emergency protective measure. FEMA may also fund limited clearance of incident-related debris from rights of way as Category F (utilities) permanent work.
• For power restoration projects that meet both emergency and permanent work eligibility criteria, to include being necessary to reduce or eliminate an immediate threat to life, health, or safety, applicants may claim work as Category B emergency protective measures or as Category F permanent work. Applicants must provide documentation with: (1) a detailed description of the work performed; (2) a description of the immediate threat, if requested; and (3) records demonstrating the presence of an immediate threat, such as technical reports, safety inspector reports, and photographs, if requested.
  • The work at issue could be considered for eligibility as a Category B emergency protective measure or as Category F permanent work. However, the Applicant has not provided documentation demonstrating the specific details of the immediate threat to its overhead power lines.

Conclusion

The Applicant has not demonstrated the tree-trimming work was required by an immediate threat to its overhead power lines due to ice accumulation on trees and tree limbs. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From February 11-21, 2021, severe winter storms, ice, and snow impacted areas in Texas. The President issued a major disaster declaration on February 19, 2021, authorizing Public Assistance (PA) for category B (emergency protective measures) work in many areas, including in Williamson County where the City of Georgetown (Applicant) is located. The Applicant submitted a claim for work associated with its electrical distribution system, including the replacement of nine damaged transformers and tree trimming near overhead electrical lines. The Applicant claimed costs totaling $524,403.71.

FEMA created Grants Manager Project (GMP) 187852 to document the Applicant’s claim. However, in a Determination Memorandum dated October 15, 2021, FEMA denied funding for GMP 187852.[1] FEMA determined that the work to replace the transformers and cut trees and tree limbs near the electrical power lines was considered permanent work. As such, FEMA stated the work was not authorized for PA under the disaster declaration and was ineligible.

First Appeal

The Applicant submitted a first appeal dated December 17, 2021. It acknowledged that work to replace the transformers was considered permanent work and removed the costs from its claim. The Applicant maintained its claim for tree-trimming work with costs totaling $506,585.71. It provided explanations for each item of work and asserted that each was eligible under Title 44 of the Code of Federal Regulations. The Applicant provided documentation that included cost documentation and a post-disaster letter in which it certified that “all tree-trimming activity was strictly restricted to ‘cut-and-toss’ procedures to mitigate public safety hazards.”[2] In a transmittal letter dated December 28, 2021, the Texas Division of Emergency Management (Recipient) expressed support for the appeal.

FEMA issued a Request for Information expressing concern that documentation in the administrative record did not support the Applicant’s appeal. It requested information pertaining to the tree-trimming work, including work locations, photographs, and the Applicant’s justification for performing the work. In response, the Applicant stated that conditions during the disaster “resulted in tree limbs and branches weighed down by ice and snow laying across energized overhead power lines resulting in arcing, pole fires and customer outages.”[3] It asserted that “[w]ith no electric service due to these outages the customers could be exposed to near fatal temperatures. There was a potential for loss of life.”[4] The Applicant attached a map of the locations where it performed the tree-trimming work.

On December 8, 2022, the FEMA Region 6 Regional Administrator denied the appeal, finding that the Applicant had not demonstrated its claimed costs were associated with eligible emergency protective measures. FEMA determined that because the Applicant’s electrical power lines were not considered an emergency access facility, the work at issue was not eligible as category B work. Further, FEMA explained that debris clearance from rights-of-way associated with overhead electrical power lines may be eligible in order to make repairs or prevent further damage if certain criteria are met. However, FEMA stated that such work is category F (utilities) permanent work, which was not authorized for PA funding under the disaster declaration.

Second Appeal

The Applicant submitted a second appeal dated March 6, 2023, again requesting $506,585.71 for “[e]mergency cut and toss activities” to trim tree branches in the vicinity of its overhead electrical power lines.[5] It states that during the disaster, “the largest contributing factor to [electrical power] outages appears to have been damage caused by trees impacting distribution systems.”[6] The Applicant states that it performed tree-trimming work “to reduce the risk to human life caused by life-threatening cold temperatures and the prospect of outages due to trees outside the right of way.”[7] It asserts that the work at issue was undertaken due to an immediate threat to the public, and is therefore eligible under FEMA’s policy for emergency work. In support, it provides a local news report detailing deaths throughout Texas during the disaster, including six deaths in Williamson County. In a transmittal letter dated March 22, 2023, the Recipient expresses support for the appeal.

Discussion

FEMA is authorized to provide funding for emergency work that must be done immediately to save lives, protect public health and safety, protect improved property, or to eliminate or lessen an immediate threat of additional damage.[8] FEMA separates emergency work into debris removal (category A) and emergency protective measures (category B).[9] There are times when the incident causes damage or debris blockage to access routes to an essential community service, or to a community with survivors.[10] If the extent of the damage or blockage makes these areas inaccessible, work related to providing access is an eligible emergency protective measure.[11] Such work is considered debris clearance, or “cut and toss” work, and is limited to work that is necessary to clear or maintain access routes.[12]

FEMA is also authorized to provide funding for permanent work required to repair, restore, reconstruct, or replace facilities damaged or destroyed by disasters.[13] FEMA separates permanent work into five categories (Categories C-G) based on the type of facility.[14] Under Category F (utilities) work, FEMA may fund limited clearance of incident-related debris from rights of way to enable access to a facility.[15] Additionally, if trees in the vicinity of the facility were damaged by the incident and an arborist confirms that the trees cause an immediate threat of further damage to the facility (e.g., overhead power lines), FEMA may provide PA funding to remove those trees.[16]

FEMA recognizes that power restoration is unique in that the work can both save lives and restore the function of the facility.[17] Thus, for power restoration projects that meet both emergency and permanent work eligibility criteria, to include being necessary to reduce or eliminate an immediate threat to life, health, or safety, applicants may claim work as Category B emergency protective measures or as Category F permanent work.[18] Eligibility of emergency work is primarily based on evaluation of an immediate threat and legal authority to perform the work.[19] Applicants must provide documentation with: (1) a detailed description of the work performed; (2) a description of the immediate threat, if requested; and (3) records demonstrating the presence of an immediate threat, such as technical reports, safety inspector reports, and photographs, if requested.[20]

Here, the Applicant states that ice accumulation on tree trunks and limbs posed an immediate threat of damage to its electrical power lines, and that the resulting potential for electrical power outages threatened the lives and safety of local residents. The Applicant claims costs associated with contract and force account labor, force account equipment, and materials to remove trees and tree limbs, referring to the work as “cut and toss.”[21] In support, it provides a map showing the general locations the work was performed and a local news report that discusses fatalities due to the disaster. It also provides power outage information from local electrical cooperatives and discusses the effects of previous winter storms in Kansas and Nebraska.[22]

Although the work at issue may generally be evaluated for eligibility as an emergency protective measure, the Applicant has not provided documentation with the requisite detail for FEMA to verify its eligibility, nor confirmation from an arborist confirming that the trees caused an immediate threat of further damage to the facility.[23] The work location map contains only a general overview of the areas in which the Applicant conducted the tree-trimming work; it does not contain detail demonstrating a specific threat to the overhead power lines in each area from ice-encumbered trees.[24] Likewise, the news report discusses the effects of the disaster, but does not establish a specific threat to public health and safety resulting from power outages due to falling trees. Finally, the Applicant has not tied the power outage information from local electrical cooperatives to the specific locations in which it performed the work at issue.[25]

Thus, FEMA determines that the Applicant has not provided documentation demonstrating the specific details of the immediate threat to its overhead power lines. Such documentation is required for the claimed work to be eligible as an emergency protective measure. 

Conclusion

The Applicant has not demonstrated the tree-trimming work was required by an immediate threat to its overhead power lines due to ice accumulation on trees and tree limbs. Therefore, this appeal is denied.