Improved Property, Landslide and Slope Stabilization

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4540
Applicant	Union (County)
Appeal Type	Second
PA ID#	225-99225-00
PW ID#	GMP 142855/PW 422
Date Signed	2022-03-10T17:00:00

Summary Paragraph

Between February 3 – 29, 2020, severe storms and heavy rains caused excessive water flows and flash flooding along the banks of the Ohio River in Union County (Applicant), Kentucky.  FEMA prepared Project Worksheet (PW) 422 to capture damages to the Blackburn Boat Ramp property, which consists of a boat ramp, access road, asphalt parking lot, and riverbank area (embankment).  On March 31, 2021, FEMA issued a Determination Memorandum, denying $233,033.42 because the Applicant had not provided documentation that the embankment was in good repair and routinely maintained at the time of the disaster or, that the work claimed is a direct result of the disaster.  The Applicant appealed, stating that this disaster exacerbated the damage caused by a prior disaster.  The FEMA Region IV Regional Administrator denied the first appeal, finding that the embankment was neither an improved and maintained natural feature nor integral ground to an adjacent boat ramp.  On second appeal, the Applicant contends that the embankment is eligible as either an improved and maintained natural feature, or integral ground for the overlying parking lot. 

Authorities and Second Appeals

• Stafford Act § 406.
• 44 C.F.R. §§ 206.201(c), 206.206(a).
• PAPPG, at 14, 15, 128, and 133.
• Grand Strand Water & Sewer, FEMA-4286-DR-SC, at 3, City of Brenham, FEMA-4272-DR-TX, at 4.

Headnotes

• In order for a natural feature to qualify as an eligible facility, it must meet all of the following conditions: 1) the natural feature has a designed and constructed improvement to its natural characteristics; 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 the improvement performs as designed.
  • The Applicant has not demonstrated it maintained the embankment on a regular schedule.
• 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 for restoration of the integral ground that supports the facility.
  • The Applicant has not demonstrated the parking lot, the eligible public facility, was damaged as a result a landslide or slope instability; therefore, funding for restoration of the integral ground, the embankment, is not eligible.

Conclusion

The Applicant has not established the embankment was an eligible facility (i.e., an improved and maintained natural feature).  The Applicant has also not demonstrated the embankment was integral ground supporting an eligible public facility that was damaged by a landslide or slope instability triggered by the incident.  As such, the Applicant’s claim for $233,033.42 in PA funding is denied.

Appeal Letter

Appeal Analysis

Background

Between February 3–29, 2020, severe storms and heavy rains caused excessive water flows and flash flooding along the banks of the Ohio River in Union County (Applicant), Kentucky.[1]  The Applicant requested $259,945.59 in Public Assistance (PA) funding for the permanent restoration and mitigation of the Blackburn Boat Ramp property, which included the boat ramp, access road, asphalt parking lot, and riverbank area (embankment). 

On March 31, 2021, FEMA issued a Determination Memorandum (DM) partially approving $26,912.17 for parking lot repairs, but denying $233,033.42 because the Applicant had not provided documentation that the embankment was in good repair and routinely maintained at the time of the disaster or, that the work claimed to repair the embankment was a direct result of the disaster.[2]  FEMA found that the Applicant did not appear to make repairs to the embankment after a prior disaster declared in April 2018,[3] and aerial imagery showed that the embankment may have been damaged by a second disaster declared one year prior, in April 2019, despite the Applicant’s claim that there was no additional damage.[4]  Additionally, FEMA noted the proposed mitigation was identical to that proposed after the April 2018 disaster.  Thus, FEMA found the damage was not a result of this disaster, and that the Applicant had not provided sufficient documentation to differentiate the damage between the disasters. 

First Appeal              

On May 28, 2021, the Applicant appealed the DM, stating that while a “significant portion of the embankment was washed away by the flooding” of the April 2018 disaster, the current disaster “seriously exacerbated the damage,” with no damage caused by the April 2019 intermediate disaster.[5]  The Applicant acknowledged that if the embankment had been repaired prior to the disaster, the additional damages likely would not have occurred, but due to the rapid succession of disaster incidents and administrative issues with the April 2018 disaster, the Applicant was unable to complete the repairs in time.[6]

The Applicant claimed that the embankment was an integral part of the Blackburn Boat Ramp property, and “[h]ad the embankment been fully repaired prior to the incident…, thereby supporting the structural integrity and utility of the facility, [the] damages would likely not have occurred.”[7]  Second, the Applicant stated there is little maintenance that can be performed on a dirt and grass embankment, and that none was required before the damages of the April 2018 disaster.  The Applicant stated that historically, it inspected the embankment at the same time the boat ramp was inspected and maintained.  Additionally, it claimed that any maintenance would have been impractical after the damages of the April 2018 disaster since much would have been washed away with the additional flooding. 

Third, the Applicant stated the instant disaster caused significant damage beyond that caused by the prior April 2018 disaster.  It pointed to FEMA’s Site Inspection Report, which listed specific dimensions of embankment and parking lot sections that the instant disaster’s flooding had washed away.[8]  On June 7, 2021, the Kentucky Emergency Management Agency (Grantee) forwarded the appeal to FEMA, declining to make a recommendation concerning the appeal.

The FEMA Region IV Regional Administrator denied the first appeal, finding that the Applicant did not provide documentation substantiating that the embankment was an improved and maintained natural feature, and as such, was not an eligible facility.  Furthermore, FEMA noted that as the embankment did not provide physical support to the structural integrity and utility of the ramp, it was not integral ground.  As the Applicant had not met the burden of showing the embankment was an eligible facility or was integral ground to an eligible disaster damaged facility, FEMA determined the issue of disaster-related damage was moot. 

Second Appeal

The Applicant appeals in a letter dated October 29, 2021.  The Applicant states the embankment is eligible for PA funding as it was a designed and constructed feature.  For support, the Applicant provides a summary of the history and design of the site, including 1979 plans from the United States Army Corps of Engineers that included placement of 1,800 tons of riprap to the embankment, and documentation of a 1997 FEMA endorsement for the placement of riprap on the embankment to repair and control stream bank erosion.   

The Applicant alternatively states that the embankment is integral ground to the parking lot, as the parking lot is constructed on top of the embankment and the embankment is load bearing ground necessary to physically support the parking lot.  Put another way, the Applicant asserts the embankment is wholly and entirely integral to the structural stability of the parking lot.[9]  The Applicant further states that the “river-facing edge of the parking lot is eroded as the result of the spring flooding event and the asphalt above the embankment has crumbled and fallen down the sloped embankment face.”[10]  It states that severe erosion and partial collapse of the embankment has caused a significant section of the parking lot on top of the embankment to collapse.  Therefore, the Applicant requests funding for repair of the parking lot and the load bearing embankment beneath it, replacement of stabilizing riprap rock on the embankment face, and the addition of the sheet pile toe wall to stabilize the parking lot and embankment.

On October 30, 2021, the Grantee forwarded the Applicant’s appeal along with an email declining to make a recommendation concerning the appeal. 

 

Discussion

Improved Property

FEMA has the authority to provide PA funding to a state or local government for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster.[11]  A natural feature may be an eligible facility if it is improved and maintained and meets all of the following conditions: (1) the natural feature 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.[12] 

The Applicant has demonstrated it improved the natural feature (embankment) through the placement of riprap but has not demonstrated it maintained the improvement on a schedule to ensure the improvement performs as designed.  In its first appeal letter, the Applicant stated that there is little maintenance that can be performed on a dirt and grass embankment.  While the Applicant stated that historically, it inspected the embankment at the same time the boat ramp was inspected and maintained, it has not provided documentation substantiating it maintained the embankment (rather than simply inspecting it) on a schedule.  Therefore, the Applicant has not satisfied all requirements to establish that the embankment is an eligible improved and maintained natural feature.

Landslide and Slope Stabilization

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 also approve PA funding for restoration of the integral ground that supports the facility.[13]  The applicant is responsible for providing documentation to support its claim as eligible.[14] 

The Applicant argues that the embankment is integral ground supporting the parking lot.  The Applicant has the burden of demonstrating both that the embankment is integral ground that supports an eligible facility (i.e., the parking lot), and that the parking lot was damaged as a result of landslide or slope instability triggered by the incident.[15]  Here, the sequence of photographs the Applicant provided on appeal shows that the parking lot continued to deteriorate after the April 2018 disaster.  The asphalt has noticeably drifted down the embankment in the photographs, and the stone marker seen in the September 7, 2018 photograph is noticeably absent from the June 11, 2019 photograph, with the indication that it has already fallen down the embankment as shown in the ‘2020 Post 4540’ photograph.  On second appeal, the Applicant states that the embankment had eroded and partially collapsed due to the disaster event, but it does not provide documentation differentiating between the current claimed damages and prior damages from the other disaster events, and acknowledged that due to the rapid succession of disaster incidents and administrative issues with the April 2018 disaster, the Applicant was unable to complete the repairs in time.[16]

None of the provided photographs or documentation shows that the parking lot’s damage was caused by a landslide or slope instability triggered by the declared incident specifically, rather than other disaster-related causes.  Therefore, the Applicant has not established the embankment is eligible for PA funding under the FEMA policy that allows restoration of integral ground that supports a damaged eligible public facility.

 

Conclusion

The Applicant has not established the embankment was an eligible facility (i.e., an improved and maintained natural feature).  The Applicant has also not demonstrated the embankment was integral ground supporting an eligible public facility that was damaged by a landslide or slope instability triggered by the incident.  As such, the Applicant’s claim for $233,033.42 in PA funding is denied.

 

[1] The President issued a major disaster declaration on April 24, 2020.

[2] The scope of work to be completed in the allocated $26,942.17 consists of replacing asphalt, unclassified fill, and rip rap along GPS Coordinates 37.69714, -88.12045, and replacing rip rap on the end of the boat launch ramp.

[3] FEMA-4361-DR-KY.

[4] FEMA-4428-DR-KY (Union County was designated as an affected County, but the DM states the Applicant did not submit a claim for damages to the embankment).

[5] Memorandum from Union Cty., to unknown recipient, at 2 (May 28, 2021).

[6] Id. at 2, 3. While the Applicant acknowledged the embankment remained unrepaired following the April 2018 disaster, it explained this was due to FEMA’s denial of funding for the repairs.  The Applicant argued it would be unfair to hold it responsible for not repairing the embankment prior to the instant disaster, when it was still properly pursuing available legal remedies (i.e., a first-level appeal) to repair the embankment from the April 2018 disaster.  It further asserted that a rapid succession of storms made it impossible to have the embankment in “good repair” prior the instant disaster.

[7] Id. at 2.

[8] Id. at 4.  It provided four photographs of the embankment and parking lot ranging from the April 2018 disaster to the instant disaster, in an effort to demonstrate that although the embankment was damaged by the April 2018 disaster, the April 2019 disaster did not cause additional damage.  The Applicant also provided a letter from its engineer that found there was negligible damage to the embankment when the engineer inspected it two months after the April 2019 disaster. 

[9] The Applicant provides an aerial photograph as support. 

[10] Memorandum from Union Cty., Ky., to unknown recipient, at 4 (Oct. 29, 2021).

[11] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 406(a)(1)(A), Title 42, United States Code § 5172(a)(1)(A) (2018). 

[12] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.201(c) (2019); Public Assistance Program and Policy Guide, FP-104-009-2, at 14-15 (Apr. 1, 2018) [hereinafter PAPPG]. 

[13] PAPPG, at 128. 

[14] Id. at 133.

[15] Id.

[16] See FEMA Second Appeal Analysis, City of Brenham, FEMA-4272-DR-TX, at 4 (Mar. 12, 2019) (stating that in order to meet the burden of demonstrating that damages were caused directly by the declared incident (rather than deterioration or deferred maintenance), an “applicant must provide more than statements or opinions to substantiate its claims; documentation or other evidence supporting its position must be submitted.”).