Improved Property – Landslides and Slope Stabilization

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4355
Applicant	Bartlett (Town of)
Appeal Type	Second
PA ID#	003-03700-00
PW ID#	PW 196
Date Signed	2021-08-24T16:00:00

Summary Paragraph

From October 29 through November 1, 2017, severe storms and flooding caused damage to several sites along the Saco and Rocky Branch Rivers.  The Town of Bartlett (Applicant) requested Public Assistance (PA) funding, claiming damage from washouts along several sites.  FEMA raised post-inspection concerns including whether these sites were improved natural features.  FEMA denied all sites as the Applicant has not substantiated, in part, that any of the sites are eligible facilities.  The Applicant filed a first appeal for only one site, an embankment along the Saco River near Cobb Farm Road, providing testimonial support from surveyors and engineers that the embankment is an eligible facility.  FEMA denied the first appeal as the Applicant had not substantiated that the site was an improved natural feature or integral ground for the adjacent road.  The Applicant filed a second appeal reiterating prior first appeal arguments.

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A).
• 44 C.F.R. §§ 206.201(c); 206.206(a).
• PAPPG at 14-15, 128.
• Belgrade (Twp. of), FEMA-4390-DR-MN, at 2; Republic Cnty. Highway Dep’t, FEMA-4230-DR-KS, at 3.

Headnotes

• A natural feature is eligible for PA if it is improved and maintained.  To be eligible: (1) it must have 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 the improvement performs as designed. 
  • The Applicant has not substantiated it maintained the river’s embankment. 
• Integral ground “refers only to the ground necessary to physically support a facility” and it may be natural or improved ground upon which an eligible facility, damaged by the declared incident, is located and that is essential to support the structural integrity and utility of the facility.
  • The Applicant has not demonstrated that the road above the embankment was damaged by the incident.  As such, the embankment is not considered integral ground eligible for PA funding.

Conclusion

The Applicant has not substantiated that the embankment is an eligible facility as an improved and maintained natural feature or integral ground supporting an eligible facility.  Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From October 29 through November 1, 2017, the state of New Hampshire experienced severe storms and flooding.[1]  The Town of Bartlett (Applicant) requested Public Assistance (PA) funding for restoration of seven embankment sites damaged by the incident.  FEMA prepared Project Worksheet (PW) 196 documenting requested estimated costs to perform repairs.  After conducting site inspections of the sites, FEMA sent a Request for Information (RFI) for documentation to substantiate that: (1) the sites claimed were eligible public facilities; (2) the work was required as a result of the declared incident; (3) the Applicant was legally responsible for the work; and, (4) the work was not under the authority of another federal agency.  The Applicant did not reply to the RFI.

FEMA issued a Determination Memorandum (DM) on July 2, 2020, amended on September 17, 2020, denying funding for all seven sites.  FEMA determined that the Applicant had not substantiated that the sites met the definition of an eligible facility, the work was required as a result of the declared incident, or that the Applicant had the legal responsibility to restore the embankments. 

 

First Appeal

The Applicant appealed, requesting $117,000.00 in funding to remove and replace armoring and replace rip rap at one of the embankment sites along the Saco River River that was a subject of the DM.  The Applicant provided letters from a professional engineer and surveyor to support that the emankment was an eligible disaster-damaged facility, integral ground to Cobb Farm Road nearby, and the legal responsibility of the Applicant.  New Hampshire Homeland Security and Emergency Management (Grantee) forwarded the appeal in support of the Applicant’s position.    

The FEMA Region I Acting Regional Administrator (ARA) denied the appeal, finding that the Applicant had not substantiated that the facility met the requirements for an improved natural feature.  Additionally, the ARA found that the Applicant had not identified any damage to Cobb Farm Road near the embankment, and, as such, no public facility was damaged for which the embankment would be considered integral ground under FEMA policy.[2]

 

Second Appeal

The Applicant’s second appeal reiterates prior first appeal arguments and claims that Cobb Farm Road was damaged by the event.  The Applicant’s engineer also submitted a supporting letter to the Grantee, along with an affidavit from the Town Selectman stating that the damage was caused by the declared incident.  The Grantee forwarded the appeal to FEMA in support of the Applicant. 

 

Discussion

Improved Property

FEMA may fund the costs of repairing an improved and maintained natural feature[3] if it 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 the improvement performs as designed.[4] 

Here, the site photographs show the Applicant had placed rip rap along the embankment, which was intended to protect the embankment from scouring caused by the river and may indicate that the natural characteristics of the embankment had designed and constructed improvements.  However, while the Applicant has stated that the embankment has been maintained for decades, no documentation was provided showing any work was done on a regular schedule prior to the incident to ensure the embankment performed as designed.[5]  In this case, the Applicant has not substantiated that the embankment is an improved natural feature that meets the definition of an eligible facility.

 

Landslides and Slope Stabilization

If an eligible public facility such as a road 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.[6]  Integral ground refers only to the ground necessary to physically support a facility and it may be natural or improved ground upon which an eligible facility is located and that is essential to support the structural integrity and utility of the facility.[7]  Permanent repair to stabilize natural ground that is not integral to an eligible facility’s function is not eligible.[8]

Although FEMA did not find the embankment itself to be an eligible facility as an improved and maintained natural feature, the Applicant provided a letter from its contracted engineer stating the site in question is integral ground to an adjacent eligible public facility, Cobb Farm Road.  The Applicant claims that Cobb Farm Road was damaged as a result of the incident, and states, “[i]f not corrected, future storms or even high water will undercut the road.”[9]  Aside from the statement made on appeal, the Applicant has not provided any documentation which demonstrates Cobb Farm Road was damaged by the incident and work to repair the facilty, including permanent restoration of integral ground, is required as a result.[10]  Therefore, the repair of the embankment does not meet the criteria for integral ground supporting an eligible facility damaged as a result of the incident and is thus ineligible for PA funding.[11]

 

Conclusion

The Applicant has not substantiated that the embankment is an eligible facility as an improved and maintained natural feature or integral ground supporting an eligible facility.  Therefore, this appeal is denied.

 

 

[1] Federally declared a major disaster on January 2, 2018 as FEMA-4355-DR-NH.

[2] FEMA also determined that work to restore the embankment was not required by the major disaster and that the site fell under the authority of another federal agency, Natural Resources Conservation Service (NRCS), even though the NRCS denied funding for the sites. 

[3] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 406(a)(1)(A), 42 U.S.C. § 5172(a)(1)(A) (2012); Title 44 Code of Federal Regulations (44 C.F.R.) § 206.201(c) (2017); see Public Assistance Program and Policy Guide, FP 104-009-2, at 14 (Apr. 2018) [hereinafter PAPPG].

[4] PAPPG, at 14-15. 

[5] See FEMA Second Appeal Analysis, Belgrade (Twp. of), FEMA-4390-DR-MN, at 2 (June 8, 2020) (“An applicant must provide more than post-disaster statements or opinions to substantiate predisaster maintenance; documentation or other evidence must be submitted.”); FEMA Second Appeal Analysis, Republic Cnty. Highway Dep’t, FEMA-4230-DR-KS, at 3 (July 26, 2017) (finding that, based only on the Applicant’s statements that it had an informal maintenance program and that repairs were done on an as needed basis, FEMA could not conclude the Applicant had a predisaster maintenance program). 

[6] PAPPG, at 128. 

[7] Id.

[8] Id.

[9] Letter from Board of Selectmen, Bartlett (Town of), to Acting Reg’l Adm’r, FEMA, at 1 (Apr. 14, 2021). 

[10] See 44 C.F.R. §206.206(a) (Noting that [t]he appeal shall contain documentiation supporting the appelant’s position.”).  In addition, one FEMA project references Cobb Farm Road (Grants Manager Project 42772), but documents reported damage to embankments located in a different area from the site on appeal.  The Applicant does not cite to this project to substantiate its claim.

[11] On the matter of the other arguments made on second appeal, as the site is not considered an eligible facility or integral ground for an eligible facility, the remaining eligibility concerns are moot.  This determination does not represent a finding on the other claims made by the Applicant.