Improved Property/Natural Feature, Immediate Threat

Appeal Brief

Summary Paragraph

From February 27 to March 14, 2021, the Commonwealth of Kentucky experienced severe storms, flooding, and landslides. Paintsville Utilities (Applicant) requested Public Assistance to repair three embankment sites and damaged utility lines. The Applicant provided preliminary engineering reports and estimated repair costs totaling $1,170,678.00. FEMA prepared Grants Manager Project 333532, estimating $166,950.11 for in-kind embankment site repairs, and conducted site inspections. FEMA issued two Requests for Information (RFI) seeking documentation clarifying the disaster-related damages to each site. The Applicant did not respond to either RFI. FEMA issued a Determination Memorandum denying the request, finding the Applicant did not establish that the disaster caused the claimed damage, or that the natural embankments were eligible facilities or integral ground to eligible facilities. The Applicant appealed, asserting that the embankments were eligible improved natural features integral to eligible facilities and the embankment failures created an immediate threat to public health and safety. FEMA issued another RFI, seeking design, construction, and maintenance documentation and the Applicant responded. On January 8, 2024, the FEMA Region 4 Regional Administrator denied the appeal, finding the Applicant did not demonstrate that the embankment sites were eligible facilities separate from nearby utility lines or that the declared disaster damaged eligible facilities (i.e., utility lines). The Applicant submits a second appeal for $494,550.00, reiterating its first appeal arguments.

Authorities

• Stafford Act §§ 403(a), 406(a)(1)(A), 406(e)(1). 
• 44 C.F.R. §§ 206.201(b), 206.206(a), 206.221(c), 206.223(a)(1), 206.225(a)(3), 206.226.
• PAPPG, at 51-52, 55-56, 63-64, 97, 110, 140, 145, 176, 181-182, 214.
• The Univ. of Ala., FEMA-4546-DR-AL, at 3; City of Red Lake Falls, FEMA4659-DR-MN, at 4; Twp. of Barry, FEMA4618-DR-PA, at 3.

Headnotes

• A natural feature may itself be an eligible facility if it is improved and maintained. 
  • Here the Applicant has not demonstrated that the embankments have a designed and constructed improvement to their natural characteristics.
• FEMA may approve PA funding for the restoration of the integral ground that supports an eligible facility damaged by the disaster.
  • Here the Applicant has not demonstrated damage to an eligible facility (the utility lines) occurred as a result of the disaster.
• An immediate threat is a threat of additional damage or destruction from an incident that can reasonably be expected to occur within five years of the declared incident.
  • Here the Applicant has not demonstrated that the work to prevent future erosion, not yet completed, is required to eliminate an immediate threat. 

Conclusion

The Applicant did not demonstrate that the embankments are eligible facilities, or integral ground that supports an eligible facility damaged by the disaster, or that the work to restore the embankments is eligible as emergency work. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From February 27 to March 14, 2021, severe storms, flooding, landslides, and mudslides caused damage throughout Kentucky.[1] Paintsville Utilities (Applicant), a Special District Government, stated that that rising waters caused by disaster-related flooding, drawdown, and rapid subsidence eroded the embankments of the river and damaged nearby underground utility lines at the Concord, Bob Evans, and Detention Center sites.[2] The Applicant hired Anderson Professional Services (APS) to conduct preliminary geological reviews of the damage at all three embankment sites on March 17, 2021, and June 29, 2021. APS provided preliminary engineering assessments (PEA) for all three sites.[3] 

The PEAs for the Concord and the Bob Evans sites each: identified an active head scarp area with dimensions; did not include photographs of an exposed water line or cross-sectional images of the utility line locations in relation to the embankment damage; recommended further investigation into the site conditions to better refine the SOW; provided conceptual repair recommendations, a proposed SOW, and a cost estimate. The Concord PEA and the Bob Evans PEA each also stated: “[w]e do not know the exact timeline of the failure at this site, but we understand that movement was observed as a direct result of the Paint Creek drawdown” and “[t]he conceptual repair recommendations are focused only on protecting the waterline alignment and are not intended to stabilize the entire failure mass.”[4] The Detention Center PEA: identified a scarp area; focused on the Fire Station Site embankment failure located on the opposite bank; did not provide a dimension, analysis, SOW, cost estimate or cross-sectional images of the utility line locations in relation to the embankment damage; recommended further investigation into the site conditions to better refine the SOW; and included a photograph of the embankment showing the utility lines crossing above the waterway. 

FEMA prepared Grants Manager Project 333532, to document the estimated repair costs totaling $166,950.11. On October 4 and 6, 2021, FEMA conducted site inspections and took photographs of the claimed embankment sites’ failures and prepared site inspection reports (SIR). In the SIRs, FEMA stated the inspectors observed no riprap, and that the photographs showed overgrown vegetation, but did not show disaster-related damage to the embankment sites or utility lines.[5] On February 17, 2022, FEMA issued a Request for Information (RFI), seeking clarification of all three damaged site locations and utility lines.[6] On March 28, 2022, FEMA issued a second RFI, seeking additional information specific to several embankment sites.[7] The Applicant did not respond either RFI.

On July 6, 2022, FEMA issued a Determination Memorandum denying the requested funding. FEMA found the Applicant neither established that the disaster caused the claimed damage, nor that the natural embankments were eligible facilities or integral ground for a disaster-damaged facility. 

First Appeal 

The Applicant submitted a first appeal seeking $494,550.00.[8] The Applicant asserted that all three embankment sites were damaged as a direct result of the disaster and that repairs were necessary to restore the structural integrity of nearby utility lines. Specifically, the Applicant contended: 1) the embankment sites were eligible facilities which were improved through design and construction, regularly inspected, and maintained; 2) the embankment sites were integral ground to eligible facilities (i.e., underground utility lines), and instability and embankment slope failures caused by disaster-related erosion continued to progress, posing an immediate threat to these facilities; 3) APS’ PEAs documented embankment site damage caused by flooding and rapid drawdown had reached the utility lines; 4) its engineer’s affidavit asserted the underground utility lines were at-risk due to the embankment site damage, and its engineer’s assessment documents (letters, photographs, exhibits, estimates, and invoices) concurred with APS’ PEA findings and confirmed each embankment site failure had progressed since APS completed its PEA; and 5) the project should be funded as emergency work, as the sites’ active instability and inevitable failure would result in future damage to the utility lines. 

The Applicant next asserted it was not aware that the RFI deadlines were firm because, at the time, FEMA had indicated it would re-inspect the damaged sites to revise the SOWs regarding necessary facility repairs. Accordingly, the Applicant responded to previously unanswered RFI questions and provided additional documentation.  In its response, the Applicant: (1) confirmed the locations, SOWs, and cost estimates of the three sites; (2) clarified that embankment restoration methods included the installation of riprap and use of directional drilling; (3) submitted predisaster satellite imagery that showed seasonal changes at the Concord Site that affected how the vegetation looked; (4) stated that Kentucky Administrative Regulations required installation of waterlines at least 30 inches beneath the ground surface; (5) asserted it performed predisaster maintenance and prior to the disaster inspected potential high-risk areas;  and (6) confirmed it had not obtained permits for the proposed work. On September 19, 2022,  the Kentucky Emergency Management (Recipient) transmitted the appeal, recommending approval.

On June 12, 2023, FEMA issued an RFI, seeking: 1) predisaster plans, design specifications, as-builts, or other documents used to design and construct the embankment sites, and the utility lines; and 2) documentation showing the predisaster condition of the embankment sites and utility lines (photographs, inspection reports, repairs, routine embankment maintenance). The Applicant responded in a letter dated August 11, 2023, and provided summaries of the Concord, Bob Evans, and Detention Center embankment sites and associated utility lines, 2017 repair design plans for the Detention Center utility lines, and a declaration from the Applicant’s general manager that affirmed the Applicant regularly inspects and maintains its utility infrastructure and did not observe any damages to the embankments or nearly utilities in 2018 through 2020. The Applicant emphasized this was also during the time it inspected the area after a different disaster and observed damages to 15 nearby sites, for which it requested PA funding in 2019.

On January 8, 2024, the FEMA Region 4 Regional Administrator denied the appeal. FEMA found the embankment repairs were ineligible for Public Assistance (PA) funding because the Applicant did not demonstrate that the embankment sites were eligible facilities separate from nearby utility lines and did not show that the declared incident damaged or destabilized eligible facilities (i.e., utility lines). 

Second Appeal

The Applicant submits a second appeal dated March 8, 2024, requesting $494,550.00, and reiterating its previously raised arguments. The Applicant also discusses each embankment site, emphasizing that it observed post-disaster embankment damage. It states the embankment failures are analogous to failures discussed in prior second appeal decisions wherein FEMA granted PA funding.[9] The Recipient transmitted the second appeal in a March 28, 2024 letter, recommending approval.

Discussion

Improved Property/Natural Feature

FEMA has the authority to provide assistance for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster based on pre-disaster design and function and in conformity with current applicable codes, specifications, and standards.[10] An eligible facility includes utilities (e.g., power, water, and sewer) or an improved and maintained natural feature.[11] A natural feature is improved and maintained 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 that the improvement performs as designed.[12] 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 the restoration of the integral ground that supports the facility.[13]

To be eligible for PA funding, work must be required as a result of the disaster, and the applicant must demonstrate that the damage was directly caused by the incident.[14] FEMA does not provide PA funding for repair of damage caused by deterioration or the applicant’s failure to take measures to protect a facility from further damage.[15] It is the applicant’s responsibility to provide documentation to substantiate its claim as eligible and to clearly explain how those records support the appeal.[16] If the applicant does not provide documentation to support its claim as eligible, FEMA cannot provide PA funding for the work.[17]

Here, the Applicant claims that the damaged embankment sites are improved and maintained natural features, and consequently, eligible facilities. However, the administrative record does not substantiate that any of the three claimed embankment sites meet the definition of an improved natural feature. The Applicant has not provided design plans, as-built plans, or similar documents showing that it designed or improved the embankments at the Concord and Bob Evans Sites. Although the Applicant provided design plans for the 2017 repair of an embankment at the Detention Center Site, APS identified damage to a portion of the unrepaired embankment on the opposite side of the Levisa Fork river; neither APS nor the Applicant identified damage to the previously repaired portion of the embankment at this site. Moreover, while the Applicant’s documents show excavated embankments, buried water, gas, sewer, and/or power lines within the embankments, and added unclassified fill, the Applicant has not demonstrated these activities constitute a designed and constructed improvement to the embankment sites’ natural characteristics.^[18] 

In contrast, the costs requested for the embankment sites’ stabilization work include importing rip rap slope protection, which would constitute a designed and constructed improvement to enhance the function of the embankments. However, the embankment sites, as observed and subsequently described in the SIRs and PEAs, did not have these improvements prior to the disaster; thus, this work goes beyond restoring each claimed embankment site to its predisaster design and function.^[19] 

With respect to specific claimed embankment sites, the Concord Site historical satellite imagery demonstrates that the embankment had deteriorated over the years from erosion due to removal of trees, seasonal weather events, river surges, and other similar events prior to the disaster. Because the Applicant has not provided documentation verifying the actual depth of the utility lines nor the embankment damage at the Bob Evans site, FEMA is unable to verify the Applicant’s assertions regarding destabilization of the embankment due to erosion or vertical separation as a result of the declared incident. Finally, at the Detention Center Site, the Applicant has not shown that it took any measures to protect the embankment from further damage, and the initial PEA as well as subsequent follow-up assessments demonstrate that the embankment failure only extended into the area where the existing utility lines were originally installed. Therefore, while the Applicant has shown the embankment sites were above buried utility lines, the Applicant has not demonstrated there are improvements made to the embankment sites themselves, which required maintenance on a regular schedule to ensure that the improvement performed as designed.

The Applicant alternatively suggests that the Concord, Bob Evans, and Detention Center Sites are each individually eligible as integral ground supporting the utility lines. The documentation in the record does not indicate that the Applicant has requested PA funding to repair an eligible facility (i.e., the utility lines); instead, the requested costs pertain only to restore and improve the embankments. The Applicant’s post-disaster reports, including the PEAs prepared by APS, do not provide specific disaster impacts/conditions that led to the embankment failures or opine whether the integral ground of the embankments supported the utility lines. Instead these PEAs state that the exact timeline of the embankment failures at the Concord, Bob Evans, and Detention Center Sites is unknown, show that the structural integrity of the utility line system at each site is not impacted by the embankment failure, and thus provide a conceptual repair recommendation focused on protecting the utility lines rather than stabilization of the embankments.[20] Based on the documentation in the record, the Applicant has not demonstrated that the utility lines sustained damages as a direct result of the disaster. Therefore, as the Applicant has not substantiated that an eligible facility purportedly supported by the embankments was damaged as a direct result of the disaster, the embankments at the Concord, Bob Evans, and Detention Center sites are not eligible for PA funding for restoration work under FEMA policy applicable to integral ground.[21]

Immediate Threat

FEMA is authorized to provide PA funding for emergency work which must be done immediately to eliminate or lessen immediate threats to lives, public health, or safety; or of significant additional damage to improved public or private property in a cost-effective manner.[22] An immediate threat is a threat of additional damage or destruction from an incident that can reasonably be expected to occur within five years of the declared incident.[23] The declared incident must have caused the immediate threat to exist.[24]FEMA considers the urgency with which the applicant proceeds with work when evaluating eligibility.[25]

As an alternative to its argument concerning the eligibility of each embankment’s restoration as permanent work, the Applicant states the requested work is eligible as emergency work to eliminate or lessen an immediate threat. The Applicant asserts each embankment failure constituted an immediate threat to public health and improved property because the active instability and inevitable failure will result in future damage to the utility lines. However, the Applicant has not provided documentation that substantiates the assertions outlined in its second appeal letter, and therefore, has not demonstrated that the embankment condition at either the Concord, or Bob Evans, or Detention Center Sites posed an immediate threat caused by the declared incident. A long-term increased risk of erosion does not equate to an immediate threat.[26] Additionally, the administrative record reflects the Applicant has not yet obtained necessary permits or completed the requested work, three years after the disaster. The lack of urgency shown by the Applicant in not obtaining the necessary permits or completing the requested work raises additional concern regarding the eligibility of the work as emergency work.

Conclusion

The Applicant did not demonstrate that the embankments are eligible facilities, or integral ground that supports an eligible facility damaged by the disaster, or that the work to restore the embankments is eligible as emergency work. Therefore, this appeal is denied.