Improved Property/Natural Features – Immediate Threat

Appeal Brief

Summary Paragraph

From February 27 to March 14, 2021, severe storms caused damages throughout the State of Kentucky. The Applicant claimed that the incident caused damage to embankments that were overtop underground utility lines. FEMA issued a Determination Memorandum denying the requested costs. Although the site inspection noted embankment damages, FEMA found that the Applicant did not establish that the utility lines were damaged from the disaster; thus, FEMA found the embankment was not eligible as integral ground. The Applicant appealed stating that the embankment was an improved natural feature and alternatively, that it served as integral ground for the utility lines. FEMA issued an RFI requesting construction plans, predisaster maintenance and repair records. The Applicant confirmed the utility lines were buried underneath the embankments and regularly monitored. FEMA’s Region 4 Regional Administrator denied the appeal stating, among other findings, that the Applicant had not shown that the embankment was an improved and maintained natural feature or stable before the disaster. The Applicant filed a second appeal reiterating first appeal arguments and additionally stated that if the work was not eligible as permanent work, it was eligible as emergency work. 

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, 97, 110, 176, 181, 196, 214.
• The University of Alabama, FEMA-4546-DR-AL, at 3; Paintsville Utilities, FEMA-4595-DR-KY, at 3-4.

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 damages throughout Kentucky.[1] Paintsville Utilities (Applicant) stated that the incident caused erosion of the north and south embankments along the Levisa Fork River. FEMA formulated Grants Manager Project 187593 to document the estimated costs to repair and stabilize the embankments, totaling $293,200.00. The Applicant did not report any damage to an underground water and sewer line (collectively referred to as “utility lines”) that were located underneath the embankments. FEMA conducted a site inspection on October 4, 2021, documenting erosion damage on the embankments. The site inspection report included photographs, which showed dense vegetation in the area. 

FEMA transmitted a Request for Information (RFI) on January 25, 2022, which requested information regarding the proposed stabilization plan and supporting documentation to validate the work was required as a result of the declared incident. In response, the Applicant stated that the eroded embankments served as structural components for the underground utility lines. The Applicant also provided a June 12, 2012 geotechnical report, conducted by Anderson Professional Services (APS), to support its claim.[2] The report noted the existence of the erosion to the embankments and recommended a repair method of sheet piling with anchors, to armor the embankments.

FEMA issued a Determination Memorandum on May 9, 2022, denying all requested costs. FEMA found that because the Applicant did not establish that the utility lines were damaged as a result of the disaster, the embankments were not eligible for repair and stabilization work as they were not integral ground to a disaster-damaged eligible facility (i.e., the utility lines). 

First Appeal 

The Applicant submitted a first appeal in a letter dated July 11, 2022. The Applicant stated that the embankments were eligible facilities because they were an improved and maintained facility. Specifically, it stated the construction of the utility lines required excavation of the embankments, installation of pipes into the embankments, and backfill to protect and stabilize the lines; and that it maintained and inspected the area.

Further, the Applicant claimed that even if FEMA determined that the embankments were not an improved facility, the embankments should be eligible as integral ground for the utility lines, and the embankments’ failure and their continued instability left the utility lines unsupported and susceptible to damages and failure. The Applicant stated that the documentation provided, specifically an affidavit from Bocook Engineering (Bocook), demonstrated that the failure area was integral ground to the utility lines, and that other documents demonstrated there was no evidence of predisaster slope instability. Specifically, it stated that no predisaster work orders for repairs to concealed lines were needed or therefore produced by its preventive maintenance program.

Alternatively, the Applicant claimed that if the requested work was not eligible as permanent work, this should be considered emergency work because of the immediate threat of failure of the utility line. Specifically, the Applicant noted that the documentation from Bocook, which stated the failure of the line was inevitable because of future high-water events. The Kentucky Emergency Management (Recipient) forwarded the Applicant’s appeal on dated July 15, 2022, in support of the Applicant’s position.

FEMA issued an RFI on February 27, 2022, requesting additional information including design and construction plans of the embankment, evidence of predisaster routine maintenance, copies of inspection reports, photographs and/or other documents related to an August 2020 evaluation of the sites and the results thereof, and surveys or drilling completed based on the engineer’s recommendations. 

The Applicant responded on March 29, 2023, explaining that two waterlines intersect at a valve (Valve A) within the embankment failure – one which runs east/west along the Levisa Fork and one that runs north/south along the riverbank.[3] The Applicant stated that the valves were part of the construction of the wastewater plant from the 1960s, however it could not provide further details aside from the standard installation depth of 30 inches below ground. The Applicant stated that water distribution infrastructure was regularly maintained and inspected and that the Applicant did not observe any damage to the embankment or utility lines prior to the disaster. The Applicant also explained that Bocook inspected the area before and after the disaster. The Applicant summarized Bocook’s post-disaster findings, which included a map drawn by Bocook, stating that Valve A is in the middle of the embankment and is unstable because of the loss of embankment failure. The Applicant continued that due to the loss of the integral ground supporting it, Valve A was dislodged and being pulled away from the embankment to the river, increasing likelihood of eventually rupturing from the additional pressure. The Applicant included declarations from Bocook as well as the Applicant’s General Manager to support its response. 

The FEMA Region 4 Regional Administrator denied the Applicant’s first appeal in a letter dated July 6, 2023. FEMA found that the Applicant had not demonstrated that the embankment was an eligible facility separate from nearby utility lines. Specifically, FEMA found that the documentation provided by the Applicant showed that the Applicant inspected and maintained the utility lines, but not the surrounding embankments. FEMA found that the damaged embankment was not an enhanced natural feature or part of a designed or improved slope that is routinely maintained. FEMA also found that the Applicant had not taken action to protect the embankment, and thus any future damage to the utility lines could not be attributed solely to the disaster. 

Second Appeal

The Applicant, in a letter dated September 5, 2023, filed a second appeal reiterating first appeal arguments and resubmitting documents provided on first appeal and its alternate project proposal. The Applicant references FEMA policy, which states that restoration of the integral ground for a disaster-damaged facility is eligible if the site is unstable and there is no evidence of predisaster instability. The Applicant states that what is required is the absence of evidence that there was any damage prior to the disaster, and that requirement has been met. Finally, the Applicant compares this project to others in prior second appeal decisions where FEMA found slope stabilization measures eligible as permanent work, or alternatively, emergency work. The Recipient forwarded the appeal in a letter dated September 15, 2023, in support of the Applicant’s position.

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.^[4] An eligible facility includes a system (e.g., sewage treatment and collection and water delivery systems) or an improved and maintained natural feature.[5] 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.^[6] Alternatively, 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.^[7] 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.[8]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.^[9]

Here, the Applicant claims that the damaged embankments are improved and maintained natural features, and consequently, eligible facilities. However, the administrative record does not substantiate that the embankments meet the definition of an improved natural feature. Rather the Applicant states it installed the utility lines underground and added backfill, neither of which constitute a designed and constructed improvement to the embankments’ natural characteristics, such as a terraced slope.[10] In contrast, the costs requested for the embankments’ stabilization work include the installation of cantilevered sheet piling, engineered fill, and a geotextile fabric filter behind the engineered fill, which would constitute a designed and constructed improvement to enhance the function of the embankments. In addition, the costs requested also included importing free-draining structural and rip rap slope protection, which would also constitute a designed and constructed improvement. However, the embankments did not have these improvements prior to the disaster; thus, this work goes beyond restoring the embankments to their predisaster design and function.[11] Moreover, post-disaster photographs of the embankments from the SIR show substantial wild vegetative growth, additional information that contradicts the Applicant’s assertion the embankments had designed or constructed improvements that were maintained on a regular schedule. In other words, while the Applicant has shown the embankments are above buried utility lines, the Applicant has not demonstrated there are improvements to the embankments themselves that required maintenance on a regular schedule to ensure that the improvement performed as designed. Therefore, the embankments do not constitute an eligible improved and maintained natural feature.

The Applicant alternatively suggests that the embankments are eligible as integral ground supporting the utility lines. However, the requested costs pertain only to restoring and improving the embankments; 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). Although Bocook’s engineering statement notes that certain areas of the utility lines have experienced displacement based on the embankments’ failures, neither this statement nor other documentation in the administrative record substantiates the claimed embankment failures potentially leading to utility lines’ displacements/damages are a direct result of the declared incident. Therefore, as the Applicant has not demonstrated that an eligible facility purportedly supported by the embankments was damaged as a direct result of the disaster, the embankments are not eligible for PA funding for restoration work under FEMA policy applicable to integral ground. 

Based on the above, the embankments are not eligible facilities, nor are they eligible for restoration work as claimed integral ground to the utility lines.

Immediate Threat

FEMA is authorized to provide PA funding for emergency work which must be done immediately to eliminate or lessen immediate threats: (1) to lives, public health, or safety; or (2) of significant additional damage to improved public or private property in a cost-effective manner.^[12] 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.^[13] The declared incident must have caused the immediate threat to exist.[14] FEMA considers the urgency with which the applicant proceeds with work when evaluating eligibility.[15] 

As an alternative to its argument concerning the eligibility of the embankments’ restoration work as permanent work, the Applicant states the requested work is eligible as emergency work to eliminate or lessen an immediate threat. The Applicant provides a sworn statement from its engineer that states future high-water events will further reduce the stability of the embankment and its failure is inevitable in its current conditions.[16] Similarly, APS states in its report that “the active failure is in a weakened (residual) state of strength and will likely continue to move during seasonal flood events unless the slope is stabilized” and “the failure thus presents a risk of damage to the [Applicant’s] planned waterline.”[17] However, neither the engineer’s statement nor the APS report demonstrate that the embankments’ condition poses an immediate threat caused by the declared incident. A long-term increased risk of erosion does not equate to an immediate threat.[18] Additionally, the Applicant has not yet completed the requested work, more than a year and a half after the disaster.[19] The lack of immediate action shown by the Applicant in completing the requested work raises additional concern regarding the eligibility of the work as emergency work.[20] 

The Applicant has not substantiated that the requested work is eligible emergency work as the Applicant has not demonstrated it must be done to eliminate or lessen 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.