Improved Property/Natural Features, Immediate Threat

Appeal Brief

Summary Paragraph

From February 27, 2021, through March 4, 2021, severe storms and flooding impacted areas throughout West Virginia. Kanawha County (Applicant) requested $995,190.00 in Public Assistance (PA) funding for repairs of embankments along the Coal River. The Applicant claimed that high velocity waters caused erosion of embankments at two sites adjacent to the Big Bend Golf Course (Facility). FEMA created Grants Manager Project 243696 to document the Applicant’s claim but denied funding for repair of the embankments in a Determination Memorandum. FEMA found that the embankments were not an improved and maintained natural feature and were not integral ground which support the Facility, nor an immediate threat to the Facility. The Applicant submitted a first appeal. It disagreed with FEMA’s determination regarding the integral ground. The FEMA Region 3 Regional Administrator denied the appeal, finding that the Applicant had not demonstrated that the requested repair of the river embankments met the criteria for integral ground supporting an eligible facility damaged as a result of the incident, or that the proposed embankment repairs were required to eliminate or lessen an immediate threat. The Applicant submitted a second appeal reiterating its previous statements and contending that the soil conditions at the site create a risk of future erosion of the embankments, which could impact the playing surface of the Facility. 

Authorities

• Stafford Act §§ 403, 406(a)(1)(A), (e), 42 U.S.C. §§ 5170, 5172(a)(1)(A), (e).
• 44 C.F.R. §§ 206.201(b), 206.221(c), 206.225(a)(3), 206.226.
• PAPPG, at 55-56, 97, 140, 145, 110, 179, 181, 196. 
• Paintsville Utilities, FEMA-4595-DR-KY, at 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 were constructed to improve their natural characteristics or routinely maintained.
• 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 public facility (Big Bend Golf Course) occurred as a result of the incident, therefore the embankments are not eligible as integral ground.
• An immediate threat is a threat of additional damage or destruction from an incident that can reasonably be expected to occur within 5 years of the declared incident, and the declared incident must have caused the immediate threat to exist.
  • Here the Applicant has not demonstrated that the work is required to eliminate an immediate threat caused by the disaster. 

Conclusion

The Applicant did not demonstrate that the river embankments are eligible facilities, or integral ground that support 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, 2021, through March 4, 2021, severe storms and flooding impacted areas throughout West Virginia.[1] Kanawha County (Applicant) requested Public Assistance (PA) for damage at the Big Bend Golf Course (Facility). The Applicant claimed that high velocity waters caused erosion of river embankments adjacent to the Facility. The Applicant provided a geotechnical report and identified two damaged sites at the Facility (site 1: adjacent to the 17^th green; and site 2: adjacent to the cart path) where there was loss of earthen embankments along the Coal River. The Applicant claimed that additional erosion would impact the use of the Facility if it did not address the embankment failures. The Applicant submitted an engineer’s estimate of $995,190.00 to restore the embankments by installing gabion baskets and drainage improvements, which FEMA documented in Grants Manager Project 243696.^[2] FEMA issued a Request for Information (RFI), requesting confirmation of any damages to the Facility. In response to FEMA’s RFI, the Applicant did not identify damage to any element of the Facility but indicated the embankment failures continued to grow with each rainfall. In addition, the Applicant claimed that if a similar event happened within five years, the exposed embankments would encroach the playing surface of the adjacent green and paved cart path, and that the function of the Facility was under immediate threat. 

On May 17, 2023, FEMA issued a Determination Memorandum denying $995,190.00 for the claimed work associated with the two embankment failures adjacent to the Facility. FEMA stated that the Facility’s playing surface and cart paths abut natural, unimproved land which includes the damaged embankments; however, the failed embankments are not eligible facilities nor integral ground supporting an eligible facility that was damaged by the disaster. In addition, FEMA stated that the Applicant had not demonstrated that the embankment failures pose an immediate threat to the Facility.

First Appeal

The Applicant submitted a first appeal dated July 14, 2023, disputing FEMA’s denial of $995,190.00 for the claimed damage to the embankments. The Applicant stated that it disagreed with FEMA’s determination regarding integral ground and that the decision to deny the requested work was arbitrary. On August 11, 2023, the State of West Virginia Emergency Management Division (Recipient) transmitted the Applicant’s appeal to FEMA. 

On October 19, 2023, the FEMA Region 3 Regional Administrator denied the appeal. FEMA stated that the Applicant had not demonstrated that the unimproved natural ground of the river embankments had been improved or maintained. FEMA found that the Facility was not damaged, and therefore, repair of the unimproved natural ground of the embankments did not meet the criteria for integral ground supporting an eligible facility damaged as a result of the incident. FEMA further found that the Applicant had not provided documentation substantiating the existence of an immediate threat. Therefore, FEMA determined that the requested work to address the eroded embankments was not eligible for PA funding.

Second Appeal

The Applicant submitted a second appeal dated December 18, 2023, disputing the denial of $995,190.00 for the work associated with the eroded embankments.^[3] The Applicant reiterates its first appeal statements and asserts that the ground at, and adjacent to, the embankment failures is integral to public safety and operation of the Facility. The Applicant discusses its engineer’s geotechnical analysis of the soil conditions at the two sites, which consist of silty clay, sand, and sandy silt. The Applicant states that the types of soil within the embankments have little to no cohesion and “any exposure to water flow can cause this soil to erode away easily,” which creates a risk of further failure of the embankments.[4] The Recipient transmitted the Applicant’s appeal in a letter dated December 18, 2023. 

Discussion

Improved Property/Natural Features

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 predisaster design and function and in conformity with current applicable codes, specifications, and standards.^[5] An eligible facility includes a publicly owned golf course or an improved and maintained natural feature.^[6] 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.^[7] 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.^[8] Integral ground refers to only the ground necessary to physically support a facility.[9]

To address erosion of the river embankments the Applicant requests PA funding to install gabion baskets and drainage improvements. However, there is nothing in the record to suggest that the earthen embankments are improved and maintained natural features. The Applicant does not contend that the embankments have a designed or constructed improvement to their natural characteristics, such as a terraced slope. Installing gabion baskets and drainage improvements, as requested by the Applicant, would constitute a designed and constructed improvement to enhance the function of the natural embankments. 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.[10] Additionally, the Applicant has not demonstrated there are existing improvements to the embankments that required maintenance on a regular schedule to ensure that the improvement performed as designed. Therefore, the embankments do not constitute eligible improved and maintained natural features, and as such, their restoration is not eligible for PA. 

The Applicant contends that the embankments are integral ground for the Facility, and therefore their repair should be eligible. However, no damage to the Facility was identified and photographs from the site inspection report do not depict damage to the 17^th green or cart path.^[11] Consequently, the embankments are not eligible for PA as integral ground because the Applicant has not established that they support a disaster-damaged eligible facility. 

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]

The Applicant cites to its engineer’s geotechnical report and claims that, due to the types of soil within the embankments, there is a threat of future erosion, which could encroach on the playing surface of the Facility. However, while the geotechnical report identifies silty clay, sand, and sandy silt within the embankments, the report does not demonstrate that the embankments’ condition poses an immediate threat caused by the declared incident.[16] A long-term increased risk of erosion to the river embankments does not equate to an immediate threat to the surrounding property caused by the disaster.^[17] Additionally, the Applicant has not yet completed the requested work, almost three years after the disaster.^[18] Therefore, the lack of immediate action to stabilize the eroded embankments raises additional concern regarding the eligibility of the work as emergency work.^[19]

Based on the above, the Applicant has not substantiated that restoration of the river embankments is eligible emergency work as the Applicant has not demonstrated it must be done to eliminate or lessen an immediate threat caused by the declared incident.

Conclusion

The Applicant did not demonstrate that the river embankments are eligible facilities, or integral ground that support 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.