Improved Property/Natural Features, Immediate Threat

Appeal Brief

Appeal Letter

Appeal Analysis

Background

During the incident period of April 22, 2022, to June 15, 2022, the state of Minnesota was impacted by severe storms, straight-line winds, and flooding.[1] The City of Red Lake Falls (Applicant) stated that surface water flooding and high-water level in the Clearwater River scoured and undercut the riverbank below an embankment adjacent to Bridge Street, causing it to slough.[2] The Applicant requested $750,000.00 in Public Assistance (PA) funding to repair the embankment.

On October 20, 2022, FEMA conducted a site inspection. FEMA noted in the Site Inspection Report (SIR) that utility lines ran under and parallel to the embankment. FEMA stated that the Applicant did not claim any road damage.

On January 9, 2023, FEMA issued a Determination Memorandum, denying the Applicant’s request.[3] FEMA explained that to be eligible for PA funding, work to repair scour or erosion damage to a channel or stream bank was eligible if the repair was necessary to restore the structural integrity of an eligible road, culvert, or bridge. FEMA stated that the absence of damage to the road precluded permanent work repairs to the embankment.

First Appeal

On March 10, 2023, the Applicant submitted a first appeal, requesting $750,000.00 for work to restore and stabilize the embankment. The Applicant confirmed it was not requesting funds to repair the road’s surface or rip rap, but rather was seeking funding to repair the embankment to protect the road and utilities. The Applicant stated that the embankment was integral ground to the road, and the scour and erosion of the embankment was threatening the road’s structural integrity. The Applicant claimed that the embankment erosion, if allowed to continue to fail and deteriorate, would result in: (1) the failure of the road, causing access issues to residences and improved property; and (2) a potentially catastrophic sewer leak if the utility lines running under the embankment were damaged and leaked into the adjacent river. Next, the Applicant stated that no regular maintenance was required on the embankment and that it was functioning properly prior to the disaster. The Applicant noted that it was unable to find predisaster photographs of the area because the Applicant had no issues with the area prior to the disaster. On May 5, 2023, the Minnesota Homeland Security and Emergency Management (Recipient) transmitted the first appeal to FEMA, expressing its support. The Recipient added that the damage poses an immediate threat to life, public health, and safety.

On June 2, 2023, FEMA sent a Request for Information (RFI), requesting documentation demonstrating: (1) that the embankment was engineered, constructed, or an improved and maintained natural feature; (2) the predisaster condition of the road; and (3) that the damage posed an immediate threat, including any emergency measures implemented since the disaster to address immediate threats. FEMA also requested a detailed cost estimate to support the $750,000.00 in claimed costs. The Applicant responded on June 28, 2023, providing a cost estimate of the work to be performed and plan-profile sheets of existing utilities within the area.

On November 17, 2023, the FEMA Region 5 Regional Administrator denied the appeal, finding that the Applicant did not demonstrate that the embankment was an eligible facility as an improved and maintained natural feature. FEMA explained that the embankment was natural, and that the Applicant did not demonstrate that the embankment had any designed or constructed improvements, or that the Applicant maintained any improvement on a regular schedule. FEMA also found that that the Applicant did not demonstrate that the embankment was integral ground supporting an eligible facility that was damaged by a landslide or slope instability triggered by the incident. FEMA explained that the Applicant did not establish disaster-related damage to the road, utilities, or any other eligible facility purportedly supported by the embankment, thus work to restore the embankment was ineligible. Finally, FEMA found that the Applicant did not demonstrate that the embankment erosion posed an immediate threat. FEMA explained that the road remained open and in use, and the Applicant did not provide any documentation indicating that any traffic controls, safety measures, temporary repairs, or emergency work to mitigate further damage had been completed at the site since the disaster. 

Second Appeal

On December 22, 2023, the Applicant submitted a second appeal, reiterating prior arguments. On March 11, 2024, the Recipient transmitted the appeal to FEMA, expressing its support.[4]

Discussion

Improved Property/Natural Feature

FEMA has the authority to provide assistance for the repair, restoration, reconstruction, or replacement of a 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] 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.^[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] 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.[8]

Here, the administrative record does not substantiate that the embankment meets the definition of an improved and maintained natural feature. The Applicant has not provided documentation, such as design drawings, showing that it constructed any improvements to the embankment or that the Applicant maintained any improvement on a regular schedule. On the contrary, the Applicant stated that the embankment did not require any maintenance. In other words, while the Applicant has shown that the embankment is in proximity to the road and the utility lines, the Applicant has not demonstrated there are improvements to the embankment itself that required maintenance on a regular schedule to ensure that the improvement performed as designed. Therefore, the embankment does not constitute an eligible improved and maintained natural feature.

The Applicant asserts that the embankment is eligible as integral ground supporting the road. However, the requested costs pertain only to restoring and improving the embankment; the documentation in the record, notably the Applicant’s first and second appeal letters, confirm that the Applicant has not requested PA funding to repair the road. The Applicant has also not asserted the other eligible facility at the site, the utility lines, were damaged as a result of the incident. FEMA’s SIR did not include any notation of damage to the utility lines. Therefore, as the Applicant has not substantiated that an eligible facility purportedly supported by the embankment was damaged as a direct result of the disaster, the embankment is not eligible for PA funding for restoration work under FEMA policy applicable to integral ground. Based on the above, the embankment is not an eligible facility, nor is it eligible for restoration work as claimed integral ground to the road.[9]

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.^[10] 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.^[11] The declared incident must have caused the immediate threat to exist.[12] FEMA considers the urgency with which the applicant proceeds with work when evaluating eligibility.[13]

As an alternative to its argument concerning the eligibility of the embankment 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 asserts that further embankment erosion could undermine the road and utilities, causing a leak into the adjacent river. However, the Applicant has not provided documentation, such as a technical analysis, to support its assertions. Additionally, the road appears to still be in use, and the Applicant has not provided documentation demonstrating that it closed the road or performed any emergency work since the disaster occurred. Therefore, the Applicant has not demonstrated that the claimed embankment damage poses an immediate threat. A long-term increased risk of erosion does not equate to an immediate threat.[14] Additionally, the Applicant has not yet completed the requested work, two years after the disaster.[15] The lack of urgency shown by the Applicant in completing the requested work raises additional concern regarding the eligibility of the work as emergency work.[16]

Conclusion

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