Natural Feature – Force Account Labor Regular Time Labor

Appeal Brief

Appeal Letter

Appeal Analysis

Background

From April 17 through 30, 2016, severe storms and torrential rains caused flooding throughout Texas.  The flood inundated 45 acres of the Mercer Botanical Gardens (Gardens), located in Harris County (Applicant). The Applicant requested funding to restore the layers of top soil, replace sod, mulch, and repair building appurtenances such as pathways, and fences.  FEMA prepared Project Worksheet (PW) 527 to document costs associated with materials, force account labor and equipment, and contract work at eight sites at the Gardens.  FEMA issued a Determination Memo on March 12, 2018 and found that three of the sites were not eligible for funding.  Of $563,627.34 in requested funding, FEMA approved $180,067.87 for the eligible site work.  Specifically, FEMA determined that some of the requested work was ineligible because it was considered landscaping elements and not part of an erosion control strategy; and found the documentation submitted for force account labor and equipment inadequate because it was not specific to the work performed and both eligible and ineligible work was done at sites 1-5. 

First Appeal

The Applicant appealed on September 10, 2018 and requested $367,420.90 in funding.  The Applicant explained the Gardens is a public park that also functions as an educational facility for students, landscape professionals, and garden clubs.  The Applicant included marketing materials showing the educational services offered through classroom style instruction and self-guided tours, as well as attendee counts, and photographs of the events.  The Applicant also argued that all work at Sites 1-5 is eligible and accordingly, all FAL and equipment used to perform the work is likewise eligible.  The Texas Division of Emergency Management (Grantee) supported the Applicant’s appeal and transmitted it to FEMA on September 20, 2018.  The FEMA Region VI Regional Administrator (RA) denied the appeal.  The RA stated that the three sites found ineligible (1, 2, and 5) are flat areas and are not part of the slope embankment at the Gardens.  Soil, bedding mulch, and sod do not perform the function of erosion control, sediment runoff prevention, or slope stabilization.  Also, those landscape features are not major contributors that are necessary to restore the educational function of the facility.  The Applicant did not provide documentation demonstrating the work and equipment was eligible or necessary.

Second Appeal

In its second appeal dated June 20, 2019, the Applicant requests $367,510.90 in funding.  The Applicant states the Gardens is an education and recreational facility and work to repair the trails and ground through grass and sod replacement and plantings and vegetation is integral to the full restoration of the Gardens.  The Applicant further states that FEMA’s request to group FAL documents logically resulted in an undue burden on the Applicant, and that it was unable to generate documentation with the level of detail and granularity requested.  The Grantee concurs in an August 23, 2019 letter, which transmitted the Applicant’s appeal to FEMA.

Discussion

Natural Feature

Title 44 of the Code of Federal Regulations (44 C.F.R) section 206.201(c) defines a facility, in part, as an improved and maintained natural feature.  Under FEMA policy, plantings including trees, shrubs, and other vegetation, as well as landscaping and cosmetic vegetation, are ineligible for replacement.  However, in certain instances, plantings (such as trees, shrubs, and other vegetation like grass and sod replacement) are eligible if they are part of the restoration of an eligible facility for erosion control, to minimize sediment runoff, or to stabilize slopes. Grass and sod replacement is also eligible if it is an integral part of the restoration of an eligible recreational facility, such as a publicly owned baseball, soccer, or football field.[1]  Vegetation replacement is also eligible if necessary to restore the function of the facility (e.g., if vegetation is a component of a sewage filtration system).[2] On the other hand, cosmetic or aesthetic vegetation, such as landscaping around public facilities are not eligible for replacement.

The Applicant claims the Gardens are an improved and maintained natural feature, and therefore eligible for public assistance, as either a recreational or educational facility.  It requests restoration of the landscape features (soil, bedding mulch, and sod) and states that it is necessary to restore the function of its educational activities.  However, the three sites (1, 2, and 5) are flat areas and are not part of the slope embankment at the Gardens.  As such, the soil, bedding mulch, and sod do not perform the function of erosion control, sediment runoff prevention, or slope stabilization.  Instead, they are landscaping elements.  In addition, besides claiming that they are an integral part of the restoration of the Gardens, the Applicant has not shown how these landscape features are an integral part of the restoration of the facility.  The vegetation - grass and sod replacement - would be eligible if part of the restoration of an eligible recreational facility’s functionality, such as with a soccer or football field. Here, the replacement of sod is not an integral part of the Gardens.  Also, the Applicant has not submitted any documentation to show the vegetation would help restore the function of the Gardens, such as being part of a sewage filtration system.  Therefore, the work is ineligible for PA.

Force Account Labor and Equipment

To be eligible, all costs must be directly tied to the performance of eligible work, adequately documented, and necessary and reasonable to accomplish work properly and efficiently.[3]  The Applicant claims FAL and equipment at the five sites throughout the Gardens.  However, the Applicant submitted the costs as “work completed” for Sites 1 through 5, but the documentation did not have specific information about what eligible work was performed.  It did not distinguish between eligible and ineligible work, nor was it specific to tasks or work locations.  FEMA requested, both in its Determination Memorandum and its Request for Information prior to deciding the first appeal, that the Applicant provide documentation tying the FAL and equipment to eligible work, which the Applicant has failed to do.  Instead, the Applicant argues that all work is eligible and therefore all FAL and equipment costs are eligible.  Because the Applicant performed both eligible and ineligible work at those five sites, FEMA is unable to determine which hours of work and what equipment was directly tied to the performance of eligible work.  Accordingly, FEMA also cannot determine if the costs were eligible or necessary, or even disaster-related, based on incomplete descriptions of work.[4]  Therefore, the associated FAL and equipment costs are not eligible for PA funding.

Conclusion

The landscape features (soil, bedding mulch, and sod) are not part of the restoration of an eligible facility for erosion control, to minimize sediment runoff, or to stabilize slopes, nor are they an integral part of, or necessary to restore the function of the facility.  Therefore, the repair work is ineligible.  In addition, the Applicant has not demonstrated that costs claimed for FAL and equipment are directly tied to the performance of eligible work, adequately documented, or necessary and reasonable to accomplish the work properly and efficiently.  Accordingly, the second appeal is denied.