Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4451
Applicant	Nodaway (County)
Appeal Type	Second
PA ID#	147-99147-00
PW ID#	PW 186
Date Signed	2021-07-06T16:00:00

Summary Paragraph

From April 29 – July 5, 2019, Missouri experienced severe storms, flooding, and tornados.  Nodaway County (Applicant) reported damage to the west embankment of the Nodaway County Bridge (Bridge), claiming flood waters along the Platte River scoured/undermined the slopes protecting the west abutment of the Bridge.  FEMA denied the Applicant’s request for work to repair the Bridge in a Determination Memorandum, finding that the Applicant failed to demonstrate that the damages to the Bridge were disaster related rather than the result of preexisting damage.  The Applicant appealed, arguing that it would not be practical to repair bridges after every storm, this specific disaster made the bridge unsafe, and, therefore, the damages were disaster related rather than a result of lack of regular maintenance.  The FEMA Region VII Regional Administrator denied the Applicant’s appeal, finding the Applicant did not demonstrate that the damage was a direct result of the disaster, based on FEMA’s engineering analysis as well as the prior bridge inspections which showed no evidence of prior maintenance.  On second appeal, the Applicant requests that FEMA confirm that its policy was applied correctly.

Authorities and Second Appeals

• Stafford Act § 406.
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 19, 116.
• Belgrade Twp., FEMA- 4390-DR-MN, at 2.

Headnotes

• To be eligible for Public Assistance (PA) funding, an item of work must be required as a direct result of the disaster.  FEMA does not provide PA funding for repair of damage caused by deterioration or deferred maintenance.
  • The documentation shows ongoing deterioration of the Applicant’s Bridge prior to the disaster.  The Applicant has not distinguished any potential disaster-related damage from preexisting damage.

Conclusion

The Applicant did not demonstrate that the work requested was required as a result of the disaster.  Accordingly, the costs are ineligible for PA funding.  Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From April 29 to July 5, 2019, Missouri experienced severe storms, flooding, and tornados.  Nodaway County (Applicant) reported damage to the west embankment of its bridge, located at the intersection of 250th Street and Nobel Road (Bridge).  The Applicant specifically claimed that flood waters along the Platte River scoured/undermined the slopes protecting the west abutment of the bridge.  FEMA prepared Project Worksheet (PW) 186 to document costs for repair work to the embankment as well as a hazard mitigation proposal.  In a Determination Memorandum dated September 18, 2020, FEMA determined that the Bridge repair was ineligible for Public Assistance (PA) funding, as the Applicant did not demonstrate that the damage was disaster related rather than due to a lack of regular maintenance.

 

First Appeal

The Applicant submitted a first appeal on October 21, 2020, seeking $117,207.53 in funding for PW 186.  It stated that the damages to the Bridge were disaster related rather than due to a lack of regular maintenance and that the bridge became unsafe due to the volume of rainfall from this storm.  The Applicant submitted professional engineering opinions from the Missouri Department of Transportation (MoDOT) and the McClure Company regarding the cause of damage and slope failure, along with predisaster photographs.  Based on its attached predisaster inspection reports, MoDOT’s professional engineer opined that it would be impractical to repair bridges after every storm as doing so would exhaust all resources, and that damage to the bank protection began prior to the declared event and the channel had been eroding already, but that the latest storm provided the damage that made the bridge unsafe.[1]

FEMA Region VII issued a Request for Information (RFI) on January 22, 2021, requesting maintenance records, photographs, invoices, or repairs made to the bridge or embankment since 2015 that would demonstrate routine maintenance and substantiate the Applicant’s claim that the damage was the result of the disaster.  The Applicant provided one additional bridge report from 2015, which, similar to the other reports, showed moderate debris on the west pier, as well as rip rap washing down on the west embankment.

On February 19, 2021, the FEMA Region VII Regional Administrator (RA) denied the Applicant’s appeal.  The RA relied on the reports from MoDOT as well as FEMA’s engineer, concluding that the Applicant did not demonstrate the claimed damages were a direct result of the disaster, instead of pre-existing deficiencies which the Applicant did not repair prior to the disaster.

 

Second Appeal

The Applicant submitted a second appeal requesting that FEMA review its findings to make sure it applied its policy properly.  The Applicant previously stated that this particular storm made the bridge unsafe, due to the volume of rainfall.  The applicant argued that this was not a case of lack of regular maintenance, and the damage was disaster related.  The Missouri State Emergency Management Agency (Grantee) forwarded the appeal in a letter dated April 12, 2021, in support of the Applicant’s position.  

 

Discussion

The Robert T. Stafford Act  Disaster Relief and Emergency Assistance (Stafford) Act, section 406(e), authorizes FEMA to fund the cost of repairing, restoring, reconstructing, or replacing a facility damaged or destroyed by a major disaster.[2]  To be eligible for financial assistance, an item of work must be required as the result of the major disaster event.[3]  Work to repair damage caused by deterioration or deferred maintenance is not eligible for reimbursement.[4]  For facilities, such as roads and bridges, that require routine maintenance to maintain their designated function, FEMA may review maintenance records to verify the predisaster condition and evaluate the eligibility of reported damage.[5]  Because it is difficult to distinguish between pre-existing damage and damage caused by the disaster, the Applicant must demonstrate that damages were directly caused by the disaster.[6]

The Applicant claims the disaster damaged the Bridge’s embankment.  The Applicant cites to a MoDOT opinion acknowledging that the damage began prior to the declared event, which only worsened ongoing erosion and scour.[7]  Inspection records presented by the Applicant show that the channel has been moving since 2015.[8]  The Applicant provided evidence of Bridge inspections, but none of any prior maintenance or any maintenance that was scheduled to occur.  The McClure report does not refer to any preventative maintenance performed prior to the event, instead solely relying on discussions with the Applicant’s officials and visual observations.[9]  The Applicant has provided no documentation to distinguish the potential disaster related damage from the predisaster deterioration.[10]  Therefore, the Applicant has not demonstrated that the work required was a result of the disaster.[11]  

 

Conclusion

The Applicant did not demonstrate that the work requested was required as a result of the disaster.  Therefore, this appeal is denied. +

 

[1] Email from Prof’l Eng’r, Mo. Dep’t of Transp. NW Dist., to HR Director, Nodaway County, MO  (Oct. 15, 2020, 0704) [hereinafter MoDOT Email].

[2] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act, as amended, 42 U.S.C. § 5121 (2018) § 406(a)(1)(A).

[3] Public Assistance Program and Policy Guide, FP-104-009-2, FP 104-009-2, at 116 (April 2018) [hereinafter PAPPG].

[4] Id. at 19.

[5] Id. at 116.

[6] Id.

[7] Letter from Assoc. Comm’r, Nodaway Cnty. Comm’n, to Public Assistance Grants Supervisor, FEMA (Oct. 21, 2020); MoDot Email (“Damage can occur to our bank protection from a major storm and . . . once that protection is damaged the following storms keep eating away at the remaining protection and the accumulative [e]ffect over time can make for an unsafe condition. It appears that has occurred at this particular bridge and the latest storm provided the damage that has made it unsafe.”).

[8] Report, Technical Assistance Group, FEMA Region VII, at 2 (Jan. 11, 2020); see also MoDOT Email (summarizing predisaster inspection reports by noting that “the channel has been moving some and has got to the point it has become severe near the west abutment”).

[9] McClure Report, Nodaway Cnty.-250th St. Bridge over Platte River Abutment Slope Prot., to Presiding Comm’r, Nodaway Cnty., at 2 (Jan. 15, 2020).

[10] Mo. Dep’t of Transp., Bridge Inventory and Inspection System, Non-State Structure Inspection Report, Nodaway Bridge 0456011-1 (Feb. 8, 2019) (recommending the removal of brush and debris, and the placement of additional rock fill on the west channel bank to protect against erosion, in a work comment following item 113).

[11] A FEMA Professional Engineer reviewed the available documentation as part of the Agency’s second appeal evaluation and could not verify that the claimed damages were caused by the disaster.