Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4564
Applicant	Escambia County
Appeal Type	Second
PA ID#	033-99033-00
PW ID#	GMP 172051/ PW 678
Date Signed	2023-05-04T16:00:00

Summary Paragraph

From September 14 to 28, 2020, Hurricane Sally caused strong winds, torrential rain, and tidal surge resulting in extensive damage throughout Florida. The Applicant requested Public Assistance (PA) to repair damage to various items at Vista Park as a result of disaster-generated winds, surface water flooding, and high-velocity water flows. The Applicant provided maintenance records, a Preliminary Engineering Assessment (PEA), and photographs of the post-disaster damage. On August 6, 2021, FEMA issued a Request for Information (RFI) requesting the Applicant provide documentation to substantiate and quantify only damages that are disaster-related. The Applicant responded to the RFI with additional explanation of how storm surge impacted the seawall and parking lot, and a single aerial photograph showing the dimensions of the claimed damage. In a Determination Memorandum, FEMA denied $436,999.19 for costs to repair the seawall, railing and the parking lot base. The Applicant appealed, stating that: (1) the PEA established that the seawall damage and damage to the parking lot base occurred as a direct result of the disaster; and (2) the PEA justified the costs and quantities noted in the Damage Description and Dimensions. The Florida Division of Emergency Management (Recipient) transmitted the appeal with a letter of support. The FEMA Region 4 Regional Administrator denied the appeal, determining the Applicant did not provide sufficient documentation to support the damage claimed to the seawall or the parking lot base. FEMA also found the damage noted along the seawall appeared to have pre-dated the disaster. The Applicant submits a second appeal seeking reimbursement of $976,184.00, an amount reflected in the lowest bid it received for the repair work. The Applicant provides additional post-disaster photographs it claims demonstrates the disaster-caused and states the entire asphalt parking lot base requires reconstruction because repairing it only at the visible points of failure would not meet state or county requirements. The Recipient transmits the appeal, recommending approval.

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A).
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 51-52, 63-64, 169-170.
• City of Brunswick, FEMA-4451-DR-MO, at 3.

Headnotes

• To be eligible for PA funding, work must be required as a result of the declared incident. FEMA does not provide funding for repair of damage caused by deterioration or deferred maintenance. The applicant is responsible for providing documentation to support its claim as eligible and show that work is required to address damage caused by the declared incident as it is difficult to distinguish between preexisting damage and damage caused by the declared incident.
  • The Applicant has not presented documentation that allows FEMA to verify the claimed damages and requested work were the result of the declared incident or allow FEMA to distinguish disaster-caused damage from pre-existing conditions.

Conclusion

FEMA finds the Applicant did not demonstrate the work to replace the seawall cap and railing and reconstruct the parking lot base was required as a result of the declared incident. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From September 14 to 28, 2020, Hurricane Sally caused strong winds, torrential rain, and tidal surge resulting in extensive damage throughout Florida. Escambia County (Applicant) requested Public Assistance (PA) to repair damage to various items at Vista Park (Facility). The Applicant provided maintenance records, a post-disaster Preliminary Engineering Assessment (PEA),[1] and post-disaster photographs of the Facility. FEMA found the Applicant-provided documentation did not adequately describe the location, extent, and cause of some of the claimed damages, specifically damages to the seawall and the asphalt parking lot.

FEMA stated that while the Applicant-provided Damage Description and Dimensions and PEA both indicated the need to remove and replace the entire seawall cap (850 linear feet), post-disaster photographs from FEMA’s February 2021 site inspection showed only limited chipping damage totaling approximately 20 linear feet. Similarly, for the claimed damage to the parking lot, FEMA requested that the Applicant clarify and provide additional documentation showing the full extent of the disaster-related damage (e.g., pre- and post-disaster sketches or aerial photographs with the damage limits outlined and requesting the Applicant provide documentation to substantiate and quantify only those damages that are disaster-related). Although the Applicant’s PEA indicated the parking lot was damaged by base failure resulting in cracked pavement, FEMA stated the photographs provided by the Applicant indicated the asphalt was damaged by erosion. The Applicant provided separate responses on the seawall damage and the parking lot, explaining how storm surge impacted each item and submitted an aerial photograph showing the dimensions of the claimed damage.[2]

FEMA issued a Determination Memorandum (DM) on December 3, 2021. In the DM, FEMA approved $42,750.35 to repair items, including painted pavement markings, park benches, concrete curb and gutter, concrete sidewalk, bumper guards, embankment, as well as to remove debris and mobilization, and traffic control, but denied $436,999.19 for costs to repair the seawall, the seawall railing and the parking lot base, finding the Applicant had not provided justification for that repair work or documented that the damage to the seawall cap, seawall railing and the parking lot base was incurred as a direct result of the disaster. FEMA also noted that predisaster Google Earth imagery showed pre-existing instances of chipping in the seawall.

First Appeal

The Applicant submitted its first appeal to the Florida Division of Emergency Management (Recipient) on January 4, 2022, requesting that FEMA reverse its ineligibility determination on the seawall and the parking lot base. The Applicant requested FEMA award the full amount of the cost estimate of $528,923.70 contained in the PEA, which included cost estimates to repair both the damaged items FEMA approved in the DM as well as the items FEMA denied.[3] Specifically, the Applicant requested that FEMA approve the following items previously denied: (1) 1,667 square yards of asphalt repair in the parking lot; (2) 815 linear feet of handrail; and (3) replacement of the entire seawall cap. The Applicant stated the PEA provided a detailed explanation and images demonstrating that the Facility incurred damage as a direct result of the declared incident and that the PEA also substantiated costs and damages. The Applicant also asserted that FEMA site inspectors agreed with the conclusions contained in the Applicant’s PEA.

On February 15, 2022, the Recipient transmitted the Applicant’s first appeal with a letter recommending approval.[4] The Recipient stated that FEMA did not explain why the Applicant’s response were insufficient and claimed that the DM did not provide detail concerning the adequacy of its responses.

On October 12, 2022, FEMA denied the appeal, finding the Applicant did not provide sufficient documentation to support the damage claimed to either the seawall or the parking lot base. FEMA noted that while the Applicant’s PEA recommended complete replacement of the entire 850 feet of seawall cap due to chipping and cracking, the Applicant did not provide photographs substantiating that damage. FEMA also found the damage noted along the seawall appeared to pre-date the disaster, attaching a Google Earth image from 2019 that showed two areas where the wall had chipped. FEMA also determined the administrative record did not support the damage described to the parking lot base.

Second Appeal

On December 12, 2022, the Applicant submitted a second appeal seeking $976,184.00 in PA, the amount reflected in the lowest bid the Applicant received for the repair work. The bid included both the work to repair the seawall cap and reconstruct the base of the parking lot that FEMA denied.[5] Regarding the damage to the seawall and the parking lot base, the Applicant provides additional post-disaster photographs taken in December 2022 that it claims show disaster-caused damages. The Applicant disputes FEMA’s finding that predisaster Google Earth imagery showed pre-existing damage where portions of the wall had chipped off. While FEMA noted two existing areas where portions of the wall had chipped off in predisaster photographs, the Applicant states it treated those chipped areas with epoxy sealant in 2019, and that it had addressed prior chipping in 2012. The Applicant argues that a Google Earth image is not an adequate basis from which FEMA can conclude whether the Applicant’s previous seawall maintenance was adequate. The Applicant claims that the damage to the seawall from disaster-debris was most evident on the outside seaward side of the cap, which is not observable via Google Earth.

Specifically, the Applicant states that some of the most extensive damage to the seawall occurred when a 20-foot-long Conex office container washed off the parking lot. It claims that the container battered the length of the seawall, chipping and cracking the cap, as well as knocking off the handrail from the cap. In support of this contention, the Applicant provides a photograph of the office container. Moreover, the Applicant claims that the damage caused by the debris that washed up against the seawall during the disaster involved all 35 sections of the pile cap.

Regarding the parking lot base damage, the Applicant provides photographs that show missing parking blocks and one of the photographs of the parking lot appears to show pavement cracking. The Applicant states that the entire lot requires reconstruction because it is impractical to only patch the base at visible points of failure. It also argues that such a repair would not satisfy state and county standards. On February 6, 2023, the Recipient transmitted the appeal with a letter of support.

Discussion

FEMA provides PA funding to eligible applicants for the repair, restoration, reconstruction, or replacement of eligible facilities damaged or destroyed by major disasters.[6] To be eligible for PA funding, work must be required as a result of the declared incident.[7] FEMA does not provide funding for repair of damage caused by deterioration or deferred maintenance.[8] FEMA reviews predisaster maintenance or inspection reports to assist in verifying the predisaster condition and assess eligible disaster damage.[9] It is the applicant’s responsibility to demonstrate that claimed damage was directly caused by the incident, and where pre-existing damage exists, to distinguish that damage from the disaster-related damage.[10]

i. Seawall

Here, the Applicant claims that the disaster damaged all 35 sections of the seawall cap, requiring replacement of the entire 850-foot-long seawall cap and an attached railing. The Applicant states it provided additional photographs of the extensive cracking and chipping, and of the missing handrail that it states was knocked off the seawall by the impact of disaster-generated debris. However, neither those photographs nor the one previously provided demonstrate that all 35 sections of the seawall cap were damaged. With regard to the railing, at least one set of attachment points that affixed the railing to the seawall appears to be undamaged and intact in the provided photographs, despite the Applicant’s claim that the office container damaged all of them.

Although the Applicant states damage to the seawall caused by disaster-debris was most evident on the outside seaward side of the cap and was not visible via Google Earth, it has not provided documentation to support this claimed damage. The Applicant also claims that, during maintenance it performed in 2019, it treated the pre-existing cracks FEMA identified on a Google Earth image. While the Applicant points to maintenance records it previously provided, these maintenance records do not include this repair work. The Applicant also states that a 2012 maintenance project addressed spalls but provides no maintenance records from that time.

Here, the Applicant has not documented that disaster-generated debris damaged the seawall cap or the handrail.[11] Instead, the documentation shows pre-existing damage to the seawall, and a set of intact, undamaged railing attachment points. In addition, the Applicant’s maintenance records do not show that the Applicant repaired the pre-existing damage before the disaster. Accordingly, the Applicant has not shown that the seawall experienced new instances of chipping as a direct result of the disaster or distinguished pre-existing damage from claimed disaster-related damage.

ii. Parking Lot

The Applicant states that base failure under the parking lot from being submerged and subjected to storm surge has led to a loss of pavement and cracking as described in the PEA. The Applicant provides an additional photograph of what it states are areas of cracking and areas of temporary pavement patching but does not specify where the photograph was taken. The Applicant states that the base for the entire lot must be reconstructed because it is impractical to patch the base at only visible points of failure and such repair would not meet state or county maintenance standards. However, the photographs the Applicant provides do not demonstrate that the asphalt base of the parking lot was damaged as a direct result of the disaster. On second appeal, the Applicant provides one additional photograph that shows cracked pavement, but the Applicant does not identify the specific location of the photograph nor identify or explain what the specific damage the photograph shows. Accordingly, FEMA is not able to verify the damage dimensions for the parking lot identified in the SIR and the PEA.

Here, the Applicant’s records do not enable FEMA to verify predisaster conditions of either the seawall or the parking lot base to distinguish pre-existing damages from claimed disaster-related damages. Therefore, the work to repair damages the Applicant is claiming on appeal is ineligible for PA funding.[12]

 

Conclusion

FEMA finds the Applicant did not demonstrate the work to replace the seawall cap and railing and reconstruct the parking lot base was required as a result of the declared incident. Therefore, this appeal is denied.