Result of Declared Incident

Appeal Brief

Appeal Letter

Appeal Analysis

Background

During the incident period from February 24 - July 3, 2019, flooding along the Mississippi and Illinois Rivers caused breaches and embankment failures along the Nutwood Drainage and Levee District’s (Applicant) levee system. FEMA created Grants Manager Project 133617 to capture requested costs to repair and reseed the Applicant’s silt basin levee embankments (silt basins) and to repair a drift catcher (collectively referred to as Facilities). FEMA inspected the Facilities and reviewed maintenance statements, site inspection reports, and photographs taken during the inspection that showed material loss, scouring, erosion, embankment failure, and dense vegetation at multiple sites. FEMA issued a Determination Memorandum on April 15, 2021, finding costs ineligible because the Applicant’s documentation did not demonstrate that damages were caused by the disaster event.

First Appeal

The Applicant appealed on June 14, 2021 and clarified the project involved only its silt basins, not the main levee that the U.S. Army Corps of Engineers (USACE) had already agreed to repair, and which FEMA had improperly included in its initial denial.[1] The Applicant stated that one of its silt basins was newly constructed and that it provided FEMA the expenditures for that construction. The Applicant also stated that when levees have grass and are in a vegetative state, they do not require repairs, only mowing twice a year, and drainage pipes are cleared out at least twice a year. The Applicant stated the disaster killed all vegetation on the levees and caused bank erosion and deposited debris on the levees. The Illinois Emergency Management Agency (Recipient) supported the appeal in its July 2, 2021 transmittal to FEMA.

On June 15, 2022, FEMA issued a Request for Information (RFI) asking the Applicant to: confirm the location of the specific sites and associated damages; provide information on the scope of work, work status, and estimated costs for repairs; and submit construction documentation for the newest silt basin and documentation, such as predisaster photographs, inspection records, or repair records substantiating the predisaster condition. The Applicant responded on July 14, 2022 with additional maintenance statements, the previously-provided timesheets, and an invoice and pay bill for the new silt basin. The Applicant did not address FEMA’s RFI seeking information on specific sites, facilities, damages, scope of work, and work status. The Applicant did not respond to a second RFI for the previously requested information.

On November 28, 2022, the FEMA Region 5 Regional Administrator denied the appeal. FEMA stated the Applicant provided no documentation to substantiate the predisaster condition of the silt basins or enable FEMA to distinguish any disaster-related damages, and documentation did not demonstrate work performed on the silt basins prior to the disaster or establish that silt basins were maintained at any specific slope, grade, elevation or capacity. FEMA also compared pre-and post-disaster aerial images showing similar erosion, slumping, and scouring along the embankments that indicated damages and erosion had been occurring naturally over time.

Second Appeal

The Applicant’s December 28, 2022 second appeal expands on points previously made. The Applicant states photographs in the first appeal denial are not of the area in question and do not show the condition of all the silt basins. The Applicant provides an aerial photograph that it states shows all of the silt basins, and highlights specific photographs taken during the site inspection in March 2020. In an attached statement, the Applicant also describes the flood impacts in more detail, stating over 20 feet of water over the silt basins for 90-to-120 days killed all vegetation on the levees, and caused debris accumulation on the silt basins, wave wash damage to the levees, erosion, and clogged drainage pipes, ditches, and waterways. The Recipient recommends that FEMA take all information presented in consideration of the appeal with its February 7, 2023 transmittal.  

Discussion

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.[2] To be eligible, work must be required as the result of the declared incident.[3] To determine the eligibility of the damage claimed, FEMA may request documentation illustrating the predisaster condition of a facility, e.g., maintenance records and inspection reports.^[4] FEMA does not provide PA funding for the repair of damage caused by deterioration, deferred maintenance, the Applicant’s failure to take measures to protect a facility from further damage, or negligence.^[5] It is the Applicant’s responsibility to demonstrate that damage was caused directly by the declared incident.^[6]

The Applicant claims that damage to its silt basins was a result of the disaster; however, the available evidence does not support the claim. The Applicant’s maintenance records only show mowing, removing minor debris, and keeping drainage pipes clear of debris approximately twice a year, cleaning the drift catcher periodically, and replacing a board as needed. The Applicant has not produced records showing that the silt basins were inspected on a regular basis prior to the disaster. The Applicant also did not include any photographs or imagery showing the predisaster condition of the silt basins. Thus, the available documentation does not demonstrate the predisaster condition of the Facilities. As a result, the documentation the Applicant provides does not demonstrate that the claimed damage to the Facilities occurred as a direct result of the disaster.

Conclusion

The Applicant has not provided documentation to demonstrate that the claimed damage to the Facilities occurred as a direct result of the disaster. Therefore, this appeal is denied.