Result of Declared Incident

Appeal Brief

Summary Paragraph

From February 27 to March 14, 2021, severe storms, flooding, landslides, and mudslides impacted areas throughout Kentucky. Cumberland County (Applicant) requested Public Assistance (PA) to repair various damage at numerous sites on eight roads. FEMA prepared Grants Manager Project 187874/Project Worksheet 984 to document the claimed damages. FEMA issued a Determination Memorandum (DM) denying $14,058.17 for the replacement of multiple corrugated metal pipe (CMP) culverts, stating the supporting documentation was insufficient to verify that the damage was sustained as a direct result of the disaster. The Applicant appealed the denial, claiming the disaster caused the identified damage and it was necessary to replace, rather than repair, several culverts because they were undersized. On September 8, 2023, the FEMA Region 4 Regional Administrator denied the appeal, finding that the Applicant did not provide sufficient documentation to validate the damage or related costs. On November 6, 2023, the Applicant submitted a second appeal, requesting $14,058.17 for the replacement of the culverts, reiterating its position outlined in the first appeal. 

Authorities

• Stafford Act § 406.
• 44 C.F.R. § 206.223(a)(1). 
• PAPPG, at 51-52, 64, 157.

Headnotes

• The Applicant is responsible for providing documentation to show that work is required to address damage caused by the disaster. 
  • The Applicant did not document damage to the CMP culverts beyond of the presence of debris, and therefore did not provide documentation demonstrating that replacement of the culverts was required as a result of the declared incident. 

Conclusion

The Applicant did not provide documentation demonstrating the culvert replacements were required as a result of the declared incident. Therefore, the appeal is denied.

Appeal Letter

Appeal Analysis

Background

From February 27 to March 14, 2021, severe storms, flooding, landslides, and mudslides caused damage throughout Kentucky.^[1] Cumberland County (Applicant) requested Public Assistance (PA) for repairs of eight roads, including Black’s Branch Road. For Black’s Branch Road, the Applicant requested repair of the asphalt roadway and shoulder damages, as well as the removal and replacement of two corrugated metal pipes (CMPs) acting as a culvert at one site on the road, and removal and replacement of three CMPs acting as a culvert at a second site on the road (hereinafter referred to collectively as “culverts”). On March 24, 2022, FEMA sent a Request for Information (RFI), requesting documentation demonstrating that the claimed damage was caused by the disaster. For Black’s Branch Road, FEMA requested the Applicant provide information to support the claim that the culverts required replacement, as it appeared the pipes were clogged with debris that could be removed. In response to FEMA’s RFI, the Applicant provided a diagram depicting its standard procedure for making repairs to damaged gravel and asphalt roadways. FEMA prepared Grants Manager Project (GMP) 187874/Project Worksheet 984 to document the claimed damage for the eight roads and estimated repair work, with costs totaling $98,802.74. 

On July 6, 2022, FEMA issued a Determination Memorandum (DM) denying $32,174.93 of the estimated costs, in which it identified four out of the eight roads claimed in the project and stated the supporting documentation was insufficient to verify the damage was sustained as a direct result of the disaster. Regarding Black’s Branch Road, FEMA approved $15,404.51 in estimated costs for repair of roadway and shoulder damages but denied $14,058.17 for the replacement of the culverts. FEMA stated that the Applicant did not provide documentation to support replacement of the culverts, which were not damaged, were undersized, clogged, and could have been drained instead of replaced.

First Appeal 

On September 2, 2022, the Applicant appealed, requesting $20,400.49 in repair costs for three of the roads addressed in FEMA’s DM. Regarding damage to the Black’s Branch Road site, the Applicant stated it was necessary to replace, rather than repair, the culverts because they were undersized. The Applicant claimed that the disaster, as well as recent additional declared events, completely plugged the undersized culverts with stream gravel, washed away the surface asphalt, and damaged other parts of the road structure. On September 19, 2022, Kentucky Emergency Management (Recipient) transmitted the first appeal. 

On September 8, 2023, the FEMA Region 4 Regional Administrator denied the appeal, stating that the available documentation was insufficient to establish the predisaster condition of the sites on appeal or for FEMA to distinguish between preexisting damage and damage caused by the disaster.

Second Appeal

The Applicant submits a second appeal dated November 6, 2023, requesting $14,058.17 for the replacement of the culverts on Black’s Branch Road, reiterating its position outlined in the first appeal, and restating that the undersized CMP culverts directly contributed to the damage of the road structure.[2] The Recipient transmitted the second appeal with its November 15, 2023, letter, recommending approval.

Discussion

Result of Declared Incident

FEMA may provide PA funding for the repair, restoration, reconstruction, or replacement of eligible facilities damaged or destroyed by major disasters based on pre-disaster design and function and in conformity with current applicable codes, specifications, and standards.^[3] To be eligible for PA funding, an item of work must be required as a result of the major disaster, and the applicant must demonstrate that the damage was caused directly by the incident.^[4] If the applicant does not provide documentation to support its claim as eligible, FEMA cannot provide PA funding for the work.[5]

Here, the Applicant is requesting PA for the removal and replacement of CMP culverts on Black’s Branch Road. However, the Applicant has not provided documentation demonstrating that replacement of the culverts is required as a result of the declared incident. The Applicant does not contend that: (1) the CMP culverts were destroyed during the disaster; (2) the replacements are required by codes, specifications, or standards; or (3) that the repair costs are more than 50 percent of the cost to replace.[6] In fact, the Applicant does not document specific damage to the culverts beyond the presence of debris located in the CMPs. Rather, the Applicant acknowledges that the culvert pipes are undersized and have repeatedly become clogged with sediment during past flooding events. The Applicant requests, therefore, that the culverts be replaced based on them being undersized. Notwithstanding the potential of undersized culvert pipes to become plugged with sediment, the Applicant has not established that the culverts require replacement as a result of the disaster. Of additional note, the proposed scope of work in the project calls for the CMP culverts to be replaced in-kind based on the predisaster design, function, and capacity within the existing footprint.^[7] In other words, the Applicant is requesting funding to replace the culverts with identically sized replacement pipes, which would not address its stated concern that the culvert pipes are undersized. 

Conclusion

The Applicant did not demonstrate the culvert replacements were required as a result of the declared incident. Therefore, the appeal is denied.