Result of Declared Incident

Appeal Brief

Appeal Letter

Appeal Analysis

Background

On December 10 and 11, 2021, Kentucky experienced severe storms, tornadoes, straight line winds, and flooding.[1] Hopkins County (Applicant) claimed damage to roadside drainage ditches at numerous sites, including ones located on Clarence Woodis Road and Flat Creek Road. FEMA prepared Grants Manager Project 672811 to document the Applicant’s estimated costs. FEMA noted that the requested work included ditch cleaning and reshaping due to the Applicant’s claim of damages resulting from disaster-driven debris, emergency response traffic, and debris removal operations’ equipment. 

FEMA conducted a site inspection on May 11, 2022. In its Site Inspection Report (SIR), FEMA’s photographs showed the presence of debris, sediment, and vegetation in the ditches. The photographs also showed cracked asphalt surface along the edge of the road leading to the ditches and an accumulation of sediment, gravel, leaves, trash, and woody debris, and overgrown vegetation within the ditches.

FEMA issued a Determination Memorandum on December 15, 2022, denying $17,255.00 in requested Public Assistance (PA) funding for sites on Clarence Woodis Road and Flat Creek Road.[2] FEMA found that the Applicant did not demonstrate the ditches were damaged as a result of the incident. It noted that the SIR photographs and post-disaster photographs provided by the Applicant showed sediment, debris, and overgrown vegetation in the ditches. Furthermore, FEMA found the Applicant had not established the predisaster condition of the ditches. FEMA noted that while the Applicant provided statements regarding its general maintenance practices, it did not provide maintenance reports or other documentation to demonstrate that the claimed damage was a result of the incident or from its response/recovery activities.

First Appeal 

The Applicant submitted a first appeal dated February 9, 2023, appealing FEMA’s denial of $17,255.00 for ditch repairs. The Applicant reiterated that wind-driven debris, heavy emergency response vehicles, and heavy debris hauling trucks, caused damage such as debris accumulation in the ditches. In support, the Applicant first stated that FEMA’s site inspector had documented that damage was caused by disaster debris, emergency response, and debris operations and as such, it was unreasonable to require additional documentation as FEMA’s policy acknowledged it is sometimes difficult to distinguish between pre-existing damage and that caused by a disaster. Second, the Applicant argued that it previously provided documentation that demonstrated the work was required because of the disaster and not ordinary wear or deferred maintenance. The Applicant noted that FEMA did not issue a Request for Information to indicate that additional documentation was necessary. 

Third, the Applicant pointed to FEMA policy that states the Agency may inspect other sections of an applicant’s road system to verify the performance of regular predisaster road maintenance activities. Fourth, the Applicant pointed to an April 18, 2022 letter from its County Judge Executive, which stated the Applicant routinely maintained its public roads, culverts, and ditches through: (1) routine inspection by elected officials who traveled roads and report areas of concern; (2) maintenance in response to reports from citizens; (3) scheduled annual improvement; and (4) routine annual maintenance. Finally, the Applicant urged FEMA to examine the Applicant’s predisaster budget information provided on appeal, which it stated showed that for each of the three years preceding the disaster, the Applicant’s annual roads’ fund represented approximately 18 percent of the Applicant’s total budgeted appropriations per year. The Applicant cited to a prior FEMA second appeal decision,^[3] stating that in that appeal, FEMA granted certain costs based in part on that applicant’s budget demonstrating it had an annualized program of routine maintenance. Kentucky Emergency Management (Recipient) forwarded the Applicant’s appeal to FEMA, with its support in a letter dated February 14, 2023. 

On October 5, 2023, the FEMA Region 4 Regional Administrator denied the appeal. FEMA found that the documentation provided did not establish the predisaster condition of the claimed ditches, and FEMA could not verify the predisaster condition or distinguish between pre-existing damage and damage caused by the declared incident.

Second Appeal

The Applicant submitted a second appeal in a letter dated December 5, 2023. The Applicant reiterates first appeal arguments, and also states that FEMA should consider its status as a rural community that has been underserved in the past in making a decision. The Recipient forwards the Applicant’s appeal, with its support, in a letter dated December 7, 2023.

Discussion

FEMA has the authority to provide assistance for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster based on its pre-disaster design and function and in conformity with current applicable codes, specifications, and standards.^[4] To be eligible, work must be required as a result of the declared incident.^[5] The incident may cause minor damage to roads, including road components (e.g., ditches), that result in damage similar to that which may occur over time from other causes.^[6] Therefore, distinguishing between pre-existing damage and damage caused by the incident is often difficult.^[7] It is the applicant’s responsibility to demonstrate that claimed damage was directly caused by the declared incident, and where pre-existing damage exists, to distinguish that damage from disaster-related damage.^[8] 

When necessary to validate damage, the applicant may be asked to provide predisaster photographs of the impacted site or facility; and/or documentation supporting the predisaster condition of the facility (e.g., facility maintenance records, inspection/safety reports).^[9] When evaluating eligibility of reported road damage, in addition to evaluating how the incident caused the damage, FEMA reviews maintenance records or documentation establishing that the applicant has a routine maintenance program.^[10] In the absence of maintenance records, FEMA may review material purchase invoices and activity logs and inspections of other sections of the applicant’s road system to confirm the performance of regular maintenance activities.^[11] FEMA does not provide PA funding for the repair of damage caused by deterioration or deferred maintenance.^[12] If an applicant damages property while performing eligible emergency response activities or debris removal operations, the repair of that damage may be eligible as part of that respective emergency work project.^[13] It is the applicant’s responsibility to provide documentation to substantiate its claim as eligible and to clearly explain how those records support the appeal.^[14]

Here, the Applicant claims that the ditches were damaged by the tornado, as well as by the use of heavy equipment during the response from the storm, but does not explain what damage was caused by which action. The photographs from the site inspection show some cracking on the asphalt road running along the side of the ditches, as well as silt and debris in the ditches and some vegetative growth, which are evidence of pre-existing damages, deterioration, and/or deferred maintenance. The Applicant does not provide documentation such as maintenance records to distinguish between pre-existing conditions and potentially eligible disaster-related damages or support its claim that the work was required because of the disaster and not ordinary wear or deferred maintenance. For example, the maintenance statement provided by the County Judge Executive was general in nature and not specific to the ditches at issue or specific to the type of predisaster maintenance work performed to its road system. The Applicant claims its budget information and maintenance statement demonstrates it emphasized routine road maintenance, similar to a prior second appeal decision that FEMA partially granted. However, in that prior second appeal decision, the applicant demonstrated it allocated annually more than 80 percent of its total budget to roads and provided material invoices, which demonstrated predisaster maintenance for the specific sites approved on second appeal.^[15] In contrast, here, the documentation shows the Applicant committed an average of 18 percent of its annual budget to roads, and the Applicant has not demonstrated specific predisaster maintenance activities occurred for the sites at issue in this appeal. 

Lastly, the Applicant points out that in the SIR, FEMA wrote that damage was due to tornado debris, emergency response, and debris operations. However, this statement was not a finding or determination by FEMA personnel. The top of the relevant page where the statement appears contains the following instruction: 

NOTE FOR SITE INSPECTOR: Please ask the Applicant representative the following questions. Although the PDMG may have already asked some of these questions, the Applicant representative at the site inspection may have additional information. Use the Additional Notes section to record any additional explanation.^[16]

The first question posed to the Applicant after this instruction was to “identify the specific cause of damage.”^[17] Therefore, in contrast to the Applicant’s assertion, the response entered in the SIR concerning this question does not constitute a finding or determination from FEMA’s site inspector regarding the cause of claimed damage.^[18] Rather, it was FEMA’s recording of the Applicant’s explanation for the cause of the damage.

Based on the above, the Applicant has not demonstrated the claimed damages were directly caused by the declared incident and/or emergency response/debris removal operations, rather than being pre-existing damages.^[19]

Conclusion

The Applicant has not demonstrated that the work to repair the ditches was required as a result of the declared incident. Therefore, the appeal is denied.