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 funding for repairs and hazard mitigation (HM) measures for road, culvert, and embankment damages to sites on eight of its roads. The Applicant inspected the roads, developing scopes of work for each site. FEMA created Grants Manager Project 187990 to document the work but denied $116,166.73 for the project in a Determination Memorandum. FEMA found that the Applicant had not demonstrated that claimed road and embankment damage resulted from the disaster. The Applicant submitted a first appeal. It asserted that documentation establishing the predisaster condition of the sites was not required, as the photographs from its own inspections demonstrated that the disaster caused the damage. The FEMA Region 4 Regional Administrator denied the appeal. FEMA found that the Applicant’s inspection photographs depicted pre-existing deterioration, and the Applicant had not provided documentation demonstrating the predisaster condition of the road sites. The Applicant submits a second appeal reiterating prior assertions and requesting $116,166.73.

Authorities

• Stafford Act §§ 406(a)(1)(A), (e), 42 U.S.C. §§ 5172(a)(1)(A), (e).
• 44 C.F.R. §§ 206.223(a)(1), 206.226.
• PAPPG, at 51-52, 63-64, 140, 145, 169.
• City of Paintsville, FEMA-4595-DR-KY, at 2-3.
• Frankfort (Town of), FEMA-4472-DR-NY, at 3.
• Vinton Cnty. Eng’r, FEMA-4424-DR-OH, at 3.
• City of Fort Smith, FEMA-4441-DR-AR, at 5.

Headnotes

• It is the applicant’s responsibility to demonstrate that claimed damage was caused directly by the incident, and where pre-existing damage exists, to distinguish that damage from the disaster-related damage.
  • The post-disaster photographs the Applicant claims show obvious disaster-related damage rather show damages that may be associated with long-term deterioration and pre-existing conditions, such as gravel loss, erosion damage, and asphalt deterioration and cracking.
  • The Applicant did not provide additional documentation demonstrating the predisaster condition of its roads, which might be used to distinguish pre-existing damage from damage caused by the disaster.

Conclusion

The Applicant has not demonstrated that the damages to its roads or road components were caused by the disaster. Consequently, work to repair the claimed damages or implement HM is ineligible. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From February 27 to March 14, 2021, severe storms, flooding, landslides, and mudslides impacted areas throughout Kentucky.[1] Cumberland County (Applicant) requested Public Assistance (PA) funding for repairs and hazard mitigation (HM) for its road network, claiming that floodwaters during the disaster caused damage to numerous gravel and asphalt roads in the area. The Applicant inspected its road network, identifying damage to road and road components, including road surface, subsurface, and shoulder materials, embankments, and culverts at various locations. It developed scopes of work (SOWs) for repairs and HM measures.

In an undated letter provided to FEMA, the Applicant summarized its annual road maintenance program. It explained that typical maintenance included gravel replacement and grading, shoulder ditch cleaning, culvert cleaning and replacement, and asphalt repair, among other activities. The Applicant also provided predisaster invoices showing the purchase of materials (gravel and rip rap) in July and August 2020. FEMA created Grants Manager Project (GMP) 187990 to document work and estimated costs for the Applicant’s claim for the eight roads listed below.

From December 21-23, 2021, FEMA inspected the eight roads, recording descriptions and dimensions of the claimed damage and photographing each site. In a Determination Memorandum dated June 1, 2022, FEMA denied $116,166.73 of the requested costs.[2] Based on the site inspection reports and photographs, FEMA determined the Applicant had not demonstrated that much of the claimed damage resulted from the disaster rather than pre-existing conditions. 

First Appeal

The Applicant submitted a first appeal dated July 29, 2022, requesting $116,166.73 for road and road component repairs and HM. Generally, the Applicant asserted that documentation establishing the predisaster condition of the road sites was not required, as “there is ample evidence that the disaster caused the damage.”[3] The Applicant referred FEMA to photographs of each road site taken during the Applicant’s inspections. It stated that FEMA’s site inspections occurred in December 2021, which was months after the disaster, “thus leading to possible misconceptions of ‘pre-existing’ conditions.”[4] In a transmittal dated August 5, 2022, Kentucky Emergency Management (Recipient) expressed support for the appeal.

On October 2, 2023, the FEMA Region 4 Regional Administrator denied the appeal. FEMA found that the photographs submitted by the Applicant showed “fatigue cracking, rutting, potholes, overgrown vegetation, and unmaintained ditches,” which FEMA stated appeared to predate the disaster.[5] Additionally, FEMA found that the Applicant had not submitted documentation that could be used to verify the predisaster condition of the roads. Therefore, FEMA determined that the Applicant had not demonstrated the claimed damage resulted from the disaster rather than pre-existing deterioration or deferred maintenance, and work to repair the roads and components was ineligible.

Second Appeal

The Applicant submits a second appeal dated December 1, 2023, again requesting $116,166.73 for road and embankment repairs and HM for the eight roads under GMP 187990. The Applicant reiterates its previously raised arguments. In a transmittal letter dated December 5, 2023, the Recipient expresses support for the appeal.

Discussion

FEMA may provide funding to a local government for the repair of public facilities damaged by a major disaster based on the predisaster design and function of the facilities and in conformity with applicable codes and standards.[6] To be eligible for PA funding, work must be required as a result of the disaster.[7] FEMA does not provide funding for repair of damage caused by deterioration or deferred maintenance.[8] The incident may cause minor damage to roads that results in damage similar to that which may occur over time from other causes, such as the age of the road, traffic flow, and frequent rain.[9] It is the applicant’s responsibility to demonstrate that claimed damage was caused directly by the incident, and where pre-existing damage exists, to distinguish that damage from the disaster-related damage.[10] When necessary to validate damage, the applicant may be asked to provide predisaster photographs of the impacted site; and/or documentation supporting the predisaster condition of the facility (e.g., facility maintenance records,  inspection/safety reports).[11] To be eligible for PA funding, HM must directly reduce the potential of future damage to the damaged portion(s) of the facility.[12] If the applicant does not provide documentation to support its claim as eligible, FEMA cannot provide PA funding for the work.[13]

The Applicant asserts that documentation demonstrating the predisaster condition of the roads is not required for FEMA to approve funding, as “where the [disaster] is so obviously the cause of the damage, pre-disaster evidence may not be necessary.”[14] To demonstrate the cause of the damages at issue, it references post-disaster photographs from its site inspections. The photographs depict gravel loss from road surfaces; shoulder, culvert, and embankment erosion; and, in several locations, asphalt damage (e.g., severe deterioration, fatigue cracking, and asphalt loss). In this case, rather than showing obvious disaster-related damage as the Applicant asserts, the photographs show damages that are associated with long-term deterioration and pre-existing conditions, of the type contemplated in FEMA’s policy.[15] The Applicant’s assertion that the damages were obviously caused by the disaster is not supported by the photographs and other documentation it has provided, which do not distinguish pre-existing damage from disaster-related damage.

The Applicant also provided predisaster invoices showing the purchase and delivery of materials (surface aggregate and rip rap) used for road maintenance. However, the invoices do not record, and the Applicant did not explain, where or in what manner the materials were used. Similarly, the Applicant’s written statement regarding its routine maintenance program does not document predisaster maintenance of the specific roads or damage sites on appeal.[16] The Applicant has not provided documentation demonstrating the predisaster condition of its roads, which could assist in distinguishing pre-existing damage from damage caused by the disaster. Thus, it has not established that the claimed damages to its roads or road components were caused by the disaster and as such, the requested PA funding to repair the facilities is ineligible. As PA funding for HM is only available for disaster-damaged facilities, the HM is also ineligible.[17]

Conclusion

The Applicant has not demonstrated that the damages to its roads or road components were caused by the disaster. Consequently, work to repair the claimed damages or implement HM is ineligible. Therefore, this appeal is denied.