Result of Declared Incident/Landslides and Slope Stabilization

Appeal Brief

Appeal Letter

Appeal Analysis

Background

During the incident period of February 5 to March 6, 2020, Alabama experienced severe storms and flooding.[1] The University of Alabama (Applicant) claimed that fast-moving water from the storms damaged components that comprise its stormwater drainage system, including: stone and mortar check dams; a stone and mortar catch basin and drop inlet; drainage pipes; and eroded natural drainage slopes and ravines (steep-sided, narrow valleys) at the Applicant’s Moundville Archaeological Park. The stormwater drainage system was built into the slopes. The Applicant applied for Public Assistance (PA) funding to repair the stormwater drainage system to its predisaster condition. 

FEMA prepared Grants Manager Project 145069 to record the Applicant’s estimated repair and restoration costs and hazard mitigation proposal. FEMA conducted a virtual site inspection, in which the site inspector noted the damages the Applicant claimed and its intention to restore the stormwater drainage system to its predisaster condition. FEMA sent a Request for Information asking the Applicant to provide maintenance records needed to establish the predisaster condition of the stormwater drainage system. The Applicant responded, providing a park maintenance map, descriptions of park maintenance jobs and job duties, and a statement providing details about how the park is maintained. The Applicant stated it employs three workers to maintain its interior building spaces and 200 acres of park and grounds. In addition to landscaping responsibilities, the Applicant noted that this maintenance crew inspects its drainage structures for blockages on a weekly basis. 

On November 4, 2022, FEMA issued a Determination Memorandum, partially denying funding in the amount of $1,774,948.99 for the restoration of three drainage structures, which included the check dams, catch basins, drop inlets, and certain corrugated metal drainpipes, and unimproved slopes, finding neither the facility or work were eligible for PA. FEMA stated that the Applicant did not demonstrate that: (1) the slopes had any improvement to their natural characteristics to constitute an eligible facility or qualified as integral ground to the stormwater drainage system; or (2) that, based in part on FEMA’s virtual site inspection observing certain drainage structures completely covered in moss, the claimed work to the drainage structures was required as a result of the disaster.[2]

First Appeal 

The Applicant submitted a first appeal on December 21, 2022, asserting that (1) the damaged slopes and ravines were eligible as improved natural features; (2) the damaged drainage system work was eligible, as the system was in good working order at the time of the disaster and moss growth on the damaged components should be expected; and (3) the damaged slopes and ravines were integral ground to the disaster-damaged check dams. The Applicant provided an engineer’s letter stating the stormwater structures were repaired when damaged, and that the presence of moss was to be expected due to the structures’ locations in heavily wooded areas. The Applicant provided a list of maintenance staff job duties indicating that park maintenance supervisors provide schedules of maintenance, lead supervising maintenance crews and maintenance crew members who maintain the parks’ buildings and facilities under supervision. The Alabama Emergency Management Agency (Recipient) transmitted the appeal on December 21, 2022, requesting FEMA review the information the Applicant provided.

On July 10, 2023, the FEMA Region 4 Regional Administrator denied the appeal, finding the Applicant had not shown that the: (1) damaged slopes were eligible facilities separate from the drainage system and or that the slopes served as integral ground to facilities damaged by the disaster; or (2) stormwater drainage structures were damaged as a direct result of the disaster as opposed to age-related deterioration or deferred maintenance. 

Second Appeal

The Applicant submits a second appeal, dated September 8, 2023, expanding on prior arguments and submitting additional documentation, including historical photographs and blueprints showing that the stormwater drainage system was built into the slopes of the archeological park, maintenance work orders for the park dating back to 2009, including repairs to concrete storm drain covers and remove fallen trees from the slope/ravine areas, and documentation from the park maintenance supervisor confirming that the Applicant’s staff routinely checks and performs additional inspections of the stormwater drainage system before and after heavy rains or storm events, including cleaning of inlets and ravines. The park maintenance supervisor stated that the inspections are part of the maintenance activities staff are trained to do as part of their regular duties. The Applicant’s engineer also stated that the damage observed in their post-disaster site inspection and in photographs, including the dislodging and displacement of check dam elements such as mortar and stones, is consistent with damage from fast-moving waters from the declared event rather than from prior damage or deferred maintenance. The Recipient transmitted the appeal on September 11, 2023, recommending FEMA consider the appeal.

Discussion

Landslides and Slope Stabilization

FEMA has the authority to assistance for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster.[3] An eligible facility includes an improved and maintained natural feature.[4] A natural feature is improved and maintained if it meets all of the following conditions: the natural feature has a designed and constructed improvement to its natural characteristics, such as a terraced slope or realigned channel; the constructed improvement enhances the function of the unimproved natural feature; and it is maintained on a regular schedule to ensure that the improvement performs as designed.[5]If an eligible public facility is located on a slope and is damaged as a result of a landslide or 

slope instability triggered by the incident, FEMA may approve PA funding for the restoration of 

the integral ground that supports the facility.[6] Integral ground refers only to the ground necessary to physically support a facility; it may be natural or improved ground upon which an 

eligible facility is located and that is essential to support the structural integrity and utility of the 

facility.[7]

Here, the Applicant provides new information on second appeal, including historical blueprints and construction photographs of the stormwater drainage system showing that it was built into the slopes and that the slopes had designed and constructed improvements, which enhanced the function of the slopes. The Applicant also provides documentation, including maintenance work orders, that shows that the slopes were maintained on a regular schedule to ensure the improvements performed as designed. Based on all the documentation in the record collectively, FEMA finds the Applicant’s documentation supports its claim that the slopes are an improved and maintained natural feature; therefore, the slopes at issue are eligible facilities. In addition, the Applicant has also shown that the stormwater drainage system was built into the slopes, and that the slopes supported the integrity and utility of the system. Thus, the Applicant has shown that the slopes served as integral ground to the stormwater drainage system. 

Result of Declared Incident

To be eligible, work must be required as a result of the declared incident, and the applicant must demonstrate the damage was caused directly by the declared incident.[8] FEMA does not provide PA funding for repair of damage caused by deterioration or deferred maintenance.[9] FEMA may request documentation supporting the predisaster condition of the facility (e.g., facility maintenance records) to determine the eligibility of damage claimed.[10] 

Here, the Applicant’s post-disaster photographs show damages such as dislodged headwalls, silt accumulation, dislodged portions of check dams, broken pipes, and slope erosion that appear to be the result of fast-moving waters. On second appeal, the Applicant submits additional documentation showing it regularly maintained the stormwater drainage system. The Applicant also submits specific maintenance work orders for work too difficult or extensive for their regular maintenance crew, which shows they removed fallen trees and repaired storm drain covers near slopes/ravines.[11] The Applicant provided job descriptions indicating that park maintenance supervisors provide schedules of maintenance, lead supervising maintenance crews and maintenance crew members who maintain the parks’ buildings and facilities under supervision. In addition, the Applicant’s certified professional engineer provides explanations clarifying why the damage to the stormwater drainage system was a direct result of the declared incident, as opposed to age-related deterioration or lack of maintenance. Thus, the totality of the Applicant’s documentation, including blueprints, maintenance records, and clarifications from the Applicant’s licensed professional engineer, verifies the stormwater drainage system’s predisaster condition and shows that the work to repair and restore the damaged structures was required as a result of damage caused by the declared incident as opposed to age-related deterioration or deferred maintenance.

Conclusion

The Applicant has shown that the eroded slopes are eligible facilities and integral ground to the stormwater drainage system, which was damaged as a direct result of the declared incident. Therefore, the appeal is granted in the amount of $1,774,948.99.