Result of Declared Incident

Appeal Brief

Appeal Letter

Appeal Analysis

Background

From October 31 to November 1, 2019, severe storms, straight-line winds, and flooding caused damage throughout portions of New York. The Town of Frankfort (Applicant) identified damage to: (1) its culvert at 342 Wilson Road (Facility), which was built around 1922; and (2) an asphalt road adjacent to the culvert. The claimed damage to the Facility included soil erosion, scouring, and embankment damage. Specifically, the Applicant stated that disaster-generated floodwaters damaged 8.3 cubic yards (CYs) of the Facility’s concrete head and wing wall and 7 CYs of bedrock riprap. The Applicant also claimed damage to an asphalt road.[1] The Applicant requested Public Assistance (PA) funding to repair the Facility. FEMA prepared Grants Manager Project (GMP) 132552 to capture the claimed damage and associated costs. 

FEMA conducted a Facility site inspection on March 3, 2020 of the Applicant’s claimed damages, including undermining of the concrete head and wing wall, embankment erosion, and washout of riprap. The Applicant then provided an engineering report that documented post-disaster Facility conditions and included post-disaster photographs showing upstream erosion. The Applicant’s report recommended reconstructing the Facility to be significantly wider than its predisaster width because it no longer met New York State Department of Transportation hydraulic design criteria. FEMA requested information to complete the environmental and historic preservation review, seeking documentation of prior Facility repair, replacement, construction, and maintenance. The Applicant responded and stated that it did not have the documentation that FEMA requested.

FEMA issued a Determination Memorandum (DM) on July 28, 2022, denying $454,000.00 in claimed Facility restoration costs.[2] FEMA found it could not establish whether the claimed damages to the Facility were caused as a direct result of the disaster because the Applicant could not provide documentation supporting the Facility’s predisaster condition or showing it performed regular maintenance on the Facility.

First Appeal 

On September 13, 2022, the Applicant appealed FEMA’s determination. First, the Applicant provided a letter from its highway superintendent stating that the Applicant routinely maintained the Facility. Second, the Applicant submitted a letter from its engineer stating that the Facility was operating normally prior to the declared incident. Lastly, the Applicant asserted that because FEMA approved funding in the DM for road-related corrugated beam guide railings, and traffic control and mobilization, the Agency had therefore already found the Facility sustained disaster-related damage, which required the replacement of the Facility under applicable codes and standards.

On November 9, 2022, the New York State Division of Homeland Security and Emergency Services (Recipient) forwarded the Applicant’s appeal to FEMA with its support. In its submission, the Recipient stated that the letters from the Applicant’s personnel regarding the predisaster operation and maintenance of the Facility demonstrated that the damage was not caused by deferred maintenance. 

On March 31, 2023, the FEMA Region 2 Regional Administrator denied the first appeal, finding the Applicant had not demonstrated that the claimed repairs to the Facility were required as a result of the disaster rather than the result of pre-existing deficiencies such as deferred maintenance or deterioration.

Second Appeal

On May 23, 2023, the Applicant submitted a second appeal seeking $454,000.00 in denied costs for the replacement of the Facility. The Applicant reiterates its argument that FEMA has already found that the Facility sustained disaster-related damage based on FEMA approving repair costs for corrugated beam guide railings, basic work zone traffic control, and mobilization. It asserts therefore, the codes and standards that justify upgrading the design of the Facility apply to the type of restoration required. On June 26, 2023, the Recipient transmitted the appeal, recommending approval.

Discussion

FEMA provides PA funding to eligible applicants for the repair, restoration, reconstruction, or replacement of facilities damaged or destroyed by a major disaster on the basis of their predisaster design and function, in accordance with applicable codes and standards.[3] To be eligible for PA funding, work must be required as a result of the disaster, and the applicant must demonstrate that the damage was directly caused by the incident.[4] FEMA does not provide funding for repair of damage caused by deterioration or deferred maintenance.[5] To assist in evaluating whether claimed damage was caused by a disaster, FEMA reviews predisaster maintenance or inspection reports to verify predisaster conditions and to assess eligible disaster damage for facilities, such as culverts, that require routine maintenance to maintain their designed function.[6] An applicant must provide more than post-disaster statements or opinions to substantiate predisaster maintenance; documentation or other evidence must be submitted.[7] It is the applicant’s responsibility to provide documentation to substantiate its claim as eligible.[8] 

Here, the Applicant claims that floodwaters generated by the disaster damaged the Facility.[9] However, the Applicant has not provided documentation to establish the pre-disaster condition of the Facility. The post-disaster photographs of the Facility in the record show damages that may be associated with long-term deterioration and pre-existing damages, including: undermining and scour; a large gap between the bottom of the Facility’s concrete wall and the natural bedrock floor of the Facility as well as degradation or abrasion of the concrete at the base of the wall and bedrock interface, and the exposure of gravel and sand underneath the finished concrete surface, all of which may have resulted from repetitive water movement over a long period of time; missing/cracked mortar between the stones, missing stones, and concrete deficiencies (e.g., spalls, cracks, etc.); and hairline cracks with efflorescence[10] on the top of the Facility. In order to distinguish claimed disaster-caused damage from deterioration or pre-existing damage, FEMA requested predisaster records of the Facility’s condition. However, the Applicant has not provided predisaster documentation, such as maintenance and inspection records, that could assist FEMA in distinguishing between pre-existing damage or deterioration, and damages claimed by the Applicant as being disaster-related. Consequently, the Applicant has not substantiated the claimed damages were a direct result of the disaster rather than a result of pre-existing deficiencies.[11] 

Finally, the Applicant requests reimbursement for work to repair a section of asphalt road near the Facility that it has identified as disaster-damaged from as early as the project formulation stage. However, FEMA has never previously issued a determination related to the Applicant’s claim of damages to the road. Accordingly, the issue of eligibility as it relates to the cost and repair work associated with the claimed road damages is remanded to the Region 2 Regional Administrator for a review and determination. The Applicant will maintain all appeal rights for the eligibility determination(s) associated with the claimed damages to the relevant 22-foot-wide by 80-foot-long section of the asphalt road.

Conclusion

The Applicant has not shown that the requested work to the Facility is required as a result of the declared incident rather than from deterioration or pre-existing damage; thus, the claimed work is not eligible for PA funding. Therefore, FEMA denies this appeal as it pertains to the Facility but remands the issue of whether work and associated costs to repair the asphalt road are eligible to the Region 2 Regional Administrator for further review.