Result of Declared Incident

Appeal Brief

Summary Paragraph

Hurricane Sally impacted the Florida panhandle, resulting in a major disaster declaration on September 23, 2020. Washington County (Applicant) requested Public Assistance (PA) funding to repair unpaved roads and adjoining ditches and shoulders (roadways). FEMA prepared 15 Grants Manager Projects (Projects) to capture the claimed work. FEMA conducted site inspections in March 2021, but could not determine the extent of damages attributable to the disaster. FEMA issued multiple requests for additional information to substantiate eligibility of the work. In responses, the Applicant provided damage descriptions, maps, post-disaster photographs, and predisaster maintenance cost summaries. FEMA found all requested repair work ineligible and issued Determination Memorandums for each Project, concluding it was unable to determine disaster-related damages. The Applicant appealed for full approval of the Projects, submitting additional post-disaster photographs and stating that FEMA agreed the roadways were damaged during a joint preliminary damage assessment. FEMA partially approved the appeal for $3,296,862.64, finding the Applicant substantiated eligibility of a portion of the repair work, and denied the remaining $1,938,554.19, concluding the Applicant did not demonstrate the claimed work was required as a direct result of the disaster. The Applicant submits its second appeal with additional photographs and maintenance records for some of the roadways, reiterating its first appeal claims and requesting approval of $1,938,554.19 in PA funding.

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A).
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 51-52, 63-64, 169-170.
• Escambia Cnty., FEMA-4564-DR-FL, at 3-4.

Headnotes

• To be eligible for PA funding, work must be required as a result of the declared incident. FEMA does not provide funding for repair of damage caused by deterioration or deferred maintenance. It is the applicant’s responsibility to demonstrate that claimed damage was directly caused by the incident, and where pre-existing damage exists, to distinguish that damage from the disaster-related damage.
  • The Applicant has not substantiated that the additional claimed roadway repairs are required as a direct result of the declared incident.

Conclusion

The Applicant has not shown that the additional claimed work at issue on appeal is required as a result of the declared incident. Therefore, the appeal is denied.

Appeal Letter

Appeal Analysis

Background

Hurricane Sally caused strong winds, storm surge, and flooding across the Florida panhandle, resulting in a major disaster declaration on September 23, 2020. Washington County (Applicant) issued an announcement on September 16, 2020, closing all roads to vehicular travel and reopened roads individually as they were deemed safe for travel. The Applicant requested Public Assistance (PA) funding for work to repair claimed flood damages along multiple dirt, gravel, and milled asphalt roads along with corresponding ditches and shoulders (collectively referred to as “roadways”). The Applicant requested PA funding for 4 inches of surface material repairs for the entire length and width of the claimed roadways. As part of its request, the Applicant submitted a description of its predisaster maintenance procedures as being performed on an as-needed basis and a maintenance contract cost summary report for 2019. FEMA prepared 15 Grants Manager Projects (Projects) to capture the claimed damages and reported repair costs.[1] Each Project captured a designated Road Zone, and each Road Zone contained multiple roadways of various lengths.

FEMA site inspectors conducted site inspections in March 2021, approximately 6 months after the disaster. Unable to determine the extent of damages attributable to the disaster, FEMA communicated with the Applicant throughout March and April 2021, to request additional predisaster maintenance records, invoices, and other information related to the Projects. FEMA subsequently issued Requests for Information (RFIs), seeking documentation to substantiate roadways’ pre- and post-disaster conditions and the methodology used by the Applicant to calculate the claimed disaster-related repair quantities. In its RFI responses, the Applicant provided damage descriptions, maps, post-disaster photographs, and predisaster maintenance cost summaries.

Upon review of the site inspection reports, post-disaster photographs, and predisaster maintenance documentation provided by the Applicant, FEMA concluded it was unable to determine disaster-related damages and also found the Applicant did not provide quantifiable predisaster documentation supporting the quantity of roadway material lost. Accordingly, FEMA issued Determination Memoranda for the Projects in August 2021, finding all requested roadway repair work ineligible due to the Applicant failing to establish the claimed repair work was required as a result of the disaster.[2]

First Appeal 

On September 20, 2021, the Applicant submitted its first appeal, requesting $5,235,416.83 in PA funding to complete claimed roadway repair work documented in the Projects. The Applicant stated that, during a joint preliminary damage assessment with FEMA and the Florida Division of Emergency Management (Recipient) on September 25, 2020, FEMA personnel were shown the roadways and agreed that they were damaged by the disaster. The Applicant explained that the roadways were graded to a lower depth to account for the loss of surface material as part of temporary roadway repairs and continued maintenance, so site inspectors were unable to view the damages as they existed immediately following the disaster. However, the Applicant maintained that the submitted post-disaster photographs, predisaster maintenance narratives and records, descriptions of damages, dimensions of damaged areas, and quantities of materials substantiated the eligibility of its claimed work. On November 19, 2021, the Recipient transmitted the Applicant’s appeal and recommended approval of the requested PA funding.[3]

FEMA consulted with a civil engineer to review the submitted documentation and assess whether and to what extent the Applicant had substantiated claimed disaster-related roadway repairs. FEMA’s engineer noted that the Applicant provided minimal or no photographs for most of the roadways and many photographs did not support the amount of lost surface material being claimed. FEMA’s engineer looked for visual indicators that would support a loss of 4 inches of surface material, such as exposed road base surfaces, corresponding levels of fill material in the roadside ditches or shoulders, proper road crowns and profiles indicative of maintained drainage features, the existence of predisaster swales or roadside ditches, and roadway profiles above or below the surrounding terrain due to deferred maintenance or poor drainage design. FEMA’s engineer provided recommendations for work eligibility using three categories: (1) 4 inches of material loss eligible for claimed roadways supported by post-disaster imagery and predisaster maintenance records; (2) 2 inches of material loss eligible for claimed roadways with predisaster maintenance records demonstrating regular replenishment and grading but post-disaster imagery not supporting the full amount of claimed material loss; and (3) 0 inches of material loss eligible for claimed roadways not supported by imagery, with predisaster photographs showing significant deficiencies, or with predisaster maintenance records indicating a lack of regular maintenance.

On November 3, 2022, the FEMA Region 4 Regional Administrator partially approved the appeal for $3,296,862.64 in accordance with the three recommended categories provided by the consulted engineer, concluding the Applicant had substantiated eligibility of a portion of the surface repair work claimed on appeal. However, FEMA denied the appeal for the remaining $1,938,554.19, concluding the Applicant did not demonstrate the claimed work was required as a result of the disaster.

Second Appeal

The Applicant submits its second appeal in a letter dated December 29, 2022, reiterating its first appeal claims and requesting approval of $1,938,554.19 in PA funding, representing 4 inches of material replacement at each site. In support of its claim, the Applicant: (1) provides a link with additional post-disaster photographs for most of the roadways categorized in FEMA’s first appeal decision as either partially eligible for 2 inches or ineligible with 0 inches;[4] (2) provides additional predisaster maintenance records for some of the roadways; (3) explains that heavy disaster-related flooding filled swales and ditches and impacted road profiles; and (4) notes that some of the roadways were graded prior to collecting post-disaster photographs. On March 1, 2023, the Recipient transmitted the Applicant’s second appeal to FEMA with its support of the appeal based on the reasons and documentation submitted by the Applicant.

Discussion

FEMA may provide PA funding for the repair, restoration, reconstruction, or replacement of eligible facilities damaged or destroyed by major disasters.[5] 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 directly caused by the incident.[6] FEMA does not provide funding for repair of damage caused by deterioration or deferred maintenance.[7] When necessary to validate damage, FEMA may require the applicant to provide documentation supporting the predisaster condition of the facility (e.g., facility maintenance records, inspection/safety reports).[8]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.[9] In the absence of maintenance records, FEMA reviews material purchase invoices and activity logs and inspects other sections of the applicant’s road system to confirm the performance of regular maintenance activities.[10] It is the applicant’s responsibility to demonstrate that claimed damage was directly caused by the incident, and where pre-existing damage exists, to distinguish that damage from the disaster-related damage.[11] 

The Applicant reiterates its request for 4 inches of surface material damage for all roadways on appeal and provides varying levels of documentation to support its claim for each roadway in question.[12] However, neither pre- nor post-disaster documentation provided by the Applicant demonstrate that the damages that remain at issue are a direct result of the declared incident. For example, while the Applicant provides predisaster maintenance records for correcting erosion-related grade deficiencies and ditch cleaning, it does not demonstrate it had a routine maintenance program or performed routine maintenance activities. Instead, the Applicant has previously indicated that it conducted predisaster maintenance on an as-needed basis. Although some vulnerabilities are inherent to unpaved surfaces, the Applicant has not provided documentation that distinguishes between disaster and non-disaster damages for the additional claimed repair work. The Applicant provides additional documentation on second appeal, such as post-disaster photographs for multiple Road Zones remaining at issue. However, the photographs do not fully represent the entirety of the Road Zones claimed and additionally, even for those Road Zones represented, are not clear enough to demonstrate the amount of material loss/damages at issue. Furthermore, review of publicly available predisaster photographs of the roadways in question indicates the presence of preexisting damages that are similar to those currently claimed by the Applicant as disaster-related.[13] Upon review of the documentation provided by the Applicant on second appeal, the claimed damages beyond those previously awarded by FEMA are not unusual for the roadway network in question. As such, the Applicant has not demonstrated the claimed damages were directly caused by the incident.

Conclusion

The Applicant has not shown that the additional claimed work at issue on appeal is required as a result of the declared incident. Therefore, the appeal is denied.