Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4337
Applicant	Volusia (County)
Appeal Type	Second
PA ID#	127-99127-00
PW ID#	PW 6977
Date Signed	2022-01-27T17:00:00

Summary Paragraph

In September 2017, Hurricane Irma (Irma) caused damage throughout Florida.  Volusia (County) (Applicant) requested Public Assistance (PA) to repair eroded portions of its beach access road and ramp structure (Facility) and submitted a hazard mitigation proposal to construct a bulkhead.  FEMA denied funding because its site inspection showed predisaster deterioration.  The Applicant appealed and stated it maintained the Facility prior to Irma and the hurricane’s tidal surge and flooding washed out the Facility.  The FEMA Region IV Regional Administrator denied the appeal because the Applicant did not provide documentation to establish that the damage claimed occurred as a direct result of Irma.  FEMA found the documentation showed that: 1) the Facility was previously damaged by Hurricane Matthew (Matthew); and 2) the Applicant did not demonstrate that the Facility was restored after Matthew to its pre-Matthew condition prior to Irma’s landfall.  The Applicant appealed, reiterating its first appeal arguments and submitting additional documentation including maintenance records, google earth photographs, and post Matthew repair records.

Authorities and Second Appeals

• Stafford Act § 406(a).
• 44 C.F.R. § 206.223(a).
• PAPPG, at 13, 19-20, 97, 99, 116, 133; FP-104-009-13, at 6.
• City of Brenham, FEMA-4272-DR-TX, at 4; Fla. Dep’t. of Emergency Mgmt., FEMA-4068, 4084, 1840, 1785, 4138-DR-FL, at 3; Conway Hosp., FEMA-4394-DR-SC, at 2; Perry Twp. (Monroe), FEMA-4424-DR-OH, at 2.

Headnotes

• The applicant is responsible for providing documentation to support its claim as eligible and show that work is required to address damage caused by the disaster, and where pre-existing damage exists, to distinguish that damage from the disaster-related damage.
• FEMA does not provide funding for repair of damage caused by deterioration, deferred maintenance, the applicant’s failure to protect a facility from further damage, or negligence.
  • The Applicant did not demonstrate that work to repair or replace the Facility is required as a direct result of the disaster, rather than the result of predisaster conditions or deferred repairs or maintenance.  Such work is ineligible for PA funding.

Conclusion

The Applicant did not demonstrate that work to repair or replace the Facility is required as a direct result of the disaster, rather than the result of predisaster conditions.  Therefore, this appeal is denied.

 

Appeal Letter

Appeal Analysis

Background

Hurricane Irma (Irma) made landfall in the Florida Keys on September 10, 2017 and tracked up and across Florida’s peninsula, damaging Volusia County (Applicant) with strong winds, heavy rain, and storm surge.[1]  FEMA prepared Project Worksheet (PW) 6977 to document the Applicant’s requested Public Assistance (PA) funding for eroded portions of a beach access road and ramp (Facility).  The Applicant also included a hazard mitigation proposal (HMP) for the installation of a concrete bulkhead wall at the Facility.  FEMA conducted site inspections, photographed the site, and prepared an Environmental and Historic Prevention (EHP) memorandum, a site inspection report (SIR) and a HMP SIR.  In the EHP memorandum, FEMA noted the Facility was closed following Hurricane Matthew (Matthew) in 2016 and thereafter used only for emergency beach access by the Applicant.  In the HMP SIR, the site inspector noted the Applicant stated that the existing dune system was previously washed away by Matthew and not replaced, leaving the Facility vulnerable to damage.[2] 

On September 28, 2020, FEMA issued a Determination Memorandum (DM) denying PA funding because the Applicant’s documentation did not demonstrate damage directly caused by Irma.

First Appeal

On November 16, 2020, the Applicant submitted its appeal, contending the damage to the Facility was a direct result of tidal surge and flooding caused by Irma, which washed out the concrete and asphalt ramp and underlying base.  The Applicant also stated that neither deterioration nor deferred maintenance caused the claimed damages because it had maintained the ramp since 1988.  To support its appeal, the Applicant provided duplicate copies of the HMP and the SIR with photographs.  On January 8, 2021, the Florida Department of Emergency Management (Grantee) forwarded the first appeal to FEMA with its supporting letter.  

FEMA issued a request for information (RFI) seeking detailed documentation demonstrating the pre- and post-Irma condition of the Facility.[3]  The Applicant responded, advising that: 1) the Facility is prone to inundation during storm surge events and excessive rainfall; 2) during Irma, extensive storm surge undermined and damaged the existing asphalt ramp and concrete sidewalk; and 3) the HMP (i.e., bulkhead installation) will eliminate future storm surge impacts.  The Applicant also attached documentation, including satellite imagery, maintenance log reports, and a Damage Description and Dimensions (DDD) report. Thereafter, FEMA issued a second RFI seeking an explanation and photographs of the work completed as a result of Matthew.  The Applicant responded, providing copies of PW 902[4] and stating that after Matthew, it applied crushed concrete and new asphalt to the Facility in January 2017, but lacked photographs of these repairs, and that it performed routine maintenance in February 2017. 

On August 23, 2021, the FEMA Region IV Regional Administrator denied the appeal because the Applicant did not provide documentation to establish that the damage claimed occurred as a direct result of Irma.  FEMA found the documentation showed that the Facility was previously damaged by Matthew and the Applicant did not demonstrate that it restored the Facility to its pre-Matthew condition prior to Irma’s landfall.  FEMA stated that the SIR photographs showed distress throughout the Facility’s structure, indicating predisaster deterioration and that satellite imagery post-Matthew, from November 18, 2016 and March 20, 2017, and post-Irma, from March 7, 2018, appeared to reflect deferred Facility maintenance (e.g., alligator cracking and old patching).  FEMA also found the SIR photographs of Matthew related damage were nearly identical to the SIR photographs taken of the site following Irma.

Second Appeal

On September 10, 2021, the Applicant submitted its second appeal, reiterating its first appeal arguments, describing routine maintenance, inspection, and repair activities, and providing additional documentation.[5]  The additional documentation includes Google Earth photographs from June 2017 of the Facility, and an engineer’s construction drawings and photographs regarding work to restore the Facility.  On October 29, 2021, the Grantee transmitted the Applicant’s second appeal to FEMA with its concurrence.

 

Discussion

FEMA provides PA funding to eligible applicants for the repair, restoration, reconstruction, or replacement of facilities damaged or destroyed by disasters.[6]  To be eligible for PA funding, an item of work must be required as a result of the declared incident.[7]  The applicant is responsible for providing documentation to support its claim as eligible, show that work is required to address damage caused by the disaster, and where pre-existing damage exists, distinguish that damage from disaster-related damage.[8]  When evaluating eligibility of reported road damage, FEMA may review invoices and maintenance records to establish that the applicant has a routine maintenance program.[9]  Such documentation may help to establish the predisaster condition of a facility and demonstrate that the damage was directly caused by the incident.[10]   FEMA does not provide funding for repair of damage caused by deterioration, deferred maintenance, the applicant’s failure to protect a facility from further damage, or negligence.[11]  Work to repair potholes or fatigue cracking is generally ineligible as this type of damage is rarely caused by one incident.[12]  

The documentation shows the Facility was in a deteriorated condition prior to Irma; it exhibited broken up asphalt and a sunken ramp, and was closed, except for emergency vehicle access.    The satellite imagery photograph taken in March 2017 shows other pre-Irma Facility damage or deterioration.  Moreover, the SIR photographs show alligator cracking and deterioration of the Facility existed both pre-Matthew and prior to Irma.  Other than the PW 902 and associated invoices establishing asphalt patch work to a section of the access road to repair post-Matthew damages, there are no photographs, work orders, invoices or other records documenting the Facility repairs or restoration of the ramp or sidewalk prior to Matthew or Irma.  Similarly, the Applicant’s maintenance logs do not provide information related to the pre- or post-Irma condition of the Facility, otherwise describe the predisaster condition, or support the Applicant’s assertions in its second appeal regarding the nature of any maintenance or repair work performed on the Facility prior to Irma.[13]  Without additional documentation to show the pre-Irma condition and nature of maintenance or repair work performed, the Applicant has not demonstrated that the claimed damage to the Facility was a direct result of the disaster (Irma) and not a result of deterioration, fatigue cracking, or deferred repairs or maintenance.  Therefore, the claimed damages are not eligible for PA funding.[14]

 

Conclusion

The Applicant did not demonstrate that work to repair or restore the Facility is required as a direct result of the disaster, rather than the result of predisaster conditions.  Therefore, this appeal is denied.

 

[1] The President issued a major disaster declaration (FEMA-4337-DR-FL) on September 10, 2017, with an incident period extending from September 4 to October 18, 2017.

[2] Hurricane Matthew’s incident period extended from September 28-October 10, 2016, impacting Volusia County on October 6, 2017.

[3] Letter from Recovery Div. Dir., FEMA Region IV, to Dir., Fla. Dep’t of Emergency Mgmt. (FDEM), and Chief Fin. Officer (CFO), Volusia Cnty. (May 5, 2021) requesting: 1) date-stamped, unobstructed photographs and/or inspection reports detailing the road and ramp’s conditions immediately prior to the disaster, with a note that this documentation should clearly demonstrate that the pavement was intact and that the facilities were not significantly deteriorated immediately prior to the disaster; 2) predisaster work orders and/or maintenance records for the road and ramp including dimensions, repair materials, and type of work performed; 3) the correlating dimensions of road and ramp damage caused by the disaster; and 4) a detailed description of disaster-related damage beyond normal wear and tear from coastal weather.

[4] Project Worksheet 902, Volusia (County), Version 0 (May 17, 2018).  The site sheet notes that the FEMA inspector found storm surge damaged 60 percent of the access road and ramp and washed away a 100-foot sidewalk.  Repairs totaled $4,789.54 including material costs of $852.41 for asphalt, emulsion and crushed concrete stone; labor costs of $1,672.45; equipment costs of $2,2265.08 for trucks and flatbeds, and 10 hours of time for use of each item of equipment and labor provided by each worker

[5] Letter from CFO, Volusia County, to Dir., FDEM, at 1 (Sept. 10, 2021).  The Applicant asserts that “[d]uring routine maintenance, [its contractor] inspects and repairs the areas to include, ‘edging, litter pickup, sign maintenance, walkover inspection for loose nails/screws, shoveling and scraping sand, minor vegetation removal, repairing potholes, graffiti identification, and subsequent correction action(s).’ Larger repairs would be made by either Road & Bridge or a contractor.” 

[6] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 406(a)(1)(A), Title 42, United States Code § 5172(a)(1)(A) (2012).

[7] Title 44, Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1) (2016): Public Assistance Program and Policy Guide, FP-104-009-2, at 19 (Apr. 1, 2018) [hereinafter PAPPG].

[8] PAPPG, at 19, 116, 133; FEMA Second Appeal Analysis, Conway Hosp., FEMA-4394-DR-SC, at 3 (Jul.7, 2021).

[9] Id. at 116.

[10] FEMA Second Appeal Analysis, Perry Twp. (Monroe), FEMA-4424-DR-OH, at 2 (Nov. 10, 2021).

[11] PAPPG, at 19-20.

[12] Id. at 116.

[13] Although the Applicant lists in its second appeal letter various maintenance work to the Facility completed before Irma, FEMA’s second-level appeal review did not verify the Applicant completed the specific predisaster work referenced.

[14] Because Stafford Act section 406 hazard mitigation funding is only available for facilities that are damaged by the disaster and not for pre-existing damage, and in light of the preceding analysis, the proposed bulkhead and drainage work is not eligible for hazard mitigation funding.  See PAPPG, at 97, 99.