Improved Property/Natural Features – Landslides and Slope Stabilization – Result of Declared Incident

Appeal Brief

Appeal Letter

Appeal Analysis

Background

Flooding, landslides, and mudslides from severe storms caused extensive damages in the state of Kentucky from February 27 to March 14, 2021.[1] The Kentucky Department of Transportation (Applicant) requested Public Assistance (PA) funding to restore an embankment and to add a guardrail to the road adjacent to the embankment. The Applicant claimed flooding displaced unclassified fill from the embankment on KY 122, a two-lane asphalt road, saturating the embankment and causing it to subside. FEMA conducted a site inspection which indicated that road damage was minimal and no road damage was being claimed by the Applicant, and noted the Applicant would use rail and cribbing to restore the embankment. 

FEMA issued a request for information (RFI) in September 2021, asking the Applicant to explain the need for installation of the guardrail. The Applicant’s response stated a guardrail would be installed per state codes and standards. FEMA issued a second RFI seeking predisaster maintenance records. The Applicant responded with a summary of work orders related to road maintenance. FEMA issued a follow-up RFI, asking the Applicant to provide a description of the specific repairs that were done in response to embankment slippage evident in predisaster photographs from 2015. The Applicant’s response stated new asphalt was placed in 2016.

FEMA issued a Determination Memorandum, denying $51,470.61.[2] FEMA noted the documentation did not demonstrate that embankment damages were a direct result of the declared event and that the road’s integral ground (i.e., the embankment) was stable before the incident.

First Appeal 

The Applicant appealed on April 25, 2022, requesting $51,470.61. The Applicant stated that flooding saturated the embankment and caused it to subside. The Applicant cited its work orders, and the predisaster 2016 contract for resurfacing of the road, as evidence of routine maintenance to demonstrate the damage to the embankment was a direct result of the disaster. Kentucky Emergency Management (Recipient) transmitted the appeal on April 25, 2022, recommending approval. 

FEMA’s Region 4 Regional Administrator denied the appeal on April 27, 2023. FEMA noted the Applicant provided general maintenance records and a road resurfacing proposal but did not provide work orders or inspection reports specific to the embankment. FEMA noted predisaster 2012 images showed asphalt tension and cracking along the road shoulder indicating embankment deterioration, and stated the Applicant did not show that it inspected or repaired the embankment upon identifying settlement and potential outer roadway destabilization. FEMA noted the 2016 asphalt repaving was unrelated to embankment or slope maintenance, and completion of that work did not guarantee the underlying cause of settling or cracking was resolved. Ultimately, FEMA found that documentation did not establish the predisaster condition of the embankment and FEMA could not verify that the damage occurred as a direct result of the disaster.

Second Appeal

The Applicant’s June 23, 2023 second appeal states there is ample evidence that the embankment damage was the direct result of the disaster. The Applicant emphasizes that the slope was stable prior to the disaster and became unstable as a result of the disaster. The Applicant states historic predisaster photographs do not show pavement cracking and instead, show normal fatigue cracking that was corrected prior to this disaster, in 2016. The Applicant states that in contrast, post-disaster site inspection photographs show a pavement break with differential vertical settlement that was due to the declared incident. The Applicant states the disaster caused the embankment to move, which affected the structural integrity of the road. The Recipient transmitted the Applicant’s second appeal on July 12, 2023.

Discussion

FEMA may provide PA funding to eligible applicants for the repair, restoration, or replacement of public facilities damaged or destroyed by major disasters on the basis of their predisaster design and function, in accordance with applicable codes and standards.[3] A “public facility” includes an improved and maintained natural feature.[4] Unimproved property, such as a slope, is an ineligible facility.[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 to restore the integral ground that supports the facility.[6] 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.[7] An appeal must contain documented justification supporting the appellant’s position; it is the applicant’s responsibility to provide documentation to substantiate its claim as eligible.[8]

Here, the Applicant provides predisaster road-related maintenance records (e.g., documentation for 2016 asphalt repaving and other predisaster work orders related to its roads). However, these predisaster maintenance records do not relate to the embankment at issue, and thus, do not demonstrate that the embankment was an improved and maintained natural feature.[9] Consequently, the embankment is not an eligible facility. Furthermore, the embankment is not eligible for PA as integral ground because the Applicant has not established it supports a disaster-damaged eligible facility. Although the Applicant states on second appeal that the disaster affected the structural integrity of the road (i.e., an eligible facility) at the site, it has neither provided documentation demonstrating the road sustained disaster-related damage, nor requested PA funding for any purported road damage at the embankment site. In addition, the predisaster records submitted, which are general in nature and not specific to the embankment in question, do not assist FEMA in validating that the claimed damage was the direct result of the disaster.[10] As such, the Applicant has not demonstrated that work to repair the embankment is required as the result of the disaster.[11]

Conclusion

The Applicant has not demonstrated that the embankment is an eligible facility or integral ground that supports an eligible disaster-damaged facility, or that the requested work was required as the result of the disaster. Therefore, this appeal is denied.