Improved Property/Natural Features; Immediate Threat

Appeal Brief

Appeal Letter

Appeal Analysis

Background

During the incident period of April 22 through June 15, 2022, flooding, straight-line winds, and tornadoes impacted Red Lake County, Minnesota.[1] The City of Red Lake Falls (Applicant) claimed high water levels and increased water activity scoured and undercut the embankment of the Clearwater River adjacent to Bridge Street (road), where a sewer line crosses the river. The Applicant requested $300,000.00 of Public Assistance (PA) funding to repair the embankment. The Applicant did not claim any damage to the sewer line or to the road that it stated was supported by the embankment. FEMA performed a site inspection. There were no notes in the site inspection report that indicated the structural integrity of the road was compromised by the flood event or that the embankment at issue was integral ground. On January 31, 2023, FEMA denied the request for PA funding to repair the embankment in a Determination Memorandum. FEMA found the absence of damage to the road precluded repairs to the embankment as integral ground. FEMA further found that there was insufficient supporting documentation to demonstrate the embankment was an improved natural feature.

First Appeal 

The Applicant appealed on March 10, 2023. The Applicant stated that photographs it provided with the appeal show the flood sped riverbank erosion, which it claimed threatened the structural integrity of road. The Applicant reiterated its claim that the riverbank is integral ground related to the road and that failure of the embankment will ultimately damage the sewer line. The Applicant stated the embankment needed no regular maintenance, except for perhaps mowing or clearing grass and trees, which it stated would degrade structural integrity. The Applicant emphasized that its requested funds are to repair the slope to predisaster condition. Minnesota Homeland Security and Emergency Management (Recipient) supported the appeal with its May 26, 2023 transmittal.

The FEMA Region 5 Regional Administrator denied the appeal on November 17, 2023. FEMA stated the Applicant did not demonstrate that the embankment met the conditions of an improved and maintained natural feature. FEMA explained that the Applicant did not demonstrate there was any designed or constructed improvement to the embankment’s natural characteristics. FEMA also noted that there was no indication that the Applicant maintained any such improvement on a regular schedule. Furthermore, the Applicant did not establish there were disaster-related damages to an eligible facility such as the road or to the sewer line, thus work to restore the embankment as integral ground was ineligible. Finally, FEMA found that the Applicant did not demonstrate that embankment erosion posed an immediate threat.

Second Appeal

The Applicant submitted a second appeal on December 22, 2023, reiterating its first appeal arguments. It also states that the flood deteriorated the edge of the road and is affecting the road base and provides a photograph that it claims shows the proximity of the sloughing embankment to the road and sanitary sewer main. The Applicant adds that, while it has no records of specific improvements, the embankment was excavated and reconstructed when the sewer main was installed, and the Applicant states that it maintains the reconstructed area. The Recipient’s March 11, 2024 transmittal supports the second appeal.

Discussion

Improved Property/Natural Feature

FEMA has the authority to provide assistance for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster based on predisaster design and function and in conformity with current applicable codes, specifications, and standards.^[2] A natural feature may be an eligible facility if it is improved and maintained and meets all of the following conditions: (1) the natural feature has a designed and constructed improvement to its natural characteristics, such as a terraced slope or realigned channel; (2) the constructed improvement enhances the function of the unimproved natural feature; and, (3) the applicant maintains the improvement on a regular schedule to ensure that the improvement performs as designed.^[3] Alternatively, 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.[4] It is the applicant’s responsibility to provide documentation to substantiate its claim as eligible and to clearly explain how those records support the appeal.^[5] 

Here, the administrative record does not substantiate that the embankment meets the definition of an improved and maintained natural feature. The Applicant states the embankment was excavated and reconstructed when a sewer main was installed, but it has not provided records of this activity or other improvements to the embankment. The Applicant states that it maintains the site with regular mowing and cleanup, but it also states the embankment needs no regular maintenance, and that clearing the embankment of grass and trees would degrade the structural integrity of the slope. While the Applicant has shown that there is a sewer main built into the hillside, it has not demonstrated there are improvements to the embankment itself that required maintenance on a regular schedule to ensure that the improvement performed as designed. Therefore, the embankment does not meet the criteria of being an eligible improved and maintained natural feature, so it is not an eligible facility.[6]

The Applicant alternatively claims the embankment is integral ground that supports a sewer line and a road; however, it did not initially claim and has not established any disaster damages to the road or to the sewer line and no damages were observed or reported during FEMA’s site inspection. Therefore, as the Applicant has not substantiated that an eligible facility purportedly supported by the embankment was damaged as a direct result of the disaster, the embankment is not eligible for PA funding for restoration work under FEMA policy applicable to integral ground. 

Immediate Threat

FEMA is authorized to provide PA funding for emergency work which must be done immediately to eliminate or lessen immediate threats: (1) to lives, public health, or safety; or (2) of significant additional damage to improved public or private property in a cost-effective manner.^[7] An immediate threat is a threat of additional damage or destruction from an incident that can reasonably be expected to occur within five years of the declared incident.^[8] The declared incident must have caused the immediate threat to exist.[9] FEMA considers the urgency with which the applicant proceeds with work when evaluating eligibility.[10]

The Applicant states the requested work is eligible as emergency work to eliminate or lessen an immediate threat. The Applicant asserts the scour/erosion damage to the embankment is continuing and threatens the structural integrity of the road and the sanitary sewer main, and that continued embankment deterioration could cause a catastrophic sewer leak. However, the Applicant has not provided documentation, such as a technical analysis, that supports its assertions. Therefore, the Applicant has not demonstrated that the claimed embankment damage poses an immediate threat. A long-term increased risk of erosion over time does not equate to an immediate threat.[11] Finally, the Applicant has not yet completed the requested work, two years after the disaster.[12] The lack of urgency shown by the Applicant in completing the requested work raises additional concern regarding the eligibility of the work as emergency work.[13]  

Conclusion

The Applicant has not demonstrated that the embankment is an eligible facility, or integral ground that supports an eligible facility damaged by the disaster, or that the work to restore the embankment is eligible as emergency work. Therefore, this appeal is denied.