Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4451
Applicant	Brunswick, City of,
Appeal Type	Second
PA ID#	041-09046-00
PW ID#	GMP 121985
Date Signed	2022-03-21T16:00:00

Summary Paragraph

Severe storms and flooding struck the Applicant from April 29 – July 5, 2019.  The City of Brunswick (Applicant) sought $20,000.00 in Public Assistance funding to remove silt and mud from drainage ditches and to replace a broken storm sewer pipe.  FEMA found the facility and work were ineligible as the Applicant did not demonstrate legal responsibility for ditch maintenance or that the work was necessary as a direct result of the disaster.  The Applicant appealed, stating there was no documentation FEMA could use to verify predisaster condition but the ditches were in good working order and the flood caused the ditches to fill with sediment.  FEMA requested information to clarify claimed damages and for the Applicant to demonstrate legal responsibility for maintenance and repair, and for documentation demonstrating predisaster drainage ditch capacities.  The Applicant’s response demonstrated legal responsibility for some sites and requested that its claim for the other sites be withdrawn.  The Applicant also stated there was no documentation to demonstrate predisaster ditch capacities.  FEMA denied the appeal on November 16, 2021 because the Applicant failed to demonstrate predisaster capacities of the drainage features, that they were regularly maintained, or that claimed damages were directly attributable to the disaster.  In its January 11, 2022 second appeal, the Applicant repeats and expands on first appeal arguments, and states that documented visual inspections are reasonable and adequate to establish predisaster condition. 

Authorities and Second Appeals

• Stafford Act § 406(e).
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 19-20, 117.
• Conway Hosp., FEMA-4394-DR-SC, at 3; Town of Stillwater, FEMA-4020-DR-NY, at 5.

Headnotes

• The Stafford Act states that federal assistance is available to restore a facility based on the design of the facility as it existed immediately prior to the disaster. 44 C.F.R. § 206.223(a)(1) requires that work must be necessary as a result of a major disaster event.
• Restoring the pre-disaster carrying or storage capacity of engineered channels, debris and sediment basins, storm water detention and retention basins, and reservoirs may be eligible, but only when an applicant provides the required documentation.  Specifically, the applicant must provide documentation to establish the predisaster capacity of the facility and that the applicant maintains the facility on a regular schedule.
  • The Applicant did not demonstrate that claimed damages can be directly attributed to the disaster.

Conclusion

The Applicant did not demonstrate the work to repair the drainage ditches is a direct result of the disaster.  Therefore the second appeal is denied.

 

Appeal Letter

Appeal Analysis

Background

Severe storms and flooding struck the City of Brunswick (Applicant) from April 29 – July 5, 2019.  The Applicant requested $20,000.00 in Public Assistance (PA) funding to remove silt and mud from drainage ditches at seven locations and to replace a broken storm sewer pipe.  On October 26, 2020, FEMA issed a Determination Memorandum finding the facility and work were ineligible for PA funding as the Applicant did not demonstrate legal responsibility for ditch maintenance or that the work was required as a direct result of the disaster.  

First Appeal

The Applicant appealed on January 18, 2021.  The Applicant explained why it was responsible for maintaining the sites and, while acknowledging there was no documentation FEMA could use to verify predisaster condition, stated the ditches were in good working order prior to the disaster and the lack of maintenance records did not prove otherwise.  The Applicant provided visual inspection statements from its Mayor and Crew Chief.[1]  The Applicant stated the flood submerged the drainage ditches for months while depositing sediment and debris.  In support, the Applicant provided documentation that included video footage and photographs.  The Missouri State Emergency Management Agency’s (Grantee) March 19, 2021 transmittal recommended that FEMA sustain the denial as the Applicant did not provide, and indicated it could not provide, maintenance documentation.

FEMA requested information on June 11, 2021, asking the Applicant to clarify the claimed damages, demonstrate legal responsibility for maintenance and repair, and provide documentation demonstrating the predisaster capacities of drainage ditches.  The Applicant’s response demonstrated legal responsibility for some but not all sites and requested that its claim for the latter be withdrawn; it also stated there was no documentation to demonstrate predisaster ditch capacities. 

The FEMA Region VII Regional Administrator denied the appeal on November 16, 2021.   FEMA determined the Applicant demonstrated ownership and therefore legal responsibility for some of the sites but because it failed to demonstrate predisaster capacities of the drainage features, that they were regularly maintained, and that claimed damages were directly attributable to the disaster, the work to restore them was ineligible.

Second Appeal

In its January 11, 2022 second appeal, the Applicant reiterates and expands on first appeal arguments.  The Applicant describes itself as “at a focal point of flood disasters [FEMA-4435-DR-MO] and [FEMA-4451-DR-MO]” and notes “water stood over the affected city drainage ditches for months.”[2]  The Applicant is critical of FEMA’s reliance on documentation that is beyond the capabilities of small communities to provide, but includes receipts for maintenance expenses and written testimonies of the good working order of the ditches prior to the disaster.  The Applicant states that nearby residents would have reported malfunctioning drainage ditches, and notes documented visual inspections are reasonable and adequate to establish predisaster condition.  The Applicant also provides a stormwater study of drainage issues caused by its topography and possible solutions.  The Grantee’s February 1, 2022 transmittal states the Applicant has not provided new information to refute the denial and does not recommend approval.

 

Discussion

FEMA provides PA funding to eligible applicants for the repair, restoration, reconstruction, or replacement of eligible facilities damaged or destroyed by major disasters.[3]  To be eligible for PA funding, work must be required as a result of the disaster.[4]  FEMA does not provide funding for repair of damage caused by deterioration or deferred maintenance.[5]  It is the applicant’s responsibility to demonstrate the damage was caused directly by the declared incident, and where pre-existing damage exists, to distinguish that damage from the disaster-related damage.[6] Restoring the pre-disaster carrying or storage capacity of engineered channels, debris and sediment basins, storm water detention and retention basins, and reservoirs may be eligible, but only when an applicant provides the required documentation.[7]  Specifically, the applicant must provide documentation to establish the predisaster capacity of the facility and that the applicant maintains the facility on a regular schedule.[8]

In support of its second appeal, the Applicant provided documentation to demonstrate it maintained its ditches.  However, in a statement attesting to the good working order of the ditches prior to the disaster, the Crew Chief noted excessive time of standing water after two flood events that occurred in rapid succession.[9]  The Applicant also references the standing water from two flood disasters.  While the Applicant notes it performed visual inspections, and received no complaints regarding the condition of the ditches prior to the disaster, it has not provided documentation to establish predisaster capacity that would enable FEMA to determine that the claimed damages were caused by the declared incident.[10]  The Applicant did not provide documentation to establish the predisaster capacity and that it maintained the facility on a regular schedule.  Consequently, FEMA cannot find the work to restore the drainage ditches is eligible.

 

Conclusion

The Applicant did not demonstrate the work to repair the drainage ditches is a direct result of the disaster.  Therefore the second appeal is denied.

 

[1] Drainage Ditch Maintenance Record, City of Brunswick Crew Chief (Jan. 21, 2020).  The Crew Chief’s statement referred to “excessive time of standing water after the two flood events (DR-4435 and DR-4451)”.

[2] Letter from Mayor, Brunswick, City of, to Reg’l Adm’r, FEMA Region VII, at 2 (Jan. 11, 2022).

[3] Robert T. Stafford Disaster Relief and Emergency Assistance Act, § 406(e), 42 U.S.C. § 5172(e) (2019).

[4] Title 44 of the Code of Federal Regulations (44 C.F.R) § 206.223(a)(1) (2018).

[5] Public Assistance Program and Policy Guide, FP104-009-2, at 19-20 (Apr. 2018) [hereinafter PAPPG].

[6] Id. at 19; FEMA Second Appeal Analysis, Conway Hosp., FEMA-4394-DR-SC, at 3 (July 7, 2021).

[7] PAPPG at 117.

[8] Id.

[9] DR-4435, incident start date March 11, 2019, incident end date May 20, 2019.  DR-4451, incident start date April 29, 2019, incident end date July 5, 2019.

[10] FEMA Second Appeal Analysis, Town of Stillwater, FEMA-4020-DR-NY, at 5 (Oct. 23, 2015).