Private Nonprofit

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4332
Applicant	The Ethician Foundation
Appeal Type	Second
PA ID#	471-U7A0C-00
PW ID#	GMP 41232 & 42974
Date Signed	2020-07-02T00:00:00

Summary Paragraph

From August 23 through September 15, 2017, high winds, heavy rains, and storm surge from Hurricane Harvey caused damage throughout Texas.  The Ethician Foundation (Applicant), a Private Nonprofit (PNP), requested FEMA assistance, specifically identifying damage to its Roads inside and accessing its nature preserve and cemetery.  FEMA denied funding, stating that the Applicant had not demonstrated that the Roads were used for an eligible PNP function.  The Applicant appealed (Grants Manager Projects 42974 and 41232) on December 8, 2018, requesting $182,000.00 in total for repairs and hazard mitigation.  The Applicant stated that the Roads were used both as access to its nature preserve and as fire breaks and emergency access.  The FEMA Region VI Regional Administrator denied the appeals, finding that open natural areas and PNP facilities promoting the preservation and conservation of such areas are not eligible.  FEMA also found that the Applicant had not demonstrated that it provided emergency services to the general public.  On second appeal, the Applicant renews its requests totaling $182,000.00 for repairs and hazard mitigation of its Roads.  The Applicant reiterates that the Roads were used both as access to its nature preserve and as fire breaks and emergency access.      

 

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(B).
• 44 C.F.R. §§ 206.201(c), 206.206(a), 206.221(a), 206.221(e)(4).
• PAPPG, at 12-15, 98-99.
• Town of Owego, FEMA-4031-DR-NY, at 4.
• Hammock Dunes Owners’ Association, Inc., FEMA-4283-DR-FL, at 6.

 

Headnotes

• An eligible PNP facility is one that provides educational, utility, emergency, medical, or custodial care, including for the aged or disabled, and other essential social type services to the general public. 
  • The primary purpose of the Roads is to access the Applicant’s nature preserve and cemetery, neither of which are eligible PNP functions.  The Applicant has not submitted documentation of the Roads’ use for an eligible emergency service.

 

Conclusion

The Applicant has not demonstrated the primary purpose of the Roads is an eligible PNP service.  Accordingly, the second appeals are denied. 

 

Appeal Letter

Appeal Analysis

Background

                                                                                      

From August 23 through September 15, 2017, Hurricane Harvey struck the state of Texas.  High winds, heavy rains, and storm surge caused damage throughout the state.  The Ethician Foundation (Applicant), a Private Nonprofit (PNP), requested FEMA assistance, specifically identifying damage to its gravel roads, dirt roads and culverts (Roads).  The Roads consist of four gravel roads, five dirt roads and two culverts located on the Applicant’s property, which includes unimproved natural land serving as a wildlife preserve and a cemetery; one dirt road serves as a state-registered hiking trail.

 

The Roads were damaged by excessive rainfall, which saturated the ground and caused rutting.  The corrugated metal pipe culvert, passing under one of the dirt roads, was partially destroyed and washed away by the waters, leaving an eroded shoulder of the road.  FEMA assigned Grants Manager Project 41232 to the gravel roads and associated culvert repair and Grants Manager Project 42974 to the dirt roads and associated culvert repair work.  On May 8 and June 26-27, 2018, FEMA and the Applicant met to inspect the damage.  FEMA issued two determinations dated October 9, 2018, denying funding.  FEMA found that the Roads’ primary purpose was the promotion of conservation, and that FEMA policy prohibits Public Assistance (PA) funding for “open natural areas/features or entities that promote the preservation/conservation of such areas.”[1]

 

First Appeal

 

The Applicant appealed both projects on December 8, 2018, requesting a total of $182,000.00 in funding.[2]  The Applicant stated that the Roads are essential for public safety, serving as fire breaks and as access for the Applicant’s controlled burning.  The Texas Division of Emergency Management (Grantee) forwarded the appeals with two letters of support to FEMA on January 25, 2019.     

 

FEMA issued a Request for Information (RFI) on May 21, 2019, seeking additional information to support the appeals.  The Applicant participated in a facilitated discussion regarding the RFI with FEMA and the Grantee, but supplied no further documentation.  The Grantee’s response to the RFI identified that the Roads are used to access the wildlife preserve and serve as fire lanes and emergency access roads as well as hiking trails. 

 

The FEMA Region VI Regional Administrator denied the appeals on November 18 and 19, 2019.  FEMA determined that the Roads primarily provided access to nature preserves, and that open and natural areas and PNP facilities promoting the preservation and conservation of such areas are not eligible.  FEMA found that the Applicant does not own or operate facilities that provide emergency fire protection services.  FEMA looked to the Applicant’s bylaws, which do not identify fire protection among its missions.  FEMA acknowledged the Applicant’s prescribed burning activities, but because this was done on its own property and not as a service provided to the general public, FEMA found the Applicant did not provide an emergency service.  Finally, FEMA stated that the Applicant had not demonstrated that the mitigation request pertained to eligible PNP facilities under FEMA regulations, and was thus ineligible.

 

Second Appeal

 

In its second appeals dated January 7 and 11, 2020, the Applicant renews its requests for $182,000.00.  The Applicant states that the primary purpose of the property the Roads service is “scientific study of the life support systems on our planet and also to study the effects of climate change as well as the effects of fire on plant communities.”[3]  The Applicant claims the Roads serve as fire breaks, emergency access, and access for the scientific study of the wilderness areas.  The Grantee forwarded the second appeals with letters of support dated January 17 and 30, 2019.

 

Discussion

 

PNP Facility Eligibility

 

The Robert T. Stafford Disaster Relief and Emergency Assistance Act allows FEMA to provide funding for repair, restoration, reconstruction, or replacement of eligible PNP facilities damaged or destroyed by a disaster.[4]  The term facility is defined as any publicly or privately owned building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature.[5]  An eligible PNP facility is one that provides educational, utility, emergency, medical, or custodial care, including for the aged or disabled, and other essential social type services to the general public.[6]  Whether a PNP facility provides essential, governmental-type services is evaluated under 44 C.F.R. § 206.221(e).[7]  Research facilities are not are not included in the definition of eligible essential, governmental-type services in 44 C.F.R. § 206.221(e), nor are they among the eligible critical services or non-critical, essential social-type services provided in FEMA policy.[8]  Open natural areas/features or entities that promote the preservation/conservation of such areas are not eligible.[9]  Cemeteries are not eligible PNP facilities, nor are recreational facilities.[10]  Emergency facilities are those buildings, structures, equipment, or systems that provide emergency services, such as fire protection, ambulance, or rescue, to the general public.[11]  In addition, an applicant’s appeal of an eligibility determination must contain documented justification supporting the applicant’s position.[12]

 

The Applicant acknowledges that the Roads are situated within its nature preserves and are primarily used for access to and study of those open natural areas.[13]  This purpose is reflected in the Applicant’s bylaws, which state that it “is organized and shall be operated exclusively for scientific, charitable, and educational purposes.”[14]  However, scientific research is not an eligible PNP service.  Open natural areas and entities that promote the preservation of such areas are not eligible for PA funding.  The Roads also provide access to a cemetery and serve as a recreational hiking trail, also ineligible services.

 

The Applicant contends that the Roads have another purpose, submitting evidence of its controlled burning of its properties as fire management.  The Applicant states that the Roads are therefore eligible emergency facilities, and that the Roads are eligible as fire breaks.  Fire protection is an eligible PNP emergency service.[15]  However, the Applicant’s incorporating documents do not identify emergency services or fire protection among its missions.[16]  The Applicant’s controlled burning takes place on its own property; there is no evidence that it is a service provided to the general public.  The Applicant has not demonstrated that the Roads provide an eligible emergency service to the general public as required by policy.

 

Section 406 hazard mitigation funding must correspond to eligible disaster-caused damages.[17]  Because the Applicant has not submitted documentation of an eligible facility, it is not eligible for hazard mitigation funding.

 

Conclusion

                                 

The Applicant has not demonstrated the primary purpose of the Roads is an eligible PNP service.  Accordingly, the second appeals are denied.

 

 

[1] Letter from FEMA Policy Advisor re GMP 41232, at 3 (Oct. 11, 2018) (citing Public Assistance Program and Policy Guide, FP 104-009-2, at 13 (Apr. 26, 2018) [hereinafter PAPPG]); Letter from FEMA Policy Advisor re GMP 42974, at 3 (Oct. 11, 2018) (citing PAPPG, at 13).

[2] For Grants Manager Project 41232, the Applicant estimated $52,000.00 to repair the gravel roads and $60,000.00 for mitigation funding to harden the roads against future erosion.  For Grants Manager Project 42974, the Applicant estimated $20,000.00 to fill the rutted roads with rock, and $50,000.00 for mitigation funding to harden dirt fire lanes to mitigate against future erosion.

[3] Letter from Pres., The Ethician Foundation, at 2 (Jan. 7, 2020); Letter from Pres., The Ethician Foundation, at 2 (Jan 11, 2020).

[4] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act, as amended, § 406(a)(1)(B), 42 U.S.C. § 5172 (2016).

[5] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.201(c) (2016).

[6] PAPPG, at 15.

[7] FEMA Second Appeal Analysis, Hammock Dunes Owners’ Association, Inc., FEMA-4283-DR-FL, at 6 (May 15, 2018).

[8] Id., at 12-13, Tables 1-2.

[9] Id., at 12, Table 2.

[10] Id., at 14, Table 3.

[11] 44 C.F.R. § 206.221(e)(4).

[12] 44 C.F.R. § 206.206(a).

[13] Letter from Pres., The Ethician Foundation, at 2 (Jan. 7, 2020).

[14] Bylaws for the Ethician Foundation, Adopted April 2014, http://www.ethicianfoundation.org/, at 1 (last visited Mar. 13, 2020) [hereinafter Bylaws].

[15] 44 C.F.R. § 206.221(e)(4).

[16] Bylaws, at 1.

[17] PAPPG, at 98-99; FEMA Second Appeal Analysis, Town of Owego, FEMA-4031-DR-NY, at 3-4 (Sept. 4, 2019).