Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4461
Applicant	Green River Special Drainage District #3
Appeal Type	Second
PA ID#	011-UTIM5-00
PW ID#	PW 802
Date Signed	2022-01-27T17:00:00

Summary Paragraph

From February 24 – July 3, 2019, severe storms and floods impacted Illinois.  The Green River Special Drainage District #3 (Applicant) requested Public Assistance to repair drainage ditch embankment sites along the Green River Ditch and Bakers Drainage Ditch (Facilities).  FEMA conducted a site inspection, documenting its findings that the Facilities showed fill and other damage in a Site Inspection Report (SIR), and issued an initial Request for Information (RFI), asking for predisaster maintenance records demonstrating that the Facilities had been routinely maintained.  The Applicant’s response provided information that did not indicate work specific to the Facilities.  FEMA issued a Determination Memorandum denying the Applicant’s request for $373,973.00 to repair the Facilities because the Applicant did not support its claim that the damages were a direct result of the declared event.  The Applicant submitted a first appeal, asserting that the Facilities were maintained on a regular basis and that the SIR validated disaster-related damages.  FEMA sent another RFI requesting information showing the Facilities’ predisaster capacity, routine maintenance, repairs, inspections, and monitoring.  The Applicant responded, explaining that it did not have the requested information.  The FEMA Region V Acting Regional Administrator denied the appeal, finding that the Applicant did not establish that the claimed damages were a direct result of the declared disaster.  The Applicant submits its second appeal reiterating its first appeal arguments and presenting letters of support from Illinois State legislators. 

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A). 
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 19, 117, and 133-35. 
• Nodaway (County), FEMA-4451-DR-MO, at 2-3; El Paso County, FEMA-4229-DR-CO, at 8; Grand Strand Water & Sewer, FEMA-4286-DR-SC, at 3.

Headnotes

• Per 44 C.F.R. § 206.223(a)(1) and the PAPPG, at 19, and 133, the applicant is responsible for showing that work is required to address damage caused by the declared incident, as it is difficult to distinguish between pre-existing damage and damage caused by the declared incident.  
• Additionally, the PAPPG, at 117, provides that work to restore engineered channels may be eligible, but only if the applicant provides documentation to establish the pre-disaster capacity of the facility, and that the applicant maintains the facility on a regular schedule.
  • The Applicant has not distinguished between pre-existing damage and damage caused by the incident, nor established the predisaster capacity of the Facilities or the performance of maintenance on a regular schedule.  Thus, the Applicant did not demonstrate that the requested work is required as the result of the declared incident.

Conclusion

The Applicant has not demonstrated that the requested work to repair the Facilities was required as a result of the declared incident.  Therefore, this appeal is denied. 

 

Appeal Letter

Appeal Analysis

Background

From February 24 – July 3, 2019, severe storms and floods impacted Illinois.  The Green River Special Drainage District #3 (Applicant) requested Public Assistance (PA) to repair 24 drainage ditch embankment sites along the Green River Ditch and Bakers Drainage Ditch (Facilities).  FEMA created Project Worksheet (PW) 802[1] to document the work and estimated costs of $373,973.00 associated with repairing the Facilities.  FEMA conducted a site inspection and documented its findings in a Site Inspection Report (SIR) that included photographs showing unclassified fill, erosion, blowouts, sloughing, and scouring.[2]  FEMA issued an initial request for information (RFI), asking for predisaster maintenance records demonstrating that the Facilities had been routinely maintained.  In response, the Applicant provided information that did not indicate work specific to the Facilities in question, but included work/materials not observed at the Facilities, work performed at other locations, and work performed after the incident period.  On October 23, 2020, FEMA denied the Applicant’s request for PA to repair the Facilities because it could not determine whether the damage to the Facilities was disaster-related and the Applicant did not support its claim that the damages were a direct result of the declared event. 

First Appeal

The Applicant submitted a first appeal, asserting that the SIR validated that the claimed damages were caused by the disaster and the Facilities were maintained on a regular basis.[3]  The Applicant also acknowledged that it did not have predisaster survey data, maintenance plans, or activity logs documenting regular maintenance.[4]  FEMA sent another RFI requesting information showing: the predisaster capacity of the Facilities; documentation establishing a routine maintenance schedule/program; and evidence of repairs, maintenance, inspections, and monitoring.  The Applicant replied that it could not provide drawings, design documentation, written or documented routine maintenance plans, nor the other information requested.[5]  The FEMA Region V Acting Regional Administrator denied the appeal on August 6, 2021, finding that the Applicant did not distinguish between pre-existing damage and damage caused by the incident, nor establish the predisaster capacity of the Facilities or the performance of maintenance on a regular schedule.  Thus, the Applicant failed to demonstrate that claimed damages to the Facilities were a direct result of the declared disaster.

Second Appeal

The Applicant submitted its second appeal in a letter dated September 24, 2021, reiterating its first appeal arguments.  The Applicant included two letters of support from Illinois State legislators.  On November 10, 2021, the Grantee transmitted the second appeal, recommending that FEMA consider all of the information presented.

 

Discussion

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.[6]  To be eligible, work must be required as the result of the declared incident.[7]  FEMA does not provide PA funding for normal maintenance or the repair of damage caused by deterioration or deferred maintenance.[8]  Because it is difficult to distinguish between pre-existing damage and damage caused by the disaster, the applicant must demonstrate that damages were directly caused by the disaster, and where pre-existing damage exists, to distinguish that damage from the disaster-related damage.[9]  If FEMA cannot substantiate through other means that the damage was caused as a direct result of the disaster, an applicant may need to provide documentation to substantiate eligibility.[10]  Additionally, for PA to restore engineered drainage channels, an applicant must provide documentation to establish both the predisaster capacity of the facility, and that the applicant maintained the facility on a regular schedule.[11]  FEMA accepts a variety of documentation to substantiate eligibility (e.g., facility maintenance records, inspection/safety reports).[12] 

The Applicant asserts that FEMA’s SIR and photographs support its claim that the Facilities were damaged during the declared incident.[13]  FEMA’s SIR and attached photographs described the condition of the Facilities as unclassified fill, erosion, blow outs, sloughing and scouring due to high velocity flood water.[14]  Notwithstanding the SIR photograph notation cited by the Applicant, FEMA found that the damages observed during site inspection were similar to that which can occur naturally over time from other causes.[15]  As such, FEMA requested documentation to establish, among other things, the predisaster capacity of the Facilities and clarification of how information previously provided pertained to the Facilities.  The Applicant responded, acknowledging that it could not provide the requested documentation. 

When FEMA was unable to distinguish potential disaster related damage from damage resulting from other causes, nor establish the predisaster capacity of the Facilities, it requested pre-disaster records to demonstrate that the embankments had been routinely maintained on a regular schedule.  Although the Applicant asserted that it maintained the Facilities on a regular basis and that they were in very good condition predisaster, it acknowledged that it did not have predisaster survey data, maintenance plans, or activity logs documenting regular maintenance, but instead had invoices and bills reflecting maintenance work “as needed.”[16]  However, although the Applicant argued that the invoices provided “proof of maintenance,”[17] it did not explain how those records support eligibility, or how the provided invoices showed work specific to the Facilities in question.  Here, the Applicant has not distinguished between pre-existing damage and damage caused by the incident; further, it has not established the predisaster capacity of the Facilities or that they were maintained on a regular schedule. 

 

Conclusion

The Applicant has not demonstrated that the requested work to repair the Facilities was required as a result of the declared incident.  Therefore, this appeal is denied.  

 

 

[1] Grants Management Project 126759.

[2] FEMA Site Inspection Report, Green River Special Drainage Dist., Work Order (WO) 56321, Damage

Inventory (DI) 358794, at 1-9 (Feb. 3, 2020); FEMA Site Inspection Photo Pages, Green River Special Drainage Dist., WO 56321, DI 358794, at 1-8 (Feb. 3, 2020).

[3] Letter from Commissioners, Green River Special Drainage District to Authorized Representative, Illinois

Emergency Management Agency (IEMA) (Nov. 20, 2020) [hereinafter Applicant First Appeal Letter].

[4] Id. at 2.

[5] Letter from Commissioners, Green River Special Drainage District D3, to FEMA (September 16, 2020).

[6] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 406(a)(1)(A), Title 42, United States Code § 5172(a)(1)(A) (2018). 

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

[8] PAPPG, at 19.

[9] Id. at 133; FEMA Second Appeal Analysis, Nodaway (County), FEMA-4451-DR-MO, at 2-3 (July 6, 2021); FEMA Second Appeal Analysis, El Paso County, FEMA-4229-DR-CO, at 8 (Apr. 4, 2019).

[10] PAPPG, at 133.

[11] Id. at 117.

[12] Id. at 134-135.

[13] Applicant First Appeal Letter, at 2, the Applicant disputes FEMA’s original ineligibility determination, arguing that SIR notation “unclassified fill, blowouts, sloughing, and scouring due to high velocity flood water in all 24 embankment sites” is inconsistent with FEMA’s finding and validates its claim that the disaster damaged the Facilities (Nov. 20, 2020).

[14] See FEMA Site Inspection Photo Pages, Green River Special Drainage Dist., WO 56321, DI 358794, at 1-8 (Feb. 3, 2020); FEMA Site Inspection Report, Green River Special Drainage Dist., Work Order (WO) 56321, Damage

Inventory (DI) 358794, at 1-9 (Feb. 3, 2020).

[15] FEMA Eligibility Determination Memorandum, Green River Special Drainage District, FEMA DR-4461-IL, Project Worksheet 802, at 3 (Oct. 22, 2020).

[16] Applicant First Appeal Letter, at 2.

[17] Id. at 2-3.