Private Nonprofit – Direct Result of Disaster

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4332
Applicant	Universal Ethician Church
Appeal Type	Second
PA ID#	471-U1EH7-00
PW ID#	PN 44958
Date Signed	2020-04-16T00:00:00

Summary Paragraph

From August 23 through September 15, 2017, high winds, heavy rains, and storm surge from Hurricane Harvey caused damage throughout Texas.  The Applicant, a Private Nonprofit, requested FEMA assistance, specifically identifying damage to its pier and the land surrounding the pier.  During a site inspection, FEMA observed the land connecting the pier to the shore was eroded, the pier was undamaged, and there was a fallen tree and debris nearby.  During review of the project, FEMA denied funding after finding the pier was used for recreational purposes and the land surrounding the pier was an unimproved natural feature.  The Applicant appealed on December 7, 2018, and requested $10,000.00 to reconnect the pier to the shore, as well as to repair the shore, which it claimed was damaged by the disaster.  FEMA issued a Request for Information to substantiate the proposed work was required as a result of damage caused by the disaster, but the Applicant did not provide any new documentation.  The FEMA Region VI Regional Administrator (RA) denied the appeal on July 18, 2019.  The RA found that the pier, including the connecting the strip of land, was not an eligible facility.  Additionally, the RA determined that the Applicant did not provide supporting documentation to show the disaster damaged the pier and shore.  The Applicant’s second appeal states the pier is “cockeyed” and maintains it is damaged by the disaster.

 

Authorities and Second Appeals

• 44 C.F.R. §§ 206.201(c), 206.223(a).
• PAPPG, at 14-15, 20, 135-136.

 

Headnotes

• Certain improved and maintained natural features may be considered a facility eligible for assistance under the Public Assistance program, but an applicant must demonstrate that the feature was maintained on a regular schedule.
  • FEMA observed overgrowth and erosion indicating a lack of maintenance along the shore and the surrounding area.  The Applicant did not demonstrate any maintenance or improvements made to the area, so this area is not part of an eligible facility.
• For permanent work, an applicant must demonstrate that damage was caused directly by the disaster. 
  • FEMA’s site inspection noted there was no damage to the pier.  Though the Applicant claimed the pier was “cockeyed” in its second appeal, FEMA has not found any documentation to support this assertion. Accordingly, the Applicant has not demonstrated the pier was damaged as a direct result of the disaster. 

 

Conclusion

The Applicant has not demonstrated the area surrounding the pier and shoreline was part of an eligible facility nor did it demonstrate that the pier was damaged; items of work to repair the pier are not required as a direct result of the disaster.  Accordingly, the second appeal is denied. 

 

Appeal Letter

Appeal Analysis

Background

                                                                                      

From August 23 through September 15, 2017, high winds, heavy rains, and storm surge from Hurricane Harvey caused damage throughout Texas.  The Universal Ethician Church (Applicant), a Private Nonprofit, requested FEMA assistance, identifying damage to its strip of land connected to its pier.  The pier is a 40-foot long by 5-foot wide wooden pier located in the Holy Trinity Wilderness Cathedral area, on 1,000 acres of vegetative land with 7 miles of shoreline on Lake Livingston.  The property includes a cemetery, deeded nature preserves, roads, paths, a boat launch, a dock, and unimproved natural features the Applicant uses as religious worship sites.  A portion of the property is governed by deeded covenants which state it is to be maintained forever in its natural and scenic condition, to protect native plants, animals, and plant communities.  The easement also states that no right of access by the general public to any portion of the protected property was conveyed. 

 

On June 26, 2018, FEMA and the Applicant met at the property to inspect the damage where the Applicant informed FEMA the pier was also slightly damaged.  FEMA noted in its Site Inspection Report that the strip of land connecting the pier to the shore was eroded, the pier was undamaged, and observed a fallen tree and debris nearby.  FEMA also observed a post designating the surrounding area as a wildlife sanctuary and botanical preserve used for meditation, fishing, bird watching, and wildlife protection. 

 

During review of the project, FEMA determined the pier was used for recreational purposes, and was ineligible for PA funding.  It also determined the land surrounding the pier was an unimproved natural feature, and likewise ineligible for funding.  In addition, the identified damage was determined by FEMA to be preexisting resulting from a lack of maintenance.  As such, FEMA issued a Determination Memorandum dated October 10, 2018, denying funding for the pier.  

 

First Appeal

 

The Applicant appealed on December 7, 2018 and requested $10,000.00 to reconnect the pier to the shore.  The Applicant stated that the disaster caused wave action, which led to the soil eroding between the pier and shoreline and undermined tree roots, which caused an adjacent pine tree to fall.  The Applicant also explained how the surrounding area was used, providing website information and photographs depicting the public use of the land surrounding the pier.  It also took issue with FEMA’s categorization that its land was unimproved.  The Applicant cited to FEMA regulations, policies, and hazard mitigation program information in support of its appeal.  The Texas Division of Emergency Management (Grantee) forwarded the appeal to FEMA on January 25, 2019.

 

The FEMA Region VI Regional Administrator (RA) denied the appeal on July 18, 2019.  The RA stated that without any documentation showing the Applicant maintained the pier and the path leading to it, FEMA could not approve funding for what it viewed as an unimproved natural feature.  Additionally, the RA found that even if one use of the pier was to arrive at church by boat, this would mean the pier was a mixed-use facility and still did not qualify as eligible.  The RA determined the pier, including the connecting strip of land, was not an eligible facility.  The RA also found it was the Applicant’s responsibility to demonstrate claimed damage is disaster-related and if preexisting damage exists, the Applicant must distinguish it from disaster-related damage.  The RA found that the Applicant: (1) did not provide supporting documentation to substantiate its argument that the disaster damaged the pier and shore, and (2) had previously conceded that during moderate winds the waves crash against the shore causing serious erosion.  The RA also noted the Site Inspection Report recorded that the pier was undamaged; though the Applicant struck through this wording and wrote “slightly damaged,” it did not specify what the damage consisted of.  Therefore, the Applicant failed to demonstrate that the claimed damage was a direct result of the disaster.

 

Second Appeal

 

In its second appeal dated August 31, 2019, the Applicant disputes FEMA’s denial of funding.  The Applicant states FEMA’s denial is “ethically bankrupt” and based on fabrications and distortions.  The Applicant claims the pier is “cockeyed” even though at first glance it may appear undamaged.  However, the Applicant states the disaster eroded the pier’s connection to the shore, compounded by a fallen tree.  The Applicant disputes the RA’s finding that the pier was a mixed-use facility or was used in any significant way for recreational purposes.  Instead, the Applicant asserts that the pier’s primary use was to allow parishioners to arrive at church from the water, and explains that its religious belief is to worship God through nature, which is not a sport or recreational activity.  The Grantee concurs in an October 17, 2019 letter.  It states that it supports the Applicant’s appeal for the facility and work eligibility but not its assertion that FEMA’s decisions are based on fraudulent, unethical, or fabricated claims.

 

Discussion

 

Facility Eligibility

 

The Stafford Act § 406 allows FEMA to provide funding for repair, restoration, reconstruction, or replacement of eligible Private Nonprofit facilities damaged or destroyed by a disaster.  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.[1]  An improved and maintained natural feature must have a designed and constructed improvement to its natural characteristics, the improvement enhances the function of the unimproved natural feature, and the applicant maintains the improvement on a regular schedule to ensure that the improvement performs as designed.  However, unimproved property, such as hillsides, forests, and natural channels banks, are not eligible.[2] 

 

The Applicant states the strip of land connecting the pier to the shore was washed out by the disaster.  The pictures taken by FEMA at the site inspection depict overgrowth along the path to the pier and noted the area surrounding the pier and strip is unimproved.  FEMA asked the Applicant to address these concerns multiple times, however, the Applicant did not provide any documentation showing that this area was improved or maintained on a regular schedule.  Accordingly, the area connecting the pier to the shore and surrounding area is not part of an eligible facility.

 

Direct Result of the Disaster

 

An eligible item of work must be required as the result of a major disaster event.[3]  For permanent work, an applicant must demonstrate that damage was caused directly by the declared incident; FEMA does not provide Public Assistance funding for repair of damage caused by deterioration or deferred maintenance.[4]  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.  FEMA accepts a variety of documentation to substantiate eligibility (e.g., facility maintenance records, inspection/safety reports).[5]  FEMA policy emphasizes the fundamental importance of describing damage in terms of the facility, features, or items requiring repair with enough detail to quantify and clearly define the dimensions of all damaged elements.[6] 

 

FEMA’s Site Inspection Report and photographs do not show any damage to the pier.  The Applicant’s annotation in the report noted that it was “slightly damaged,” but the Applicant did not provide any description or further details of the damage.  On second appeal, the Applicant claims the pier was “cockeyed.”  However, the information provided must clearly describe, and define the dimensions of, the damaged elements.  Here, beyond a one-word statement, the Applicant has not submitted any description or documentation to fully detail or quantify the damage claimed. 

 

Though the Applicant points out that it cannot provide pictures or other documentation that does not exist, FEMA cannot provide funding for repair of a facility where there is either no damage found, or the damage is not caused by the disaster but instead could be caused by deterioration or deferred maintenance.  As noted above, it is the Applicant’s responsibility to demonstrate eligibility.  Accordingly, the work to repair or reconnect the pier to the shore is not eligible for funding.

 

Conclusion

                                 

The Applicant has not demonstrated the area surrounding the pier and shoreline was part of an eligible facility nor did it demonstrate that the work to repair the pier was required as a direct result of the disaster.  Accordingly, the second appeal is denied.

 

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

[2] Public Assistance Program and Policy Guide, FP 104-009-2, at 15-16 (Apr. 1, 2017) [hereinafter PAPPG].

[3] 44 C.F.R. § 206.223(a) (2016).

[4] PAPPG, at 20.

[5] PAPPG, at 135-136.

[6] PAPPG, at 136.