Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4586
Applicant	Washington County
Appeal Type	Second
PA ID#	477-99477-00
PW ID#	GMP 549672, 549674, 549676
Date Signed	2023-05-12T16:00:00

Summary Paragraph

Washington County (Applicant) claimed disaster related damages to repair multiple roads (Facility) within its jurisdiction. FEMA created Grants Manager Project 549672, 549674, and 549676 to document the damages. FEMA conducted site inspections, which noted damages to the surfaces of the Facility. Also, FEMA, the Texas Division of Emergency Management, and the Applicant participated in a follow-up call. FEMA’s meeting notes reflect that the Facility was not properly constructed, and it was overdue for a new layer of chip and seal. FEMA issued a Determination Memorandum for each GMP and concluded that the Applicant did not provide sufficient documentation to demonstrate that the damages occurred as a direct result of the disaster. The Applicant appealed claiming it maintained the County roads on a yearly basis and submitted reports of the amount spent on the rehabilitation and maintenance of the Facility. FEMA sent a Request for Information (RFI) to the Applicant and the Recipient requesting documentation demonstrating the Facility’s predisaster conditions. Further, FEMA requested the Applicant to specify the road site where maintenance was performed. The Applicant responded to each RFI by providing a link to a map of the Facility and a predisaster road condition assessment. FEMA’s Region 6 Regional Administrator denied the appeals finding that the Applicant did not demonstrate that the damages to the roads were a direct result of the disaster. The Applicant submits a second appeal for each GMP reiterating first appeal arguments s. Additionally, the Applicant claims that it is inconceivable to expect it provided images of all its roads on a yearly basis.

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(A).
• 44 C.F.R. § 206.223(a)(1).
• PAPPG, at 51-52, 169-170.

Headnotes

• An item of work must be required as a result of the incident to be eligible for Public Assistance funding. It is the Applicant’s responsibility to demonstrate that the damage is the direct result of the incident.
  • Here, the Applicant has not substantiated through documentation that its damages are the direct result of the declared incident.

Conclusion

The Applicant has not demonstrated that the work to repair the roads was required as a result of the disaster and, therefore, it is not eligible for PA funding. Therefore, the appeal is denied.

Appeal Letter

Appeal Analysis

Background

From February 11 through 21, 2021, severe winter storms caused damage throughout the State of Texas. Washington County claimed the winter storm caused damages to the surface of multiple asphalt roads (collectively referred to as “Facilities”) within its jurisdiction. The Applicant requested Public Assistance (PA) for force account labor and contract cost associated with the repair of the Facilities. FEMA prepared Grants Manager Projects (GMPs) 549672, 549674, and 549676 to capture the project costs in the amounts of $8,370,991.62.[1] In support of its claim, the Applicant uploaded into FEMA’s Grants Portal two spreadsheets with information regarding the maintenance of its roads and a cost estimate for the repairs.

FEMA conducted site inspections of the Facilities. The site inspection reports (SIRs), which noted the Facilities were built before 1970, identified the location and damage dimensions for each of the roads and classified the damages as surface course unraveling. The SIRs also included photographs of the Facilities showing potholes and fatigue cracking. On February 11, 2022, a FEMA Professional Engineer (PE) and a representative from the Texas Division of Emergency Management (Recipient) and the Applicant participated in a telephone meeting regarding the Facilities’ damages and hazard mitigation opportunities.[2] FEMA’s meeting notes specified that the photographs of the Facilities showed potholes and fatigue cracking; Facilities appeared to need maintenance; the grass shoulders were causing water to pond, weakening the road base and causing more damage to the Facilities; and that the edges of the chip and seal surface and some base material adhered to it had broken off in many places because of wear and tear from traffic.[3] Finally, FEMA stated that all the observations from the roads related to maintenance items, not hazard mitigation opportunities, and that properly constructed and maintained roads would be less likely to be damaged by any type of moisture.[4]

FEMA issued Determination Memoranda (DMs) in June 2022 for each project denying all costs. FEMA concluded that the Applicant did not provide documentation to demonstrate that the damages occurred as a direct result of the disaster. Specifically, FEMA stated that the Applicant did not provide routine maintenance records or documentation demonstrating the predisaster condition of the Facilities.

First Appeal

In letters dated August 19, 2022, the Applicant submitted three appeals for GMPs 549672, 549674, and 549676 claiming it maintained its roads on a yearly basis. In support of its claim, the Applicant submitted a spreadsheet listing the amount spent on paving, rehabilitation, and maintenance of the roads, including adjacent culverts and road base, from 2014 to 2021. Additionally, the Applicant submitted tables identified as maintenance records from 2019-2021 for the majority of the roads in these appeals. The maintenance records included, among other information, the name of the road, work requested, the type of the work performed, if the work was performed, the dates of the situation was generated, and the dates the work was completed. The type of work was identified as “reactive maintenance.” Examples of the work recorded in the maintenance record included potholes and the cleaning of culverts. Finally, the Applicant submitted a link with predisaster images of the Facilities. On September 1, 2022, the Recipient transmitted the appeals with its support.

On October 3, 2022, FEMA sent Requests for Information (RFIs) to the Applicant and the Recipient for each project requesting documentation that demonstrates the predisaster condition of the Facilities. Further, in each RFI, FEMA requested the Applicant specify the road sites where maintenance was performed. On October 28, 2022, the Applicant responded to the RFIs by providing a link to a map of the Facilities. The link showed predisaster satellite imaging of the Facilities. Also, it showed post-disaster pictures of damages, including the latitude and longitude of each sites’ claimed damage, the road name, and the date of each photograph. Additionally, the Applicant provided a spreadsheet of a road condition assessment that it stated was conducted in 2019.[5] The assessment classified the road condition on a scale of one to five, one being poor and five being excellent. For almost all the roads on appeal, they were classified as three or below and state that the cause of degradation was normal traffic and weather-related wear.

Between November and December 2022, the FEMA Region 6 Regional Administrator denied the first appeals for all projects.[6] In each case, FEMA found that the Applicant did not demonstrate that the damages to the Facilities were a direct result of the disaster. Specifically, FEMA stated that the road work orders submitted did not show the exact location of the work performed, and the road expenditure reports were too general to determine what maintenance was performed at which road sites. Finally, FEMA stated that the SIRs documented damages at the Facilities but did not demonstrate that damages were disaster-related.

Second Appeal

In letters dated February 9, 2023, the Applicant submitted three second appeals for GMPs 549672, 549674, and 549676 reiterating its first appeal arguments. Additionally, the Applicant states that it is inconceivable to expect images of all the roads in the county on a yearly basis and that the cost of it would be enormous. In letters dated March 1, 2023, the Recipient transmitted the Applicant’s appeals with its support.

 

Discussion

FEMA provides PA funding to eligible applicants for the repair, restoration, or replacement of public facilities damaged or destroyed by disasters.[7] To be eligible, an item of work must be required as a result of the declared incident.[8] FEMA does not provide PA funding for the repair of damage caused by deterioration or deferred maintenance.[9] The incident may cause damage to roads similar to that which may occur over time, and distinguishing between preexisting damage and damage caused by the incident is often difficult.[10] For the repair of this type of damage to be eligible, the Applicant must demonstrate that the damage was directly caused by the incident.[11] When evaluating the eligibility of reported road damage, FEMA reviews maintenance records or documentation establishing that the Applicant has a routine maintenance program.[12] In the absence of maintenance records, FEMA reviews material purchase invoices and activity logs and inspects other sections of the Applicant’s road system to confirm the performance of regular maintenance activities.[13] Work to repair potholes or fatigue cracking is usually ineligible as this type of damage is rarely caused directly by one incident.[14]

Here, FEMA conducted site inspections of the Facilities and photographed the damages. The SIRs and the photographs showed damages included potholes and fatigue cracking, which is normally not attributed to a single incident and is not usually eligible for PA reimbursement. Also, FEMA noted in its meeting with the Applicant that the Facilities had construction shortcomings that may have damaged the road base, and that multiple edges of the Facilities were damaged due to wear and tear from traffic. These findings indicate that the damages were caused by deterioration and not by the incident. The Applicant did not provide any documentation or assessment contradicting FEMA’s PE’s observations. In fact, in its RFI response, the Applicant provided a road assessment conducted before the incident, which classified most of the Facilities as in fair or worse condition. Finally, the link to satellite images of the road conditions in 2019 are not clear enough to demonstrate the actual conditions of the roads. Therefore, the documentation the Applicant provided does not enable FEMA to distinguish any claimed disaster-related damage from the predisaster condition of the Facilities.

 

Conclusion

The Applicant has not demonstrated that the work to repair the roads was required as a result of the disaster and, therefore, it is not eligible for PA funding. Therefore, the appeal is denied.