Result of Declared Incident

Appeal Brief

Summary Paragraph

Kentucky experienced severe storms, tornadoes, straight-line winds and flooding during an incident period of December 10-11, 2021, and a major disaster was declared, authorizing Public Assistance (PA) throughout several counties in Kentucky, including Hopkins (County) (Applicant). FEMA prepared Grants Manager Project (GMP) 671857 to document the requested work of ditch cleaning and reshaping due to the Applicant’s claim of damages resulting from disaster-driven debris, emergency response traffic, and debris removal operations’ equipment. FEMA issued a Determination Memorandum on December 14, 2022, finding that the Applicant did not establish the predisaster condition of the ditches, or distinguish between pre-existing damage and damage caused by the disaster event. The Applicant filed a first appeal in a letter dated February 9, 2023, arguing that the ditches had suffered damage as a result of the tornado, emergence response operations, and the use of heavy equipment in the debris removal cleanup. Kentucky Emergency Management (Recipient) forwarded the Applicant’s appeal to FEMA on February 14, 2023, with its support. The FEMA Region 4 Regional Administrator issued a first appeal decision on October 5, 2023, finding that the Applicant did not demonstrate that the damage to the ditches occurred as a result of the disaster, as opposed to pre-existing deterioration or deferred maintenance. The Applicant files a second appeal in a letter dated December 5, 2023, reiterating its first appeal arguments.

Authorities

• Stafford Act Stafford Act § 406.
• 44 C.F.R. §§ 206.206(a), 206.226, 206.223(a)(1).  
• PAPPG, at 51-52, 63-64, 138-139, 168-170.
• Pleasant Grove Township, FEMA-4287-DR-KS, at 4-5; Lake Madrone Water District, FEMA-4558-DR-CA, at 2-3; Brunswick, FEMA-4451-DR-MO, at 4.

Headnotes

• The Applicant is responsible for providing documentation to show that work is required to address damage directly caused by the declared incident. If an applicant damages property while performing eligible emergency response activities or debris removal operations, the repair of that damage may be eligible. It is an applicant’s responsibility to provide documentation to support its claim.
  • The post-disaster site inspection photographs showed evidence of pre-existing damages, deterioration, and/or deferred maintenance. The Applicant did not provide documentation supporting the predisaster condition of the ditches to distinguish pre-existing damages from damages the Applicant claimed were sustained as a result of the declared incident or emergency response/debris removal work. 

Conclusion

FEMA finds the Applicant has not demonstrated that the work to repair the ditches was required as a result of the declared incident. 

Appeal Letter

Appeal Analysis

Background

On December 10 and 11, 2021, Kentucky experienced severe storms, tornadoes, straight line winds and flooding.[1] Hopkins County (Applicant) claimed damage to four roadside drainage ditches, two located at Lucas Circle and two located at Rose Petal Lane. FEMA prepared Grants Manager Project (GMP) 671857, noting the requested work included ditch cleaning and reshaping due to the Applicant’s claim of damages resulting from disaster-driven debris, emergency response traffic, and debris removal operations’ equipment. 

FEMA conducted a site inspection on June 9, 2022. In its Site Inspection Report (SIR), FEMA’s photographs showed the presence of debris, sediment, and vegetation in the ditches. The photographs also showed cracked asphalt surface along the edge of the road leading to the ditches and an accumulation of sediment, gravel, leaves, trash, and woody debris, and overgrown vegetation within the ditches.

FEMA issued a Request for Information (RFI) on September 21, 2022, seeking maintenance records for ditch cleaning at the claimed sites or documentation demonstrating the predisaster condition of the ditches. The Applicant responded on September 22, 2022, submitting predisaster maintenance records for the roads and post-disaster photographs.

FEMA issued a Determination Memorandum on December 14, 2022, denying $49,416.64 in requested Public Assistance (PA) funding. FEMA found that the Applicant did not demonstrate the ditches were damaged as a direct result of the incident. It noted that the SIR photographs and post-disaster photographs provided by the Applicant showed sediment, debris, and overgrown vegetation in the ditches. Furthermore, FEMA found the Applicant had not established the predisaster condition of the ditches, as the most recent ditch maintenance work was done four years prior to the disaster. Aside from the above determinations, FEMA also stated that the requested work of cleaning and reshaping constituted routine maintenance work, which was not eligible for PA funding.

First Appeal 

The Applicant submitted a first appeal in a letter dated February 9, 2023, appealing FEMA’s denial of $49,416.64. The Applicant reiterated that wind-driven debris, heavy emergency response vehicles, and heavy debris hauling trucks, caused damage such as debris accumulation in the ditches. In support, the Applicant first stated that FEMA’s site inspector had documented that damage was caused by disaster debris, emergency response, and debris operations and as such, it was unreasonable to require additional documentation as FEMA’s policy acknowledged it is sometimes difficult to distinguish between pre-existing damage and that caused by a disaster. Second, the Applicant argued that its previously provided documentation demonstrated it performed predisaster routine maintenance to the roads. The Applicant noted that for Lucas Circle, it provided predisaster records of tile installation and ditching in 2015, pothole repair in 2016, ditching and tiling repair in 2017, and pothole repair in 2018. The Applicant stated that for Rose Petal Lane, it provided records of shouldering in 2017, tile repair and installation in 2018, and pothole repair in 2020. 

Third, the Applicant pointed to FEMA policy that states the Agency may inspect other sections of an applicant’s road system to verify the performance of regular predisaster road maintenance activities. Fourth, the Applicant pointed to an April 18, 2022 letter from its County Judge Executive, which stated the Applicant routinely maintained its public roads, culverts, and ditches through: (1) routine inspection by elected officials who traveled roads and report areas of concern; (2) maintenance in response to reports from citizens; (3) scheduled annual improvement; and (4) routine annual maintenance. Finally, the Applicant urged FEMA to examine the Applicant’s predisaster budget information provided on appeal, which it stated showed that for each of the three years preceding the disaster, the Applicant’s annual roads’ fund represented approximately 18 percent of the Applicant’s total budgeted appropriations per year. The Applicant cited to a prior FEMA second appeal decision,[2] stating that in that appeal, FEMA granted certain costs based in part on that applicant’s budget demonstrating it had an annualized program of routine maintenance. The Recipient forwarded the Applicant’s appeal to FEMA, with its support in a letter dated February 14, 2023. 

On October 5, 2023, the FEMA Region 4 Regional Administrator denied the appeal. FEMA found that the documentation provided did not establish the predisaster condition of the claimed ditches, and FEMA could not verify the predisater condition or distinguish between pre-existing damage and damage caused by the declared incident.

Second Appeal

The Applicant submitted a second appeal in a letter dated December 5, 2023. The Applicant reiterates first appeal arguments, and also states that FEMA should consider its status as a rural community that has been underserved in the past in making a decision. The Recipient forwards the Applicant’s appeal, with its support, in a letter dated December 6, 2023.

Discussion

FEMA has the authority to provide assistance for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster based on its pre-disaster design and function and in conformity with current applicable codes, specifications, and standards.[3] To be eligible, work must be required as a result of the declared incident.[4] The incident may cause minor damage to roads, including road components (e.g., ditches), that result in damage similar to that which may occur over time from other causes.[5] Therefore, distinguishing between pre-existing damage and damage caused by the incident is often difficult.[6] It is the applicant’s responsibility to demonstrate that claimed damage was directly caused by the declared incident, and where pre-existing damage exists, to distinguish that damage from disaster-related damage.[7] 

When necessary to validate damage, the applicant may be required to provide predisaster photographs of the impacted site or facility; and/or documentation or documentation supporting the predisaster condition of the facility (e.g., facility maintenance records, inspection/safety reports).[8] When evaluating eligibility of reported road damage, in addition to evaluating how the incident caused the damage, FEMA reviews maintenance records or documentation establishing that the applicant has a routine maintenance program.[9] In the absence of maintenance records, FEMA reviews material purchase invoices and activity logs and inspections of other sections of the applicant’s road system to confirm the performance of regular maintenance activities.[10] FEMA does not provide PA funding for the repair of damage caused by deterioration or deferred maintenance.[11] If an applicant damages property while performing eligible emergency response activities or debris removal operations, the repair of that damage may be eligible as part of that respective emergency work project.[12] It is the applicant’s responsibility to provide documentation to substantiate its claim as eligible and to clearly explain how those records support the appeal.^[13] 

Here, the Applicant claims that the ditches were damaged by the tornado, as well as by the use of heavy equipment during the response from the storm, but does not explain what damage was caused by which action. The photographs from the site inspection show some cracking on the asphalt road running along the side of the ditches, as well as silt and debris in the ditches and some vegetative growth, evidence of pre-existing damages, deterioration, and/or deferred maintenance. However, the Applicant does not provide documentation distinguishing between pre-existing conditions and potentially eligible disaster-related damages. The maintenance records provided by the Applicant do not show that any work was completed on the Applicant’s roadside ditches after 2017, and the information pre- and post-2017 does not clarify the predisaster condition of the specific ditches at issue in this appeal. Moreover, the maintenance statement provided by the County Judge Executive was general in nature and not specific to the ditches at issue or specific to the type of predisaster maintenance work performed to its road system. The Applicant claims its budget information and maintenance statement demonstrates it emphasized routine road maintenance, similar to a prior second appeal decision that FEMA partially granted. However, in that prior second appeal decision, the applicant demonstrated it allocated annually more than 80 percent of its total budget to roads and provided material invoices, which demonstrated predisaster maintenance for the specific sites approved on second appeal.^[14] In contrast, here, the documentation shows the Applicant committed an average of 18 percent of its annual budget to roads, and that the Applicant has not demonstrated specific predisaster maintenance activities occurred for the sites at issue in this appeal. 

Lastly, the Applicant points out that in the SIR, FEMA wrote that damage was due to tornado debris, emergency response, and debris operations. However, this statement was not a finding or determination by FEMA personnel. The top of the relevant page where the statement appears contains the following instruction: 

NOTE FOR SITE INSPECTOR: Please ask the Applicant representative the following questions. Although the PDMG may have already asked some of these questions, the Applicant representative at the site inspection may have additional information. Use the Additional Notes section to record any additional explanation.[15]

The first question posed to the Applicant after this instruction was to “identify the specific cause of damage.”[16] Therefore, in contrast to the Applicant’s assertion, the response entered in the SIR concerning this question does not constitute a finding or determination from FEMA’s site inspector regarding the cause of claimed damage.[17] Rather, it was FEMA’s recording of the Applicant’s explanation for the cause of the damage.

Based on the above, the Applicant has not demonstrated the claimed damages were directly caused by the declared incident and/or emergency response/debris removal operations, rather than being pre-existing damages.[18]

Conclusion

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