Result of Declared Incident, Damage Caused While Performing Eligible Work

Appeal Brief

Summary Paragraph

From May 29 to May 30, 2022, straight-line winds, tornadoes, excessive rain, and floods caused damage throughout Minnesota. The City of Forada (Applicant) requested Public Assistance funding to repair five roads (Facilities), for contract engineering services, and to replace 50 street signs. FEMA conducted a site inspection, noting alligator cracking and potholes. Also, FEMA requested additional information from the Applicant about the damage caused. FEMA issued two Determination Memorandums (DMs), denying $872,121.66 for the Facilities repairs and $8,132.75 in road repair engineering costs. FEMA stated that the Applicant did not demonstrate the Facilities were regularly maintained and in good condition prior to the disaster. The Applicant appealed, asserting that it maintained the Facilities prior to the disaster and that the damage was caused by the heavy equipment used to perform debris removal. The FEMA Region 5 Regional Administrator denied the appeal, finding that the Applicant did not demonstrate that the work was required as a result of the disaster. The Applicant submits a second appeal, reiterating previous arguments and stating that saturated roadbeds combined with heavy equipment would result in damage and a shortened useful life of the roads. 

Authorities

• Stafford Act § 406(a)(1)(A).
• 44 C.F.R. §§ 206.223(a)(1).
• PAPPG, at 51-52, 63-64, 138-139, and 169-170.
• Public Assistance Guidance on Inundated and Submerged Roads, at 2, 6, and 7.
• City of Brenham, FEMA-4272-DR-TX, at 3.
• Center, Township (Monroe County), FEMA-4424-DR-OH, at 4.

Headnotes

• To be eligible, work must be required as a result of the declared incident. If an applicant damage property while performing eligible emergency work, the repair of that damage may be eligible as part of that respective emergency work project.
  • The Applicant has not demonstrated that the claimed roads damage was a result of the disaster, nor that it was caused during the performance of the debris removal operations conducted.

Conclusion

FEMA finds that the Applicant did not demonstrate the claimed damage was the direct result of the declared incident or that the Applicant damaged the Facilities during the performance of eligible emergency work. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From May 29 to May 30, 2022, straight-line winds, tornadoes, excessive rain, and floods caused damage throughout Minnesota.[1] The City of Forada (Applicant) asserted that the heavy rain flooded five asphalt roads (Facilities), and that trees, power lines, and debris covered the Facilities.[2] The Applicant stated that large equipment used on the Facilities to remove the debris caused shoulder erosion, surface depressions, alligator cracking, edge cracking, and subgrade failures. FEMA prepared Grants Manager Project (GMP) 691155 to document this damage and claimed costs of $880,254.41[3]

FEMA conducted site inspections on December 2, 2022, noting the claimed locations of damage to the Facilities. The site inspection reports (SIRs) included photographs of the Facilities, noting damage like alligator cracking, potholes, and edge damage. On January 31, 2023, FEMA sent an email requesting that the Applicant provide predisaster maintenance records, predisaster photographs, and other documents supporting the Facilities’ predisaster condition.[4] In a letter dated February 2, 2023, the Applicant responded, stating that the flooding from the disaster compromised the road base, and that heavy equipment traffic traversed the Facilities immediately after the tornado to clear the debris and rescue the residents on those streets. The Applicant stated that these factors caused the innumerable cracks and road depressions on the Facilities. 

FEMA issued a Determination Memorandum (DM) on March 3, 2023, denying $872,121.66 for the repair of the Facilities. FEMA stated that the Applicant did not demonstrate the roads were regularly maintained and in good condition prior to the disaster or that the claimed damage was caused by the declared disaster. On May 23, 2023, FEMA issued a second DM denying $8,132.75 in associated repair engineering costs. 

First Appeal

On April 28, 2023, and June 15, 2023, the Applicant appealed FEMA’s denials for repair of the Facilities and associated engineering services, respectively. The Applicant cited to its April 28, 2023 civil engineer’s assessment, which specified that the alligator cracking on the Facilities was a sign of subgrade failure, which occurs when traffic loading of the road exceeds the road’s design capacity; and noted that the failure can take place over several years, due to repeated loading, or can occur rapidly, even in a single event. Additionally, the Applicant submitted yearly maintenance budget records from 2017 to 2023, supplied paid invoices of work performed on the Facilities including, road repaving and repair of manholes, and provided a link to predisaster Google Earth photographs from 2021, showing road patching and crack sealing along Forada Beach Road, which the Applicant argued demonstrated regular maintenance. Finally, the Applicant argued that even though the Facilities were not perfect at the time of the event, the claimed damage was nonetheless the result of the heavy equipment used in post-disaster operations. The Minnesota Department of Public Safety (Recipient) transmitted the appeals to FEMA on June 27, 2023, and July 24, 2023, respectively, expressing its support.

The FEMA Region 5 Regional Administrator denied the appeals on February 23, 2024, finding that the Applicant did not demonstrate the claimed work was required as a result of the disaster. FEMA stated that the damage was consistent with normal wear and tear and that the predisaster aerial imagery showed the Facilities had similar deterioration and cracking prior to the disaster. Further, FEMA explained that the Applicant did not demonstrate the claimed damage were caused during the performance of emergency work and were not pre-existing.

Second Appeal

The Applicant submitted a second appeal in a letter dated April 22, 2024, requesting funds to restore road damage and the associated engineering services.[5] The Applicant states heavy equipment traffic that responded to debris removal needs after the storm, combined with the saturated roadbed that resulted from the flooding, caused the claimed damage. The Applicant submits a map of its haul route to the staging site, which it states required heavy equipment to use Forada Beach Road, a spreadsheet showing all 70 of the parcels affected by the tornado, photographs of the debris, photographs of the heavy equipment used to pick up the debris, and other previously provided documentation.  Additionally, the Applicant states that it has established the Facilities’ predisaster condition through the submission of its predisaster maintenance records, to distinguish pre-existing damage from disaster-caused damage. [6] Next, the Applicant states that FEMA approved $4,895.57 in repair costs for similar damage to other roads, and argues the Agency should use the same logic applied to those other roads to approve the costs currently at issue. Finally, the Applicant claims that the disaster shortened useful life of the Facilities. The Recipient transmitted to FEMA the Applicant’s second appeal in a letter dated June 11, 2024, expressing its support.

On July 29, 2024, FEMA sent a Request for Information (RFI) seeking predisaster images of the Facilities, including a link to access the Google Earth predisaster images submitted within the Applicant’s first appeal, and any additional information for FEMA’s consideration. On August 7, 2024, the Applicant replied, stating that the Google Earth link submitted with the first appeal no longer works because the imagery was updated. The Applicant submits recent Google Earth Imagery showing patching and some crack sealing and states that no additional work was performed on the Facilities since the disaster. The Applicant adds that the Google Earth Imagery was only intended to demonstrate it performed widespread crack sealing and patching on the City’s roads (i.e., that its roads were well-maintained).

Discussion

FEMA may provide Public Assistance (PA) funding to a local government for the repair of a public facility damaged by a major disaster.[7] To be eligible, work must be required as a result of the declared incident.[8] Damage that results from a cause other than the designated event, such as deterioration or deferred maintenance, is not eligible.[9] 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.[10] When necessary to validate damage, the applicant may be required to provide predisaster photographs of the impacted site or documentation supporting the predisaster condition of the facility (e.g., facility maintenance records or inspection/safety reports).[11] Where damage occurs on roads that have been inundated by flood water, FEMA may provide funding for the repair of damage caused by flood water provided that all other PA eligibility requirements are met, including the requirement to provide documentation to support claimed damage.[12] 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 if certain other conditions are met.[13] FEMA cannot provide PA funding for the projected loss of useful service life of a facility.[14]

The Applicant attributes the Facilities’ damage to a compromised road base resulting from the disaster’s flooding, and heavy equipment used for debris removal operations conducted after the disaster.However, the SIR photographs show road surface damage such as alligator cracking, potholes, and edge damage that are consistent with pre-existing damage and deterioration. Therefore, FEMA requested documentation demonstrating the Facilities’ predisaster condition to assist in distinguishing pre-existing damage and deterioration from disaster-related damage. In response, the Applicant submitted a spreadsheet of its road maintenance budget and six invoices for work performed to some of the Facilities from 2018-2021.[15] However, the road maintenance budget does not detail the specific locations where the funds were allocated. Furthermore, the paid invoices show that predisaster maintenance was performed on Kluver Addition Road and Forada Beach Road, but do not include the exact sites of the repairs to allow FEMA to determine if the prior maintenance documented in the invoices corresponds to the Facilities’ sites at issue.[16] Additionally, even though the Google Earth Imagery from 2021 showed road patching and crack sealing in some sites along Forada Beach Road, they also showed cracks in other sites along the road. 

Although the Applicant states that damage resulted from multiple causes, including flooding and debris removal operations, it has not substantiated this claim.[17] The Applicant has not demonstrated the predisaster condition of the Facilities, i.e., the documentation provided does not demonstrate specific maintenance activities for the specific sites in question. In this case, the Applicant has not distinguished pre-existing damage and deterioration from claimed disaster-related damage. Therefore, the Applicant has not demonstrated any claimed damage was caused directly by the declared incident (i.e., flooding to the Facilities). In addition, the Applicant has not produced documentation demonstrating any claimed damage was attributable to its debris removal operations. Although the Applicant claims that FEMA has approved $4,895.57 in similar damage to that at issue in this appeal, FEMA notes that the previously approved $4,895.57 pertained to repairing damaged Facilities’ signs (and associated engineering services) resulting from direct tornado-wind damage. Finally, the Applicant claims that the disaster shortened the useful life of the Facilities. However, the Facilities’ loss of useful life due to the effects of inundation on the road is ineligible for PA funding.[18]

Conclusion

The Applicant has not demonstrated the claimed damage was the direct result of the declared incident or that the Applicant damaged the Facilities during the performance of eligible emergency work. Therefore, this appeal is denied.