Second Appeal Brief

FEMA- 4031
PA ID# 043-34132-00; Town of Herkimer
PW ID# 2531; Eligibility
08/17/2015

Summary Paragraph

After severe storms and heavy rainfall from Tropical Storm Lee, the Applicant reported that high river flows in West Canada Creek damaged the East German Street Extension.  FEMA conducted a site visit and identified a 170-foot long section of the road with damage consisting of alligator cracks, stress cracks, and ground subsidence.  FEMA also noted that the adjacent retaining wall did not sustain any observable damage as the result of flooding.  Based on the field observations, FEMA found the road damage to be a result of pre-existing conditions and obligated PW 2531 for zero dollars.  In its first appeal, the Applicant claimed that the damage was a direct result of the disaster, contending that the road and the retaining wall had no history of subsidence-related damage, and requested an estimated repair cost of $140,000.  Upon review, the Regional Administrator denied the first appeal, finding that the road damage was not a direct result of the disaster. In its second appeal, the Applicant revises the funding request to a range between $500,000 and $1,000,000 and argues that all damage was a direct result of the disaster.  

Authorities and Second Appeals

• 44 C.F.R. § 206.223(a)(1).

• PA Guide, at 29-30.

Headnotes

• 44 C.F.R. § 206.223(a)(1) states that an item of work must be required as the result of the emergency or disaster to be eligible for Public Assistance.The PA Guide further provides that work must be required as a direct result of the declared major disaster or emergency.

• The damage on East German Street Extension and the adjacent retaining wall cannot be directly tied to the declared disaster.Accordingly, all the work performed to repair the damage is ineligible for Public Assistance.

• The Applicant documented that the road failure was detected at some point after the disaster, outside of the incident period.However, the Applicant did not provide any documentation demonstrating that the damage, or its underlying cause, was absent prior to the disaster, or that the damage was a direct result of the disaster.Therefore, the work required to address the damage is ineligible.