Immediate Threat

Appeal Brief

Summary Paragraph

The Applicant is appealing FEMA’s determination in Project Worksheet (PW) 3094 that bank armoring, sediment reworking, and associated construction mobilization and engineering costs were ineligible for PA funding as emergency protective measures.  Heavy rains from Tropical Storm Irene (“Irene”) deposited large quantities of debris and sediment along the Roaring Branch of the Walloomsac River causing flooding, bank erosion, redirected flow, and compromised channel capacity.  The Applicant requested about $3.5 million for debris removal, bank armoring, and sediment reworking as emergency protective measures.  FEMA determined that sediment reworking and bank armoring were ineligible for funding as emergency protective measures because the work exceeded that which was necessary to lessen or eliminate immediate threats.  On first appeal, the Applicant contended that bank armoring and sediment reworking were essential to reduce immediate threats.  The FEMA Region I Regional Administrator found that bank armoring and sediment reworking were ineligible for funding both as emergency protective measures and as permanent work.  On second appeal, the Applicant maintains that sediment reworking and bank armoring were performed to reduce immediate threats.  FEMA subsequently requested that the Applicant provide additional support that the damage was directly caused by the declared disaster, given the occurrence of subsequent Tropical Storm Lee shortly after Irene, the work performed reduced immediate threats, including characterization of the 5-year flood event on Roaring Branch, and predisaster design and maintenance records for the armored banks.  The Applicant provided documents stating that (1) the damage was directly related to Irene and distinguished the work from that previously identified in a river corridor plan, (2) the work lessened immediate threats to nearby property from a 5-year flood event and Lee was only a 4.6-year flood event, and (3) prior bank armoring was not engineered.  On April 3, 2015, the Applicant presented the information at Headquarters. 

Authorities Discussed

• Stafford Act § 403(a)(3)(I); § 403(c)(6)(B).

• 44 CFR § 206.201(b).

• 44 CFR § 206.221(c).

• 44 CFR § 206.225(a)(3).

• Public Assistance Guide, FEMA 322, at 66; 71 (June 2007).

Headnotes

• Stafford Act § 403(a)(3)(I) permits FEMAto provide essential assistance to reduce immediate threats to life, property, and public health and safety.

• 44 C.F.R. § 206.201(b) defines emergency work as work done immediately following a disaster to save lives and protect improved property, public health, and safety.

• To be eligible, emergency protective measures must eliminate or lessen immediate threats to lives, public health or safety, or threats of significant additional damage to improved public or private property through cost effective measures. 44 C.F.R. § 206.225(a)(3), 44 C.F.R. § 206.221(c) and the PA Guide define an immediate threat as the threat of additional damage from an event which can reasonably be expected to occur within five years.

  • Rather than carrying out the approved scope of work to remove debris necessary to eliminate the immediate threat, the Applicant permanently engineered an unimproved river channel to address longstanding issues associated with being located in an alluvial fan.

Appeal Letter

Appeal Analysis

Background

Between August 27 and September 2, 2011, heavy rains from Tropical Storm Irene (“Irene”) deposited large quantities of debris and sediment along the Roaring Branch of the Walloomsac River in the Town of Bennington (Applicant), causing flooding.  The flood waters deposited woody debris, cobbles, and boulders, which eroded banks, redirected flow, and compromised channel capacity.  The Applicant commenced debris removal.  Thereafter, between September 7 and 11, 2011, Tropical Storm Lee (“Lee”), which, according to the Applicant’s expert, was a 4.6-year flood event, occurred.[1]  Subsequently, the Applicant completed debris removal operations and initiated bank armoring, channel realignment, and floodplain shaping, and requested $3,454,212.96 in Public Assistance (PA) funding for this work.  FEMA initially determined that the Natural Resources Conservation Service was responsible for funding the work.  Upon additional review, FEMA determined that elements of the work performed fell under FEMA’s PA program and informed the Applicant that its eligibility determination would be based on the degree to which the work completed addressed an immediate threat, in accordance with 44 CFR 206.225(a)(3). 

FEMA prepared Project Worksheet (PW) 3094, documenting damage caused by Irene.  Specifically, mounds of sediment and woody debris jams increased flood levels, causing significant bank and floodplain erosion.  As a result, some houses were damaged while others were washed away.[2] 

December 10, 2012 Request for Information (RFI)

The information available to FEMA at the time the PW was prepared indicated that the Irene flood was “largely contained within the portions of [the] river corridor addressed by this PW,”[3] bringing into question the Applicant’s assertion that the work performed was required to alleviate an immediate threat.  As a result, on December 10, 2012, FEMA sent an RFI to the Vermont Division of Emergency Management and Homeland Security (Grantee) requesting scope of work documentation to support the Applicant’s position that the work performed was required to alleviate an immediate threat from a 5-year flood event. 

The Applicant responded with a memorandum dated January 4, 2013, with technical documentation attached.  The memorandum stated that the town is located on an alluvial fan and that Irene caused massive sediment deposits, bank erosion, avulsions, and an immediate threat of significant damage to improved property from a 5-year flood event.[4]  Per the memorandum, the Applicant stated that it removed about 50 percent of the total sediment deposits to restore the river’s pre-flood capacity.  The Applicant chose to address the remaining sediment through sediment reworking, stating that it was a more cost-effective alternative to debris removal.  The Applicant also armored banks along the 1.3 mile stretch where it asserted immediate threats to adjacent improved property existed, in accordance with an engineer’s post-Irene assessment.  Over 90 percent of the armoring was performed to replace previous armoring.[5]  The memorandum stated that the engineers’ post-flood assessments reflected that Irene activated sediment upstream that would cause sediment deposits downstream for several years.  The Applicant claimed that all of the work performed, including sediment removal, bank armoring, and sediment reworking, was necessary to preserve nearby improved property worth approximately $93 million.[6]

February 5, 2013 RFI

Recognizing that the documents submitted were insufficient to demonstrate PA eligibility for reimbursement for all of the work performed, FEMA requested additional explanation of the type of immediate threats posed after Irene through a second RFI dated February 5, 2013.  The Applicant responded on February 15, 2013, providing no new documentation and reiterating the information provided in the January 4, 2013 memorandum.  The Applicant stated that FEMA was requesting information already contained in the PW and the memorandum.

FEMA reviewed the RFI responses as well as the original PW, site conditions, and hydrology study, and found that the Applicant “removed 304,600 cubic yards of sediment material from the river corridor, regraded/reshaped on the order of 43 acres of floodplain, armored 1.3 miles of banks at the edges of the river corridor, constructed a 2300-foot long berm, and removed standing forest from upwards of 14 acres of floodplain.”[7]  FEMA concluded that none of the work was eligible as permanent work because the portion of the Roaring Branch was not a facility for purposes of PA funding since the Applicant maintained it was an unimproved natural feature.  Consequently, “construction of permanent flood control facilities and restoration of natural features by the Town did not conform to FEMA’s limited authority to fund.”[8] 

FEMA also questioned characterization of the work as emergency protective measures because “elements of the work performed appeared to constitute an implementation of a Channel Management and River Corridor Protection Plan developed by the Town in 2007, which planned to mitigate flood and erosion hazards in the river corridor for flow events far in excess of a 5-year event.”[9]  Based on this information, FEMA found that the “long-term objectives and permanency of the plan” were not consistent with the “requirement that emergency protective measures must be temporary in nature to be eligible for reimbursement under the PA program.”[10]

Determination

FEMA sent a determination letter to the Applicant on May 2, 2013, finding sediment removal work eligible but denying funding for channel excavation, bank armoring, floodplain shaping, and channel realignment.  This work was found ineligible because it exceeded that which was necessary to lessen or eliminate immediate threats to life, public health, safety, or improved public or private property.[11] 

Regarding sediment removal, Irene deposited approximately 550,000 cubic yards (CY) of sediment.[12]  A quantity of 304,600CY of sediment—55 percent of the total deposits—was selected as the amount necessary to achieve the channel’s pre-flood safety levels.[13]  The Applicant subsequently removed 278,480CY—12,630CY of which fell under the Federal Highway Administration’s purview as it was removed near and around bridges.[14]  The Federal Coordinating Officer (FCO) determined that removal of the remaining 265,850CY was the necessary work required to accommodate a 5-year flood event, resulting in a channel measuring 2.7 miles long with a cross-sectional area of 500 square feet. 

The FCO then applied FEMA’s Cost Code for channel debris excavation and haul to estimate a unit cost of $5/CY.[15]  PW 3094 obligated $1,330,797.03,[16] using $5/CY as an estimated reasonable cost for sediment removal.  The following table illustrates sediment volumes and the amount initially awarded for sediment removal:

Following this determination, on May 8, 2013, the Applicant sent a memorandum to the Grantee disputing the cost basis for sediment removal and requesting actual costs.  The Applicant alleged that FEMA should have obligated actual costs of $2,068,918.00 for sediment removal plus mobilization, engineering, and administrative costs.[17]  The Applicant also requested $198,000.00 for reworking sediment that remained in the channel, for a total requested amount of $2,298,952.00.

On October 16, 2013, the Applicant sent an additional letter to the Grantee requesting reimbursement for actual costs for sediment removal.  The Applicant reiterated its May 8, 2013 assertion that FEMA should have applied actual rather than estimated costs for sediment removal.  The Applicant also explained sediment reworking as the process by which sediment within the river channel is pushed and spread to level the riverbed.  According to the Applicant, sediment reworking was a cost effective alternative to sediment removal and should have been found eligible as FEMA already acknowledged that sediment in the river channel was a threat when it funded sediment removal.  The Applicant claimed that actual costs totaled $2,489,312.00.[18]  

First Appeal

The Applicant submitted its first appeal letter to the Grantee on November 24, 2013, requesting a total of $2,123,415.93,[19] consisting of the remaining actual costs for sediment removal—$1,158,515.00 and an additional $964,900.96 for bank armoring.  The Applicant averred that bank armoring and sediment reworking were essential to reduce immediate threats and had to be performed in concert to eliminate immediate threats to nearby improved property.  The Applicant also stated that sediment reworking in the channel’s upper reach for $198,000.00 was a cost effective method of improving channel conveyance without full sediment removal.  As such, the Applicant contended that sediment reworking should be reimbursed as part of the sediment removal PW.  The Grantee transmitted the first appeal to FEMA on December 2, 2013; the Grantee supported the appeal.

In accordance with agency procedures for processing PA appeals, FEMA sent a final RFI to the Applicant on March 31, 2014, explaining the likely basis for denial of the first appeal and providing the Applicant a final opportunity to supplement the record prior to issuance of the first appeal response.[20]  The final RFI indicated that the existing record did not support a finding that the work performed other than debris removal was reasonable and necessary to alleviate an immediate threat to life, public health, and safety.  In addition, the final RFI stated that the record was insufficient to show that bank armoring, channel realignment, and floodplain shaping repaired previously improved natural features.  As such, the RFI requested the Applicant submit relevant information to address those matters.

In response to the final RFI, the Applicant supplemented the record reaffirming the position that the town was situated in a high flood-risk area, that all work performed was necessary to provide the minimum amount of protection in the most cost-effective manner, and that sediment removal and bank armoring had to be performed in tandem to effectively protect the town from imminent threats.  The response did not provide documentation addressing whether the channel was an improved natural feature.

First Appeal Decision

In a first appeal decision dated July 29, 2014, the Region I Acting Regional Administrator (RA) partially granted the first appeal, reimbursing $2,111,240.51[21] in actual costs for sediment removal.   The RA upheld the denial of funding for additional channel excavation, stream bank armoring, and floodplain shaping as ineligible for funding, finding that the additional channel excavation (not the debris and sediment removal), bank armoring, floodplain shaping, and channel realignment activities performed by the Applicant do not meet FEMA’s definition of emergency protective measures under Stafford Act section 403.  The RA determined that the work performed was not temporary in nature and FEMA considers such work to be permanent.

The RA also determined that, once the channel had been cleared of the sediment, the imminent threat to the public had been adverted, requiring no further emergency protective measures.  The RA found that the additional channel excavation, bank armoring, floodplain shaping, and channel realignment activities went beyond the minimum necessary action to eliminate immediate threats as required by 44 C.F.R. § 206.63 and FEMA Recovery Policy (RP) 9523.5.

In addition, the RA found that the Applicant proffered no new information to establish that the channel, after clearance of debris, was insufficient to convey the water during a subsequent 5-year flood event.  The following chart shows the actual costs awarded on first appeal for sediment removal:

Second Appeal

In its second appeal, dated September 23, 2014, the Applicant reiterates its first appeal claim that sediment reworking and bank armoring were performed to reduce immediate threats to improved property.  The Applicant states that FEMA did not acknowledge the “dual threat of inundation and erosion” along the Roaring Branch after Irene, “requiring a two-part approach to emergency protective measures – sediment removal or pushing, and bank armoring.”[22]  The Applicant also alleges that FEMA improperly applied the criteria for emergency work by failing to base the eligibility determination and first appeal decision on fact. 

To support its contentions, the Applicant asserts that the eligibility determination disregards the previously provided factual record and lacks a rational basis, particularly a fact-based analysis of the Roaring Branch river system that flows through an alluvial fan.  The Applicant also states that Region I’s interpretation of statute and regulations unreasonably narrows eligibility criteria in contradiction to the intended meaning and purpose.  

The Applicant raised several issues for review, particularly that work by the Town of Bennington was reasonable and cost effective; that FEMA erroneously and arbitrarily determined that bank armoring and sediment reworking are ineligible work; that FEMA concluded without factual basis or law, that the Applicant’s work exceeded the threshold of preventing the immediate threat to life, health and property; and that FEMA failed to include eligible engineering and mobilization costs.

The Applicant requests the Administrator to: (1) determine the entire scope of work eligible; (2) properly apply emergency work policy and underlying regulations; (3) award actual costs for emergency work; and (4) apply actual costs to the entire PW.  The Applicant requests a total of $1,342,972.45 in additional funding.[23]

The Grantee transmitted the second appeal to FEMA Headquarters on September 29, 2014, supporting the appeal.  The Grantee requests that FEMA (1) reverse the determination not to fund the full scope of work and (2) draft a new version of PW 3094 awarding an additional $1,342,972.45.

February 4, 2015 RFI

FEMA subsequently sent an RFI to the Applicant requesting supporting documentation that (1) the damage was directly caused by Irene, (2) the work performed reduced immediate threats, including characterization of the 5-year flood event in light of subsequent Tropical Storm Lee, and (3) pre-disaster design and maintenance records for the armored banks.  The Applicant’s response stated (1) the damage was directly related to Irene and distinguished the work from that previously identified in the River Corridor Protection Plan developed by the Town in 2007 (“2007 River Protection Plan”), (2) the work lessened immediate threats to nearby property from a 5-year flood event and Lee was only a 4.6-year flood event, and (3) prior bank armoring was not engineered, consisting of various types of rocks.  On April 3, 2015, the Applicant presented the same information at a meeting with FEMA at FEMA Headquarters.

Discussion

The Stafford Act § 403(a) authorizes FEMA to provide assistance essential to meet immediate threats to life and property resulting from a major disaster, including work that “reduce[s] immediate threats to life, property, and public health and safety.”[24]  This work is categorized as emergency work, which the Stafford Act defines as work performed to clear and remove debris and wreckage and temporarily restore essential public facilities and services.[25]  Emergency work examples include several temporary measures such as temporary generators, temporary facilities for schools, activation of a State or local emergency operations center, sandbagging, and temporary dikes.[26] 

In 44 C.F.R. § 206.201(b), emergency work is defined as work which must be done immediately to save lives and to protect improved property and public health and safety, or to avert or lessen the threat of a major disaster.[27]  FEMA’s two emergency work categories are Category A - Debris Removal and Category B - Emergency Protective Measures.[28]  In comparison, permanent work, which is captured in Categories C-G, is work performed to repair, restore, and replace facilities damaged by a disaster and is addressed in separate sections of the Stafford Act.[29]  In this case, based on the Applicant’s assertion that the Roaring Branch is an unimproved natural feature and therefore not a facility for purposes of the Stafford Act, PW 3094 was drafted to provide funding for eligible Category B activities described in its scope of work.

Emergency protective measures are activities a community takes before, during, and following a disaster that are necessary to do one of the following: (1) eliminate or reduce an immediate threat to life, public health, or safety; or (2) eliminate or reduce an immediate threat of significant damage to improved public or private property through cost-effective measures.[30]  To be eligible, emergency protective measures must accomplish at least one of those two objectives.[31] 

“Immediate threat means the threat of additional damage or destruction from an event which can reasonably be expected to occur within five years.”[32]  FEMA interprets an “immediate threat” to be the threat of damage from an event that has a 20 percent chance of occurring each year (i.e., a 5-year flood event).[33]

The Applicant Failed to Demonstrate that an Immediate Threat Existed after the Debris was Removed such that Additional, Different Emergency Protective Measures were Warranted. 

FEMA interprets section 403 of the Stafford Act to authorize funding the minimal level of effort necessary to address immediate threats.  In this case, the Applicant failed to establish that an immediate threat, beyond the persistent threat created by the Town of Bennington’s location within an alluvial fan, existed after the debris was removed thereby warranting additional emergency protective measures – sediment reworking and bank armoring.  The FEMA Recovery Policy (RP) 9523.5, Debris Removal from Waterways, limits debris removal from waterways to the minimum effort required to eliminate an immediate threat to life, public health, and safety, or removal of debris immediately up or downstream of and in close proximity to improved property.  FEMA relied on RP 9523.5 to determine that the approved level of debris removal was the minimum action required to eliminate immediate threats to lives, property, and health.

The PW specifically identified 304,600 CY of debris, 55 percent of the total debris deposits,[34] as the debris needed to return the river to pre-flood level of safety.  The Applicant removed 278,480 CY of debris,[35] 265,850 CY of which was FEMA eligible.[36]  Nothing on the record supports a finding that debris removal beyond that identified in the PW was necessary to alleviate immediate threats.  Given the small difference between the debris identified in the PW and that removed, FEMA correctly found that additional work performed after the debris removal went beyond that required to reduce or eliminate immediate threats.

The Applicant does not explain why the approved scope of work—removal of 304,600 CY of debris—was inadequate to address the immediate threats.  Debris removal and sediment reworking are different types of work, even if in some ways they accomplish the same objective of increasing channel capacity.  FEMA funds Category A debris removal and Category B emergency protective measures, which require an Applicant to establish an immediate threat.[37]  FEMA does not dispute the presence of debris in the river channel.  Rather, FEMA finds no basis to conclude that the sediment left in the channel meets Category A or Category B requirements, such that sediment reworking alleviated an immediate threat. 

It is important to note that all of the work performed and decisions made with regard to assessment of immediacy of threat and the minimal actions necessary to address them were conducted prior to FEMA’s involvement with this project.  Consequently, FEMA bases this decision on the documents on record, primarily those proffered by the Applicant, as well as information presented at FEMA Headquarters by the Applicant.   

The Applicant has provided extensive documentation showing an increased risk of erosion, which, over time, could cause damage as well as detailed descriptions of the avulsion risk related to alluvial flooding.  However, based on the information provided, FEMA finds that a long term increased risk of erosion and avulsion associated with the town’s location in an alluvial fan flood plain does not equate to an immediate threat to surrounding property caused by Irene.  While FEMA recognizes that sediment in the channel increased the risk of avulsion and flooding, the lack of additional damage from Lee a few days after Irene is particularly relevant.  While Lee fell just short of reaching the level of a 5-year flood event, the absence of significant further damage from Lee,[38] coupled with the fact that the vast majority of work performed to address the immediate threat associated with Irene occurred after both storms, undercuts the assertion that the actions taken beyond the removal of sediment were necessary to address an immediate threat.

The Applicant, as the proponent of the relief sought, has the responsibility to provide the facts necessary to support eligibility.  FEMA correctly relied on the information provided by the Applicant, which was insufficient to show that, after sediment removal, an immediate threat that required sediment reworking and bank armoring existed. Based on the documentation submitted by the Applicant and the presentation provided by its expert, FEMA does not find that an immediate threat existed to warrant work beyond sediment removal. 

The Applicant asserts that its decision to study the river damage, opt to remove only half the sediment and debris, and stabilize only the high priority banks to protect lives and property was not only reasonable but cost effective.  FEMA recognizes the cost effectiveness of this approach, but the Applicant has not demonstrated that, after sediment removal, there remained an immediate threat to lives or property that required additional modifications to increase the channel’s capacity.  Again, unless the remaining sediment posed an immediate threat, its cost-effective alternative, sediment reworking, remains ineligible.

The Sediment Reworking Performed and Bank Armoring were not Emergency Work

Section 403 of the Stafford Act and 44 C.F.R. § 206.225 limit the emergency work for which an Applicant can receive reimbursement for temporary measures.  Emergency work, which reflects Category A and B work, is essential to meeting immediate threats to life and property resulting from a major disaster.  It is defined as that which is performed to temporarily restore essential public facilities and services.[39]  The Stafford Act further provides examples of emergency work performed to save lives and protect property, which include “construction of temporary bridges” and “provision of temporary facilities for schools and other essential community services.”[40]  In contrast, permanent work, which is covered in Categories C-G, is work performed to repair, restore, and replace facilities damaged by a disaster and is addressed in separate sections of the Stafford Act.[41]  In short, assuming an immediate threat existed to warrant emergency protective measures, an assessment of the minimal and temporary nature of such actions would have to be conducted to determine eligibility. 

The work performed to armor banks and rework sediment was not temporary but rather restorative and permanent, in nature.  According to supporting documents, the contracted work involved excavation of the channel to “move the main channel away from existing infrastructure,” with specific instruction for the “new channel” not to run straight. [42]  This work permanently changed the shape of the channel.  Also, the work performed on bank armoring, some of which pre-existed the event, permanently restored armoring, as stated by the Applicant.  The Applicant reengineered the Roaring Branch, creating a permanent, engineered facility where none existed.  The Applicant chose to perform permanent work to address an emergency, contrary to Stafford Act eligibility for essential assistance and the approved scope of work.   

Similarly, the Applicant charges that bank armoring is an emergency protective measure performed to reduce immediate threats.  In support of this argument, the Applicant asserts that full sediment removal was impossible on an emergency schedule; as a result, sediment reworking and sediment removal had to be performed in concert with bank armoring.  The Applicant decided to remove “only the minimum sediment” and armor only “high risk” eroded banks to reduce the risk of damage to improved property.[43]  However, the Applicant has not shown that, in restoring the channel to its pre-flood capacity, it only addressed bank armoring and sediment reworking associated with immediate threats to life and property resulting from Irene. 

Therefore, the Applicant has not adequately substantiated that bank armoring and sediment reworking were the minimal actions necessary to address immediate threats.  In addition, the work performed beyond sediment removal, which included excavation to create and shape new channels and channel realignment, amounted to permanent actions rather than emergency protective measures needed to address an immediate threat.  While FEMA does not dispute that sediment reworking and bank armoring helped reduce longstanding, persistent risk related to the town’s settlement within an alluvial fan and exacerbated by continued development, and was generally consistent with the engineering designs reflected in the town’s 2007 River Protection Plan, it does not find that those actions are eligible as emergency protective measures or emergency work under FEMA authority as they were neither the minimal action required to address the threat nor temporary in nature. 

Although some of the work performed in this instance was different from the 2007 River Protection Plan, it was clear that the work was necessary in large part because of long-standing hazards dating back decades.  The Applicant has failed to demonstrate which components of the work addressed threats from Irene rather than longstanding erosion risks.  Funding this work in its entirety would contravene the intent of the Stafford Act and FEMA’s regulations.

FEMA Included Eligible Engineering and Mobilization Costs

The Applicant seeks reimbursement for costs associated with the removal and pushing of sediment and bank armoring.  The Stafford Act authorizes the President to provide funding for work and services to save lives and protect property,[44] and to make contributions to repair, restore, or replace an eligible facility and associated expenses.[45]  Associated expenses are those expenses related to eligible work.[46]  Consequently, an applicant seeking reimbursement for associated costs must prove that the underlying work is eligible for funding.

To be eligible for funding, associated expenses must also be allowable.  The regulations provide that a grantee or subgrantee may use grant funds for allowable costs and, likewise, FEMA may reimburse those allowable costs once incurred.[47]  For subgrantees, costs of requesting, obtaining, and administering Federal disaster assistance subgrants are allowable costs.[48] 

The RA, in the first appeal decision, approved costs associated with eligible work based on invoices.  This second appeal decision finds sediment reworking and bank armoring ineligible for PA funding.  Accordingly, associated expenses for this work are ineligible. 

Conclusion

Sediment reworking and bank armoring went beyond minimal actions necessary to address an immediate threat.  Engineering and mobilization costs associated with sediment reworking and bank armoring are therefore, also ineligible.  For the foregoing reasons, the second appeal is denied.