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Levee Repair
Appeal Brief
Appeal Letter
Citation: FEMA-1370-DR-MN; City of Hallock
Cross-reference: Other Federal Agency; Flood Control Work
Summary: The City of Hallock (City), requested $6,900 in federal disaster assistance to reimburse the costs of restoring erosion and cracks to a levee resulting from the declared flood disaster. FEMA prepared Project Worksheet (PW) 1686 for the removal of vegetation, stripping and packing clay, and grass seeding. PW 1686 was prepared for $0, because the facility is in the United States Army Corps of Engineers (USACE) Non-Federal Levee Program. However, the USACE program has a minimum threshold requiring that the cost of repairing the damage exceed $15,000. As USACE could not fund this project, the City submitted a first appeal to FEMA on October 22, 2001, requesting that this project be exempted from Title 44 Code of Federal Regulations section 206.226 - Assistance under other Federal agency (OFA) programs as an emergency protective measure. The Deputy State Coordinating Officer (DSCO) forwarded the appeal to FEMA on November 7, 2001, without a recommendation. On December 20, 2001, the Regional Director denied the first appeal because restoration of the levee falls under the specific authority of the USACE. He also stated that the repairs could not be considered emergency repairs because they were accomplished more than three months after the flood event, were not specifically performed to eliminate or lessen an immediate threat, and restored the facility to pre-disaster condition. The City submitted a second appeal on January 16, 2002, reiterating that the repairs were emergency repairs because the water exceeds flood stage at the levee annually. The City also explained that the delay in repairs was due to instability resulting from continued high water. The levee was unable to withstand the stress caused by heavy equipment until the high water subsided in late summer. The DSCO forwarded the second appeal to FEMA on January 28, 2002.
Issues: Do the repairs performed by the City constitute emergency protective measures? Are the repairs to the levee eligible for federal disaster assistance under FEMAs Public Assistance Grant Program?
Findings: No, this was a permanent restoration project. No, the USACE has specific authority for funding permanent restoration of the levee.
Rationale: The engineering firm that assessed the damage to the levee stated in a letter to the City dated June 1, 2001, that the levee is sound. Furthermore, the contractor that performed the work stated that the work would bring the dike back to before the flood condition. 44 CFR §206.226(a)
Appeal Brief
| Desastre | FEMA-1370-DR |
| Applicant | City of Hallock |
| Appeal Type | Second |
| PA ID# | 069-26576-00 |
| PW ID# | 1686 |
| Date Signed | 2002-10-07T04:00:00 |
Appeal Letter
October 7, 2002
Mr. Jerry Rosendahl
Director
Division of Emergency Management
Minnesota Department of Public Safety
444 Cedar Street, Suite 223
St. Paul, Minnesota 55101-6223
Re: Second Appeal: City of Hallock, PA ID 069-26576-00, Levee Repair, FEMA-1370-DR-MN, PW 1686
Dear Mr. Rosendahl:
This is in response to the Minnesota Division of Emergency Managements January 28, 2002, transmittal of the City of Hallocks (Citys) second appeal regarding the eligibility of work performed to repair a flood-damaged levee under the Federal Emergency Management Agencys (FEMAs) Public Assistance Grant Program. The City is requesting that FEMA prepare a Project Worksheet (PW) for $6,900 to reimburse the associated repair costs.
On May 9, 2001, the Governor requested a major disaster declaration as a result of severe flooding from heavy snow that fell in winter and spring. Major disaster FEMA-1370-DR-MN was declared on May 16, 2001. Following the flood event, the City discovered damage to a flood control levee and contracted with Widseth, Smith, Nolting and Associates, Inc. to assess the damage. In a June 1, 2001, letter, the contractor revealed that in one area the flooding had saturated the clay soil causing slumping of the riverside slope of the levee and in another area cracks formed along the levee surface where floodwater had eroded the toe of the slope causing slipping of the saturated surface soil. The contractor stated that while repairing the damages would be a prudent measure, the levee was structurally sound. In an August 23, 2001, bid, the contractor, Essential Landscapes, provided an itemized list of costs and explained that [t]he work to be done will bring the dike back up to the original condition before this spring flood damage. The City hired Essential Landscapes to remove vegetation, replace eroded clay and grass seed the damaged levee.
The City requested $6,900 in federal disaster assistance to reimburse the costs of restoring the damage to the levee. On September 7, 2001, FEMA prepared PW 1686 for $0, because the levee is in the United States Army Corps of Engineers (USACEs) Non-Federal Levee Program. The USACE funds the repair of levees in its program if the cost of the repairs exceeds a certain threshold. The levee sponsor is responsible for repairs that cost less than the threshold amount. Since the cost of repairs did not meet the minimum threshold, the USACE did not fund the levee restoration project. Generally, FEMA does not fund projects that other Federal agencies have specific authority to repair.
The Deputy State Coordinating Officer (DSCO) forwarded the Citys first appeal, dated October 22, 2001, to FEMA on November 7, 2001. The City requested that the project be exempted from Title 44 Code of Federal Regulations section 206.226(a), which prohibits FEMA from providing disaster assistance when another federal agency has specific authority to provide funding for the restoration of a disaster-damaged facility, because the work represented emergency repairs. On December 20, 2001, the Regional Director denied the first appeal because restoration of the levee falls under the specific authority of the USACE. He also stated that the repairs could not be considered emergency repairs as they were accomplished more than three months after the flood event, were not specifically performed to eliminate or lessen an immediate threat, and ultimately restored the facility to pre-disaster condition.
On January 28, 2002, the DSCO forwarded to FEMA the Citys second appeal letter dated January 16, 2002. In the appeal letter, the City reiterated that the work was an emergency protective measure that lessened an immediate threat because the water exceeds flood stage at the levee annually. The City noted that an annual event is consistent with FEMAs interpretation of an immediate threat as the threat of additional damage due to an event that is likely to occur within five years. The City also explained that the delay in repairs was due to instability resulting from continued high water throughout the spring and summer of 2001, during which the levee was unable to withstand the stress caused by heavy equipment until the high water subsided in late summer.
After reviewing all submitted documentation, I have determined that the repairs performed on the levee did not constitute an emergency protective measure; rather, the work was performed to restore the facility to its pre-disaster condition. Pursuant to 44 CFR §206.226(a), FEMA is unable to reimburse the cost of repair because the USACE PL 84-99 Rehabilitation and Inspection Program has the specific authority for funding restoration of this levee. Therefore, I am denying the appeal.
Please inform the applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.
Sincerely,
/S/
John R. DAraujo, Jr.
Assistant Director
Response and Recovery Directorate
cc: Edward G. Buikema
Regional Director
FEMA Region V
Mr. Jerry Rosendahl
Director
Division of Emergency Management
Minnesota Department of Public Safety
444 Cedar Street, Suite 223
St. Paul, Minnesota 55101-6223
Re: Second Appeal: City of Hallock, PA ID 069-26576-00, Levee Repair, FEMA-1370-DR-MN, PW 1686
Dear Mr. Rosendahl:
This is in response to the Minnesota Division of Emergency Managements January 28, 2002, transmittal of the City of Hallocks (Citys) second appeal regarding the eligibility of work performed to repair a flood-damaged levee under the Federal Emergency Management Agencys (FEMAs) Public Assistance Grant Program. The City is requesting that FEMA prepare a Project Worksheet (PW) for $6,900 to reimburse the associated repair costs.
On May 9, 2001, the Governor requested a major disaster declaration as a result of severe flooding from heavy snow that fell in winter and spring. Major disaster FEMA-1370-DR-MN was declared on May 16, 2001. Following the flood event, the City discovered damage to a flood control levee and contracted with Widseth, Smith, Nolting and Associates, Inc. to assess the damage. In a June 1, 2001, letter, the contractor revealed that in one area the flooding had saturated the clay soil causing slumping of the riverside slope of the levee and in another area cracks formed along the levee surface where floodwater had eroded the toe of the slope causing slipping of the saturated surface soil. The contractor stated that while repairing the damages would be a prudent measure, the levee was structurally sound. In an August 23, 2001, bid, the contractor, Essential Landscapes, provided an itemized list of costs and explained that [t]he work to be done will bring the dike back up to the original condition before this spring flood damage. The City hired Essential Landscapes to remove vegetation, replace eroded clay and grass seed the damaged levee.
The City requested $6,900 in federal disaster assistance to reimburse the costs of restoring the damage to the levee. On September 7, 2001, FEMA prepared PW 1686 for $0, because the levee is in the United States Army Corps of Engineers (USACEs) Non-Federal Levee Program. The USACE funds the repair of levees in its program if the cost of the repairs exceeds a certain threshold. The levee sponsor is responsible for repairs that cost less than the threshold amount. Since the cost of repairs did not meet the minimum threshold, the USACE did not fund the levee restoration project. Generally, FEMA does not fund projects that other Federal agencies have specific authority to repair.
The Deputy State Coordinating Officer (DSCO) forwarded the Citys first appeal, dated October 22, 2001, to FEMA on November 7, 2001. The City requested that the project be exempted from Title 44 Code of Federal Regulations section 206.226(a), which prohibits FEMA from providing disaster assistance when another federal agency has specific authority to provide funding for the restoration of a disaster-damaged facility, because the work represented emergency repairs. On December 20, 2001, the Regional Director denied the first appeal because restoration of the levee falls under the specific authority of the USACE. He also stated that the repairs could not be considered emergency repairs as they were accomplished more than three months after the flood event, were not specifically performed to eliminate or lessen an immediate threat, and ultimately restored the facility to pre-disaster condition.
On January 28, 2002, the DSCO forwarded to FEMA the Citys second appeal letter dated January 16, 2002. In the appeal letter, the City reiterated that the work was an emergency protective measure that lessened an immediate threat because the water exceeds flood stage at the levee annually. The City noted that an annual event is consistent with FEMAs interpretation of an immediate threat as the threat of additional damage due to an event that is likely to occur within five years. The City also explained that the delay in repairs was due to instability resulting from continued high water throughout the spring and summer of 2001, during which the levee was unable to withstand the stress caused by heavy equipment until the high water subsided in late summer.
After reviewing all submitted documentation, I have determined that the repairs performed on the levee did not constitute an emergency protective measure; rather, the work was performed to restore the facility to its pre-disaster condition. Pursuant to 44 CFR §206.226(a), FEMA is unable to reimburse the cost of repair because the USACE PL 84-99 Rehabilitation and Inspection Program has the specific authority for funding restoration of this levee. Therefore, I am denying the appeal.
Please inform the applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.
Sincerely,
/S/
John R. DAraujo, Jr.
Assistant Director
Response and Recovery Directorate
cc: Edward G. Buikema
Regional Director
FEMA Region V