Berm Repair

       August 11, 2011
 
J. Derek Hill
Administrator
Iowa Homeland Security and Emergency Management Division
7105 NW 70th Avenue
Camp Dodge, Bldg W-4
Johnston, Iowa 50131-1824

       RE:  Second Appeal–Green Bay Levee and Drainage District, PA ID 111-UIVZ6-00, Berm Repair, FEMA-1763-DR-IA, Project Worksheet (PW) 10054

       Dear Mr. Hill:
This is in response to a letter from your office dated December 13, 2010, which transmitted the referenced second appeal on behalf of the Green Bay Levee and Drainage District (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny the funding to repair damages to a berm.  The Applicant seeks reimbursement in the amount of $259,145 for repairs to its berm and the cost to install geo-tech cloth and rip rap as hazard mitigation (HM) measure.
Background
In the early 1970s, the Applicant placed three to four feet of soil on the riverside of a primary levee in an effort to reduce flooding damage.  The Applicant planted trees on this berm.  Heavy rains and flooding from May 25 through August 13, 2008, washed out a section of the river bank berm adjacent to a primary levee.  FEMA prepared PW 10054 for repair of the berm and a HM proposal to procure rip rap and geo-tech cloth on the scoured area to prevent future loss in the amounts of $206,627 and $52,518, respectively.  On July 20, 2009, the PW was deemed ineligible because the eroded berm area is interior to the levee and is considered river bank.  Further, the Applicant could not provide proof of maintenance of the facility.
In a letter dated March 23, 2010, the Applicant submitted a first appeal stating that maintenance to the facility was accomplished by planting trees to reduce the wave action on the levee in the early 1970s.  In a letter dated April 14, 2010, the Iowa Homeland Security and Emergency Management Division (State) stated that it did not support the appeal because the Applicant was unable to provide sufficient documentation to substantiate the existence or maintenance of the facility.  
On August 16, 2010, the Regional Administrator denied the first appeal stating that pursuant to FEMA’s Response and Recovery Policy 9524.3 Rehabilitation Assistance for Levees and other Flood Control Works, dated September 11, 1996,  “Secondary levees riverward of primary levees are ineligible for repair unless they protect human life.”  A review of the site shows that the berm lies between the river and the primary levee.  Therefore, the cost to repair the berm was determined to be ineligible.   
The Applicant submitted a second appeal on October 15, 2010, which was forwarded by the State to FEMA on December 13, 2010.  In the second appeal, the Applicant claims that FEMA misunderstood its request as well as who was the responsible party for repairs.  The Applicant provided an affidavit from residents involved in planting the trees in the 1970s.  Additionally, the Applicant provided an affidavit from the pump-master that states the maintenance records were destroyed in the flood of 1993 and that he had maintained the area. The Applicant did not provide maintenance records from 1993 to present.  The State does not support the Applicant’s appeal stating the signed affidavits are not sufficient to adequately demonstrate the maintenance of the facility. 
Discussion
Response and Recovery Policy 9524.3, Policy for Rehabilitation for Levees and Other Flood Control Works states, “Secondary levees riverward of the primary levees are ineligible for repair unless they protect human life.”  The area between the berm and the primary levee is unimproved land.  There is no information to indicate any houses or businesses are located within that area, or that the berm protects human life.  Additionally, the affidavits provided by the Applicant are not sufficient to adequately demonstrate that it has maintained the facility as required.  Therefore, the facility is ineligible for Public Assistance funding.
Conclusion
I have reviewed the information submitted with the appeal and have determined that the decision is consistent with Public Assistance Program regulations and policies.  Therefore, I am denying the Applicant’s second appeal.
Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
 Sincerely,
/s/
 Deborah Ingram
Assistant Administrator
Recovery Directorate
cc:  Beth Freeman
Regional Administrator
FEMA Region VII