Drainage Channel Repair

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1054-DR
ApplicantConsolidated Drainage District #1
Appeal TypeSecond
PA ID#133-91011
PW ID#27541,25998,05685,20466
Date Signed1998-09-24T04:00:00
Citation: FEMA-1054-DR-MO; Consolidated Drainage District #1

Cross Reference: Debris removal; channel restoration; disaster-related debris

Summary: As a result of heavy rains and flooding in May/June of 1995, flood-waters from the Mississippi River flowed into the Wilkerson Ditch within Consolidated Drainage District #1. DSR 27541 was prepared by the inspection team ($204,000) for removal and disposal of 145,211 cubic yards (CY) of soil debris. In review, it was determined that much of the debris was in the ditch prior to the disaster. DSR 27541 was approved for removal and disposal of 16,662 CY of debris ($20,778). A re-inspection was conducted on October 1995 at the subgrantee's request, at which time it was noted that 1992 survey records show that the ditch was at design grade (no debris was present). A survey following DR-1054 indicates that the channel bottom had three feet of sediment over an 80-foot width. DSR 25998 was approved to increase total funding to $202,786 for removal of 117,333 CY of sediment, removal of 97,778 CY of damaged slopes, and reseeding damaged slopes. During project closeout (January 1997), DSR 05685 was approved to reduce the prior funding by $56,101 because slope repairs only occurred on one side of the ditch, the costs included mowing (maintenance work), and there were costs for excessive rock hauling and placement. Based on the findings of a May 1997 re-inspection, DSR 20466 made several adjustments. The costs to repair one slope were reinstated ($42,727) and a portion of the costs for rock and rock hauling were deducted ($16,231) for total approved funding of $173,182. In November 1997, the State transmitted the first appeal of the request to refund $23,005 and indicated that it saw "no valid reason to overturn FEMA's determination." In December 1997, FEMA denied the appeal, stating that rock placement and hauling and mowing are not eligible because they are improvements or maintenance. In March 1998, the State forwarded the second appeal based on the funds being spent within the approved scope, mowing should be eligible because it was recommended by a State inspector, and rock placement was needed to facilitate the repair as observed by a FEMA representative. The State indicates that it can find no reason to overturn the prior findings.

Issues:
  1. Is the mowing work eligible?
  2. Is the placement of culverts and rock eligible?
Findings:
  1. No. Mowing is maintenance work and is not eligible as restoration or emergency work.
  2. No. Neither the State nor FEMA were consulted with on use of a "cost saving method" and no documentation supports that costs were reduced by the placement.
Rationale:
  1. 44 CFR 206.226.
  2. 44 CFR 206.202 (d).

Appeal Letter

September 24, 1998

Mr. David A. Williams
Alternate Governor's Authorized Representative
Emergency Management Agency
State of Missouri
P.O. Box 116
Jefferson City, Missouri 65102

Dear Mr. Williams:

This letter is in response to your March 31, 1998, submittal of the Consolidated Drainage District No. 1 of Missouri County's second appeal of Damage Survey Reports (DSRs) 05685 and 05686 under FEMA-1054-DR-MO. The subgrantee is appealing FEMA's determination that mowing of the ditch side slopes and placement of culverts and rock to facilitate traversing the ditch with equipment are not eligible for public assistance funding.

I have determined that the Regional Director was correct in the response to the first appeal in upholding the ineligibility of the work. The documentation does not reflect that either the State Emergency Management Agency or FEMA were notified about the placement of culverts and rock, that these actions were intended to be a cost-saving method for moving the drag-line, or that any cost-savings were realized. Mowing is a maintenance activity, and not eligible for funding. Therefore, the appeal is denied.

Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.

Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

Enclosure

cc: John A. Miller
Regional Director
FEMA Region VII

Appeal Analysis

BACKGROUND
As a result of heavy rains, hail, tornadoes, and flooding in May and June of 1995, flood-waters from the Mississippi River flowed into the Wilkerson Ditch within Consolidated Drainage District #1 in Mississippi County. Wilkerson Ditch is part of the flood-way of the Mississippi River. Damage Survey Report (DSR) 27541 was prepared in the amount of $204,000 for removal and disposal of 145,211 cubic yards (CY) of debris from a 26,400-foot long ditch. However, in the review of DSR 27541, it was determined that much of the debris had been present prior to the disaster. DSR 27541 was approved for removal and disposal of 16,662 CY of debris ($20,778).

A re-inspection was conducted on October 1995 at the subgrantee's request. The inspection team noted that survey records from 1992 showed that the ditch was at design grade (no debris was present). The subgrantee stated that only minor sedimentation occurred as a result of flooding in 1993. Sedimentation in Wilkerson Ditch during DR-1054 occurred from scouring of fast-flowing back waters, slope failure due to the rapid receding of the flood-water, and deposition of topsoil from fields. Supplemental DSR 25998 was approved in the amount of $182,008 (for total funding of $202,786) for removal of 117,333 CY of sediment and 97,778 CY of damaged side slopes.

During project closeout (January, 1997), DSR 05685 was approved to reduce the prior funding by $56,101 for the following reasons: (1) slope repairs only occurred on one side of the ditch, (2) mowing (maintenance work) had been included, and (3) rock hauling and placement (not previously present) had been included. The site was re-inspected at the request of the subgrantee in May 1997. Based on the findings of the re-inspection, the costs to repair one slope were reinstated ($42,727) and a portion of the costs for rock hauling and placement were deducted ($16,231) in supplemental DSR 20466, for total approved funding of $173,182.

First Appeal
In November 1997, the State of Missouri's Emergency Management Agency (State), transmitted the subgrantee's first appeal of the State's request to refund $23,005 based on the funds being spent on the project. In forwarding the appeal, the State indicated that it "sees no valid reason to overturn FEMA's determination to disallow those cost items already cited as ineligible." The State acknowledges that placement of rock is an improvement which is not eligible for funding. In December 1997, FEMA denied the appeal, stating that rock, rock hauling, and mowing are not eligible because they are improvements.

Second Appeal
On March 31, 1998, the State forwarded the subgrantee's second appeal requesting that FEMA restore the total eligible funds, stating that the funds were directly related to the scope of work shown on approved DSR 27541, mowing should be eligible because it was recommended by a State inspector, and rock placement was needed to facilitate the repair as observed by a FEMA representative.

The subgrantee requests that actual costs ($200,319) be made eligible. However, the State indicates that there is no reason to overturn the prior determination, adding that they are unaware of any dialog between the subgrantee and the State or FEMA regarding deviations to the approved scope of work.

DISCUSSION
Mowing
The subgrantee states that the mowing took place at the "suggestion and direction" of State inspectors "to facilitate inspection and repair." However, the State indicates that the record does not document that either SEMA or FEMA inspectors instructed the subgrantee to mow ditches.

The mowing of ditches is maintenance rather than restoration work. Only emergency and restoration work is eligible under the public assistance program. Further, other than the claims made in the subgrantee's second appeal letter, no documents have been presented to support that a SEMA or FEMA inspector directed mowing. Therefore, mowing is not eligible.

Rock Placement
The subgrantee states that the transportation and placement of rock in the ditch was necessary to avoid the greater costs of dismantling drag-line equipment, loading it, and transporting it several miles to cross a bridge to get to the other side of the ditch. Instead, the subgrantee placed culverts and rock at crossing locations to permit the drag-line to move across the ditch. However, the State indicates that it is unaware of any dialog between the State and the subgrantee in which the subgrantee indicated that it was planning to add to the approved scope of work in order to affect cost savings. The State concludes that there is no valid reason to overturn FEMA's determination.

The subgrantee has not documented the increased costs that would have been incurred by transporting the drag-line equipment, rather than placing culverts and rock in the ditch to facilitate moving the drag-line from one side of the ditch to the other. Further, the subgrantee did not discuss how this method would reduce the cost of the operation with the State or FEMA inspectors. Therefore, the cost incurred to place culverts and rock to traverse the ditch is not eligible.

CONCLUSION
Mowing is not eligible because it was not in the approved scope of work and its suggested inclusion in the scope of work is not documented. Further, no documentation supports that placement of culverts and rock was discussed with State or FEMA inspectors or that its cost would have been less than the alternative method for moving the drag-line. Therefore, the cost of placement of the culverts and rock is not eligible and the appeal is denied
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