Temporary repairs and protection of levee

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1054-DR
ApplicantMissouri Bottoms Levee District
Appeal TypeSecond
PA ID#189-91017
PW ID#34253
Date Signed1996-10-28T05:00:00
Citation: FEMA-1054-DR-MO; Missouri Bottoms Levee District; DSR 34253

Cross-Reference: Levee Policy, Emergency Protective Measure, Permanent Work

Summary: The Missouri Bottoms Levee District took measures to repair and protect the Missouri Bottoms levee from damages caused by severe storms and flooding in May 1995. The measures included: 1) placing temporary rock fill in a washed-out roadway to make the levee continuous; 2) placing 1,750 tons of 1-inch minus rock on the crest of the levee over approximately 1,200 feet to prevent overtopping, and 3) plugging highway culverts with steel plates and sandbags to block flood waters. These measure were performed over a period of four days. The Region disallowed $13,467 of the costs associated with raising the levee on the basis that the applicant chose to retain the rock material as part of the permanent levee structure.

Issues: Was the effort to raise the height of the levee an eligible emergency protective measure?

Findings: Yes.

Rationale: The work appears to have directly addressed the identified immediate threat in that: 1) the fill was placed over a relatively small section of the levee; and 2) the time frame corresponds to the actual river crest data.

Appeal Letter

October 28, 1996

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

Dear Mr. Williams:

This letter is in response to your June 14, 1996, submittal of the Missouri Bottoms Levee District's second appeal of Damage Survey Report (DSR) 34253 under FEMA-1054-DR-MO. This DSR, prepared for emergency protective measures performed by the District in response to flooding, denied certain costs associated with increasing the height of the Missouri Bottoms levee.

As explained in the enclosed appeal analysis, I have approved the appeal. Briefly, the work appears to have directly addressed the identified immediate threat in that: 1) the fill was placed over a relatively small section of the levee; and 2) the time frame corresponds to the actual river crest data.

In reference to FEMA's policy regarding raising the height of a levee as an emergency protective measure, FEMA does not prohibit such actions if they meet the criteria of 44 CFR 206.225, Emergency Work. Whether this action is performed by placing sandbags or fill, the immediate threat and the work necessary to cope with the threat must be identified and evaluated. Whether the material is removed or retained would be subject to an evaluation of the existing health and safety threat posed by the material, the affect the material has on the operation of the levee and/or the necessary repairs to the levee as a public facility.

I have asked the Regional Director to proceed with the obligation of the additional funds approved by this appeal. Please inform the applicant of this determination.

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

Enclosure

Appeal Analysis

BACKGROUND
The Missouri Bottoms Levee, located in West St. Louis County near Bridgeton, is owned and maintained by the Missouri Bottoms Levee District. In May 1995, the District took measures to temporarily repair and protect the levee and surrounding areas from damages caused by severe storms and flooding. The measures, as identified by the following three sites, included:Site A - In response to a failure in a portion of the levee, the District placed temporary rock fill in the roadway to make the levee continuous.

Site B - The District placed 1,750 tons of 1-inch minus rock on the crest of the levee over approximately 1,200 feet to prevent overtopping.

Site C - The District plugged highway culverts with steel plates and sandbags to block flood waters.
Following the major disaster declaration of June 2, 1995, FEMA prepared Damage Survey Report (DSR) 27223 in the amount of $23,138 to cover the costs incurred by the District for emergency protective measures at the three sites noted above.

The materials used at Sites A and C were removed after the flood threat subsided. The rock material used on the crest of the levee (Site B) was retained and remains as a part of the permanent levee structure. Upon review of this action, FEMA Region VII determined that, due to the fact that the material would be retained, the cost of placing material to raise the height of the levee was not eligible. FEMA prepared DSR 34253 to de-obligated $13,467 to adjust for this determination.

First Appeal
The law firm of Ziercher & Hocker, P.C., on behalf of the District, submitted a first appeal to FEMA through the State of Missouri Emergency Management Agency (SEMA) on September 21, 1995. The Regional Director denied the appeal on the basis that the work performed constituted permanent work and an improvement to the existing levee, which is prohibited pursuant to the FEMA's levee policy.

Second Appeal
A second appeal was submitted by letter dated April 25, 1996, to SEMA and forwarded to the Regional Director on June 14, 1996. The second appeal contends that:
  • The placement of the rock material on the crest of the levee constitutes emergency work even if it changes the pre-disaster design of the levee.
  • The placement of the rock material was a cost-effective emergency protective measure and should be eligible.
The State acknowledges that no relevant new information has been included with the submittal of the second appeal, but recommends further review by National Office for clarification of FEMA's nationwide policy related to levee facilities.

DISCUSSION
Section 403 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, P.L. 93-288 as amended (Stafford Act), authorizes assistance for emergency work in order to meet immediate threats to life and property resulting from a major disaster. Furthermore, 44 CFR 206.225(a)(3), Emergency work, states that in order to be eligible, emergency protective measures must:
  1. eliminate or lessen an immediate threat to live (sic), public health or safety; or
  2. eliminate or lessen immediate threats of significant additional damage to improved public or private property through measures which are cost effective.
In addition to the criteria stated above, all emergency work or permanent restoration associated with levees is subject to FEMA's levee policy, which places primary Federal responsibility for flood control works, such as levees, on the U.S. Army Corps of Engineers (USACE) and the Natural Resources Conservation Service (NRCS). Given the authorities of USACE and NRCS, FEMA is limited in its participation in levee rehabilitation.

Upon review of this appeal, it is easy to understand why placing rock material to temporarily fill a washed-out portion of the levee (Site A) and temporarily plugging culverts to prevent flooding (Site C) are considered eligible emergency protective measures. These floodfighting measures are essential to reducing the immediate threat posed by the rising flood waters and are temporary in nature. The Region considered these conditions when deciding eligible funding.

The primary issue of this appeal, however, is whether the effort to increase the height of the levee is an emergency protective measure meeting the criteria stated above, and therefore, eligible for FEMA reimbursement. Complicating this issue is the fact that the applicant has chosen to retain the material as a component of the permanent levee structure. The effort to increase the height of the levee (Site B) was intended to prevent rising flood waters from overtopping the crest of the levee. Relative to this scope of work, therefore, FEMA must answer the following: 1) did the rising waters present an immediate threat? and 2) was the effort to raise the levee necessary to cope with the identified threat?

According to the National Weather Service forecasts, the water level at the St. Charles Station crested on May 20 and began to recede on May 21. During May 19, 20, and 21, the District placed 1,750 tons of fill on top of the levee over an area of approximately 1,200 feet. The work appears to have directly addressed the identified immediate threat in that: 1) the fill was placed over a relatively small section of the levee; and 2) the time frame and effort corresponds to the actual river crest data. Furthermore, it is apparent that the applicant discontinued the effort once the water levels began to recede and the immediate threat of overtopping subsided. This effort appears to have been reasonable, cost-effective, and necessary to prevent the waters from overtopping the levee.

In reference to FEMA's policy regarding raising the height of a levee with "permanent" material as an emergency protective measure, FEMA does not prohibit such actions if they meet the criteria of 44 CFR 206.225, Emergency work. Whether this action is performed by placing sandbags or fill material, the immediate threat and the work necessary to cope with the threat must be identified and evaluated. Whether the material is removed or retained would be subject to an evaluation of the existing health and safety threat posed by the material, the affect the material has on the operation of the levee and/or the necessary repairs to the levee as a public facility.

CONCLUSION
In conclusion, the placement of material on the crest of the Missouri Bottoms levee to prevent water from overtopping the levee structure and causing damage to the surrounding areas is considered an eligible emergency protective measure. Therefore, the appeal for the previously disallowed costs in the amount of $13,466.58 is approved.
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