Drainage Structure Damages

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1135-DR
ApplicantTown of South Boston
Appeal TypeSecond
PA ID#083-93712
PW ID#43402, 43405, 43406, & 43410
Date Signed1998-02-23T05:00:00

Citation: FEMA-1135-DR-VA; Town of South Boston (the Town); DSR's 43402, 43405, 43406 & 43410
Cross

Reference:
Flood control work, Eligible cost and permanent restoration.

Summary: In the fall of 1996, rain events originating from hurricane Fran caused significant flooding in the Town of South Boston, Virginia (the Town). As a result of this flooding, damages were sustained to several drainage structures within the Town. Four separate DSR's are involved in this appeal.

DSR# 43402 details damages to a culvert that sustained erosion of supporting material. Concurrence was initially made, but now the applicant would like additional funding to improve the site. The applicant neglected to incorporate approved hazard mitigation measures, and requests additional funding for unidentified hazard mitigation. The first appeal was denied stating there was no basis for such an appeal. DSR# 43405 details damages to a 15-inch sewer line. Floodwaters scoured the support material and toppled three support pillars. Reimbursement was supplied to repair the site to pre-disaster condition, however, the applicant wishes to incorporate major improvements and or relocate the facility, stating that the current configuration will continue to sustain damages. The first appeal was denied on the basis that the improvements were not cost effective. DSR# 43406 details damages to an existing catch basin and culvert system. During the initial site inspection, the Town and State representatives agreed that all of the damages incurred at this site were the result of a pre-disaster event, and therefore deemed ineligible. The first appeal was denied on the basis that the damages were incurred prior to the declared incident. DSR# 43410 details damages to a privately owned, non-maintained, abandoned railroad embankment. Even though the Town has obtained a right of entry permit, the permit does not transfer legal ownership to the town, nor does it allow for maintenance to the abandoned embankment. This first appeal was denied because the applicant is not responsible for the private property.

Issues: Are subgrantee's claims for additional funding eligible for reimbursement with regard to FEMA code and regulations?

Findings: No. The Town of South Boston has failed to meet eligibility requirements in several areas, including legal ownership and responsibility of damaged sites, requesting reimbursement for damages not incurred during the declared incident period, and requesting "non-cost effective" improvements and or relocation of a damaged site.

Rationale:
Work must be disaster related and legal responsibility of the applicant.

Appeal Letter

February 23, 1998

A. E. Slayton, State Coordinator
Commonwealth of Virginia
Department of Emergency Services
310 Turner Road
Richmond, Virginia 23225-6491


Dear Mr. Slayton

This letter is in response to your September 5, 1997, transmittal of the Town of South Boston's appeal of Damage Survey Reports (DSR) 43402, 43405, 43406, and 43410 under FEMA-1135-DR-VA. The applicant is requesting additional funding to provide repairs to each of the damaged sites.

We have reviewed each individual DSR as well as the additional information provided by the applicant. Each of the DSRs failed to meet FEMA eligibility criteria. For a detailed discussion of my findings please refer to the enclosed appeal analysis.



Please inform the applicant of my determination. The applicant may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of the receipt of this determination.




Sincerely,


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

cc: Rita A. Calvan
Regional Director
FEMA Region III

Appeal Analysis

BACKGROUND

During the fall of 1996, flooding occurred in the Town of South Boston, Virginia (the town). This flooding was directly related to the heavy-rain event brought on by Hurricane Fran, which swept through the region in September of 1996. As a result of this flooding, several drainage structures and other related drainage facilities within the town were damaged. A total of 15 damage survey reports (DSR's) were originally written to cover all of the applicant's reported damages

The following presents analysis and review conducted on four of these DSR's that have been submitted by the subgrantee for second appeal.

DSR 43402
details various damages sustained to a culvert. A stream overflowed the culvert, which caused erosion to the surrounding embankment. The floodwaters also caused damages to the overlying roadway located directly above the damaged culvert system.

The DSR called for repairs to consist of filling flood-damaged voids in the surrounding embankment, and repairing the portion of damaged pavement to pre-disaster condition. The report also provides hazard mitigation measures that allow for filter fabric to be installed under the replenished riprap, to help deter future material removal from this site. The DSR was approved for $2,072, which included $240 to place geo textile fabric under the riprap for slope protection. The DSR was concurred by all members of the DSR inspection team.

DSR 43405 covers damages sustained during the incident to a 15-inch sewer line crossing. During the declared event, floodwaters overtopped Poplar Creek. The high-velocity floodwaters created a 15-foot scour area under the sewer line, removing approximately 13 cubic yards of existing riprap from the site. The floodwaters also caused three 21-inch diameter, 6-foot long concrete pillar supports to topple over.

As a result of the original site inspection, it was determined that the best way to repair the scour zone would be to install hand placed riprap. It was also determined that the pillars would be replaced in whole, to their pre-existing design and condition. The DSR was approved for $1,640, and concurred among all members of the DSR inspection team concurred.

DSR 43406 covers damages sustained to a catch basin and three 36-inch culverts. Other damages at this site included settlement of roadway pavement located above the catch basin and culverts. On September 26, 1996, the FEMA inspection team surveyed the site and noted that these damages were not caused by the declared incident, but were the result of an earlier flooding event that took place on August 6, 1996, all members of the DSR inspection team concurred with this determination. The DSR was processed for $0.

DSR 43410
covers damages sustained to a railroad embankment that is situated near one of the town's flood control gates. The damaged embankment is privately owned by the Southern Railroad Company, and is abandoned and not maintained.

The Town of South Boston has obtained a temporary right-of-entry permit from the Southern Railroad Company to allow access to the gate for maintenance purposes. The agreement clearly states that the permit is for the purpose of repairing the old flood control gate outside of the railroad right of way. The agreement in no way transfers any legal ownership of the site in question to the Town of South Boston. The DSR was written for $31,998, for embankment repairs, but was not approved. The applicant's representative did not concur.

First Appeal

The Town of South Boston presented their first appeal to the Commonwealth of Virginia's Department of Emergency Services by letter dated July 16, 1997. The first appeal centered around five separate DSR's (43402, 43403, 43405, 43406, and 43410) in which the Town felt the original DSR cost estimates did not provide sufficient funding to repair each of the damaged facilities. Included with the first appeal notification letter was a detailed listing of each of the DSR's being appealed, and a brief summary of the States position on each of the situations. Also included with the letter was a request for the amount of money needed to completely restore each of the individual sites in a manner that would be satisfactory to the subgrantee. DSR 43403 has been subsequently approved by the Region, and is no longer part of this second appeal package.

DSR 43402 was appealed due to the fact that the town felt they were not given sufficient funding to completely restore the designated site to pre-disaster condition. The town stated that the work is complete, however, the total cost of replacing the riprap was an additional $4,035. In the process of completing restoration work at the site, the town negated to incorporate hazard mitigation work that was designated in the DSR. The town requested an additional $4,035. The original DSR amount was approved for $1,832, not including the $240 designated for hazard mitigation. This appeal was denied due to the fact that this project is considered to have an increased scope.

DSR 43405 was appealed on the basis that even though the existing drainage structure was damaged prior to the declared incident it had not rendered the structure inoperable and unable to perform. Their basis for this appeal relates to "sound engineering and cost effective sense", stating that the site has been damaged in previous years, and will continue to sustain damages if something is not done. The town requested $21,207, with the approved DSR amount being $1,640. This appeal was denied because the improvements were not found to be cost effective.

DSR 43406 was appealed on the basis that even though the existing drainage structure was damaged prior to the declared incident, it did not render the structure inoperable and unable to perform its intended function. The Town feels that in order to repair damages sustained by the declared event, pre-existing damages will also have to be repaired. The town requested $40,240 to install a new and improved structure. The appeal was denied on the basis that there was no additional damage.

DSR 43410 was disputed because the Town felt that it had the legal rights to the damaged embankment in question. The Town obtained a right of entry permit to provide access to a flood control gate, from the private owner, and stated that the town has been spending money for years maintaining the railroad embankment. The appeal was denied on the basis that the damages were sustained to private property, and therefore, ineligible for reimbursement.

Second Appeal

The Town submitted their second appeal through the Commonwealth of Virginia's Department of Emergency Services on September 5, 1997. The second appeal submittal includes four DSR's. In the second appeal submittal, the grantee and the subgrantee have maintained their views set during the first appeal. The applicant is maintaining its estimate of the cost to repair each site to pre-disaster condition. However, the applicant has not supplied any additional documentation that would help support their positions.

DISCUSSION

DSR #43402

During the repair process, the hazard mitigation measure was not incorporated into the permanent repairs. The applicant is requesting that the designated mitigation funds for the filter fabric be used for an undefined mitigation project not detailed in the DSR or in the documentation supporting their appeal. The applicant is also stating that additional costs of $4,035 were incurred in replenishing the scoured rip rap area, however, no paperwork justifying the cost increase was submitted with the appe ias conducted on May 19, 1997, nine months after the original incident. It is the subgrantee's opinion that an additional $21,207, which was not included on the DSR and never reported to FEMA, would be needed to complete restoration of the damage facilities. It is not clear how the applicant distinguished between damages that occurred during the official incident period, and damages that may have occurred after the disaster, including spring thaw and typical annual spring run-off.

The subgrantee has stated that the results of the original survey are not acceptable, based on the fact that the eligibility would have to be relocated, or improvements would have to be relocated, or improvements would have to made to the existing facility in order to provide a secure facility. Both of the suggested options are not cost effective, and do not meet the criteria for hazard mitigation, or requirements detailed in Title 44, Section 206.223 (3), which states that "Work associated with improving the facilities or relocation is not required as a result of the declared event and is not eligible for FEMA funding".

DSR #43406

During the initial site survey, the inspector noted that the site had sustained significant damages prior to the declared disaster. All three members of the original DSR inspection team, which included a State and Town representative, agreed that the evident damages were as a result of previous non-incident related conditions, not a result of the declared event, and concurred with the DSR as written.

The applicant noted that catch basin settlement was discovered during an inspection on may 19, 1997. There is no way to determine the cause of the settlement, which may have been from the earlier damages or from events occurring after the declared event.

DSR #43410

On April 28, 1997, nine months after the declared incident, the town signed an Indemnification Agreement which "enables the Town of South Boston to enter railway right-of-way for the purpose of repairing damage to the flood protection structure embankment as a result of Hurricane Fran." However, at the time of the declared incident the original agreement specifically stated that "the Right-Of-Entry is granted only for the purpose of repairing an old flood protection gate outside of railway right-of-way. It must be noted that the gate itself was never actually damaged during the declared incident, and this appeal is for repairs to the railroad embankment and not the flood control gate embankment.

It is the opinion of site inspectors that this damaged embankment is not affecting the function of the floodgate. According to Title 44, Code of Federal Regulations, Section 206.223 (3): "to be eligible for financial assistance, an item of work must be legal responsibility of an eligible applicant.

CONCLUSION

DSR 43402: Cost overruns related to such items as unit price increases can be addressed during the small project close-out process, and do not form basis of appeal at this point in time.

DSR43405: Only work required to repair disaster damages, as covered in the approved DSR, is eligible.

DSR 43406: The Town and State representatives agreed that the existing damages to the drainage structure were sustained during an incident prior to the official declaration, and it was concurred by all, rendering this particular site ineligible.

DSR 43410 : The applicant does not have responsibility for repair of the embankment.

The appeal is denied for the four DSRs.
Last updated