Temporary Levee

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1412-DR
ApplicantButler County Drainage District #7
Appeal TypeSecond
PA ID#023-99023-00
PW ID#279
Date Signed2003-08-04T04:00:00
Citation: FEMA-1412-DR-MO; Butler County Drainage District #7; PW 279

Cross-reference: Ineligible Work, Temporary Levee

Summary: Severe storms and flooding impacted the State of Missouri from April 24 through June 10, 2002. A break in the permanent levee in Butler County caused widespread flooding from the Black River. When the waters began to recede Butler County Drainage District #7 began work on a temporary levee. The temporary levee occupied land owned by the local farmer, and the material was pulled from adjoining site. On August 22, 2002, FEMA determined the project worksheet to be ineligible per Response and Recovery Policy 9524.3, because the work appeared to be permanent and exceeded FEMA’s 5-year protection limit for emergency work. As permanent work, the levee was not eligible per Response and Recovery Policy 9524.3. In the first appeal dated November 19, 2002, the District indicated that it constructed the levee as an emergency measure to remediate a situation that threatened over 10,000 acres of farm, livestock, and dwellings and that the District had received assistance from FEMA in the past. The levee was reinspected by FEMA and the State and the original determination was reversed. FEMA then authorized additional funding for the removal of the levee. The State transmitted the second appeal on April 2, 2003, recommending that FEMA deny the District’s request. The District’s appeal dated March 21, 2003, proposed to use public assistance funds designated for removing the temporary levee, to make the levee permanent and acquire the land upon which it was constructed.

Issues: Can Public Assistance funding intended for the removal of an emergency protective levee be applied towards making the levee permanent?

Findings: No. FEMA cannot authorize the use of funds designated for removing a temporary levee for building a permanent levee.

Rationale: 44 CFR §206.226(a); Section 403 of the of the Robert T. Stafford Disaster Relief and Emergency Assistance Act; Response and Recovery Policy 9524.3

Appeal Letter

August 4, 2003

Mr. Jerry Uhlmann
Director
State of Missouri Emergency Management Agency
PO Box 116
Jefferson City, Missouri 65102-7966

Re: Second Appeal – Butler County Drainage District #7
PA ID 023-99023-00, Temporary Levee, FEMA-1412-DR-MO, PW 279

Dear Mr. Uhlmann:

This letter is in response to your April 2, 2003, letter forwarding the referenced second appeal on behalf of Butler County Drainage District #7. The District requests to use the public assistance funds designated for removing the temporary levee towards converting it into a permanent levee and acquiring the land upon which it was constructed. The amount in question is $23,574.

Heavy rains, hail, and tornadoes impacted the State of Missouri from April 24 through June 10, 2002. A break in the permanent levee in Butler County caused the Black River to flood, threatening 10,000 acres of farmland, livestock and dwellings. The damaged levee was approximately 550 feet long, and much of the material was washed out during the flood. When the waters began to recede on May 15, 2002, Butler County Drainage District #7 began work on a temporary levee. The temporary levee occupied land owned by local farmers, and the material was pulled from the adjoining site.

On June 26, 2002, a FEMA project officer inspected the site and submitted a project worksheet for $27,784. On August 22, 2002, FEMA determined that the project was ineligible per Response and Recovery Policy 9524.3, because the work appeared to be permanent and exceeded FEMA’s 5-year protection limit for emergency work.

In a letter dated November 19, 2002, the District indicated that the levee was constructed as an emergency measure. The District was aware that the owners of the land upon which the temporary levee was constructed expected the levee to be removed and the topsoil be returned to their land. The State transmitted the District’s first appeal on December 4, 2002. The levee was reinspected by FEMA and the State. FEMA determined that the original determination was not appropriate. On February 21, 2003, FEMA approved funding for the temporary levee and authorized an additional $23,574 in funding for the removal of the levee, raising the total grant amount to $51,358.

Kennedy, Kennedy, and Robbins, LC, legal counsel representing the District, submitted a second appeal dated March 21, 2003. The District requested to use the public assistance funds designated for removing the temporary levee towards converting it into a permanent levee and acquiring the land upon which it was constructed. The District stated that shaping the temporary levee would be easier than finding thousands of yards of material to fill the breach in the permanent levee. The State transmitted the second appeal on April 2, 2003, recommending that FEMA deny the District’s appeal.

Response and Recovery Policy 9524.3 does not provide for permanent repairs to levees and flood control works. Accordingly, I conclude that the District cannot use funds approved for the removal of the temporary levee to construct a permanent levee. Therefore, the appeal is denied.

Please inform the District of my decision. My determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.

Sincerely,

/S/

Laurence W. Zensinger
Acting Director, Recovery Division
Emergency Preparedness and Response Directorate
Department of Homeland Security

cc: Richard Hainje
Regional Director
FEMA Region RVII
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