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Second Appeal Analysis
PA ID# 091-00000; Okaloosa County
DSR ID# 37470, 10309 and 08472; Lake Silver Earthen Embankment Damage
SRs 37470, 10309 and 08472
As a result of an El Nino flooding event (1195-DR-FL, declared January 6, 1998), an earthen embankment, owned by Okaloosa County (Applicant), was breached. A section of earthen embankment, approximately 150 feet wide and 50 feet tall, as well as a corrugated metal pipe outfall structure, were lost. The Applicant requested assistance from the Federal Emergency Management Agency (FEMA) for the repair of the damaged facility.
FEMA prepared three Damage Survey Reports (DSRs) for the repair of the damaged embankment and outfall structure. DSR 37470 approved $229,746 for the repair costs, and DSR 10309 funded an additional $20,448 for engineering and design services. At the request of the Applicant, a site re-inspection by FEMA and the Florida Department of Community Affairs (DCA) resulted in the approval in April 2001 of DSR 08472 for $3,232,123 ($4,559,691 for construction and engineering and design services, less $229,746 and $20,448 for previously approved DSRs 37470 and DSR 10309, respectively).
In a letter to DCA dated April 3, 2002, the Applicant requested approval of a time extension through December 2003, to complete the DSR scope of work. Since the time extension was beyond the Grantees authority, DCA, in a letter to FEMA dated May 10, 2002, asked FEMA to approve the Applicants request. The FEMA Regional Director denied the time extension request in a letter to DCA dated May 31, 2002, because construction had not begun on the approved project.
On July 18, 2002, the Applicant submitted its first appeal, transmitted and supported by DCA in a letter to FEMA dated August 8, 2002. The Applicant maintained that extenuating circumstances had prevented the start of project construction. The extenuating circumstances included the small amount of funding that FEMA initially allocated to the project and the subsequent delay in the approval of additional funding; the occurrence of three natural disasters in the months following the declared event that hindered recovery efforts; the complexity of the environmental permitting process required for the project; and the pace of outside agency regulatory review over which the Applicant had no control. In a letter to DCA dated October 9, 2002, the FEMA Regional Director denied the Applicants first appeal because the Applicant did not provide any information documenting the extenuating circumstances cited by the applicant that would support granting the time extension.
On December 5, 2002, the Applicant submitted its second appeal, transmitted and supported by DCA, in a letter to FEMA dated December 16, 2002. The Applicant reiterated the same assertions made in their first appeal and provided documentation to support the time extension request. DCA concurred with the Applicants appeal, adding there is no FEMA regulatory time frame of 48 months for the completion of work and construction could not begin without first obtaining the necessary funding and environmental permitting. In the second appeal submittal to FEMA Headquarters, dated January 17, 2003, the FEMA Regional Director noted that the information provided by the Applicant in their second appeal documentation indicated that the outfall structure was damaged in 1978 and never successfully repaired.
The primary issue of the Applicants second appeal is associated with FEMAs denial of the time extension request. The Applicant has provided additional information intended to demonstrate to FEMA that it made diligent and financially responsible progress on the project. However, this documentation also included newspaper articles, interagency and internal memoranda, correspondence, minutes of meetings and photographs that have warranted a reevaluation of project eligibility.
Project Eligibility: Under the provision of the 1998 version of Title 44 of the Code of Federal Regulations (CFR) §206.226(j)(2) [now §206.226(k)(2)], FEMA is not authorized to fund the repair of a facility that was not in active use at the time of the disaster unless that facility was only temporarily inoperative for repairs, where active use by the Applicant is firmly established in an approved budget, or where the Applicant can demonstrate to FEMAs satisfaction an intent to begin use within a reasonable time.
The earthen embankment and outfall structure were constructed in the late 1950s by the Florida Game and Freshwater Fish Commission to create the Lake Silver reservoir, a 63-acre recreational area with public access. Shortly after its construction, ownership of Lake Silver, including the embankment and outfall structure, was transferred to the Applicant. In 1978, the outfall structure was damaged during a storm event to the extent that the reservoir could no longer maintain its design water level. The inability of the reservoir to maintain its design water level no longer allowed it to function as a recreational facility. The reservoir remained in this condition until the breach in the embankment occurred during the declared disaster event.
On March 19, 2003, during a conference call with FEMA Headquarters, the Applicant indicated that although the reservoir no longer retained its recreational function, it still provided a flood control function because water was being temporarily impounded. The Applicant explained that although damage did occur in 1978, the outfall structure still functioned and the embankment did impound water to its design elevation until it was breached during the declared disaster event. The Applicant also stated that the breach itself provided evidence that the embankment was functional at the time of the disaster; if it were not operational, it would not have impounded water that was capable of overtopping the embankment.
After the conference call, the applicant provided information to FEMA to support their claim that the facility now functioned as a flood control reservoir. The provided information is summarized below, with appeal analysis comments provided by FEMA.
▪ A videotape of floodwaters discharging through the embankment breach during the disaster event. Downstream road crossing damage and localized flooding were also documented. Heavy vegetation and pine trees at least four feet in height were observed along the embankment side slopes and within the reservoir basin.
The video does document that floodwaters had breached the embankment. However, the existence of the trees and vegetation along the side slopes of the earthen embankment and within the reservoir basin indicates that the water level was down far enough and for enough time to permit the trees to grow.
▪ A sketch of the outfall structure and a memorandum of explanation from DCA. This information stated that the outflow structure had been eroded at the riser connection since 1978 such that the Applicant could not control the water level of the reservoir since that point in time and the reservoir pool area was reduced to five acres. In support of the flood control function claim, DCA stated that the lowered reservoir pool elevation increased the drainage impoundment capacity of the reservoir.
FEMA does not question that water could be temporarily impounded behind the embankment prior to the disaster event. What has not been established is whether the reservoir served any documented, designed and maintained flood control purpose at the time of the disaster.
▪ Correspondence from a local resident stating that although the outfall structure would slowly leak, water was impounded to the design reservoir level and that residents continued to swim and fish from the bank. It was acknowledged that in extremely dry seasons, the water level w h the elevated water levels to support the claim that the reservoir served any recreational function.
▪ Photographs that indicated that water was impounded behind the embankment in 1998, prior to the disaster event.
Again, the photographs do not provide any information on the duration of the elevated water levels to support a claim of a recreational function.
In summary, FEMA does not dispute that water could be impounded behind the embankment prior to the disaster event. However, the reservoirs fluctuating water levels and durations, after 1978, were not the result of an engineered design change undertaken by the Applicant; they were a result of storm damage never repaired by the Applicant. There has been no evidence presented of the duration of elevated, though temporary, water levels, to demonstrate that the reservoir had any recreational benefits. There has also been no documentation provided that demonstrates that the reservoir outflow occurring after the 1978 damage was ever analyzed for flood control benefits or impacts. The Applicant has also provided no documentation that the reservoir was maintained for a flood control purpose since 1978 or that there was any established budget or work plan to restore the facility to its original recreational function.
Therefore, we conclude that the facility in question did not serve any recreational or flood control function at the time of the disaster and was not in active use at the time of the disaster. Numerous newspaper articles, interagency and internal memoranda, correspondence, minutes of meetings and photographs support this finding, and the Applicant has not provided the evidence necessary to refute this conclusion. Therefore, the reservoir, including the damaged embankment and outfall structure, is not an eligible facility pursuant to 44 CFR §206.226(j)(2) [1998 citation]. Accordingly, since there is no eligible facility, there are no eligible costs that can be reimbursed under the Public Assistance Program.
Time Extension: The Applicant is requesting a time extension to complete repairs obligated through the referenced DSRs. However, as determined by the above analysis, the facility is not eligible for Public Assistance funding and, therefore, a time extension would not be applicable.
The primary issue of the Applicants appeal is FEMAs denial of a time extension to complete the repairs to the facility. However, the appeal review finds the Applicant has failed to provide sufficient documentation to demonstrate that the Lake Silver reservoir was an active recreational or flood control facility at the time of the disaster. The facility, therefore, has been determined to be ineligible for Public Assistance Program funding and the appeal is denied. The funding allocated under DSRs 08472, 37479 and 10309 will be deobligated.