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Second Appeal Brief
PA ID# 081-UDJBE-00; Sargent County Water Resource District
PW ID# 2207; Time Limitations
Citation: FEMA-1279-DR-ND; Sargent County Water Resource District, Project Worksheet (PW) 2207
Cross-reference: Time Limitations
Summary: Flooding impacted the State of North Dakota in the spring of 1999, resulting in major disaster declaration FEMA-1279-DR-ND on June 8, 1999. As a result, the Federal Emergency Management Agency (FEMA) prepared PW 1986 for the Sargent County Water Resource District (Applicant) for sediment removal from Drain #11, a combination of drainage ditch and culvert pipe, but suspended it on September 13, 1999, because the drain was still inundated with water, preventing an inspection of damages. FEMA replaced PW 1986 with PW 2207 and declared the work ineligible on November 4, 2000, because the Applicant did not have a formal maintenance program for the drain. Applicant submitted a first appeal on March 29, 2001, claiming that it could not do any work on the drain from 1986 (the last time it was cleaned out) until 1995 because of a lawsuit brought by the United States Army Corps of Engineers (USACE). The lawsuit was brought against the Applicant because USACE claimed it needed a permit to perform the work it did in 1986. After receiving notice from USACE that the lawsuit was decided in the Applicants favor, the FEMA Region VIII Regional Director approved the appeal by obligating PW 2207 on October 14, 2003, for $23,963. This amount accounts for 30% of the cost of the sediment removed and was derived by applying the ratio of rainfall recorded in 1998 and 1999 to the total rainfall from 1987 through 1999. The reasoning behind this determination was due to the Applicant not having a formal maintenance program or a determination of the amount of disaster-related sediment could not be made. The Applicant submitted its second appeal on December 12, 2003, disputing the 30% limitation on the eligibility of the sediment removal in PW 2207. The North Dakota Division of Emergency Management supports the Applicants appeal for $70,195.
Issues: Should FEMA reimburse the Applicant for the additional sediment removal?
Findings: No. The Applicant did not establish the pre-disaster condition, and, therefore, did not support its claim for reimbursement for removal of all of the sediment.
Rationale: 44 CFR § 206.223(a)(1)