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Second Appeal Letter
PA ID# 057-99057-00; Skagit County Dike District #1
PW ID# 32; Levee Floodfight Activities
June 20, 2005
Deputy State Coordinating Officer
State of Washington Military Department
Emergency Management Division
MS: TA-20 Building 20
Camp Murray, Washington 98430-5122
Re: Second Appeal Skagit County Dike District # 1, PA ID 057-99057-00,
Levee Floodfight Activities, FEMA-1499-DR-WA, Project Worksheet (PW) 32
Dear Ms. Voss:
This letter is in response to your January 10, 2005, letter forwarding the referenced second appeal on behalf of the Skagit County Dike District # 1 (District). The District disputes FEMAs eligibility determination that work performed on the levee after the disasters incident period was ineligible. The amount in question is $152,944.96.
Heavy rain and strong winds created severe flooding conditions along the Skagit River in Skagit County, Washington, from October 15, 2003 through October 23, 2003. The District performed emergency protective measures, repairs, and cleanup along two areas of the levee system along the Skagit River near the intersection of the Youngs Bar SR536 bridge and the levee, and south of Behrens-Millett Road. Emergency protective measures on the levee included the placement of approximately 30,000 sandbags, 24 ecology blocks, and 46 yards of fabric-wrapped fill materials along a ¼-mile section of the levee, in order to reshape the prism and elevate the height of the levee.
The District submitted $222,847.66 in emergency work costs for consideration under the Public Assistance Program. FEMA approved funding for $65,098. FEMA denied the remaining $157,749.66 because it was related to work that continued well after the incident period and resulted in permanent elevation of the levee.
The District submitted its first appeal on June 2, 2004, requesting reimbursement of $157,749.66 for expenses incurred for flood fighting, repairs, and cleanup. The State forwarded the appeal to FEMA on July 29, 2004, recommending funding for only $1,801.40 for emergency work performed within the incident period, and identified $3,003.30 as work funded under another PW. The State also recommended denial of the remaining $152,944.96 because the levee was under the authority of the U.S. Army Corps of Engineers (USACE) and was therefore ineligible for FEMA funding per 44 CFR § 206.226(a) and FEMA Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works.
In the appeal, the District contended that the work performed after the incident period should have been eligible because there was still a need for emergency protective measures even after the incident period for FEMA-1499-DR-WA had ended. The District also explained that the improvement to the levee was intended to be temporary, but that it
would have been improper, and inappropriate to remove the additional materials when it
improves the integrity of the levee and provides greater flood control measures.
In the first appeal decision dated September 14, 2004, FEMA approved $1,801.40 for the additional invoices that related to eligible cleanup and debris removal and denied the remainder because it related to ineligible work performed after the incident period. FEMA noted that the District was participating in the USACE PL 84-99, Rehabilitation and Inspection Program, and that the remaining costs were for work to move flood fight materials from the nearby roadway and permanently place it on top of the levee, thereby creating a permanent elevation, which is ineligible per 44 CFR § 206.226 and FEMA Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works.
On November 18, 2004, the District submitted a second appeal for $152,944.96 that the State transmitted to FEMA on January 7, 2005. The State recommended that an additional $1,205.20 for cleanup, mobilization, and disposal costs be approved. No relevant new information has been included with the submittal of the second appeal. The District added that the incident period was arbitrarily selected and that work eligibility was not uniformly applied, referencing the Missouri Bottoms Levee District (FEMA-1046-DR-MO,
DSR # 34253) second appeal decision in which emergency work to raise the height of a levee was found to be eligible.
Eligible emergency work covers activities responding to an imminent threat. While weather conditions were still variable after the end of FEMA-1499-DR-WA, the imminent threat of flooding had passed after the river had crested. On October 23, 2003, the National Weather Service noted that the Skagit River in the Mount Vernon area would fall below flood stage by midnight and that an incoming high pressure system would alleviate the remaining flooding. By 5:00 am, October 25, 2003, the National Weather Service had ended the flood advisory for the Skagit River. In addition, both the USACE Seattle District flood flow data and the National Weather Service Northwest River Forecast Center hydrograph data from October 2003, clearly shows that the threat was limited to the two flood events that occurred between October 15, 2003 and October 23, 2003.
The situation in the Missouri Bottoms Levee appeal is significantly different than the District in that the time frame and effort corresponds to the actual river crest data. It is apparent that the [Missouri Bottoms Levee District] discontinued the effort once the water levels began to recede and the immediate threat of overtopping subsided, according to FEMAs second appeal decision for the Missouri Bottoms Levee District. In contrast, according to the Skagit County Dike Districts submitted invoices, work on the levee continued for nearly two and one-half weeks (until November 10, 2005) after the river had crested and the disaster incident period ended.
I have determined that an additional $1,205.20 in previously unidentified costs for emergency and cleanup work submitted with the second appeal is eligible for reimbursement. However, the District has not shown that the remaining $151,739.76 in appealed work on the levee was an eligible emergency protective measure. Accordingly, I conclude that $151,739.76 of the Districts appealed work is not eligible for assistance. Therefore, I am partially approving the appeal, and granting an additional $1,205.20.
Please inform the District of my decision. My determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.
Daniel A. Craig
Emergency Preparedness and Response
cc: John E. Pennington