Cockreham Levee and Revetment

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1499-DR
ApplicantSkagit County
Appeal TypeSecond
PA ID#057-99057-00
PW ID#166
Date Signed2005-06-08T04:00:00

Citation:

FEMA-1499-DR-WA; Skagit County, Cockreham Levee and Revetment, PW 166

Cross-reference:

Eligible Facility, Improved Property, Agricultural Land

Summary:

Severe storms and flooding caused damages to the Cockreham Levee and Revetment and surrounding property. Damage to the levee included the loss of armoring and scouring. The revetment suffered loss of riprap and scouring behind the revetment in an area described as agricultural land. FEMA prepared Project Worksheet (PW) 166 to document damages but found that the facility was the responsibility of the U.S. Army Corps of Engineers (USACE) under the PL-84-99 program, and denied funding. PW 166 was obligated on February 20, 2004 for $0. The Applicant submitted a first appeal demonstrating that the Revetment was not a flood control facility and requested funding of various components of the damage. Total repair costs were estimated at $304,862. The Regional Director concurred that the revetment is an eligible facility but limited eligible funding to the repair of the constructed components. Funding was provided in the amount of $25,501. Amongst other items (not addressed in the second appeal), the Regional Director denied funding of the repair the land behind the revetment on the basis that it is unimproved, agricultural land. The Applicant’s second appeal is requesting funding in the amount of $132,000 to restore the scoured farmland on the basis that the damaged property is an integral component of the revetment structure, thus part of the public facility.

Issues:

Is the scoured property an eligible facility?

Findings:

No, the scoured land is unimproved, privately-owned agricultural land and does not provide any integral support of the constructed facility.

Rationale:

44 CFR 206.201(c) Facility, 44 CFR 206.221(h) Public Facility; 44 CFR 206.221(d) Improved Property

Appeal Letter

June 8, 2005

Donna J. Voss
Public Assistance Program Manager
Washington State Department of Emergency Management
P.O. Box 40955
Olympia, WA 98054

RE: Second Appeal – Skagit County, PA ID 057-99057-00,
Cockreham Levee and Revetment, FEMA-1499-DR-WA,
Project Worksheet (PW) 166

Dear Ms. Voss:

This is in response to your letter dated January 24, 2005, regarding the referenced second appeal on behalf of Skagit County (Applicant). The appeal disputes the basis of FEMA’s eligibility analysis and seeks funding for work associated with repair of land adjacent to the disaster-damaged Cockreham Revetment. Repair costs are estimated at $132,000.

After thorough review of the material submitted with the appeal, I have determined that the scoured land adjacent to the revetment is unimproved, privately-owned agricultural land and is not integral to the support of the facility. Eligible repairs to restore the constructed components of the Revetment have been appropriately funded in PW 166. As explained in the enclosed appeal analysis, the Applicant’s appeal is denied.

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

Sincerely,
/S/
Daniel A. Craig
Director
Recovery Division
Emergency Preparedness and Response
Enclosure

cc: John Pennington
Regional Director
FEMA, Region X

Appeal Analysis

BACKGROUND

As a result of severe storms and flooding that occurred in mid to late October 2003 (FEMA-1499-DR-WA), Skagit County (Applicant) sustained damage to the Cockreham Levee and Revetment. Damage to the levee included the loss of armoring and scouring. The revetment suffered loss of riprap and scouring behind the revetment in an area described as agricultural land. The Applicant requested assistance from the Federal Emergency Management Agency (FEMA) for repair of disaster-related damages.

FEMA prepared Project Worksheet (PW) 166 to document damages to the Cockreham Levee and Revetment. Specific damages to the levee consisted of two sections where the armoring had been washed away (150’ x 5’ x 20’ and 200’ x 3’ x 10’), and a scour hole (20’ diameter x 10’ deep). Damage to the riprap revetment consisted of rock being washed out (100’ x 4’ x 10’) and a washed out area behind the revetment within agricultural land (400’ x 200’ x 4’ deep). FEMA determined that the facility was the responsibility of the U.S. Army Corps of Engineers (USACE) under the PL-84-99 program, and denied funding of the repairs citing FEMA Policy #9524.3 for Rehabilitation Assistance for Levees and Other Flood Control Works. PW 166 was obligated on February 20, 2004, for $0.

First Appeal

On May 25, 2004, the Applicant submitted its first appeal of PW 166 asserting that the revetment is not a flood control facility but an erosion control facility that is not part of the USACE PL-84-99, and therefore should be eligible for FEMA assistance. They further requested funding for debris removal of an emergency ring dike built during the event, replacement of washed out agricultural land behind the revetment, and for an extension of the revetment 150 feet beyond its current end point to provide protection from future floods. The Applicant requested funding for these efforts in the amount of $304,862.

The Applicant’s first appeal was partially supported and transmitted by the State of Washington Military Department, Emergency Management Division (EMD) to FEMA on July 15, 2004. EMD concurred that the revetment is not under the authority of the USACE and supported repair of the revetment structure. However, EMD indicated that the debris removal costs, repair of the adjacent farmland property, and the extension of the riprap are ineligible for assistance under this PW.

The FEMA Regional Director partially approved the first appeal in a letter dated September 14, 2004. The Regional Director concurred that the revetment structure is eligible for funding and approved $25,501 for repairs of disaster related damages to the structure, restoring the damaged components to their pre-disaster condition. The remaining work and costs were determined ineligible on the following basis:

Removal of the emergency ring dike is eligible for assistance but has been funded under a separate PW (PW 288), thus not eligible for funding under PW 166.

The land behind the revetment is used for agricultural purposes and, according to Title 44 of the Code of Federal Regulations (44 CFR) Section 206.221(d), land used for agricultural purposes is not improved property and, therefore, is not eligible for public assistance funding.

The revetment extension is an improvement to the pre-disaster revetment and can only be funded through the request for an Improved Project.

Second Appeal

On November 30, 2004, the Applicant submitted a second appeal requesting funding in the amount of $132,000 to restore the scoured farmland behind the Cockreham Revetment. The Applicant contends that the property should be considered part of the facility itself. EMD, in a letter dated January 24, 2005, advised that the appeal be denied because the washed out, scoured area behind the revetment is unimproved property. The other items addressed in the first appeal were not included in the second appeal positions.

DISCUSSION

The primary issue in the Applicant’s second appeal is whether the scoured farmland behind Cockreham Revetment is unimproved property and, thus, not eligible for assistance.

The Applicant asserts that the land behind the revetment should be considered improved property and a public facility because the revetment itself was constructed in the public interest and the damaged property is an integral component of the revetment structure. The Applicant states that the repair of the land would benefit two adjacent public roadways and a county-owned levee.

As referenced by the Applicant, FEMA regulations provided in subsections of 44 CFR 206 support the determination that the constructed revetment is an eligible facility. FEMA recognizes that at times it may be necessary to also restore natural ground directly adjacent to or beneath a constructed facility if that ground is considered integral to the direct support of the constructed facility. Accordingly, only that work necessary to facilitate the repair of the damaged constructed components of the revetment is eligible for assistance. Based on a review of the project information, we have concluded that the scope of work currently funded under PW 166 sufficiently accomplishes this intent.

Our review of the appeal documentation confirms that the scoured land adjacent to the constructed revetment for which the Applicant is requesting assistance is not integral to the direct support of the facility. EMD further supports this conclusion referencing the March 2004 site visit by FEMA, EMD and the Applicant, where EMD confirmed that the structural integrity of the rock revetment was not jeopardized by the scouring. As such, the property is considered an unimproved, natural feature, and is not, in of itself, an eligible facility. Further, the property is defined as agricultural land, which according to 44 CFR 206.201(c), is not eligible for public assistance funding.

The Applicant asserts that the same site was found eligible in a previously declared event, FEMA-1079-DR-WA, providing Damage Survey Report (DSR) 21491 and other references to support their position. It is noted that DSR 21491 was prepared to repair a damaged portion of the Cockreham River Embankment. The eligible work included placement of bank protection material and backfill of the eroded integral ground directly supporting the riprap, and some other hazard mitigation items. Such work is considered necessary to restore the constructed portion of the facility, and therefore, was appropriately found eligible. As described above, these conditions are not the same as those in PW 166, and therefore, have no bearing on the conclusions made herein.

CONCLUSION

Based on a review of the information provided in the Applicant’s second appeal, we have concluded that the scoured land adjacent to the revetment is unimproved, privately-owned agricultural land and is not integral to the support of the facility. Accordingly, we have found that repair of this property is not eligible for public assistance funding. The Applicant’s appeal is denied.

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