Dutch Fork Dam

September 25, 2006

Ms. Mimi Myslewicz
Pennsylvania Emergency Management Agency
2605 Interstate Drive
Harrisburg, Pennsylvania 17110-9364

Re: Second Appeal – PA Fish & Boat Commission, PA ID 000-U7AM3-00,
Dutch Fork Dam, FEMA-1557-DR-PA, PW 5324

Dear Ms. Myslewicz:

This letter is in response to the referenced second appeal submitted by the Pennsylvania Fish & Boat Commission (Applicant) to your office on March 27, 2006, transmitted by your letter dated April 14, 2006. The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) determination to deny the costs associated with the repair of the spillway at the Dutch Fork Dam in accordance with current dam safety standards.

The Dutch Fork Dam consists of a 460-foot earthen embankment with an 89-foot wide concrete spillway. The concrete spillway was damaged beyond repair. FEMA approved Project Worksheet (PW) 5324 on June 17, 2005, for $342,108 which funded the demolition, excavation, and replacement of the damaged concrete spillway.

In the Applicant’s first appeal submitted to your office on September 16, 2005, transmitted to FEMA by your office on September 30, 2005, it asserted that the Pennsylvania Department of Environmental Protection (DEP) will not permit the repair of the spillway without upgrading and replacing the entire dam to bring it into compliance with current dam safety standards. On January 11, 2006, FEMA denied the Applicant’s first appeal stating that only the spillway was damaged, not the actual dam; therefore, the dam was not eligible for replacement.

The Applicant’s second appeal dated March 27, 2006, states that the damaged spillway acted as both the primary and emergency spillway, and under the current dam safety standards, the primary and emergency spillway must be repaired to pass a probable maximum flood (PMF). Prior to being damaged, the original spillway could only pass 16% of the PMF without overtopping the dam. In order to pass the PMF, the repair of the spillway must include the construction of a new primary spillway, designed to handle a 100-year storm, and “an emergency spillway of over 400 feet over the breadth of the dam.” The Applicant has submitted a cost estimate for $5,067,725 for the construction of a new primary spillway and the armoring of the earthen embankment to allow the entire embankment to safely serve as an emergency spillway.

Further, the Applicant asserts that the earthen embankment and abutment were damaged in addition to the spillway; however, the Applicant provides no description of the damage nor does it request that the scope of work of PW 5324 be amended to address the damage to the embankment.

The Applicant argues that “FEMA may pay for upgrades that are necessary to meet specific requirements of current codes and standards” and refers to the eligibility criteria outlined in Title 44 of the Code of Federal Regulations (44 CFR) §206.226 (d). FEMA’s regulation at 44 CFR §206.226 (d)(5) states that for any standard in effect at the time of the disaster, it must have been enforced during the time it was in effect. The basis of the Applicant’s appeal is that the upgrade to the facility is required by both the Dam Safety and Encroachments Act and the DEP Dam Safety and Waterway regulations. The inadequacy of the spillway was identified well before the disaster event, and the dam had been placed on DEP’s Unsafe Dam List. At the time of the disaster, the dam was not in compliance with the dam safety regulations. The dam safety regulations were not enforced with respect to the facility at issue at the time of the disaster; therefore, upgrades necessary to bring the facility into compliance are not eligible for funding.

In accordance with 44 CFR §206.226, work to restore eligible facilities on the basis of the design of such facilities as they existed immediately prior to the disaster is eligible. The scope of work approved under PW 5324 includes the work necessary to restore the damaged spillway to its pre-disaster condition. While the Applicant has shown that it will not be able to obtain a permit from the DEP to perform a repair that does not include upgrading the facility to comply with current dam safety regulations, FEMA can only consider its own regulations and policies when determining what work is eligible for funding under the Public Assistance Program.

The Applicant is requesting additional funding for work which is necessary to bring its non-compliant facility into compliance with dam safety regulations. The work goes above and beyond what is necessary to restore the facility to pre-disaster condition. Therefore, I am denying this appeal.

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

Sincerely,
/ s /
John R. D’Araujo, Jr.
Director of Recovery

cc: Patricia Arcuri
Acting Regional Director
FEMA Region III