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Second Appeal Letter
PA ID# 019-UUZSU-00; Dorchester County Department of Public Works
PW ID# Project Worksheet 31; Cokesbury Road
May 1, 2008
Sharon L. Campbell
State Public Assistance Officer
Maryland Emergency Management Agency
Camp Fretterd Military Reservation
5401 Rue Saint Lo Drive
Reisterstown, MD 21136
Re: Second AppealDorchester County Department of Public Works, PA ID 019-UUZSU-00, Cokesbury Road, FEMA-1652-DR-MD
Dear Ms. Campbell:
This letter is in response to the referenced second appeal forwarded by your office on January 17, 2008. Dorchester County Department of Public Works (Applicant) is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) denial of its first appeal dated August 31, 2007. The Applicant requests a total of $665,000 to construct a new dam, roadway, and embankment structure on Cokesbury Road.
In June 2006 overland flooding damaged road sections and an embankment on Cokesbury Road in Dorchester County, Maryland. Project Worksheet (PW) 31 was obligated for $232,887 (two versions) to repair the two road sections and embankment and remove debris and sediment. The scope of work included a hazard mitigation project consisting of a corrugated metal pipe, spillway, and rip rap. On August 31, 2007, the Applicant submitted a first appeal for a change to the scope of work in order to construct a new dam, roadway, and embankment structure for an estimated cost of $665,000. The Applicant stated that the Maryland Department of Environment classified the road, embankment and underlying weir as a dam and required the repair of Cokesbury Road and embankment to comply with the Maryland Dam Safety Criteria.
FEMA denied the appeal on November 2, 2007, stating that any upgrades based on codes and standards must apply to the repair work being performed, according to 44 CFR §206.226(d)(1). In this case, the weir was not damaged in the disaster and eligible work is limited to restoring the predisaster design of the facility. FEMA recommended that the Applicant pursue an improved project in accordance with 44 CFR §206.203(d)(1).
The Applicant submitted its second appeal on January 11, 2008, stating that because the roadway and embankment are an integral part of the dam structure, it cannot repair the facility in conformance with Maryland Dam Safety standards without reconstructing the dam. In addition, it stated that FEMA previously approved the replacement of its Galestown Dam project
(FEMA-1652-DR-MD, PW 17). It should be noted that FEMA funded the replacement of the Galestown Dam project because repair costs were greater than 50 percent of replacement costs, which is not the case for the Cokesbury Road project.
FEMA has been consistent in its interpretation of 44 CFR §206.226(d). If a facility is eligible for replacement, upgrades required by codes and standards that meet the criteria of 44 CFR §206.226(d) are eligible for reimbursement. If a facility is eligible for repair, eligible code upgrades apply to the damaged elements of the facility only. If a code requires replacement of a facility when certain damage or cost thresholds are met, FEMA may consider funding the replacement of facility. The Applicant has not provided any information to show that the Maryland Dam Safety regulations contain such a provision. Therefore, there is no basis to approve the appeal. For this reason, I am denying this appeal.
In addition, if the Applicant pursues replacement of the facility as an improved project, it must obtain approval from the Grantee. In accordance with 44 CFR §206.203(d)(1), Federal funding is limited to the Federal share of the approved estimate of eligible costs to repair the damaged facility.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.
Carlos J. Castillo
Disaster Assistance Directorate
cc: Jonathan Sarubbi
FEMA Region III