Appeal Brief | Appeal Letter | Back
Second Appeal Letter
PA ID# 053-46584-00; City of Marble Falls
PW ID# 3844 and 3935; Scope of Work and Cost Overrun
State Coordinating Officer
Office of the Governor
Division of Emergency Mangement
P.O. Box 4087
Austin, Texas 78773
Re: Second AppealCity of Marble Falls, PA ID 053-46584-00,Scope of Work and Cost Overrun
, FEMA-1709-DR-TX, Project Worksheets (PW) 3935 and 3844
Dear Ms. Haun:
This is in response to your letter dated August 26, 2008, which transmitted the referenced second appeal on behalf of the City of Marble Falls (Applicant). The Applicant is requesting the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) change the Scope of Work (SOW) for PWs 3935 and 3844 and increase project funding in the amount of $369,441.
The severe storms and flooding that occurred during the period of June 16, 2007, through
August 3, 2007, caused debris flows into the City of Marble Falls public rights-of-way, bridges and culverts, and its waterways. In response to the Applicants request, FEMA prepared
PW 3844 to remove sediment and vegetative debris from the Backbone Creek and Whitman Branch Creek waterways in order to reduce or eliminate the threat of flooding to the community. FEMA determined that the waterways were natural channels and were not improved or maintained. FEMA did not obligate PW 3844, but placed it on hold until the Applicant could demonstrate that the disaster-related debris created an immediate threat to the community. The Applicant requested funding for PW 3844 to complete a study to determine disaster-related debris impact on the waterways. FEMA advised the Applicant that FEMA does not fund surveys to determine the possibility of damage to a facility, but those costs may be eligible if damage are discovered. FEMA also prepared PW 3935 to cover 897 CY of scattered debris located at various city-wide locations that was not removed and disposed of from public property and rights-of-way under previous PWs for this disaster. The small project was obligated for $3,588.
The Applicant submitted its first appeal on February 5, 2008, for PW 3844 and PW 3935.
For PW 3844, the Applicant requested funding of an unspecified amount to conduct an engineering damage study/survey. For PW 3935, the Applicant appealed for additional funding for debris removal and for bank stabilization. It should be noted that PW 3935 does not include
bank stabilization in its Scope of Work (SOW). On April 4, 2008, the Regional Administrator denied the appeal; however, the Applicant was advised to appeal, if necessary, for a Net Small Project Overrun upon completion of all the Applicants small projects. The Regional Administrator stated that FEMA does not provide funding for damage surveys, nor does FEMA
review small project appeals on a project-by-project basis, but upon completion of all the Applicants small projects.
On June 20, 2008, the Applicant submitted its second appeal requesting a change to the SOW for PW 3935 and to increase the project cost in the amount of $369,441. Support documents include an engineering study of the sediment and debris that was deposited in Backbone Creek and Whitman Branch Creek waterways during the disaster. The Applicant suggests that PW 3844 can be closed upon approval of PW 3935 change of SOW.
FEMA may fund debris removal from streams only if the action is necessary to lessen or eliminate an immediate threat. FEMA defines an immediate threat as the threat of additional damage or destruction from an event which can reasonably be expected to occur within five years. The engineering study the Applicant submitted does not forecast water surface levels from a five-year event, and it does not provide estimates of damage that might be expected from a five-year flood. In addition, the study found that the sediment deposits do not represent an urgent threat and should be removed through an increase in existing maintenance efforts with the timeframe and annual rate of removal to be established through experience and observation as the program progresses. Because the Applicant did not demonstrate that the disaster-related debris created an immediate threat to the community, the cost for its removal and disposal is not eligible for Public Assistance funding.
Furthermore, in accordance with 44 CFR §206.204(e)(2), Project performance, Cost Overruns
, The normal procedure for small projects will be that when a subgrantee discovers a significant overrun related to the total final cost for all small projects, the subgrantee may submit an appeal for additional funding in accordance with §206.206, within 60 days following the completion of all its small projects.
I have reviewed the information submitted with the appeal and have determined that the Regional Administrators decision in the first appeal is consistent with Public Assistance regulations and policy. Accordingly, I am denying the second appeal.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals
Elizabeth A. Zimmerman
Disaster Assistance Directorate
cc: Gary Jones
Acting Regional Administrator
FEMA Region VI