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Second Appeal Letter
PA ID# 041-99041-00; Lewis County
PW ID# 110 & 111; Mays and East Dryad Bridge
March 25, 2010
Deputy State Coordinating Officer, Public Assistance
State of Washington Military Department
Emergency Management Division
MS: TA-20, Building 20
Camp Murray, WA 98430-5122
Re: Second Appeal–Lewis County, PA ID 041-99041-00, Mays and East Dryad Bridges,
FEMA-1734-DR-WA, Project Worksheets (PWs) 110 and 111
Dear Mr. Urbas:
This letter is in response to your letter dated April 9, 2009, which transmitted the referenced second appeal on behalf of Lewis County (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding to replace two bridges in accordance with current codes and standards.
Severe flooding associated with FEMA-1734-DR-WA destroyed the Mays and East Dryad bridges that are owned and maintained by Lewis County (Applicant). By a letter dated February 28, 2008, the Applicant submitted a request to FEMA to apply the Roadway Design Standards in the Lewis County Code (LCC) to the bridge replacement projects. The design standards included elevating both bridges to a minimum of three feet above the 100-year flood level and widening of the Mays Bridge from 18 feet to 28 feet. FEMA denied the request in a letter dated March 11, 2008, stating that the LCC did not meet the requirements of Title 44 of the Code of Federal Regulations (CFR) §206.226(d), Restoration of damaged facilities, Standards. In April 2008, FEMA prepared PW 110 for $641,352 for the replacement of Mays Bridge and PW 111 for $1,132,331 for the replacement of East Dryad Bridge based on their pre-disaster design, excluding the work and costs associated with the code upgrades that the Applicant requested.
On March 25, 2008, the Applicant submitted its first appeal requesting that FEMA apply the LCC to the bridge replacement projects and provide an estimated $5,000,000 for the replacement of the two bridges. The Applicant reiterated its claim that Roadway Design Standards in the LCC warranted funding of the design and construction of the upgraded structures. The Regional Administrator denied the first appeal on November 14, 2008, stating that the LCC did not meet three of the five criteria for codes and standards as established in 44 CFR §206.226(d).
Therefore, the proposed bridge upgrades were not eligible for funding. Specifically, the Regional Administrator determined that the LCC: (1) did not apply to replacement of the bridges; (2) was not appropriate to the pre-disaster use of the facility; and (3) did not apply uniformly to all similar types of facilities within the Applicant’s jurisdiction.
On February 9, 2009, the Applicant submitted its second appeal. The Applicant reiterated its claim that the Roadway Design Standards in the LCC warrant the funding of the design and construction of the upgraded structures and provided arguments and information to support its position that the LCC met the three criteria for codes and standards in question.
The salient issue in this appeal is whether the LCC, which requires a minimum bridge width of 28 feet and bridges to be constructed to a height of three feet above 100-year flood level, meets the requirements of 44 CFR § 206.226(d). Three of FEMA’s five criteria are in question: (1) does the LCC apply to replacement of bridges? (2) is the LCC standard that bridges have a minimum width of 28 feet appropriate to the pre-disaster use of the facility? and (3) does the requirement that bridges be constructed three feet above 100-year flood level apply uniformly to all similar types of facilities within the Applicant’s jurisdiction?
(1) Does the LCC apply to the replacement of bridges?
Yes. The LCC establishes design criteria for county roads in Chapter 12.60. Unless exempt, the LCC requires that all public roads must be built to county standards. Bridges are included in the LCC definition of public roads as improvements within the right-of-way. Resurfacing, Rehabilitation and Restoration projects are exempt from the standards. The Local Agency Guidelines (LAG) Manual definition of Resurfacing, Rehabilitation, and Restoration does not include bridge replacement. Maintenance, temporary emergency repairs, minor upgrades to private roads, and roads maintained by the State or a federal agency are also exempt from the LCC. However, bridge replacements do not fit this or any other exemption criteria of the LCC. Therefore, bridge projects are subject to LCC standards.
(2) Is the LCC requirement that the minimum width of 28 feet for bridges appropriate to the pre-disaster use of the facility?
Yes. The LCC requires new bridges to comprise the full width of the road being served and must be at least 28 feet wide if there are over 400 Average Daily Trips (ADT). Prior to the declared event, the Mays Bridge (PW 110) provided an 18.1-foot traveled way. Although the bridge had only one lane, the Applicant provided sufficient documentation to establish that the bridge’s pre-disaster function and capacity accommodated two-way traffic of 480 ADT. Therefore, the standard requiring a minimum bridge width of 28 feet for two lanes does not change the pre-disaster function or capacity of the bridge.
(3) Does the requirement to construct bridges three feet above 100-year flood level requirement apply uniformly to all bridges within the Applicant’s jurisdiction?
No. Section 34.52 (4)(a) of the LAG states “the bottom of the superstructure will be 3 feet above the 100 year flood or as determined by field review.” The language “or as determined by field review” allows the County Engineer discretion to approve a deviation from a standard. This means the Applicant is not required to uniformly apply the three-foot standard to all bridge projects. However, this conclusion does not mean that design and construction of the bridges to this standard is not eligible for funding. The standard establishes three feet above the 100-year flood as a benchmark for design. The standard allows a degree of flexibility for licensed engineers to exercise their professional judgment when accommodating site-specific constraints, atypical field conditions, and to protect the health and safety of the public. The standard is a reasonable guideline and good construction practice intended to reduce the likelihood of future damage from flooding and debris. Although it may not be possible to apply the standard in all situations, a reasonable application of this standard to the Applicant’s design is eligible for funding.
I have reviewed all information that the Applicant submitted and determined that the LCC applies to the replacement bridges and the section of the LCC that requires a minimum bridge width of 28 feet meets FEMA’s requirements for codes and standards. Although the requirement to construct bridges three feet above the 100-year flood level does not meet FEMA’s requirements for codes and standards, a reasonable application of this construction standard to the design of the bridges is eligible. Therefore, the cost to construct the new bridges in accordance with the LCC is eligible for reimbursement. Accordingly, I approve the appeal. Before FEMA approves additional funding for the bridge replacement projects, the Applicant must submit its final design and cost estimates to FEMA for review.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
Elizabeth A. Zimmerman
cc: Dennis A. Hunsinger, PhD
Acting Regional Administrator
FEMA Region X