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Second Appeal Letter
PA ID# 111-41300-00; Village of Lake Delton
PW ID# 1851 & 2862; Eligible Work
May 27, 2010
Edward F. Wall
State of Wisconsin/Wisconsin Emergency Management
2400 Wright Street
P.O. Box 7865
Madison, WI 53707-7865
Re: Second Appeal–Village of Lake Delton, PA ID 111-41300-00, Eligible Work,
FEMA-1768-DR-WI, Project Worksheets (PW) 1851 and 2862
Dear Mr. Wall:
This letter is in response to your letters dated December 11, 2009, and January 22, 2010, which transmitted the referenced second appeal on behalf of the Village of Lake Delton (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of its request for $516,450 for the installation of a new side channel emergency spillway at Dell Creek Dam, and denial of funding of $188,400 for removal of cottonwood trees from a temporarily drained lakebed.
Severe storms and flooding occurred in Sauk County from June 5-9, 2008. Following this storm event, an earthen embankment at Country Road A along the shore of Lake Delton and upstream of the Dell Creek Dam failed, allowing Lake Delton to drain, leaving the lakebed dry. The water released from the lake through the emergency spillway damaged infrastructure in Kaminski Park that is owned by the Applicant. FEMA prepared PW 2862 for $218,341 to repair damaged infrastructure in Kaminski Park consisting of paved driveways, parking areas, the embankment, a drainage structure downstream of the emergency spillway, and other appurtenances to their pre-disaster condition. The Federal Highway Administration funded the repair of County Road A. The Wisconsin Department of Natural Resources (DNR) required the Applicant to make improvements to Dell Creek Dam before it repaired County Road A and began to refill Lake Delton. The Applicant constructed a new side-channel emergency spillway at the dam for $516,450 to comply with DNR’s requirements. The Applicant considered the new emergency spillway to be a hazard mitigation project and requested reimbursement from FEMA. FEMA denied the request because it determined the flood did not damage the dam and existing spillway.
While Lake Delton was drained, seeds from cottonwood trees became implanted in approximately 60 percent of the 200-acre lakebed. FEMA prepared PW 1851 for $210,000 for removal of this woody vegetation from the lakebed, but subsequently determined that this work was ineligible and did not obligate PW 1851. The Applicant claimed that actual costs for this work totaled $188,400.
The Applicant submitted its first appeal on January 9, 2009, requesting additional funding for a hazard mitigation project (emergency spillway) and for the removal of cottonwood trees from the lakebed. The Applicant argued the emergency spillway was damaged through Kaminski Park. The Applicant also argued that the trees were removed because they posed an immediate threat, and that if they were left unabated, they would pose a potential harm to those using the lake recreationally. The Acting Regional Administrator denied this appeal in a letter dated May 15, 2009, stating that the work was ineligible. FEMA stated that in the original scope of work in PW 2862, the only related damage was to the drainage structure downstream of the emergency spillway, and that there had been no damage to the dam or emergency spillway of the dam itself. FEMA further stated that the Applicant did not notify either Wisconsin Emergency Management (WEM) or FEMA of any additional disaster related damages to the facility, nor did it request a change in scope of work until improvements at the dam were complete. Finally, FEMA also considered the Applicant’s removal of trees from the lakebed to be outside the scope of work and non-disaster-related damage. Both WEM and the Applicant state that they did not receive this letter, and that both were unaware of the decision until September 29, 2009, when FEMA Public Assistance staff visited the State and hand-delivered the letter.
The Applicant submitted its second appeal on November 30, 2009, and WEM forwarded it to FEMA in letters dated December 11, 2009, and January 12, 2010. The Applicant reasserted its request for both the dam improvements and removal of the cottonwood trees. The Applicant argued that “every foot of the water course is part of the spillway,” and that since the spillway ran through portions of Kaminski Park where the water flooded and caused damage, that this damage to the park constitutes damage to the spillway. The Applicant argued that the park itself served as both recreational land and an emergency spillway. The Applicant also argued that these were eligible mitigation measures for which the Applicant had repeatedly sought advice from FEMA. Regarding the tree removal, the Applicant argued that this work should be considered Category B—Emergency Protective Measures, and was incorrectly categorized in PW1851 as Category D—Water Control Facilities.
The Applicant describes the pre-disaster spillway as follows: “The pre-disaster spillway consisted of an overflow entrance that began north of the dam proper. This overflow spillway originated [at] the lake’s edge and ran through a small bridge/box culvert structure into Kaminski Park via a paved spillway/roadway towards Lift Station #1. Near Lift Station #1, the paved spillway entered an underground drainage structure and flows were conveyed to Dell Creek (below the dam) via storm sewer piping.” The Applicant contends that the new side-channel spillway will eliminate future damage to improved facilities in Kaminski Park (pre-disaster emergency spillway). It estimates that the new side-channel spillway (mitigation project) will prevent over $1.8 million in future damages. FEMA approved $218,341 to repair disaster-related damage to Kaminski Park.
Disaster Assistance Policy DP 9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act), dated July 30, 2007, requires eligible hazard mitigation projects to be cost-effective. In addition, FEMA must review and approve the measure prior to funding. Hazard mitigation projects that cost up to 15 percent of the cost to repair the damaged facility are considered cost effective. Certain measures included in Appendix A of the policy are determined cost-effective, as long as the mitigation measure does not exceed 100 percent of the eligible cost of the eligible repair work on the project. If the measure exceeds these costs, the Applicant or State must demonstrate through an acceptable benefit cost methodology that the project is cost effective. The mitigation measures must be related to eligible disaster-related damages and must directly reduce the potential of future, similar disaster damages to the eligible facility. This work is performed on the parts of the facility that were actually damaged by the disaster. However, FEMA can make an exception to this provision on a case-by-case basis.
In this case, the Applicant performed mitigation work on the undamaged dam. The eligible damages occurred to the emergency spillway, which includes the road and other facilities in Kaminski Park. FEMA cannot consider an exception for this HMP, because the Applicant did not obtain approval prior to completing the work. By completing the work prior to approval, FEMA did not have an opportunity to perform the necessary environmental reviews required by statute and executive orders. In addition, neither the Applicant nor the State provided a benefit cost analysis demonstrating that the project is cost effective.
Finally, with regard to the tree removal, this work is ineligible as an emergency protective measure because it was not necessary to eliminate or lessen an immediate threat to life, public health or safety, or significant additional damage to improved public or private property, as required by 44 CFR §206.225, Emergency Work. Furthermore, the growth of the trees in the lakebed is not a direct result of the disaster.
I have reviewed the information submitted with the appeal and have determined that the Acting Regional Administrator’s 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: Janet M. Odeshoo
Acting Regional Administrator
FEMA Region V