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Second Appeal Letter
PA ID# 021-UEAIV-00; Greene Reservoir Flood Control District
PW ID# 51; Santa Cruz River Levee
January 11, 2010
Assistant Director, Recovery
Arizona Department of Emergency and Military Affairs
Division of Emergency Management- Recovery Section
5636 East McDowell Road, Building M5507
Phoenix, AZ 85008-3495
Re: Second Appeal–Greene Reservoir Flood Control District, PA ID 021-UEAIV-00,
Santa Cruz River Levee, FEMA-1660-DR-AZ Project Worksheet (PW) 51
Dear Ms. Smith-Reeve:
This letter is in response to your letter dated February 3, 2009, which transmitted the referenced second appeal on behalf of the Greene Reservoir Flood Control District (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $160,515 for repairs to the Santa Cruz River Levee.
The storms and heavy rains of July 26, 2006, through August 4, 2006, produced high flows into the Santa Cruz River along Sunland Gin Road. This resulted in 12 major breaches in the earthen levee along a nine-mile stretch adjacent to the roadway. FEMA prepared PW 51 for $25,550 for emergency repairs to replace unclassified material to stop the overflow of the levee. On October 11, 2006, the Arizona Division of Emergency Management (ADEM) submitted PW 100 to capture additional work required to restore the levee to its pre-disaster condition. On May 7, 2007, FEMA informed ADEM and the Applicant that the Santa Cruz River Levee met the definition of a Flood Control Work (FCW) and that permanent repairs described in PW 100 were not eligible for assistance pursuant to Response and Recovery Policy 9524.3, Policy for the Rehabilitation Assistance for Levees and Other Flood Control Works, August 17, 1999. On November 28, 2007, ADEM requested that FEMA revise the scope of work and estimated cost of PW 51 to include placing, shaping, and compacting fill material required to restore the levee breaches to their pre-disaster design. FEMA denied the request on February 22, 2008, because the requested scope of work constituted the permanent restoration of the levee that was previously addressed in PW 100 and denied.
The Applicant submitted its first appeal to ADEM on May 7, 2008. The Applicant claimed that the scope of work for PW 51 was not intended to reflect the placement of fill only, because the placement, compaction, and shaping of the fill material occurred simultaneously, and were necessary to complete the emergency work to stop the overflow of the levee. The Applicant also asserted that the placement, compaction, and shaping were necessary because the levee had to be restored. Furthermore, the Applicant stated that the scope of work in PW 100 for placing, compacting, and shaping the fill material along with hydro seeding to promote vegetative growth was permanent work. However, the Applicant asserts no hydro-seeding was included in PW 51 and the description of the work as “filling, shaping and compacting” does not render the work as ineligible permanent work.
The Deputy Regional Administrator denied the appeal on October 14, 2008, because in accordance with FEMA Response and Recovery Policy 9524.3, FEMA does not fund the permanent repair of FCWs. The authority to repair FCWs resides with the U.S. Army Corps of Engineers and the Natural Resources Conservation Service.
In the second appeal, the Applicant reiterated its position that placing, compacting, and shaping of the fill material are all a necessary part of the emergency work. The Applicant asserted that just placing the fill as described in PW 51 would not alleviate the immediate threat to life, health and safety, or improved property. Furthermore, the Applicant states that Response and Recovery Policy 9524.3 describes emergency repairs such as stabilizing a breach in a levee as eligible work if the work is necessary to lessen or eliminate the immediate threat to additional damage to improved property.
FEMA initially approved PW 51 for $25,000 to “…have just enough reclaimed unclassified material, moved back into the levee breaches to stop the over flow of flood waters onto the farm land and crops.” In the second appeal, the Applicant requested an additional $160,515 to place, compact, and shape fill material required to repair the breaches to their predisaster condition. Response and Recovery Policy 9524.3 authorizes emergency repairs to levees (including filling breaches) to eliminate an immediate threat to public health and safety or damage to improved property. FEMA defines improved property on page 46 of the Public Assistance Guide, FEMA 322 as “…a structure, facility, or other item of equipment that was built, constructed, or manufactured. It does not include land improved for agricultural use.” Therefore, emergency temporary repairs to FCWs that protect farm land only are not eligible for reimbursement under Response and Recovery Policy 9524.3.
I have reviewed the information submitted with the appeal and determined that the Deputy Regional Administrator’s decision to deny the first appeal request for $160,515 was consistent with Response and Recovery Policy 9524.3 as the work went beyond what was necessary to address the immediate threat. I have further determined that funds approved in PW 51 are not eligible for reimbursement because the emergency repairs were not required to protect improved property. Accordingly, I am denying the second appeal. By copy of the letter, I request the Regional Administrator take appropriate action to implement my determination.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206, Appeals.
Acting Deputy Assistant Administrator
Disaster Assistance Directorate
cc: Nancy Ward
FEMA Region IX