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Second Appeal Letter
PA ID# 157-URR5N-00; Bois Brule Levee and Drainage District
PW ID# 647; Bois Brule Pumps 1 and 3
January 4, 2010
Charles R. May
Alternate Governor’s Authorized Representative
State of Missouri Emergency Management Agency
Department of Public Safety
Post Office Box 116
Jefferson City, MO 65102
Re: Second Appeal–Bois Brule Levee and Drainage District, PA ID 157-URR5N-00
Bois Brule Pumps 1 and 3, FEMA-1749-DR-MO, Project Worksheet (PW) 647
Dear Mr. May:
This letter is in response to your letter dated May 21, 2009, which transmitted the referenced second appeal on behalf of the Bois Brule Levee and Drainage District (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $168,041 for permanent repairs to two of its levee pumps.
Heavy rains from March 17, 2008, through May 9, 2008, resulted in extensive flooding in Perry County, Missouri. In response, the Applicant operated pumps along its 33.1-mile levee system until June 1, 2008, to pump out approximately 7,522,560,000 gallons of water in order to protect life, public safety and improved property. On June 16, 2008, FEMA prepared PW 647 to fund the Applicant’s emergency protective measures along its levee system. However, FEMA determined that costs for permanent repairs to the Applicant’s levee system were ineligible for reimbursement.
The Applicant submitted its first appeal on November 4, 2008, and requested $168,041 for permanent repairs to Bois Brule Pump 1 and Pump 3. The Applicant stated that both pumps were damaged as a result of the declared disaster. According to the Applicant, the repairs should be eligible because the pumps were damaged by disaster-generated debris during its emergency pumping operations. The Acting Regional Administrator denied the Applicant’s appeal on February 12, 2009, because the Applicant is eligible to participate in the U.S. Army Corps of Engineers’ (USACE) Rehabilitation and Inspection Program (RIP). The Applicant’s participation in this program was evidenced by the April 21, 2004 Project Cooperation Agreement between USACE and the Applicant. Pursuant to the August 17, 1999, Response and Recovery (R&R) Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works, permanent repairs to flood control works that are eligible for RIP are not eligible for FEMA funding.
The Applicant submitted its second appeal on May 14, 2009. The Applicant maintained that permanent repairs to both pumps should be eligible for reimbursement because they were damaged while performing eligible emergency work. The Applicant stated that it had not received any funding from USACE for these repairs and that its Project Cooperation Agreement does not prohibit funding from FEMA. However, the Applicant’s agreement with USACE defines its levee as a flood control work and references repairs to the levee “under the provisions of Public Law 84-99 after the Mississippi River Flood of 1993.” The agreement also states that design deficiency repairs present in 2004 would be repaired by USACE. USACE has established that the facility is a flood control work and permanent repairs are under its authority. In accordance with R&R Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works, the permanent repairs to the Applicant’s flood control works are ineligible for FEMA funding.
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: Arthur Freeman
Acting Regional Administrator
FEMA Region VII