Appeal Brief | Appeal Letter | Back
Second Appeal Letter
PA ID# 021-89300-00; Village of Wyocena
PW ID# 2373; Marina Dredging Costs
January 17, 2012
Wisconsin Division of Emergency Management
2400 Wright Street
P.O. Box 7865
Madison, Wisconsin 53707-7865
Re: Second Appeal–Village of Wyocena, PA ID 021-89300-00, Removal of Sediment and Bog Material from Lake Wyona, FEMA-1768-DR-WI, Project Worksheets (PW) 2373
Dear Mr. Satula:
This is in response to a letter from your office dated June 21, 2010, which transmitted the referenced second appeal on behalf of the Village of Wyocena (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $114,903 for the removal of debris, in the form of sediment and bog material, from “Area A” of Lake Wyona.
In June 2008, heavy rains and flooding caused damage in Columbia County, Wisconsin. The flooding caused the dam holding Lake Wyona to breech and the Lake to drain. This resulted in sediment and bog material to be deposited in several areas of the lakebed, including “Area A” located in proximity to the dam. The Applicant requested $114,903 to remove silt and bog material from “Area A”, stating that the sediment and debris posed a threat to the hydroelectric operation located at the dam. On November 30, 2008, FEMA denied the costs associated with PW 2373 because the debris did not pose an immediate threat to an eligible facility. (FEMA provided funding for the restoration of the dam in PW 2367.)
On May 7, 2009, the Wisconsin Division of Emergency Management (WDEM) requested a reconsideration of PW 2373. During the site-visit, WDEM informed FEMA that the sediment and debris threatened the hydroelectric portion of the dam. During FEMA’s review, it was found that while the dam and buildings are owned by the Applicant, the hydroelectric facility located at the dam is leased to and operated by a private party. After review of the Applicant’s lease, FEMA determined that the lessee, not the Applicant, was responsible for the removal of the sediment.
The Applicant submitted its first appeal on October 1, 2009, stating that per the lease agreement, the Applicant was the responsible party for the costs associated with PW 2373. FEMA reviewed the terms of the lease and determined that the lessee was responsible for any debris affecting the hydroelectric operation at the dam. Therefore, the removal of the sediment and bog material was not eligible because it was not the Applicant’s legal responsibility. On February 8, 2010, WDEM submitted additional correspondence stating that Lake Wyona is a manmade impoundment and therefore in itself is an eligible facility. On February 28, 2010, FEMA issued an interim appeal response allowing the Applicant two weeks to document that there was a formal program for maintaining the capacity of the lake and the dam; demonstrate that maintenance programs have been followed; and provide accurate estimates of the quantity of debris deposited in the lake by the flooding (e.g., pre- and post-disaster Dam Safety Inspection Reports, pre- and post-disaster capacity surveys of the lake, and narrative statements defining the immediate threats to the lake and dam). Subsequently, on April 13, 2010, the Acting Regional Administrator denied the Applicant’s first appeal on the basis that the Applicant did not provide adequate justification to support its position that the debris in “Area A” of Lake Wyona was an immediate threat to either the dam or the hydroelectric power plant.
The Applicant submitted its second appeal on June 14, 2010, which the State transmitted to FEMA on June 21, 2010. The Applicant reiterated its position from the first appeal stating that the sediment in “Area A” of Lake Wyona did pose a threat to improved property, and that it has legal responsibility for the dam. The Applicant contends that the debris will threaten the dam when the lake is refilled and provided a memo from the Applicant’s engineer to support its position. The Applicant also contends that Article 5 of the lease agreement states that the Applicant, not the lessee, is responsible for the repair and maintenance of the dam.
Pursuant to Title 44 of the Code of Federal Regulations (CFR) §206.223(a)(3), to be eligible for financial assistance, an item of work must be “the legal responsibility of an eligible applicant.” The lease indicates that the lessee is responsible to repair, maintain and keep any portion of the project needed for generation of hydroelectric power. Further, the lease states that the lessee shall take such actions as are necessary to protect the powerhouse and area immediately around it from erosion and shall remove any silt which affects the power generating operation. The Acting Regional Administrator’s letter dated February 24, 2010, stated that FEMA has found that, based on the terms of the lease, the lessee is responsible for any debris which affects the hydroelectric portion of the dam.
As stated in 44 CFR §206.224(a)(2), debris removal is in the public interest when it is necessary to, “Eliminate immediate threats of significant damage to improved public or private property.” In correspondence dated February 28, 2010, FEMA requested information from the Applicant to demonstrate how the siltation posed an immediate threat to the dam and lake (e.g., pre- and post-disaster Dam Safety Inspection Reports, pre- and post-disaster capacity surveys of the lake, and narrative statements defining the immediate threats to the lake and dam). The Applicant did not provide the requested documentation to demonstrate the existence of an immediate threat to improved public or private property.
The Applicant has indicated that normal dredging operations have not been conducted, because it has not been deemed necessary. Consequently, the Applicant also could not provide maintenance records to substantiate its claim that the sediment and bog material in “Area A” was the result of the disaster.
In a letter dated June 21, 2010, the Grantee also makes the argument that removal of the debris is in the public interest in order to ensure economic recovery of the affected community (44 CFR §206.224(a)(3)). The information provided by the Applicant and the Grantee does not demonstrate how the sediment and bog material prevented refilling of the lake, and therefore had the impact of deterring economic recovery because of loss of revenue from tourism and tax revenue from lakefront properties.
Lastly, the Applicant cited in its second appeal correspondence from the Applicant’s engineer dated March 5, 2010, regarding the debris in “Area A” in relation to the dam. The memorandum indicates that waterflow in the lake may move the debris in “Area A” to areas adjacent to the dam. It also indicates that if debris is removed from “Area A”, the cleared area could serve as a trap for sediment from other areas located upstream where debris removal was not approved. The memo also states that Lake Wyona is shallow and is therefore susceptible to silt and sediment accumulation. These assessments do not demonstrate that the sediment and bog material located in “Area A” pose an immediate threat of significant damage to the Lake Wyona dam.
I have reviewed the information submitted with the appeal and have determined the Regional Administrator’s decision in the first appeal is consistent with Public Assistance Program regulations and policies. 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.
cc: Andrew Velasquez, III
FEMA Region V