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Second Appeal Analysis
PA ID# 000-A0000-00; Multiple Applicants
PW ID# Multiple PWs; Howard Hanson Dam
From January 6 through January 16, 2009, heavy rains and snowmelt caused flooding in several counties in the State of Washington. The Howard Hanson Dam (HHD), which is located in King County, Washington and is owned and operated by the United State Army Corps of Engineers (USACE), provides flood protection to the Green River Valley. During the declared major disaster (FEMA-1817-DR-WA), the influent to the reservoir behind HHD reached 30,500 cubic feet per second. Due to high tributary flows to the river below the dam, the USACE reduced the reservoir effluent to zero to avoid exacerbating downstream flooding. This rapid accumulation of water in the reservoir resulted in a record pool elevation of 1,189 feet. Following the flood, USACE observed two depressions in the HHD’s right abutment and noticed muddy water discharging from a vertical drain below the HHD. A dye test of the larger depression revealed a higher than expected rate of seepage through the HHD’s right earthen abutment.
On January 16, 2009, USACE reduced the maximum rated capacity of the HHD from 1,206 to 1,155 feet in order to stabilize the seepage through the right abutment, investigate the cause of the depressions, and initiate remedial actions. Although excavation and inspection of the depressions did not reveal evidence that the declared event had compromised the functioning of the abutment, USACE remained concerned about the rate of seepage, as uncontrolled seepage could cause internal erosion and lead to piping. Excessive piping can result in local or total failure of a dam. USACE informed the surrounding communities that until the interim repairs were completed, the Green River Valley would face an increased risk of flooding in the event of a severe storm due to the reduced capacity of the HHD to hold back floodwaters. The Applicants began to plan for the possibility of flooding during the following winter flood season.
By the summer of 2009, USACE stated that the HHD was “behaving similar[ly] to how we’ve known it to behave at this level of storage in the past.” They also reiterated that the seepage problem was not solved and that the valley would continue to face an increased risk of flooding. On July 20, 2009, the State of Washington submitted an Advance Measures Assistance request for $15.5 million through the USACE Seattle District to USACE Headquarters (HQ). USACE HQ denied the request in a memorandum dated September 21, 2009. The memorandum stated that the increased probability of flooding on the Green River did not present an imminent flood condition of unusual flooding. Additionally, it stated that providing fill material and equipment for installation of loaned flood barrier products was a non-federal responsibility. Nevertheless, with the memorandum USACE HQ approved sand bags, flood barrier products, technical assistance, pre-positioning of additional supplies, early-warning systems, and evaluation of “reservoir re-operations to reduce downstream flows as interim risk work was completed on Howard Hanson Dam.”
In July 2009, USACE began interim repairs to the HHD, which were completed by November 4, 2009. The repairs to the right abutment included an injected grout seepage barrier and additional horizontal drains within the drainage tunnel. Upon completion of the barrier on October 31, 2009, USACE announced that while there was still a threat of flooding to the Green River Valley, the magnitude of the threat had been significantly reduced as a result of the repairs. From September 2009 to December 2009, the Applicants undertook measures to protect infrastructure and to maintain continuity of government and public safety in the event of a significant flood. Examples of actions taken by Applicants included, placing sandbags on levees in the valley, establishing a redundant electrical system for Sea-Tac Airport, temporarily relocating the King County Board of Elections, constructing flood walls around the perimeters of facilities, and purchasing emergency generators. Subsequent to the USACE denial of funding for Advance Measures Assistance in September 2009, the Applicants sought funding through FEMA’s Public Assistance Program under FEMA-1817-DR-WA. From January to April 2010, the Applicants submitted requests for reimbursement for emergency protective measures. The Applicants argued that the risk to the Green River Basin met the definition of an immediate threat and that the protective measures were eligible costs under the declared disaster. FEMA denied reimbursement on May 21, 2010, on the basis that the work did not meet the definition of immediate threat, and that the damaged facility was under the authority of another federal agency.
On September 21, 2010, the State of Washington Emergency Management Division (Grantee) submitted a first appeal on behalf of eight Applicants for reimbursement of $38 million for emergency protective measures. The Applicants claimed that the work performed met FEMA’s definition of eligible emergency protective measures as it protected against an immediate threat of flooding. The Regional Administrator denied the first appeal with a letter dated December 6, 2010. The enclosed analysis noted that the Applicants’ actions did not meet the regulatory requirements for emergency protective measures as they were not taken in response to an ongoing or immediate threat of additional damage from the declared event. The analysis further explained that the requested emergency protective measures were taken outside of the declared event’s emergency period and were intended to protect facilities that were undamaged by the declared event. The response also disputed the claim that an immediate threat existed as the National Weather Service had not forecasted a five-year flood or other extreme weather event.
On April 14, 2011, the Grantee submitted a second appeal on behalf of the Applicants, which requests that FEMA approve $31,455,757 for the emergency protective measures. In the second appeal, the Grantee claimes that the work the Applicants performed to protect their facilities qualifies as eligible emergency work in response to an immediate threat of flooding that was a direct result of the declared disaster. The Grantee disagrees with the interpretation of Title 44 of the Code of Federal Regulations (44 CFR) §206.225(a)(3), Emergency Work presented in the Regional Administrator’s response to the first appeal. Specifically, the Grantee contends that neither of the two provisions under 44 CFR §206.225(a)(3), which require that eligible emergency protective measures “(i) Eliminate or lessen immediate threats to live[s], public health or safety; or (ii) Eliminate or lessen immediate threats of significant additional damage to improved property…” stipulate that the emergency protective measures must be in response to an immediate threat of damage from the declared event, rather that the immediate threat resulted from the declared disaster. The Grantee also asserts that the intent of the phrase “threat of significant additional damage to improved property” is not meant to limit emergency protective measures to only those facilities that have already incurred damage as a result of the declared event. In support of this position, the Grantee cites several examples where FEMA has previously reimbursed emergency work to protect undamaged structures.
The Grantee also challenges the notion that an immediate threat as it relates to FEMA’s Public Assistance Program requires evidence of a forecasted weather event. The second appeal insists that there is a significant difference between USACE’s definition of an “imminent threat” under 33 CFR §203.72(a) and FEMA’s definition of an “immediate threat” under 44 CFR §206.221(c). An “imminent threat” requires a clearly defined threat, predicted by the National Weather Service or the USACE that is highly likely to cause damage if protective measures are not taken immediately. Conversely, an “immediate threat” is defined as “the threat of additional damage or destruction from an event which can reasonably be expected to occur with-in five years.” Not only does the Grantee assert that an immediate threat need not be forecasted but that threat of damage need not be weather related as 44 CFR § 206.2(a)(17) allows the President to declare a major disaster for “regardless of cause, any fire, flood, or explosion.” Consequently, the Grantee repeatedly stressed that an immediate threat existed by virtue of the certified 1 in 3 chance of significant flooding as identified by the USACE Seattle District Engineer. The Grantee quoted a September 10, 2009, Seattle Times article that paraphrased a public statement by Colonel Anthony O. Wright. The statement warned that, “There are continuing repairs to the dam that could make all these preparations moot, but if those repairs don’t work the odds of (the USACE) releasing enough water this winter to cause a major flood probably are as high as 1 in 3.” The Grantee noted that this “1 in 3 chance of flooding” forced the Applicants to take prudent measures to protect their respective communities.
On July 12, 2011, the Applicants’ representatives met with Public Assistance representatives at FEMA Headquarters to present additional information on the second appeal. The additional information consisted of a background on both the HHD and the Green River Valley including the area’s unique geography, climatology, and hydrology. The Applicants also provided a detailed timeline of events and actions taken beginning with the weather pattern that resulted in FEMA-1817-DR-WA and ending with the completion of the seepage barrier. The Applicants explained that the emergency protective measures were critical actions that were necessary to protect the public’s life, health, safety and improved property from the immediate and ongoing threat of flooding during the 2009-2010 winter flood season.
In order to be eligible for funding under FEMA’s Public Assistance Program, work must be required as a result of the declared disaster, must be located within the designated area, and must be the legal responsibility of an eligible applicant. For emergency work, the work must also reduce the immediate threat to lives, health and safety, or reduce the immediate threat of additional damage to improved property. While the diverging interpretations of the definition of immediate threat, presented above, constitute the crux of the Applicants’ second appeal, the ascription of the threat to the declared event is another issue that requires additional consideration.
Seepage through HHD’s right earthen abutment during periods of heightened pool elevation has been a persistent concern of the USACE since the original design of the dam, well before its construction in 1962. The right abutment formed from an ancient landslide and is composed of unconsolidated alluvial (fluvial, lacustrine and glacial sediment) and landslide material sitting on bedrock. According to the report, Howard Hanson Dam Right Abutment Seepage Performance Issues and Interim Repairs, “the area of greatest concern for piping/internal erosion due to the nature of the materials (silt, sand, and gravel layers in contact with very high permeability fractured bedrock and landslide debris), high groundwater gradients and the short distance from the upstream to the downstream face” is within 200 feet of the constructed dam embankment.
Efforts to control the seepage through the abutment began with the first significant pool in 1965, when severe seepage forced the USACE to build a cribwall and a seepage relief tunnel to provide drainage and prevent failure of the abutment. A pool elevation of 1,183 feet in 1996 caused construction joints in the drainage tunnel to leak turbid water. In an attempt to reduce the seepage through the abutment, the USACE installed a 300 foot grout curtain in 2002. Six years later in 2008, the USACE sealed the leaking joints in the drainage tunnel to prevent additional loss of fine soil particles, and installed horizontal drains to further increase drainage from around the joints. Given the history and composition of HHD’s right abutment, it appears that the structure was inherently susceptible to seepage and at risk for internal erosion. This raises the question of whether the seepage, as well as the associated damage to the HHD, can be attributed to the declared disaster or whether natural seepage pathways through the structure existed prior to the January 2009 flood.
Without the ability or evidence to prove or disprove that the flood caused seepage, the question of whether an immediate threat of damage to the Applicants’ property existed when they took the emergency protective measures between September 2009 and December 2009 must be addressed. The term “immediate threat” is defined in the Public Assistance Guide, FEMA 322 dated June 2007, as “imminent danger or the threat of additional damage or destruction from an event that could reasonably be expected to occur within 5 years.” For a flood, an immediate threat exists if a 5-year flooding event, or a flood that has a 20 percent or greater chance of occurring in any given year could cause damage or threaten lives, public health, and safety. Throughout the second appeal, the Grantee repeatedly asserts that an immediate threat of flooding existed by virtue of Colonel Wright’s determination of a “1 in 3 chance of flooding.”
While the Grantee is correct that USACE described the threat of flooding in the Green River Valley as “1 in 3”, the statement paraphrased in the Seattle Times article and quoted by the Grantee included an unambiguous qualifier that provided a vital context for appropriately considering the risk. The full statement declared that the “1 in 3” risk of flooding was contingent on failure of the USACE’s interim repairs. Although the Grantee states in the second appeal that “no confidence was expressed that the grout curtain would be a ‘sure fix’ and reduce the threat of flooding,” the high level of confidence that the USACE had in the effectiveness of the interim repairs became apparent when the USACE, even before testing the grout curtain, reduced the flood risk to 1 in 25. It was not until the summer of 2010 that the USACE raised the pool elevation to 1171 feet and tested the effectiveness of the repairs. Despite a greater volume of water flowing into the drainage tunnel due to the additional horizontal drains than in 2009, the 2010 dye tests revealed that the rate of seepage decreased by at least one order of magnitude from the post disaster testing in nearly all areas of the abutment.
Based on a thorough review and analysis of the data submitted with the appeal, FEMA has determined that while the Applicants’ actions were certainly prudent measures to prepare for the coming flood season, they do not qualify as eligible emergency protective measures under FEMA’s Public Assistance Program for FEMA-1817-DR-WA. The documentation submitted does not sufficiently demonstrate that there was an immediate threat of damage to the Applicants’ facilities as a result of the declared major disaster. Therefore, the second appeal is denied.