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Second Appeal Letter
PA ID# 000-3QVN0-00; Walsh County Water Resource District
PW ID# 870; Man-Made Channel Repair
June 27, 2012
Lonnie G. Hoffer
Disaster Recovery Chief
North Dakota Department of Emergency Services
P.O. Box 5511
Bismarck, ND 58506-5511
Re: Second Appeal-Walsh County Water Resource District, PA ID 000-3QVN-000, Man-Made Channel Repair, FEMA-1907-DR-ND, Project Worksheet (PW) 870
Dear Mr. Hoffer,
This is in response to a letter from your office dated December 9, 2011, which transmitted the above referenced second appeal on behalf of the Walsh County Water Resource District (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny funding in the amount of $21,734.10 for repairs to Walsh County Drain 10.
Severe storms and flooding between February 26 and July 15, 2010, resulted in the declaration of major disaster FEMA-1907-DR-ND on April 30, 2010. On May 14, 2010, FEMA Region VIII issued Informational Memo 7- Public Assistance Eligibility of Legal Drains to provide guidance to applicants on the eligibility of work to repair man-made drainage facilities. The memo advised that sediment of less than one foot in depth was not eligible for assistance under FEMA-1907-DR-ND. The memo further clarified that the removal of sediment was eligible only when the sediment caused a significant loss to channel capacity. In order for any work on a drainage facility to be eligible, the Informational Memo 7 noted that applicants must provide evidence that demonstrates regular and proper maintenance of the facility, such as a regular maintenance schedule.
The man-made channel, Walsh County Drain 10, was constructed in fall 2009 and was certified as being built to specifications in November 2009. Following the spring 2010 flooding, FEMA prepared PW 870 to document the deposition of material in the drain from storm runoff. The PW identified the affected area as 1,200 feet long by 20 feet wide by 0.33 feet deep, and estimated the total volume of the sediment in the channel to be 293 cubic yards. Because the sediment deposited in the drain was less than one foot deep, FEMA determined the work to remove it was ineligible for reimbursement and reduced the eligible cost estimate to zero dollars. Additionally, when the PW was prepared, the Applicant submitted no maintenance records other maintenance documentation, such as policies and criteria identifying a maintenance schedule for Drain 10.
The North Dakota Department of Emergency Services (Grantee) forwarded the Applicant’s first appeal, dated October 27, 2010, to FEMA on November 11, 2010. In the appeal, the Applicant contended that the sediment was not a result of normal silting but was instead caused by overland flooding that had washed out 700 feet of an adjacent township roadway. The appeal included an October 26, 2010 invoice for silt removal, and two invoices, dated August 25, 2010 and September 22, 2010, for surveying, engineering and construction review. No contract information was included in this documentation. On June 23, 2011, FEMA denied the first appeal because the Applicant had not provided evidence showing that the sediment identified in the PW significantly affected the function of the drain. Furthermore, the Applicant did not submit documentation to demonstrate that this type of damage is normally repaired. The Regional Administrator noted that, while PW 870 identifies 293 cubic yards of material deposited in the channel, the contractor’s invoice was for removal of 1,560 cubic yards of material-more than five times the volume originally identified by FEMA.
The Applicant asserts, in its August 4, 2011, second appeal, that the invoiced amount of 1,560 cubic yards of material was directly attributable to the disaster-related road washout. In support of this claim, the Applicant provided a contractor’s project estimate from July 16, 2010. As further support for the argument that the sediment was directly attributable to the road washout, the applicant notes that FEMA funded PW 1320 for the repair costs for the adjacent road to include 1,411 cubic yards of embankment fill and 180 cubic yards of gravel. The Grantee forwarded the second appeal, without a recommendation, to FEMA on December 9, 2011.
In the second appeal, the Applicant’s core argument is that the total volume of sediments deposited in the drain was commensurate with the amount of material washed off the adjacent roadway. While the argument has some merit due to proximity of the road and the direction of the slope, there is no proof that all of the road material settled in the drain. In estimating volumes of silt to be removed, FEMA uses explicitly designed sampling techniques to identify freshly deposited sediments in a channel. FEMA’s assessment identified 293 cubic yards of sediment in the channel following the floods, not 1,560 cubic yards as invoiced by the contractor.
To support its claim that sediments deposited in the drain were from the adjacent road, the Applicant submitted survey results from the July 16, 2010, contractor estimate with the second appeal. This survey identified the volume of sediment to be removed from the drain to be 1,525 feet long by 10 feet wide by an average of 0.5 feet deep. This results in a total volume of 282 cubic yards of material, not 1,560 cubic yards as invoiced to the Applicant. Title 44 of the Code of Federal Regulations (44 CFR) §206.224(a)(2) Debris removal, Public Interest requires that debris removal be in the public interest. Such removal is in the public interest when it is necessary to eliminate immediate threats to lives, public health, and safety or an immediate threat of significant damage to improved public or private property. Based on information contained in both PW 870 and the documentation subsequently submitted by the Applicant, the depth of the sediment was less than one foot. In general, removal of sediment less than one foot in depth is not considered to be in the public interest. Further, the Public Assistance Debris Management Guide dated July 2007 states, “In order to determine the disaster-related debris quantities, the applicant should provide regularly scheduled maintenance reports that indicate the pre-disaster soil, mud, and sand levels. Maintenance reports are commonly requested for soil, mud, and sand removal from sewers, water treatment facilities and drainage channels.” The Applicant did not provide evidence to show that the sediment identified in PW 870 significantly affected the function of the drain or caused an immediate threat of significant damage to the drain. The Applicant also failed to provide maintenance records for the drain. Therefore, the sediment removal expense is ineligible for funding under the Public Assistance Program.
I have reviewed the documentation submitted with the second appeal and have determined that the 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.
cc: Robin Finegan
FEMA Region VIII