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Second Appeal Letter
PA ID# 000-UB2M9-00; Missouri Department of Natural Resources
PW ID# 605; Debris Removal from Locust Creek
August 3, 2012
Paul D. Parmenter
State Emergency Management Agency
P.O. Box 116
Jefferson City, Missouri 65102
Re: Second Appeal–Missouri Department of Natural Resources, PA ID 000-UB2M9-00, Debris Removal from Locust Creek, FEMA-1934-DR-MO, Project Worksheet (PW) 605
Dear Mr. Parmenter:
This letter is in response to a letter from your office dated January 27, 2012, which transmitted the referenced second appeal on behalf of the Missouri Department of Natural Resources (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $392,592 in funding for debris removal from Locust Creek.
As a result of tornadoes, severe storms, and flooding occurring June 12, 2010, through July 31, 2010, debris logjams formed in Locust Creek. Locust Creek is a natural stream that is located in Pershing State Park in Linn County, Missouri. At the Applicant’s request, FEMA prepared PW 605 in the amount of $392,592 to remove 39,259 cubic yards of vegetative debris from the channel and banks at two locations in Locust Creek. FEMA directed the Applicant to contact the U.S. Department of Agriculture’s Natural Resources Conservation Service (NRCS) for assistance as the NRCS is the responsible Federal agency for watershed impairments through its Emergency Watershed Protection Program (EWP). EWP eligible activities include, but are not limited to, providing financial and technical assistance to remove debris from stream channels.
In a November 5, 2010, email, NRCS affirmed the Applicant’s eligibility for EWP assistance. However, the NRCS stated that it had no EWP funds available in 2010 for such projects. NRCS stated that EWP funding was only available for projects that would avoid loss of life, and that the logjams did not meet that criterion. On November 19, 2010, FEMA denied funding for PW 605 because funding for debris removal from natural streams is within the authority of the NRCS.
The Applicant submitted a first appeal on January 25, 2011, which was forwarded by the State Emergency Management Agency (Grantee) to FEMA on February 10, 2011. The Applicant requested Public Assistance (PA) funding for debris removal due to the lack of EWP funding. In addition, the Applicant consulted with the Missouri State Parks Northern Parks District (Parks District) to determine whether the logjams presented a public safety issue.
On January 31, 2011, the Supervisor of the Parks District advised the Applicant via email that “the location of the logjams in Locust Creek pose no direct threat of loss of life, and that there are no dwellings, habitation or developed areas in this section of the floodplain as it is mainly forested wetlands and agricultural fields.” The supervisor also advised that “all camping areas are well above the floodplain,” and that the “logjams pose no threat to loss of life there as well.”
In a letter dated September 29, 2011, the Regional Administrator denied the Applicant’s request pursuant to FEMA Recovery Policy RP9523.5, Debris Removal from Waterways, Section VII.D.1, which states, “The removal of debris by an applicant for which another Federal agency has specific authority, or from Federally maintained navigable channels and waterways is ineligible under the Public Assistance Program.” The Regional Administrator also explained that denial of funding by the responsible Federal agency is not a basis for requesting Public Assistance from FEMA.
The Applicant submitted its second appeal on December 1, 2011, which the State transmitted to FEMA on January 27, 2012. The Applicant stated that seeking funding under NRCS was not prudent from an environmental perspective because it believed constraints imposed by EWP guidelines would cause damage to the wetlands. The Applicant also mentioned that the PW 605 Special Considerations worksheet prepared by FEMA contained multiple errors. The second appeal documentation includes copies of emails between the Applicant and the NRCS, and between the Applicant and the Parks District.
Under Section 312 of the Robert T. Stafford Emergency Assistance and Disaster Relief Act, as amended, FEMA may not duplicate assistance from any other source, including other Federal programs. As further articulated in FEMA’s Recovery Policy 9523.5, Debris Removal from Waterways, if another Federal agency has specific authority for removal of debris from a waterway, the debris removal is ineligible under FEMA’s Public Assistance Program. The NRCS has the authority to provide assistance to address watershed impairments under its EWP Program. The NRCS indicated it did not have funding available for logjams in Locust Creek. Lack of funding does not alter an agency’s authority, and therefore does not then constitute eligibility for Public Assistance funding. Further, the NRCS found that the logjams in Locust Creek did not pose a threat to lives or property since the Locust Creek area consists of forested wetlands and agricultural fields. The logjams therefore did not qualify for emergency funding from NRCS under the EWP program. Based on the documentation in the second appeal, including the assessment by the NRCS, the debris removal in Locust Creek is not eligible for Public Assistance funding.
FEMA acknowledges that errors were made on the Special Considerations worksheet and those errors have been corrected. However, the corrections made to the worksheet do not effect FEMA’s first or second appeal determinations.
I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision is consistent with Public Assistance regulations and policies. Accordingly, I am denying the Applicant’s 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: Beth Freeman
FEMA Region VII