As a result of the severe storms and flooding in 2008 (FEMA-1763-DR-IA), the Raccoon and Des Moines Rivers flooded in the vicinity of the McMullen and Saylorville Water Treatment Plants (WTPs) owned and operated by the Des Moines Water Works (Applicant). The flooding caused varying degrees of erosion of the river banks near five collector wells at the McMullen WTP and near one collector well at the Saylorville WTP. The Department of Homeland Security’s Federal Emergency Management Agency (FEMA) prepared six Project Worksheets (PWs) (summarized in Table 1) to fund the restoration and stabilization of the eroded banks near the six wells. The scope of work for the slope restoration at each location does not include restoring the entire sections of river bank that eroded, but instead, includes restoring a stable slope at each location using fill material and protecting the reconstructed slope with rip rap. FEMA approved Hazard Mitigation Proposals (HMPs) for the placement of rip rap under each PW and obligated the six PWs between early May 2009 and late January 2010.
On November 15, 2010, the Iowa Homeland Security and Emergency Management Division (HSEMD) transmitted a request from the Applicant to FEMA for a change in the scope of work for the six PWs. The Applicant stated in its request that it had redesigned the bank stabilization projects to use Class D rip rap in place of all granular fill in accordance with Iowa code requirements. The Applicant requested a change in scope to allow for the use of Class D rip rap and to extend the length of river bank stabilization to include a section between wells 5 and 6 at the McMullen WTP.
On February 2, 2011, FEMA responded to the Applicant’s request and stated that upon further review of the PWs, the PWs are ineligible for funding as the scope of work under each PW is the bank stabilization of natural, unmaintained river embankments. Accordingly, FEMA deobligated the six PWs.
The Applicant requested a reconsideration of FEMA’s determination and submitted additional documentation to support the request. However, after review of the additional documentation, FEMA denied the request on April 18, 2011, and reiterated that all funding will be deobligated.
On June 30, 2011, HSEMD transmitted the Applicant’s first appeal of the deobligation of PWs 9627, 10324, 10355, 10356, 10357, and 10366 to FEMA. The Applicant stated that the deobligation of the funding is not consistent with governing statutes, regulations, and policies because the approved scope of work at each location was required to restore public facilities damaged by the declared event and to alleviate immediate threats of potentially catastrophic loss. The Applicant also stated that the deobligation of funding for work completed in accordance with the PWs is unauthorized, unwarranted, and inequitable. At the time FEMA notified the Applicant about the deobligation of funding, the Applicant had already incurred $1,905,850 for work approved under the deobligated PWs. The Applicant requested that FEMA reinstate all deobligated funding ($7,595,367); however, at a minimum, requested that FEMA reinstate the funding for work completed prior to the deobligation.
On December 16, 2011, the FEMA Regional Administrator denied the appeal stating that the natural river bank does not meet the definition of a facility; the Applicant did not identify any damage to eligible facilities; and the Applicant did not demonstrate that an immediate threat to improved property existed as a direct result of the declared event.Second Appeal
On February 16, 2012, the Applicant submitted its second appeal of FEMA’s deobligation of the six PWs, and on April 10, 2012, HSEMD transmitted the Applicant’s second appeal to FEMA. The Applicant requests FEMA reinstate all deobligated funding ($7,595,367); however, at a minimum, requests FEMA reinstate the funding for work completed prior to the deobligation ($1,905,850).
In its appeal, the Applicant states that the river banks were improved by the installation of the wells and were maintained. Further, the Applicant states that the river banks became part of the collector well system after the wells were installed. The Applicant contends that by either considering the river banks themselves as improved or considering them as part of a system, the river banks meet the definition of a facility. The Applicant also states that after the 2008 floods, there was no further margin of safety for the filtering capacity of the well systems; therefore, all facilities were under an immediate threat from any future flood.
In accordance with Title 44 Code of Federal Regulations (44 CFR) §206.226 Restoration of damaged facilities
, work to restore eligible facilities on the basis of the design of such facilities as they existed immediately prior to the disaster is eligible. Facility is defined in 44 CFR §206.201(c) Definitions used in this subpart
and means any publicly or privately owned building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature. Further guidance on the eligibility of natural features as facilities is provided in FEMA’s Public Assistance (PA) Guide
(FEMA 322/June 2007, page 22.) This guidance states that the improvement of a natural feature should be based on a documented design that changes and improves the natural characteristics of the feature. The Applicant contends that the river banks are both facilities themselves and part of a larger facility (the collection well system.)
Regarding the river banks as a facility themselves, the Applicant states that the river banks were improved by the installation of the collector wells. The eroded river bank areas contained materials utilized by the wells to provide river bank filtration of river water to provide pre-filtered water as a raw water supply for the water treatment plants pursuant to documented designs. Further, the Applicant states that the installation and operation of the collector wells based on river bank filtration is a recognized technique that modifies, improves, and adapts a river bank aquifer. The Applicant provides numerous affidavits with its appeal to support this point.
The Applicant describes three main improvements to the river banks as the result of the installation of the wells in its appeal and supports the points through affidavits. The three improvements are summarized below.
1. Pumping the water from the alluvial aquifer lowers the water level in the aquifer, creating more hydraulic head between the river water level and the water level in the aquifer, which allows for more water to flow through the sands and gravels, increasing and thus improving the filtering yield of the sands and gravels.
2. Developing the lateral wells improves the natural underlying alluvial sands and gravels by removing the fine sand from around the laterals and stratifying the larger sands and gravels to provide the best yield from the laterals.
3. Strategic placement of rip rip along the river bank protected the most vulnerable sections of river bank from erosion.
While it is clear that the river bank provides a function useful to the Applicant in the operation of the WTPs by pre-filtering the raw water, the river bank was not improved by the installation of the collector wells. The filtering yield of the sands and gravels in the river banks may improve while the pumps are operating; however, this is not a change to the natural characteristics of the river bank. The river bank still exists in its natural state. While developing the laterals changes the grain size distribution of the alluvial sands and gravels, the change is in the area directly adjacent to the laterals, not the entire section of river bank in the vicinity of the collector wells. Lastly, while the Applicant did place rip rap along the river bank in some locations, the locations addressed in the six PWs at issue were not protected with rip rap at the time of the event. The river banks are not considered “improved” based on FEMA’s regulations in 44 CFR as described in the PA Guide.
Regarding the river banks as part of a larger system, the Applicant states the river bank erosion damaged the raw water collection systems that used river bank filtration. The Applicant provided affidavits to support the technical opinion that collector well systems include well houses, caissons, laterals, supporting equipment and alluvial sands and gravels that hydraulically connect the river waters to the alluvial aquifer and man-made collector elements. The Applicant states that the systems at the two WTPs were designed and constructed and the eroded river bank was an integral element of the functioning collector well systems. The Applicant states that the system was engineered to specifically adapt the river bank areas for exploitation using the recognized technique of river bank filtration. After the wells were installed the whole area surrounding the wells became part of an engineered system designed to provide the desired quality and quantity of water for each WTP.
The documentation provided by the Applicant supports the position that from a water quality standpoint, the river bank supports the function of the collector well system; however, as stated above, only a built or manufactured system is considered an eligible facility in accordance with 44 CFR. The built and manufactured water collection system does not include the natural river banks where the wells are installed; therefore, FEMA cannot consider the river banks as part of an eligible facility. The design of the collection system was based on, among other things, the soil conditions in the river banks; however, the river banks were neither designed nor constructed.
In one of the affidavits submitted with the appeal, the damage to the collection well facilities is described as a reduction of previously existing river bank filtration capacity, a reduction of margins of safety of river bank stability and structural support for constructed elements, and an increase of exposure to future flood and erosion risk. Based on the discussion above only the well houses, caissons, laterals, and supporting equipment are eligible facilities, and the event did not cause any actual damage to the eligible facilities. The event clearly impacted the stability of the river bank; however, the event did not impact the structural stability of the eligible facilities.
The documentation supports the fact that the erosion caused by the event reduced the capacity of the river bank to filter coliform bacteria and nitrates; however, this reduction in filtration capacity is not considered damage to an eligible facility. While there was some reduction in pretreatment by the river bank filtration, the WTPs were designed to follow the pretreatment process with additional treatment (coagulation, sedimentation, filtration, and disinfection) in the actual plant. The documentation does not show that the river bank filtration was reduced to an unacceptable level that prevented the facilities from performing as designed. Sufficient river bank material remained after the event to provide both structural stability to the wells and to provide filtration to the raw water supply.
In its appeal, the Applicant also states that FEMA’s determination that no immediate threat existed to the facilities at issue is incorrect. According to 44 CFR §206.221(c) Definitions, immediate threat means the threat of additional damage or destruction from an event which can reasonably be expected to occur within five years. As stated in the PA Guide, for a flood, an immediate threat exists if a 5-year flooding event could cause damage or threaten lives, public health, and safety. The documentation submitted with the appeal, supports that a 5-year event would likely cause additional erosion near McMullen wells 3 and 5; however, as stated above, the river bank is not improved property. The documentation submitted does not support the Applicant’s position that a 5-year flooding event would cause damage to the collection wells. The Applicant states that the urgency at which it completed the emergency work at wells 3 and 5 corroborates its position that an immediate threat existed after the declared event; however, the Applicant did not proceed with emergency bank stabilization near wells 3 and 5 until the spring of 2010, almost two years after the declared event. At the time FEMA was working with the Applicant to prepare the PWs to restore and stabilize the bank, the Applicant did not indicate that emergency stabilization was necessary.
Lastly, the Applicant contends that the decision to deobligate funding for work undertaken and completed is neither justified nor appropriate. The Applicant states that nothing in the Stafford Act or 44 CFR provides for retroactive application of a mere reconsideration after a grant recipient has acted in good faith and in complete conformity. The decision to deobligate funding was not a reconsideration, but an action taken to correct an error. As discussed above, 44 CFR does not authorize FEMA to provide funding to restore and stabilize natural river banks; accordingly, FEMA’s deobligation of the funding was appropriate.
For the reasons discussed above, the Applicant’s appeal of FEMA’s deobligation of PWs 9627, 10324, 10355, 10356, 10357, and 10366 is denied.