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Second Appeal Letter
PA ID# 015-99015-00; Mohave County
PW ID# 109; Big Sandy River Low Water Crossings
December 11, 2012
Division of Emergency Management
Department of Emergency & Military Affairs,
5636 East McDowell Road, Building M5507
Phoenix, AZ 85008-3405
Re: Second Appeal–Mohave County, PA ID 015-99015-00, Big Sandy River Low Water Crossings, FEMA-1888-DR-AZ, Project Worksheet (PW) 109
Dear Mr. Trammell:
This letter is in response to a letter from your office dated May 29, 2012, that transmitted the second appeal on behalf of Mohave County (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of repair costs for five damaged low water crossings on Project Worksheet (PW) 109.
From January 18-22, 2010, the State of Arizona experienced a severe winter storm including record snowfall, high winds, and flooding. The flooding damaged five Big Sandy River “low water crossings” in Mohave County. FEMA prepared PW 109 to document work performed to repair the five low water crossings. The PW was determined to be ineligible because the Applicant did not provide documentation showing legal responsibility for the repair of the damaged water crossings.
On July 6, 2011, the Applicant submitted an appeal to the State requesting reconsideration of PW 109 Sites D & E. The appeal asserted that the two sites in question are the Applicant’s legal responsibility based on its interpretation of a section of the Mining Act of 1866 codified as Revised Statute 2477. The letter further stated that the Applicant maintains the roadway on which the crossings were located and that the low water crossings, identified as Sites D & E, are on private land. On March 2, 2012, FEMA denied the appeal stating that the Applicant “provided no clear evidence of the legal responsibility for the crossings in question.”
In the second appeal dated April 20, 2012, the Applicant restated its assertion, citing the Federal statutes referenced above, stating that it “possesses RS 2477 right-of-way or other evidence of legal responsibility for the crossings in question”. The Applicant cited two additional statutes, Arizona Revised Statute § 28-7041.C and Omnibus Consolidated Appropriations Act, 1997 (P.L. 104-208) as supporting its claim of legal responsibility for PW 109 sites D & E and provided copies of two plats (maps). Specifically, the Applicant claims that Signal Road (a.k.a. Sandy Road) on which the low water crossings are located is a County Highway under the Arizona Statute. The State transmitted the Applicant’s second appeal in a letter dated May 29, 2012, stating that Sites D & E are on private land and therefore, the Mining Act does not apply. Consequently, the repairs claimed are ineligible under Public Assistance Program guidelines.
FEMA requested the following information from the Applicant on August 17, 2012:
1. Documentation showing transfer of the land or a title showing current ownership for both sites identified as D and E on the above referenced PW.
2. A formal agreement or document between the County and the current owners validating the claim that the County is responsible for repairs to the two low water crossings on Signal Road (identified as sites D and E on the PW).
3. Evidence that it “constructed, laid out, opened, established or maintained for ten years or more” the sites in question as required by Arizona Revised Statute §28-7041.
On August 24, 2012, the Applicant submitted several documents in response to FEMA’s request including maintenance records from 1945-1947 for Signal Road (a.k.a. Sandy Road), field survey reports, Mohave County Board of Supervisors public hearing notes, a 1937 Arizona road map, and General Land Office Certificates of ownership from 1921 and 1924. These were the same documents provided with the first appeal.
Title 44 of the Code of Federal Regulations (44 CFR) §206.223(a)(3), General Work Eligibility states that “to be eligible for financial assistance, an item of work must: … Be the legal responsibility of an eligible applicant”. FEMA has reviewed the documentation submitted with the appeal and determined that the Applicant has not established legal responsibility for the low water crossings identified on PW 109 as Sites D & E. Therefore, the repair of Sites D & E is ineligible for funding under the Public Assistance Program.
I have reviewed the information submitted with the appeal, and the additional information and exhibits submitted upon request, 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. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206, Appeals.
cc: Nancy Ward
FEMA Region IX