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Second Appeal Analysis
PA ID# 117-22260-00 ; City of Fort Pierre
PW ID# 1987 and 1993; Environmental Compliance Temporary Levee
The State of South Dakota experienced above normal snowfall during the winter of 2010, after which warm spring temperatures produced significant water run-off and flooding from March 11, through July 22, 2011.
The U.S. Army Corps of Engineers notified the City of Fort Pierre (Applicant) that emergency water releases would be made from the Oahe Dam, which is located upstream from the city. As a result of the water release, the Applicant constructed a temporary levee system comprised of 13 levee segments along the city's frontage on the Missouri River. Levee Segments 8 through 12 were built on the west side of the Missouri River to protect the northern portion of the city from flood waters.
Discussions between FEMA Environmental and Historic Preservation (EHP) staff and the Applicant were held throughout the levee building process to evaluate and identify potential debris disposal sites to ensure compliance with required Federal environmental statutes, regulations, and executive orders. In particular, Executive Order 11988, Floodplain Management, and FEMA’s Eight Step process (44 CFR Part 9), FEMA’s implementing regulation for Executive Order 11988, requires federal agencies to avoid to the extent possible the long and short-term adverse impacts associated with the occupancy and modification of floodplains, and to avoid direct and indirect support of floodplain development wherever there is a practicable alternative. FEMA also provided the Applicant with written guidance on disposal sites and contracting, as well as assessments of the Applicant’s proposed disposal sites. A total of 13 sites were approved by FEMA EHP for debris staging and storage with removal of all 13 temporary levee segments being the responsibility of the Applicant. Total claimed estimated costs for projects associated with the construction and removal of the temporary levee system was $2,225,012.
FEMA prepared PW 1987 (Category B – Emergency Protective Measures) for the estimated construction cost of levee Segment 9 in the amount of $228,310. FEMA also prepared PW 1993 (Category A – Debris Removal) in the amount of $220,000 for the estimated cost to remove temporary levee Segment 9 and the disposal of the resultant temporary levee material. During the levee removal operation, FEMA staff observed the Applicant’s contractor spill levee Segment 9 debris into a floodplain area located at the Buchholz/Anderson disposal site, in violation of Executive Order 11988. In addition, tree removal and grubbing activities were also observed by FEMA staff at the same site. A FEMA letter to the Applicant dated November 4, 2011, provided guidance regarding debris placed in floodplains and wetlands and specifically identified the Buchholz/Anderson site as a location where the Applicant’s contractor improperly placed temporary levee material into a floodplain. In November 2011, as a result of the floodplain violation at the Buchholz/Anderson site and violations of Executive Order 11988, FEMA denied total claimed cost of $448,310 for PW 1987 ($228,310) and PW 1993 ($220,000).
The Applicant submitted its first appeal on November 18, 2011, which was transmitted by the South Dakota Office of Emergency Management (State) to FEMA on December 8, 2011, requesting that funding in the amount of $448,310 be restored for PW 1987 and PW 1993. The State supported the Applicant’s first appeal contending that the two project worksheets have distinct differences and should not both be deemed as ineligible.
The Applicant asked FEMA to consider the following points: 1) FEMA advised the Applicant that FEMA would have no further interest in the levee debris after the debris was stockpile and staged;
2) Staging the debris near the levee facilitated quick disposal and alleviated the potential need to pump rainwater; 3) Agreements between the Applicant and property owners state that the property owners are responsible for final disposal of the debris and that the property owners, not the Applicant, moved the debris into the floodplain; and 4) FEMA guidance on debris management, Public Assistance Debris Management Guide FEMA-325/July 2007 appears to be flexible enough to accommodate a minor infraction to allow for some method of mitigation or waiving of any perceived or actual violation.
In a letter dated March 23, 2012, FEMA’s Regional Administrator denied the first appeal stating that the construction and disposal of the material from Segment 9 of the temporary levee system was in violation of Executive Order 11988, Floodplain Management. The Regional Administrator responded to the issues raised by the Applicant in the first appeal as follows:
1) FEMA advised the Applicant that FEMA would have no further interest in the levee debris after the debris was stockpile and staged.
At no point can debris from the 13 temporary levee segments be placed in the floodway or floodplain.
2) Staging the debris near the levee facilitated quick disposal and alleviates the potential need to pump rainwater.
The location of the stockpile was not in violation of the Executive Order, but the action taken after the debris was stockpiled was in violation of Federal regulations.
3) Agreements between the Applicant and property owners state that the property owners are responsible for final disposal of the debris, and that the property owners, not the Applicant, moved the debris into the floodplain.
Although the action was not directly taken by the Applicant, the result was that debris was placed in the floodplain in violation of the Executive Order. FEMA must consider the impact of those actions resulting from both a Federal and a non-federal portion of a project to implement and enforce the Executive Order.
4) FEMA guidance on debris management, Public Assistance Debris Management Guide FEMA-325/July 2007, appears to be flexible enough to accommodate a minor infraction to allow for some method of mitigation or waiving of any perceived or actual violation.
The action by the Applicant undertaken in the floodplain, including tree clearing and grubbing, is irrevocable and does not constitute a minor infraction. This action is in contrast to levee Segment 2 material and wood debris removed from the Bad River site floodplain with no additional ground disturbing activities.
The Regional Administrator also stated that there would have been no need to dispose of the debris if the levee had not been constructed. The impacts from the disposal are directly linked to the construction of the temporary levee. Therefore, the two actions are connected and cannot be considered separately.
The Applicant submitted its second appeal on May 31, 2012, which the State forwarded to FEMA on June 7, 2012. The Applicant reiterates the same position it claimed in the first appeal and requests reimbursement of $448,310 in funding related to the construction and removal of temporary levee Segment 9. The Applicant argues that FEMA’s denial is inconsistent with Executive Order 11988 and the Stafford Act, and that FEMA should permit recovery of funding once the debris in question is removed from the floodplain, as it did with the alleged Segment 2 violations.
Section 316 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) provides FEMA with a statutory exclusion from the National Environmental Policy Act (NEPA), which exempts FEMA from the NEPA review process for certain program activities that restore a facility substantially to its condition prior to the disaster or emergency and that are necessary to reduce immediate threats to life, property, public health and safety. FEMA Response and Recovery Policy 9560.1, Environmental Policy Memoranda, Attachment 3, dated August 17, 1999, states, “Actions proposed for FEMA funding which were completed without fulfilling the documentation and procedural requirements of NEPA, but which were initiated in an emergency situation to prevent or reduce an immediate threat to life, health, property or severe economic losses may be considered, if otherwise eligible. Situations that might be considered under this extension could be HMGP or Public Assistance actions which were taken to avoid imminent loss from an ongoing event or from a highly probable future event whose anticipated occurrence could not possibly allow appropriate time for NEPA review.” In addition, FEMA regulations 44 CFR § 13.43(a)(2), Enforcement, Remedies for noncompliance, allows FEMA the discretion to disallow all or part of the cost of the activity or action not in compliance with any term of an award.
The Applicant constructed a temporary levee system (13 segments) along the west bank of the Missouri River to protect the north portion of the City of Fort Pierre after the USACE gave short notification that upstream water releases would flood the City of Fort Pierre. The two PWs written for Segment 9—one to construct the temporary levee segment (Category B) and one to demolish the levee segment and the related levee debris (Category A)—reflect different categories of work under the Public Assistance program and were written separately in order to expedite funding.
PW 1987 (Category B – Emergency Protective Measures) was written for the estimated construction cost of levee Segment 9 for $228,310. Actions taken by the Applicant to construct levee Section 9 are in accordance with 44 CFR §206.225(a)(3)(i), Emergency work, as the emergency protective measures must eliminate or lessen immediate threats to life, public health or safety. PW 1987 does not identify any environmental violations related to the construction of temporary levee Segment 9. As the emergency nature of the event did not allow the Applicant adequate time for a NEPA review, the Applicant is in compliance with Section 316 of the Stafford Act and also meets the exception requirement in FEMA 9560.1, Environmental Policy Memoranda, Attachment 3. Furthermore, PW 1987 and PW 1993 should not be linked, as they are two separate actions. Therefore, PW 1987 is eligible for Public Assistance funding.
PW 1993 (Category A – Debris Removal) was written for the estimated costs to remove the temporary levee Section 9 and the disposal of the resultant debris. FEMA and the Applicant performed environmental reviews in accordance with NEPA to evaluate and identify potential debris disposal sites to ensure compliance with required Federal environmental statutes, regulations, and executive orders. FEMA provided the Applicant with written guidance on debris disposal sites and contracting, assessed the Applicant’s proposed disposal sites, and pre-identified available alternative sites located outside of the floodplain. A November 4, 2011, letter from FEMA to the Applicant responded to the Applicant’s request for guidance for corrective actions needed regarding the placement of debris material within the floodplains at several locations, including the Segment 9 Buchholz/Anderson site.
The Applicant failed to comply with regulation in accordance with Executive Order 11988 when levee Segment 9 debris was disposed in a floodplain and tree removal and grubbing activity took place within the same site. The Applicant acknowledges that its contractor disposed of debris in the floodplain but it did not provide documentation of removal of that debris from the floodplain, nor did it adequately address the tree removal and grubbing that FEMA witnessed. While the Applicant argues that once it disposed of the Segment 9 debris at the Buchholz/Anderson location, it was no longer responsible for the material, and that it did not direct its contractor to dispose of the material in the floodplain, 44 CFR §13.40 requires grantees to monitor each program, function, or activity to ensure compliance with applicable Federal requirements. In addition, the Applicant issued a floodplain development permit with the intent to raise the elevation by four feet at the Buchholz/Anderson site for Segment 9, indicating that it was aware of the floodplain fill activity. Under 44 CFR §13.43(a)(2), FEMA may disallow the cost of the activities under PW 1993 for failure to comply with Executive Order 11988.
PW 1987 was written for the cost to construct temporary levee Segment 9. PW 1993 was written for costs related to the demolition and material disposal of temporary levee Segment 9. As these projects can be considered two separate actions, the cost for the construction of the temporary levee Segment 9 is eligible for Public Assistance funding (PW 1987 in the amount of $228,310). However, due to the actions described above, the cost incurred for the disposal of the material from Segment 9 is ineligible for Public Assistance (PW 1993 in the amount of $220,000).