Appeal Brief | Appeal Letter | Back
Second Appeal Brief
PA ID# 111-U4OU7-00; Lockwood Irrigation District
PW ID# 547; Intake Canal Spillway Repairs
Citation: FEMA-1996-DR-MT, Lockwood Irrigation District, PW 547
Cross-Reference: NSPO, USACE Permits
Summary: Severe storms and flooding waters damaged the Applicant’s facilities at three sites. FEMA prepared PW 547 for $46,263 based on initial site visits conducted on August 18, 2011. Once the floodwaters receded, WWC Engineering (Consultant) conducted a more thorough assessment and identified additional damage to the intake canal.
On January 31, 2012, the Applicant submitted a Small Project Completion Certification and requested a Net Small Project Overrun (NSPO). The Region denied the NSPO on August 17, 2012, stating that the Applicant neglected to obtain the required U.S. Army Corps of Engineers (USACE) permits prior to beginning the work and that USACE issued the Applicant a Cease and Desist order.
On November 5, 2012, the Applicant submitted a second appeal stating:
- Sites 1 and 2 were not on the Yellowstone River and therefore, were not subject to USACE permit requirements,
- The Cease and Desist order was in reference to a replacement construction project for the intake canal not for the repair work, and
- The repair work on the intake canal (Site 3) followed the existing footprint; therefore, pursuant to USACE Fact Sheet Nationwide Permit 3, a permit was not required.
USACE stated that was incorrect and that any work done on the Yellowstone River requires pre-construction notification to USACE for permit verification under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. The Applicant failed to provide the required notification so a Cease and Desist order was issued by USACE. USACE also stated that the Applicant has applied for an after-the-fact permit which is being evaluated.
Issue: Was a USACE permit required for the emergency repair work performed by the Applicant at PW 547 Site 3?
Finding: Yes. The Applicant did not obtain the proper permits prior to the commencement of work.
Rationale: 44 CFR §206.225, Emergency Work; 44 CFR Part 10; FEMA 322 Public Assistance Guide, June 2007, page 132.