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Debris Removal from Drainage Laterals

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1607-DR
ApplicantTown of Vinton
Appeal TypeSecond
PA ID#019-78820-00
PW ID#1409
Date Signed2010-01-25T05:00:00

SECOND APPEAL BRIEF

FEMA-1607-DR-LA

Town of Vinton, PA ID 019-78820-00

Drainage Laterals Debris Removal, Project Worksheet (PW) 1409

Citation:         FEMA-1607-DR-LA, Town of Vinton, Debris Removal, PW 1409

Cross-

Reference:      Debris Removal, Other Federal Agency

 

Summary:      Following Hurricane Rita, the Town of Vinton (Applicant) contracted with Alabama Environmental Response and Recovery (AERR) for the removal of debris from 36,500 linear feet (LF) of its drainage ditches for a lump sum of $877,000.  FEMA prepared PW 1409 to remove debris from 9,100 LF of drainage laterals, including 7,300 LF that the NRCS determined to be exigency work and an additional 1,800 LF of drainage facilities within 100 feet of bridges.  FEMA used the NRCS unit cost of $11.50 per linear foot to develop the eligible estimated amount of $116,650.  The Applicant’s first appeal requested that FEMA fund the total $877,000 in invoiced expenses for the actual debris removal.  In addition, the Applicant asserted that the unit cost of $11.50 per LF recommended by NRCS was unreasonably low.  In a letter dated March 4, 2008, the Regional Administrator partially granted the appeal adjusting the unit cost to $24.03 per LF based on the Applicant’s contract.  In its second appeal, dated May 15, 2008, the Applicant reiterates its arguments from the first appeal, stating that FEMA did not adequately assess the damage and was overly restrictive in determining eligible work.  The Applicant also argues that both NRCS exigency and non-exigency definitions comply with FEMA's definition of an immediate threat.

Issue:              Did all of the debris in the Applicant’s drainage system represent a threat to public health or safety or improved property?

 

Finding:          No.

Rationale:       44 CFR §206.226(a) (1), Assistance under other Federal agency (OFA) programs and 44 CFR §206.221(c), Immediate threat

Appeal Letter

January 25, 2010

 

 

Mark DeBosier

Assistant Deputy Director

Disaster Recovery Division

Governor’s Office of Homeland Security and Emergency Preparedness

State of Louisiana

7667 Independence Boulevard

Baton Rouge, LA 70806


Re:  Second Appeal–Town of Vinton, PA ID 019-78820-00, Debris Removal from Drainage Laterals, FEMA-1607-DR-LA, Project Worksheet (PW) 1409

Dear Mr. DeBosier:

This letter is in response to a letter from your office dated July 11, 2008, which transmitted the referenced second appeal on behalf of the Town of Vinton (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of an additional $658,327 for removing debris from the Applicant’s entire drainage system.

Background

Following Hurricane Rita in 2005, the Applicant contracted with Alabama Emergency Response and Recovery, Inc. (AERR) to remove debris from 36,500 linear feet (LF) of drainage ditches for $877,000.  In a letter dated October 26, 2005, the Applicant requested assistance for cleaning the drainage system from the Natural Resources Conservation Service (NRCS).  The NRCS stated in a letter dated November 7, 2005, to the Applicant that its staff was surveying, evaluating, and determining eligibility of various exigency sites in the Town for Emergency Watershed Protection Program funding.  NRCS stated that its funding would be exhausted before it completed evaluation of the Applicant’s projects.  NRCS wrote three Damage Survey Reports for exigency work to remove debris from 7,300 linear feet of drainage laterals.  However, NRCS did not fund the projects because it did not have any funds.  AERR removed all debris from the drainage system by December 2005.  FEMA prepared PW 1409 on January 17, 2006, for $116,650 to remove debris from 7,300 linear feet of drainage laterals that the NRCS considered exigency sites plus an additional 1,800 linear feet immediately upstream and downstream of bridges.   FEMA used $11.50 per linear foot contained in the NRCS Damage Survey Reports to estimate the cost of the PW.  The Applicant appealed FEMA’s determination on PW 1409, and requested the additional $760,350 it incurred for the project.  In the first appeal response letter dated March 4, 2008, the Regional Administrator increased the unit cost from $11.50 per linear foot to $24.03 per linear foot for the approved scope of work in the PW.  This decision resulted in an increase of $102,023, bringing the total amount approved for the project to $218,673.  The Regional Administrator did not approve the Applicant’s request to increase the eligible scope of work to the entire drainage system (36,500 linear feet).  The Applicant submitted a second appeal in a letter dated May 15, 2008, stating that the Stafford Act and Public Assistance Program regulations and policies do not prohibit payment for the work; FEMA did not inspect the entire drainage system; NRCS’ definition of exigency is not the same as the Stafford Act’s definition of immediate threat; and FEMA reimbursed other applicants to remove debris from drainage canals. 

Discussion

FEMA Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works, dated September 24, 1998, states in Section 7, “Flood control works that are participating in the USACE PL 84-99 Rehabilitation and Inspection Program…or those that may be eligible for assistance under the NRCS EWP program may be eligible for assistance for flood fighting activities…debris removal and emergency repairs….” (emphasis added).  Debris removal from flood control structures that are under the authority of another Federal agency is eligible when it is required to eliminate an immediate threat to public health and safety or threat of additional damage to improved property.  FEMA defined immediate threat as an event with a 20 percent chance of occurrence each year.  The NRCS defines exigency in 7 CFR § 624.4 as “those situations that demand immediate action to avoid potential loss of life or property, including situations where a second event may occur shortly thereafter that could compound the impairment, cause new damages or the potential loss of life if action to remedy the situation is not taken immediately.”  NRCS evaluated the drainage system within the Town of Vinton and identified sites that it concluded met the exigency criterion.  FEMA accepted NRCS’ evaluation of the exigency sites and supplemented those sites with others pursuant to FEMA policy and guidance.  FEMA guidance following Katrina and Rita was to evaluate the impact of debris in drainage lateral within 100 feet upstream and downstream of bridges, culverts, and pump stations.  FEMA followed this guidance in the Town of Vinton. 

The Applicant’s drainage system consists of approximately seven miles of laterals.  The laterals traverse developed and undeveloped property.  There was no apparent need to inspect the laterals in the upstream sections of the system that traversed undeveloped areas.  FEMA reviewed the PWs for other applicants that the Applicant alluded to and determined that FEMA used the same criteria to determine the amount of eligible assistance for removing debris from facilities in those communities that were under the authority of NRCS.

Conclusion

I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance Program regulations and policy. Accordingly, I am denying the 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.
Sincerely,
/s/

Elizabeth A. Zimmerman
Assistant Administrator
Disaster Assistance Directorate                            

cc:  Tony Russell

       Regional Administrator

       FEMA Region VI