This page has not been translated into Español. Visit the Español page for resources in that language.
Hydrogeologic Assessment
Appeal Brief
Appeal Letter
Citation: FEMA-1148-DR-NY; Village of Margaretville, Hydrogeologic Assessment; Damage Survey Report (DSR) 41552
Cross-reference: General Eligibility
Summary: Severe flooding impacted the Village of Margaretville (Applicant) in November of 1996, resulting in major disaster declaration FEMA-1148-DR-NY on December 9, 1996. As a result, the Federal Emergency Management Agency (FEMA) prepared Disaster Survey Reports (DSRs) 87601 and 41522 for damage to the stream bank along Bull Run Creek caused by the flooding. Following project completion, the Applicant requested an inspection of water leakage into four residences adjacent to the project. The New York State Emergency Management Office (State) requested that a hydrogeological study be performed to determine the cause of the problem. FEMA agreed to the study but stipulated that the study can only be funded by FEMA if there is a direct link between the Bull Run Creek project and the basement leakage. On June 20, 2003, the State received the hydrogeologic assessment and requested funding for the study and for engineering and design to correct the problem. After reviewing the study and consulting with the Applicants geologist, the United States Department of Agriculture, the National Resource Conservation Service, the United States Geological Survey, and the Applicants Soil and Water Conservation District geologist, FEMA concluded that there was not a direct link between the Bull Run Creek project and the basement leakage. Therefore, FEMA denied funding for the hydrogeologic study on August 19, 2003. The Applicant submitted a first appeal on October 9, 2003, claiming that the leakage into the basements was a direct result from the project as shown by the hydrogeologic assessment. The FEMA Region II Acting Regional Director denied the appeal because it did not show that the basement leakage was the direct result of the Bull Run Creek project and not due to pre-existing conditions. The Applicant submitted its second appeal on March 1, 2004, requesting that FEMA address the issues specifically outlined in the documentation submitted with the first appeal. The State supports the Applicants appeal. The appeal does not claim a specific dollar amount; it only requests funding for the hydrogeologic assessment and any repairs to fix the problem.
Issues: 1. Is the hydrogeologic assessment eligible for funding?
2. Should FEMA pay for any repairs, if necessary?
Findings: 1. No. The Applicant did not establish that the restoration project was exclusively responsible for the water in the basements.
2. No. The basement leakage was a consequence of the geology of the area. FEMA is not an insurer of unintended consequences resulting from pre-existing conditions.
Rationale: 44 CFR § 206.223
Appeal Brief
| Desastre | FEMA-1148-DR |
| Applicant | Village of Margaretville |
| Appeal Type | Second |
| PA ID# | 025-45557 |
| PW ID# | 41552 |
| Date Signed | 2004-09-29T04:00:00 |
2. Should FEMA pay for any repairs, if necessary?
2. No. The basement leakage was a consequence of the geology of the area. FEMA is not an insurer of unintended consequences resulting from pre-existing conditions.
Appeal Letter
September 29, 2004
Mr. John A. Agostino
Alternate Governors Authorized Representative
New York State Emergency Management Office
1220 Washington Avenue, Building 22, Suite 101
Albany, New York 12226-2251
Re: Second Appeal Village of Margaretville, PA ID# 025-45557, Hydrogeologic Assessment, FEMA-1148-DR-NY
Dear Mr. Agostino:
This is in response to your letter dated March 17, 2004, which transmitted the referenced second appeal on behalf of the Village of Margaretville (Applicant). The Applicant is requesting reconsideration of the Federal Emergency Management Agencys (FEMAs) denial of funding for a hydrogeologic assessment and any repairs determined necessary from the assessment.
Severe flooding impacted the Village of Margaretville in November of 1996, resulting in major disaster declaration FEMA-1148-DR-NY on December 9, 1996. As a result, the Federal Emergency Management Agency prepared Disaster Survey Reports (DSRs) 87601 and 41522 for damage to the stream bank along Bull Run Creek caused by the flooding. Following project completion, the Applicant requested an inspection of water leakage into four residences adjacent to the project. The New York State Emergency Management Office requested that a hydrogeological study be performed to determine the cause of the problem. FEMA agreed to the study but stipulated that the study could only be funded by FEMA if there was a direct link between the Bull Run Creek project and the basement leakage. On June 20, 2003, the State received the hydrogeologic assessment and requested funding for the study and for engineering and design to correct the problem. After reviewing the study and consulting with the Applicants geologist, the United States Department of Agriculture (USDA), the National Resource Conservation Service (NRCS), the United States Geological Survey (USGS), and the Soil and Water Conservation District geologist for the Applicants district, FEMA concluded that there was not a direct link between the Bull Run Creek project and the basement leakage. Therefore, FEMA denied funding for the hydrogeologic study on August 19, 2003.
The Applicant submitted a first appeal on October 9, 2003, claiming that the leakage into the basements was a direct result of the project as shown by the hydrogeologic assessment. The FEMA Region II Acting Regional Director denied the appeal because the Applicant did not show that the basement leakage was the direct result of the Bull Run Creek project and not due to pre-existing conditions.
The Applicant submitted its second appeal on March 1, 2004, requesting that FEMA address the issues specifically outlined in the documentation submitted with the first appeal. The appeal does not request a specific dollar amount; it only requests funding for the hydrogeologic assessment and any repairs to fix the problem.
The Applicant states in its second appeal letter that FEMAs finding on the first appeal does not thoroughly review the facts and findings submitted with its first appeal. This is not correct as FEMA Region II staff consulted not only with the USDA, NRCS, and USGS, but also with the Applicants geologist and the Soil and Water Conservation District geologist for the Applicants district. The first appeal determination was based on the fact that the hydrogeologic report concluded that Bull Run Creek has historically lost water both prior to and subsequent to the stream bank restoration funded by FEMA. Also, the report stated that without pre-restoration surface or ground water data or conditions, a conclusive determination regarding fluctuations in water table elevation is not possible.
The Applicant developed the scope of work for stream bank restoration, and FEMA subsequently approved DSRs to accomplish the eligible work. However, FEMA is not an insurer of unintended consequences that result from pre-existing factors, in this case, the existing geology of the area that made it susceptible to changes in the water table elevation. Given these reasons, I have determined that the first appeal decision was correct and in accordance with program statutes and regulations. Thus, the appeal is denied.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR § 206.206.
Sincerely,
/S/
Daniel A. Craig
Director
Recovery Division
Emergency Preparedness and Response
cc: Joseph F. Picciano
Acting Regional Director
Region II
Mr. John A. Agostino
Alternate Governors Authorized Representative
New York State Emergency Management Office
1220 Washington Avenue, Building 22, Suite 101
Albany, New York 12226-2251
Re: Second Appeal Village of Margaretville, PA ID# 025-45557, Hydrogeologic Assessment, FEMA-1148-DR-NY
Dear Mr. Agostino:
This is in response to your letter dated March 17, 2004, which transmitted the referenced second appeal on behalf of the Village of Margaretville (Applicant). The Applicant is requesting reconsideration of the Federal Emergency Management Agencys (FEMAs) denial of funding for a hydrogeologic assessment and any repairs determined necessary from the assessment.
Severe flooding impacted the Village of Margaretville in November of 1996, resulting in major disaster declaration FEMA-1148-DR-NY on December 9, 1996. As a result, the Federal Emergency Management Agency prepared Disaster Survey Reports (DSRs) 87601 and 41522 for damage to the stream bank along Bull Run Creek caused by the flooding. Following project completion, the Applicant requested an inspection of water leakage into four residences adjacent to the project. The New York State Emergency Management Office requested that a hydrogeological study be performed to determine the cause of the problem. FEMA agreed to the study but stipulated that the study could only be funded by FEMA if there was a direct link between the Bull Run Creek project and the basement leakage. On June 20, 2003, the State received the hydrogeologic assessment and requested funding for the study and for engineering and design to correct the problem. After reviewing the study and consulting with the Applicants geologist, the United States Department of Agriculture (USDA), the National Resource Conservation Service (NRCS), the United States Geological Survey (USGS), and the Soil and Water Conservation District geologist for the Applicants district, FEMA concluded that there was not a direct link between the Bull Run Creek project and the basement leakage. Therefore, FEMA denied funding for the hydrogeologic study on August 19, 2003.
The Applicant submitted a first appeal on October 9, 2003, claiming that the leakage into the basements was a direct result of the project as shown by the hydrogeologic assessment. The FEMA Region II Acting Regional Director denied the appeal because the Applicant did not show that the basement leakage was the direct result of the Bull Run Creek project and not due to pre-existing conditions.
The Applicant submitted its second appeal on March 1, 2004, requesting that FEMA address the issues specifically outlined in the documentation submitted with the first appeal. The appeal does not request a specific dollar amount; it only requests funding for the hydrogeologic assessment and any repairs to fix the problem.
The Applicant states in its second appeal letter that FEMAs finding on the first appeal does not thoroughly review the facts and findings submitted with its first appeal. This is not correct as FEMA Region II staff consulted not only with the USDA, NRCS, and USGS, but also with the Applicants geologist and the Soil and Water Conservation District geologist for the Applicants district. The first appeal determination was based on the fact that the hydrogeologic report concluded that Bull Run Creek has historically lost water both prior to and subsequent to the stream bank restoration funded by FEMA. Also, the report stated that without pre-restoration surface or ground water data or conditions, a conclusive determination regarding fluctuations in water table elevation is not possible.
The Applicant developed the scope of work for stream bank restoration, and FEMA subsequently approved DSRs to accomplish the eligible work. However, FEMA is not an insurer of unintended consequences that result from pre-existing factors, in this case, the existing geology of the area that made it susceptible to changes in the water table elevation. Given these reasons, I have determined that the first appeal decision was correct and in accordance with program statutes and regulations. Thus, the appeal is denied.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR § 206.206.
Sincerely,
/S/
Daniel A. Craig
Director
Recovery Division
Emergency Preparedness and Response
cc: Joseph F. Picciano
Acting Regional Director
Region II