Appeal Brief | Appeal Letter | Back
Second Appeal Brief
PA ID# 245-58940-00; Maple River-Rush River Joint Water Resource District
PW ID# Project Worksheet 657; Lower Swan Creek Drain
FEMA-1645-DR-ND, Maple River-Rush River Joint Water Resource District, Lower Swan Creek Drain, Project Worksheet (PW) 657Cross-reference:
Flood Control Works (FCWs); Other Federal AgenciesSummary:
The Lower Swan Creek Diversion was originally funded and constructed by the Natural Resource Conservation Service (NRCS). Accordingly, FEMA denied funding for repairs to the facility when it was damaged by storms and flooding because the facility is under NRCS authority. In its first appeal, submitted February 8, 2007, the Applicant claimed that following its 2005 reconstruction the facility now functions as a drainage structure rather than an FCW. Following confirmation from NRCS that the facility is an FCW, the Regional Director denied the appeal on August 8, 2007.
On December 17, 2007, the Applicant submitted its second appeal two months after the regulatory timeline. The Applicant submitted a letter from NRCS, dated October 23, 2007, which states that the damaged structure is not an FCW. The letter also states that the reconstruction, which was completed without NRCS approval, violates an Operation and Maintenance agreement between NRCS and the Applicant. NRCS denied funding because the Applicant violated its rules. NRCS has the authority to fund the facilities repairs.Issues:
1. Is the facility an FCW?
2. Does NRCS have the authority to repair damages to the facility?Findings:
2. Yes. Rationale:
44 CFR §206.206(c) and Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control WorksSecond AppealMaple River-Rush River Joint Water Resource District