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Santa Cruz River Levee

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1660-DR
ApplicantGreene Reservoir Flood Control District
Appeal TypeSecond
PA ID#021-UEAIV-00
PW ID#51
Date Signed2010-01-11T05:00:00

Citation:         FEMA-1660-DR-AZ, Greene Reservoir Flood Control District,
Santa Cruz River Levee, PW 51

Cross
Reference:
        Permanent Work, Flood Control Works
 
Summary:          As a result of the and heavy rains of July 26, 2006, through August 4, 2006, the Greene Reservoir Flood Control  District (Applicant) requested funding for emergency repairs to an earthen levee along the Santa Cruz River.  FEMA prepared PW 51 for $25,550 for emergency repairs to replace unclassified material to stop the overflow of the levee.  The Arizona Division of Emergency Management (ADEM) discovered that additional work such as placing, shaping, and compacting fill material was required to return the levee to its pre-disaster condition and documented this on PW 100.  However, the levee was determined to meet the definition of a Flood Control Work and the permanent repairs on PW 100 were deemed ineligible.  ADEM then requested that the placing, shaping, and compacting fill material should be added to the scope of work documented on PW 51.   FEMA denied the request because the proposed placing, shaping, and compacting costs was originally associated with the permanent repair addressed in PW 100.  In the Applicants first appeal it stated that the scope of work for PW 51 was not intended to only reflect the placing of fill, but the placing compacting and shaping all occurred simultaneously, and were all a necessary part of the emergency work.  The Deputy Regional Administrator denied the appeal because the work was deemed to be permanent in nature.  On December 19, 2008, the Applicant filed a second appeal reiterating the arguments it made in the first appeal.  In accordance with Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works, FEMA will authorize emergency repairs to protect against immediate threats to life, health and safety, or improved property from a five-year flood event.  Work that provides a greater level of protection is not eligible. The Applicant has not provided documentation that placing, compacting and shaping the fill is not a permanent repair in nature. 

Isues:            1. Is the placement, compaction and shaping of fill material in the levee breaches
                      eligible?      

Findings:         1. No

Rationale:        FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works; 44 CFR §206.226(a)(1)

Appeal Letter

January 11, 2010

 

 

Wendy Smith-Reeve

Assistant Director, Recovery

Arizona Department of Emergency and Military Affairs

Division of Emergency Management- Recovery Section

5636 East McDowell Road, Building M5507

Phoenix, AZ 85008-3495

 

Re:  Second Appeal–Greene Reservoir Flood Control District, PA ID 021-UEAIV-00,

        Santa Cruz River Levee, FEMA-1660-DR-AZ Project Worksheet (PW) 51

 

Dear Ms. Smith-Reeve:

 

This letter is in response to your letter dated February 3, 2009, which transmitted the referenced second appeal on behalf of the Greene Reservoir Flood Control District (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $160,515 for repairs to the Santa Cruz River Levee.

The storms and heavy rains of July 26, 2006, through August 4, 2006, produced high flows into the Santa Cruz River along Sunland Gin Road. This resulted in 12 major breaches in the earthen levee along a nine-mile stretch adjacent to the roadway.  FEMA prepared PW 51 for $25,550 for emergency repairs to replace unclassified material to stop the overflow of the levee.  On October 11, 2006, the Arizona Division of Emergency Management (ADEM) submitted PW 100 to capture additional work required to restore the levee to its pre-disaster condition. On May 7, 2007, FEMA informed ADEM and the Applicant that the Santa Cruz River Levee met the definition of a Flood Control Work (FCW) and that permanent repairs described in PW 100 were not eligible for assistance pursuant to Response and Recovery Policy 9524.3, Policy for the Rehabilitation Assistance for Levees and Other Flood Control Works, August 17, 1999.  On November 28, 2007, ADEM requested that FEMA revise the scope of work and estimated cost of PW 51 to include placing, shaping, and compacting fill material required to restore the levee breaches to their pre-disaster design.   FEMA denied the request on February 22, 2008, because the requested scope of work constituted the permanent restoration of the levee that was previously addressed in PW 100 and denied.

The Applicant submitted its first appeal to ADEM on May 7, 2008.  The Applicant claimed that the scope of work for PW 51 was not intended to reflect the placement of fill only, because the placement, compaction, and shaping of the fill material occurred simultaneously, and were necessary to complete the emergency work to stop the overflow of the levee.  The Applicant also asserted that the placement, compaction, and shaping were necessary because the levee had to be restored.  Furthermore, the Applicant stated that the scope of work in PW 100 for placing, compacting, and shaping the fill material along with hydro seeding to promote vegetative growth was permanent work.  However, the Applicant asserts no hydro-seeding was included in PW 51 and the description of the work as “filling, shaping and compacting” does not render the work as ineligible permanent work. 

The Deputy Regional Administrator denied the appeal on October 14, 2008, because in accordance with FEMA Response and Recovery Policy 9524.3, FEMA does not fund the permanent repair of FCWs.  The authority to repair FCWs resides with the U.S. Army Corps of Engineers and the Natural Resources Conservation Service.   

In the second appeal, the Applicant reiterated its position that placing, compacting, and shaping of the fill material are all a necessary part of the emergency work.  The Applicant asserted that just placing the fill as described in PW 51 would not alleviate the immediate threat to life, health and safety, or improved property.  Furthermore, the Applicant states that Response and Recovery Policy 9524.3 describes emergency repairs such as stabilizing a breach in a levee as eligible work if the work is necessary to lessen or eliminate the immediate threat to additional damage to improved property.

FEMA initially approved PW 51 for $25,000 to “…have just enough reclaimed unclassified material, moved back into the levee breaches to stop the over flow of flood waters onto the farm land and crops.”  In the second appeal, the Applicant requested an additional $160,515 to place, compact, and shape fill material required to repair the breaches to their predisaster condition.  Response and Recovery Policy 9524.3 authorizes emergency repairs to levees (including filling breaches) to eliminate an immediate threat to public health and safety or damage to improved property.  FEMA defines improved property on page 46 of the Public Assistance Guide, FEMA 322 as “…a structure, facility, or other item of equipment that was built, constructed, or manufactured.  It does not include land improved for agricultural use.”  Therefore, emergency temporary repairs to FCWs that protect farm land only are not eligible for reimbursement under Response and Recovery Policy 9524.3.  

I have reviewed the information submitted with the appeal and determined that the Deputy Regional Administrator’s decision to deny the first appeal request for $160,515 was consistent with Response and Recovery Policy 9524.3 as the work went beyond what was necessary to address the immediate threat.  I have further determined that funds approved in PW 51 are not eligible for reimbursement because the emergency repairs were not required to protect improved property.  Accordingly, I am denying the second appeal.  By copy of the letter, I request the Regional Administrator take appropriate action to implement my determination.

Please inform the Applicant of my decision.  My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206, Appeals.

Sincerely,

/s/

Elizabeth Turner

Acting Deputy Assistant Administrator

Disaster Assistance Directorate

cc:   Nancy Ward

       Regional Administrator

       FEMA Region IX