Appeal Brief | Appeal Letter | Appeal Analysis | Back
Second Appeal Brief
PA ID# 117-22260-00; City of Fort Pierre
PW ID# 1987 & 1993; Environmental Compliance Temporary Levee
Citation: FEMA-1984-DR-SD, City of Fort Pierre, Environmental Compliance Temporary Levee, Project Worksheets (PWs) 1987 and 1993
Reference: Emergency Protective Measures; Environmental Compliance
Summary: As a result of water released from the Oahe Dam, the Applicant constructed a temporary levee system comprised of 13 levee segments along the city's frontage on the Missouri River. A total of 13 sites were approved by FEMA EHP for debris staging and storage with removal of all 13 temporary levee segments being the responsibility of the Applicant. Total claimed estimated costs for projects associated with the construction and removal of the temporary levee system was $2,225,012.
FEMA prepared PW 1987 for the estimated construction cost of levee Segment 9 in the amount of $228,310. FEMA also prepared PW 1993 in the amount of $220,000 for the estimated cost to remove temporary levee Segment 9 and the disposal of the resultant temporary levee material. During the levee removal operation, FEMA staff observed the Applicant’s contractor spill levee Segment 9 debris into a floodplain area located at the Buchholz/Anderson disposal site. In addition, tree removal and grubbing activities were also observed by FEMA staff at the same site. A FEMA letter to the Applicant dated November 4, 2011, provides guidance regarding debris placed in floodplains and wetlands and specifically identifies the Buchholz/Anderson site as a location where the Applicant’s contractor placed temporary levee material into a floodplain. As a result of the floodplain violation at the Buchholz/Anderson site and violations of Executive Order 11988, FEMA denied total claimed cost of $448,310 for PW 1987 ($228,310) and PW ($220,000).
The Applicant submitted its first appeal on November 18, 2011, which was transmitted by the South Dakota Office of Emergency Management (State) to FEMA on December 8, 2011, requesting that funding in the amount of $448,310 be restored for PW 1987 and PW 1993. The State supported the Applicant’s first appeal contending that the two project worksheets have distinct differences and should not both be deemed as ineligible. In a letter dated March 23, 2012, FEMA’s Regional Administrator denied the first appeal stating that the construction and disposal of the material from Segment 9 of the temporary levee system was in violation of Executive Order 11988, Floodplain Management. The Regional Administrator also stated that there would have been no need to dispose of the debris if the levee had not been constructed. The impacts from the disposal are directly linked to the construction of the temporary levee. Therefore, the two actions are connected and cannot be considered separately.
The Applicant submitted its second appeal on May 31, 2012, which the State forwarded to FEMA on June 7, 2012. The Applicant reiterates the same position it claimed in the first appeal and requests reimbursement of $448,310 in funding related to the construction and removal of temporary levee Segment 9. The Applicant argues that FEMA’s denial is inconsistent with Executive Order 11988 and the Stafford Act, and that FEMA should permit recovery of funding once the debris in question is removed from the floodplain, as it did with the alleged Segment 2 violations.
Issues: 1. Is the Applicant’s temporary levee construction project eligible for reimbursement?
2. Is the Applicant’s temporary levee demolition and resultant material removal eligible for reimbursement?
Findings: 1. Yes.
2. No. The Applicant did not comply with Executive Order 11988 of the National Environmental Policy Act.
Rationale: Executive Order 11988; Section 316, Protection of Environment; Section 403(a)(3)(I), Essential Assistance; 44 CFR §13.43(a)(2), Enforcement, Remedies for noncompliance; 44 CFR §206.225(a)(3)(i), Emergency work.