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Second Appeal Brief
PA ID# 023-733000-00; Town of Townshend
PW ID# 1803; Dam Road Culvert Replacement
Citation: FEMA-4022, Town of Townshend, Second Appeal/Dam Road Culvert Replacement
Reference: Codes and Standards; Hazard Mitigation
Summary: In August 2011, floodwaters resulting from Tropical Storm Irene washed out and destroyed an elliptical corrugated metal pipe (CMP) culvert located at Dam Road in the Town of Townshend (Applicant). The CMP was 120 feet long, 16 feet high, and 12 feet wide with a cross sectional area of 140 square feet. The Applicant replaced the CMP with a 28 foot wide, 7 foot high open bottomed, pre-cast concrete arched box culvert with a cross sectional area of 196 square feet for a total cost of $543,589. The Applicant asserted the upgrade was required by the Stream Alteration General Permit issued by the Vermont Agency of Natural Resources. FEMA determined that the permitting process was discretionary; did not apply uniformly across the State; and did not meet FEMA’s requirements for codes and standards at 44 CFR §206.226(d), Standards. Therefore, FEMA designated the culvert upgrade an improved project and prepared PW 1803 for $440,230 to fund an in-kind replacement of the original culvert with a 100 foot long and 14 foot diameter CMP. FEMA also approved funding for a mitigation concept adding wingwalls to both the inlet and outlet of the CMP. In its first appeal, the Applicant reiterated its argument that the culvert upgrade was required by the permitting process. The Regional Administrator denied the appeal on the basis that the permitting process does not establish any specific engineering design standards or measurable performance criteria that would be required to be followed in order to obtain approval for a replacement culvert nor does it require any specific method of construction for a replacement culvert or require specific upgrades from a CMP to an open bottomed arched box culvert. In its second appeal, the Applicant argues several points, among them that State’s stream alteration statute and permitting process are not discretionary and require all covered work to attain and maintain stream equilibrium and to allow aquatic organism passage.
Issues: 1. Does the State’s stream alteration statute and permitting process meet FEMA’s regulatory requirements for codes and standards?
2. Is the culvert upgrade an eligible 406 Hazard Mitigation project?
Findings: 1. No.
Rationale: 44 CFR §206.226(d), Standards; Recovery Policy 9526.1 Hazard Mitigation Funding under Section 406 (Stafford Act) dated March 30, 2010