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Lower Swan Creek Drain

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1654-DR
ApplicantMaple River-Rush River Joint Water Resource District
Appeal TypeSecond
PA ID#245-58940-00
PW ID#Project Worksheet 657
Date Signed2008-08-13T04:00:00
Citation: FEMA-1645-DR-ND, Maple River-Rush River Joint Water Resource District, Lower Swan Creek Drain, Project Worksheet (PW) 657

Cross-reference: Flood Control Works (FCWs); Other Federal Agencies

Summary: 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: 1. No.

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 Works
Second Appeal–Maple River-Rush River Joint Water Resource District

Appeal Letter

August 13, 2008

Lonnie G. Hoffer
Alternate Governor’s Authorized Representative
North Dakota Department of Emergency Services
P.O. Box 5511
Bismarck, North Dakota 58506-5511

Re: Second Appeal–Maple River-Rush River Joint Water Resource District,
PA ID 000-UXB51-00, Lower Swan Creek Drain, FEMA-1645-DR-ND,
Project Worksheet (PW) 657

Dear Mr. Hoffer:

This letter is in response to your letter dated December 20, 2007, which transmitted the referenced second appeal on behalf of the Maple River-Rush River Joint Water Resource District (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding for repairs to the Lower Swan Creek Drain.
The Lower Swan Creek Diversion was designed, funded and constructed by the Natural Resource Conservation Service (NRCS) as a flood control work (FCW) in the 1960s. The facility was damaged by severe storms, flooding and ground saturation from March 30, 2006, through April 30, 2006. FEMA denied funding for PW 657 on December 12, 2006, based on the Joint Field Office’s Interagency Levee Task Force’s determination that the facility is an FCW under the authority of the NRCS.

The Applicant argued in its first appeal, submitted February 8, 2007, that the damaged portion of the facility was reconstructed in 2005, and now functions as a drainage channel, rather than an FCW. On August 3, 2007, NRCS reaffirmed its determination that the facility is an FCW under its authority. Subsequently, the Regional Director of the Response and Recovery Division denied the Applicant’s appeal on August 8, 2007.
In its second appeal, submitted December 17, 2007, the Applicant maintained that the facility is not an FCW. The Applicant submitted a letter from NRCS, dated October 23, 2007, which affirms that the 2005 reconstruction project converted the subject portion of the channel into a drainage structure that is not an FCW. The Applicant completed this project without NRCS’ knowledge or involvement, which is a violation of their Operation and Maintenance agreement.
NRCS stated that it would have approved and funded the reconstruction project, and any subsequent repairs, if the Applicant had made such a request in accordance with their agreement. NRCS has denied funding due to a violation of its rules, not because the facility is an ineligible
structure. It is clear that the facility remains under the authority of NRCS and is therefore ineligible for assistance from FEMA. In addition, the Applicant submitted its second appeal two months after the regulatory deadline established by 44 CFR §206.206(c).

I have reviewed the information submitted with the appeal and have determined that the first appeal decision is consistent with Public Assistance Program regulations and policies. Therefore, the Applicant’s second 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/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate

cc: Douglas A. Gore
Acting Regional Administrator
FEMA Region VIII