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Time Limitations
Appeal Brief
Appeal Letter
Citation: FEMA-1279-DR-ND; Sargent County Water Resource District, Project Worksheet (PW) 2207
Cross-reference: Time Limitations
Summary: Flooding impacted the State of North Dakota in the spring of 1999, resulting in major disaster declaration FEMA-1279-DR-ND on June 8, 1999. As a result, the Federal Emergency Management Agency (FEMA) prepared PW 1986 for the Sargent County Water Resource District (Applicant) for sediment removal from Drain #11, a combination of drainage ditch and culvert pipe, but suspended it on September 13, 1999, because the drain was still inundated with water, preventing an inspection of damages. FEMA replaced PW 1986 with PW 2207 and declared the work ineligible on November 4, 2000, because the Applicant did not have a formal maintenance program for the drain. Applicant submitted a first appeal on March 29, 2001, claiming that it could not do any work on the drain from 1986 (the last time it was cleaned out) until 1995 because of a lawsuit brought by the United States Army Corps of Engineers (USACE). The lawsuit was brought against the Applicant because USACE claimed it needed a permit to perform the work it did in 1986. After receiving notice from USACE that the lawsuit was decided in the Applicants favor, the FEMA Region VIII Regional Director approved the appeal by obligating PW 2207 on October 14, 2003, for $23,963. This amount accounts for 30% of the cost of the sediment removed and was derived by applying the ratio of rainfall recorded in 1998 and 1999 to the total rainfall from 1987 through 1999. The reasoning behind this determination was due to the Applicant not having a formal maintenance program or a determination of the amount of disaster-related sediment could not be made. The Applicant submitted its second appeal on December 12, 2003, disputing the 30% limitation on the eligibility of the sediment removal in PW 2207. The North Dakota Division of Emergency Management supports the Applicants appeal for $70,195.
Issues: Should FEMA reimburse the Applicant for the additional sediment removal?
Findings: No. The Applicant did not establish the pre-disaster condition, and, therefore, did not support its claim for reimbursement for removal of all of the sediment.
Rationale: 44 CFR § 206.223(a)(1)
Appeal Brief
| Disaster | FEMA-1279-DR |
| Applicant | Sargent County Water Resource District |
| Appeal Type | Second |
| PA ID# | 081-UDJBE-00 |
| PW ID# | 2207 |
| Date Signed | 2004-09-16T04:00:00 |
Appeal Letter
September 16, 2004
Mr. Douglas C. Friez
State Director
North Dakota Division of Emergency Management
Post Office Box 5511
Bismarck, North Dakota 58506-5511
Re: Second Appeal Sargent County Water Resource District, PA ID 081-UDJBE-00, Time Limitations, FEMA-1279-DR-ND, Project Worksheet (PW) 2207
Dear Mr. Friez:
This is in response to your letter dated December 17, 2003, which transmitted the referenced second appeal on behalf of the Sargent County Water Resource District (Applicant). The Applicant is disputing the Federal Emergency Management Agencys (FEMAs) determination of the 30% limitation for sediment removal from Drain #11 in PW 2207.
Flooding impacted the Sargent County Water Resource District (Applicant) in the spring of 1999, resulting in major disaster declaration FEMA-1279-DR-ND on June 8, 1999. As a result, the Federal Emergency Management Agency (FEMA) prepared PW 1986 for sediment removal from Drain #11, a combination of drainage ditch and culvert pipe, but suspended it on September 13, 1999, because the drain was still inundated with water, preventing an inspection of damages. FEMA replaced PW 1986 with PW 2207 and declared the work ineligible on November 4, 2000, because the Applicant did not have a formal maintenance program for the drain.
The Applicant submitted a first appeal on March 29, 2001, claiming that it could not do any work on the drain from 1986 (the last time it was cleaned out) until 1995 because of a lawsuit brought by the United States Army Corps of Engineers (USACE). The lawsuit was brought against the Applicant because USACE claimed it needed a permit to perform the work it did in 1986. After receiving notice from USACE that the lawsuit was decided in the Applicants favor, the FEMA Region VIII Regional Director approved the appeal by obligating PW 2207 on October 14, 2003, for $23,963. Because the pre-disaster condition could not be determined, FEMA chose to make a reasonable estimate of eligible debris. This was done by applying the ratio of rainfall recorded in 1998 and 1999 to the total rainfall from 1987 through 1999. This method of cost and debris volume calculation was used because the Applicant did not have a formal maintenance program; therefore, a determination of the amount of disaster-related sediment could not be made based on existing records.
The Applicant submitted its second appeal on December 12, 2003, disputing the 30% limitation on the eligibility of the sediment removal in PW 2207.
The Applicant stated in its appeal letter that the reduction of the scope of work to 30% of the total work is inconsistent with PW 1884 from FEMA-1279-DR-ND and Damage Survey Reports (DSRs) 71546 and 71547 from FEMA-1220-DR-ND. It claims that this PW and the DSRs all relate to the same facility and all incorporate some element of sediment removal in the channel. While they do relate to the same facility, the sediment removal was incidental to the repairs to the channel embankments and was paid for by the linear foot. PW 2207 was primarily for sediment removal and, therefore, it was necessary to calculate the volume. Thus, it was paid for by the cubic foot.
The Applicant also stated that the formulation to determine that 30% of the work was eligible is inaccurate. The method used by FEMA was the best available absent a survey of the drain before and after the event. Given the fact that the Applicant could not establish what the pre-disaster condition was, the alternative was to deny all assistance for Drain #11 under PW 2207.
Finally, the Applicant claimed that the use of 30% eligibility does not allow for restoration of the facility to its pre-disaster condition. Again, it was the best available method given the fact that the Applicant could not establish what the pre-disaster condition was in 1999. To say that the pre-disaster condition was the condition of the drain after the major cleanout in 1986 is incorrect. Sargent County has been included in North Dakota flood declarations in every year from 1993 through 1999. It is unrealistic to assume that there was no sediment deposited in the drain during these declarations and that it all resulted from the flooding event of FEMA-1279-DR-ND. Based on these reasons, I am denying the appeal.
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/
Daniel A. Craig
Director
Recovery Division
Emergency Preparedness and Response
cc: Douglas Gore
Acting Regional Director
FEMA, Region VIII
Mr. Douglas C. Friez
State Director
North Dakota Division of Emergency Management
Post Office Box 5511
Bismarck, North Dakota 58506-5511
Re: Second Appeal Sargent County Water Resource District, PA ID 081-UDJBE-00, Time Limitations, FEMA-1279-DR-ND, Project Worksheet (PW) 2207
Dear Mr. Friez:
This is in response to your letter dated December 17, 2003, which transmitted the referenced second appeal on behalf of the Sargent County Water Resource District (Applicant). The Applicant is disputing the Federal Emergency Management Agencys (FEMAs) determination of the 30% limitation for sediment removal from Drain #11 in PW 2207.
Flooding impacted the Sargent County Water Resource District (Applicant) in the spring of 1999, resulting in major disaster declaration FEMA-1279-DR-ND on June 8, 1999. As a result, the Federal Emergency Management Agency (FEMA) prepared PW 1986 for sediment removal from Drain #11, a combination of drainage ditch and culvert pipe, but suspended it on September 13, 1999, because the drain was still inundated with water, preventing an inspection of damages. FEMA replaced PW 1986 with PW 2207 and declared the work ineligible on November 4, 2000, because the Applicant did not have a formal maintenance program for the drain.
The Applicant submitted a first appeal on March 29, 2001, claiming that it could not do any work on the drain from 1986 (the last time it was cleaned out) until 1995 because of a lawsuit brought by the United States Army Corps of Engineers (USACE). The lawsuit was brought against the Applicant because USACE claimed it needed a permit to perform the work it did in 1986. After receiving notice from USACE that the lawsuit was decided in the Applicants favor, the FEMA Region VIII Regional Director approved the appeal by obligating PW 2207 on October 14, 2003, for $23,963. Because the pre-disaster condition could not be determined, FEMA chose to make a reasonable estimate of eligible debris. This was done by applying the ratio of rainfall recorded in 1998 and 1999 to the total rainfall from 1987 through 1999. This method of cost and debris volume calculation was used because the Applicant did not have a formal maintenance program; therefore, a determination of the amount of disaster-related sediment could not be made based on existing records.
The Applicant submitted its second appeal on December 12, 2003, disputing the 30% limitation on the eligibility of the sediment removal in PW 2207.
The Applicant stated in its appeal letter that the reduction of the scope of work to 30% of the total work is inconsistent with PW 1884 from FEMA-1279-DR-ND and Damage Survey Reports (DSRs) 71546 and 71547 from FEMA-1220-DR-ND. It claims that this PW and the DSRs all relate to the same facility and all incorporate some element of sediment removal in the channel. While they do relate to the same facility, the sediment removal was incidental to the repairs to the channel embankments and was paid for by the linear foot. PW 2207 was primarily for sediment removal and, therefore, it was necessary to calculate the volume. Thus, it was paid for by the cubic foot.
The Applicant also stated that the formulation to determine that 30% of the work was eligible is inaccurate. The method used by FEMA was the best available absent a survey of the drain before and after the event. Given the fact that the Applicant could not establish what the pre-disaster condition was, the alternative was to deny all assistance for Drain #11 under PW 2207.
Finally, the Applicant claimed that the use of 30% eligibility does not allow for restoration of the facility to its pre-disaster condition. Again, it was the best available method given the fact that the Applicant could not establish what the pre-disaster condition was in 1999. To say that the pre-disaster condition was the condition of the drain after the major cleanout in 1986 is incorrect. Sargent County has been included in North Dakota flood declarations in every year from 1993 through 1999. It is unrealistic to assume that there was no sediment deposited in the drain during these declarations and that it all resulted from the flooding event of FEMA-1279-DR-ND. Based on these reasons, I am denying the appeal.
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/
Daniel A. Craig
Director
Recovery Division
Emergency Preparedness and Response
cc: Douglas Gore
Acting Regional Director
FEMA, Region VIII