Appeal Brief | Appeal Letter | Back
Second Appeal Letter
PA ID# 245-58940-00; Maple River-Rush River Joint Water Resource District
PW ID# Project Worksheet 657; Lower Swan Creek Drain
August 13, 2008
Lonnie G. Hoffer
Alternate Governors Authorized Representative
North Dakota Department of Emergency Services
P.O. Box 5511
Bismarck, North Dakota 58506-5511
Re: Second AppealMaple River-Rush River Joint Water Resource District,
PA ID 000-UXB51-00, Lower Swan Creek Drain
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 Securitys Federal Emergency Management Agencys (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 Offices Interagency Levee Task Forces 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 Applicants 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 Applicants 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.
Carlos J. Castillo
Disaster Assistance Directorate
cc: Douglas A. Gore
Acting Regional Administrator
FEMA Region VIII