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Second Appeal Letter
PA ID# 000-U0066-00; New York State Office of Parks, Recreation and Historic Preservation
PW ID# Project Worksheet 4095; Codes & Standards
July 7, 2009
John A. Agostino
Alternate Governors Authorized Representative
New York State Emergency Management Office
1220 Washington Avenue
Public Safety Building 22, Suite 101
Albany, New York 12226-5000
Re: Second AppealNew York State Office of Parks, Recreation and Historic Preservation,
PA ID 000-U0066-00, Codes & Standards
, FEMA-1650-DR-NY, Project Worksheet 4095
Dear Mr. Agostino:
This letter is in response to your letter dated December 9, 2008, which transmitted the referenced second appeal on behalf of the New York State Office of Parks, Recreation and Historic Preservation (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) denial of funding to replace the Lake of Twin Fawns Dam.
The Lake of Twin Fawns Dam in Gilbert Lake State Park was damaged as a result of heavy rainfall and flooding in late June and early July 2006. On October 4, 2006, representatives from FEMA, the New York State Emergency Management Office (SEMO), and the Applicant inspected the site for damages. On November 7, 2006, FEMA prepared Project Worksheet (PW) 4095 for $12,743 to repair the spillway wing-walls and restore the spillway embankment to pre-disaster condition. On October 16, 2007, the Applicant requested a scope of work (SOW) change to replace the entire dam with additional costs to bring the facility up to the standards set by the New York State Department of Environmental Conservation (DEC) Dam Safety Division. FEMA denied the Applicants request after receiving additional information from the Applicant in a letter dated August 15, 2008. FEMA determined that the entire facility was not damaged as a result of the declared disaster and was not eligible for replacement under Disaster Assistance Policy DAP9524.4, Eligibility of Facilities for Replacement under 44 CFR § 206.226(d)(1) (The 50% Rule)
SEMO transmitted the first appeal of PW 4095 to FEMA on September 25, 2008. The appeal states that the SOW change request was made to meet the 100-year flood requirements listed in DECs Guidelines for Design of Dams
. The appeal states that the estimated costs to repair the spillway to these requirements are $565,000, while estimated facility replacement costs are $605,000. The appeal included an engineering report stating that the damages documented in the
PW affected the core of the dam. FEMA denied the appeal stating that there was no change from the initial determination and the project did not meet the criteria set forth in Disaster Assistance Policy DAP9524.4.
SEMO submitted a second appeal on December 9, 2008. The appeal reasserts that the entire facility is eligible for replacement because the estimated costs to repair the dam and bring the spillway into compliance with DEC standards are greater than 50 percent of the estimated replacement costs. The appeal asserts that the spillway and associated damages should be considered part of the entire facility when determining eligibility under The 50% Rule. The appeal contends if replacement is not approved, the costs of the spillway repairs to the regulatory standards are eligible, pursuant to 44 CFR §206.226(d)(1), Restoration of Damaged Facilities
The DECs Guidelines for Design of Dams
state: this brochure has been developed by the department for the general guidance of design engineers, and, these are only general guidelines for small dam construction. Pursuant to 44 CFR §206.226(d), FEMA may pay for upgrades that are necessary to meet specific requirements of reasonable current codes and standards that are formally adopted and implemented prior to the disaster declaration date. The code or standard must apply uniformly to all similar facilities within the Applicants jurisdiction, and must have been enforced during the time that it was in effect. The Applicant does not provide evidence that the Guidelines were formally adopted, uniformly applied, and enforced as a mandatory code or standard requiring that spillways be repaired to a 100-year flood capacity. Accordingly, the costs attributed to the general guidance provided by DECs Guidelines are not eligible for reimbursement under 44 CFR §206.226(d). The costs associated with the repair of disaster-related damages to the spillway wing-walls and spillway embankment to pre-disaster condition, as documented in PW 4095, remain eligible for reimbursement.
Based on the review of all information submitted with the appeal, I have determined that the Regional Administrators decision on this matter is consistent with program statute and regulations. Therefore, I am denying the second appeal.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals
Elizabeth A. Zimmerman
Disaster Assistance Directorate
cc: Michael Moriarty
Acting Regional Administrator
FEMA Region II