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Second Appeal Letter
PA ID# 047-29700-00; City of Gulfport
PW ID# 10970; Expansion of Water and Sewer System
September 25, 2012
Robert R Latham Jr.
Mississippi Emergency Management Agency
P.O. Box 5644
Pearl, MS 39288
Re: Second Appeal-City of Gulfport, PA ID 047-29700-00, Expansion of Water and Sewer Systems, FEMA-1604-DR-MS, Project Worksheet (PW) 10970
Dear Mr. Latham:
This letter is in response to a letter from your office dated September 14, 2010, which transmitted the referenced second appeal on behalf of City of Gulfport (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $1,914,674 in funding for additional costs associated with the expansion of the water and sewer systems.
Storm surge from Hurricane Karina damaged the Applicant’s water, sewer and drainage systems south of the CSX railroad tracks. In October 2005, a joint team of personnel from the Environmental Protection Agency (EPA), FEMA and the Applicant conducted damage assessments of the Applicant’s water and sewer systems in this area. Following the assessments, EPA recommended replacement of all water lines, service connections, meters, meter saddles and meter pits. The City subdivided the reconstruction area into six sub-areas (1, 2, 3A, 3B, 3C, and 3D). FEMA prepared PW 10970 for $20,453,194 to replace all sewer lines, mains and connections in Area 3B to their pre-disaster design. Area 3B encompasses the area between Oaks Avenue to the eastern city limits and between the CSX railroad tracks and U.S. Highway 90.
On December 5, 2007, the Applicant submitted a Request for an Improved Project to expand the water and sewer systems to account for future demand in Area 3B. By a letter dated March 25, 2009, the Applicant submitted a request for additional funding for the costs associated with the expansion to the systems. The Applicant explained that the expansion was in accordance with local codes and standards in effect prior to Hurricane Katrina. The Applicant further explained that because so few buildings remained after the disaster and zoning determined what structures could return to the area, the City’s zoning code was the only logical foundation upon which to base the capacity of public services. Furthermore, the size of the waters mains was based on the fire flow requirements required by the Gulfport Fire Chief. Finally, the sewer main sizes were based on an engineering study to identify the peak flow discharge rates in order to meet the code and zoning requirements. In a letter dated August 31, 2009, FEMA determined that costs to increase the size of some water lines to meet existing fire ordinance requirements were eligible for funding. However, the letter also stated that the Applicant’s ordinances did not require water and sewer line sizes to be based on comprehensive zoning plans. Therefore, the costs associated with those size increases were not eligible for funding.
The Applicant appealed this determination in a letter dated November 14, 2009. The Applicant asserted that the engineering design standards are set forth by the Mississippi Department of Environmental Quality (MDEQ) and the Mississippi Department of Health (MDH) and they require the water and sewer system to be designed at peak flow in order to serve the expected population of the area. According to the Applicant, the only way to design for peak flow is to base the projections on land use from a comprehensive zoning map. The Applicant further argued that the systems must be re-constructed to meet the post-disaster development demands.
On May 13, 2010, the Regional Administrator denied the first appeal stating that zoning codes do not meet FEMA’s requirements for eligible codes and standards. The Regional Administrator stated that applicants can obtain variances to zoning regulations, which demonstrates that they are not necessarily uniformly applied. In addition, the Regional Administrator noted that zoning codes apply to future land use and capacity, but do not apply as construction codes for the purposes of reconstructing the water and sewer lines.
The Applicant submitted its second appeal on July 19, 2010. The Applicant reiterated its position in the first appeal that local zoning codes required the capacity of its water and sewer system to be expanded. The Director of the Public Assistance Division at FEMA Headquarters discussed the appeal with the Applicant and the Mississippi Emergency Management Agency via conference call on June 13, 2012.
In accordance with Title 44 of the Code of Federal Regulations (44 CFR) §206.226, Restoration of damaged facilities, FEMA will fund work to restore eligible facilities to their pre-design. In Version 2 of PW 10970, FEMA has obligated a total of $20,813,865 to repair the water and sewer systems based on their pre-disaster capacity. At issue in the appeal is whether the expansion of the water and sewer systems are eligible improvements in accordance with FEMA’s requirements for codes and standards.
FEMA’s regulation 44 CFR §206.226(d), Restoration of damaged facilities, Standards, states that FEMA will fund the repair or replacement of facilities in accordance with eligible codes and standards. The codes and standards must: (1) apply to the type of repair or restoration required; (2) be appropriate to the pre-disaster use of the facility; (3) be reasonable, in writing, and formally adopted and implemented by the State or local government on or before the disaster; (4) apply uniformly to all similar types of facilities in the jurisdiction; and (5) in effect and enforced at the time of the disaster.
The Applicant argues MDEQ and MDH require expansion of the water and sewer systems based on peak flow design criteria for Area 3B. The Applicant submitted a document published by MDH, “Recommended Minimum Design Criteria for Mississippi Public Water Systems” dated 2001, in support of its argument. The document states that “anticipated usage for proposed systems should (emphasis added) be based on actual data from similar systems, taking into account agricultural and industrial usage, lot size, degree of urbanization, water loss and other factors influencing water usage.” The peak design flow for sanitary sewers within the document is based either on the population of the area or values established from an infiltration/inflow study acceptable to MDH. While the document recommends accounting for future growth, there is no requirement that communities design water and sewer systems based on future land use as defined by community zoning.
The peak flow requirements are derived from the City’s comprehensive zoning map, which reflect post-disaster redevelopment projections. As stated in the Regional Administrator’s first appeal response, zoning requirements are subject to change and variances can be obtained. Therefore, the design criteria do not meet FEMA’s requirements for uniform application by the Applicant. Furthermore, the design criteria used is for the purpose of accommodating future capacity demands. It is not a construction code requirement related to the repair or replacement of the systems.
I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy. Accordingly, 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
Deputy Associate Administrator
Office of Response and Recovery
cc: Major P. May
FEMA Region IV