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Second Appeal Brief
PA ID# 155-U59RE-00; Council Bluffs Water Works
PW ID# 442; Indian Creek Levee Erosion
Citation: FEMA-1998-DR-IA, Council Bluffs Water Works, Indian Creek Levee Erosion, Project Worksheet (PW) 442
Reference: Flood Control Works (FCWs); Other Federal Agency (OFAs)
Summary: As a result of heavy rains and flooding along the Missouri River, the Council Bluffs Water Works (Applicant) pumped excess water over a levee and into Indian Creek. The emergency pumping resulted in erosion to the east side of the west levee on Indian Creek. The Applicant’s contractor placed rip rap on the levee in order to prevent additional damage to the levee. FEMA prepared PW 442 for $25,439 to fund the emergency work, but upon review, determined that the costs for emergency repair of the Applicant’s levee system was ineligible for reimbursement. According to FEMA’s Disaster Assistance Policy (DAP) 9524.3, Rehabilitation Assistance for Levees and other Flood Control Works, flood control works that are enrolled in the United States Army Corps of Engineers’ (USACE) Rehabilitation and Inspection Program (RIP), whether active or inactive, are ineligible for FEMA assistance. In the first appeal, the Applicant claimed that USACE assistance did not cover the cost of the Emergency Protective Measures, which were necessary to reduce an immediate threat to lives and property. FEMA denied the appeal, determining that emergency repairs to flood control works that are eligible for RIP are not eligible for FEMA funding. Further, the Regional Administrator concluded that according to Title 44 Code of Federal Regulations (44 CFR) §206.226(a)(1), Restoration of damaged facilities, Assistance under other Federal agency (OFA) Programs, “[g]enerally, disaster assistance will not be made available under the Stafford Act when another Federal agency has specific authority to restore facilities damaged or destroyed by an event which is declared a major disaster.” In the second appeal, the Applicant asserts that the rip rap did not serve as an emergency repair, rather the work constituted a flood fighting measure to protect the facility. According to an August 5, 2009, memorandum from the Assistant Administrator for FEMA’s Disaster Assistance Directorate, which amended the February 25, 2009, version of DAP9524.3, FEMA may provide assistance for the placement and removal of flood fighting measures on flood control works that are eligible for RIP, if such activity is necessary to eliminate an immediate threat to life, public health and safety, or improved property.
Issue: Is the emergency work of placing rip rap on the portion of the Applicant’s RIP-eligible levee that was subjected to erosion from the drainage pipes eligible for funding through FEMA’s Public Assistance Program?
Rationale: 44 CFR §206.226(a); DAP 9524.3; Rehabilitation Assistance for Levees & Other Flood Control Works