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Second Appeal Letter
PA ID# 043-UYA1T-00; Elwood-Gladden Drainage District
PW ID# 41; Drainage Channel Debris Removal
January 23, 2013
Major General (KS) Lee E. Tafanelli
Kansas Division of Emergency Management
2800 SW Topeka Boulevard
Topeka, Kansas 66611-1287
Re: Second Appeal–Elwood-Gladden Drainage District, PA ID 043-UYA1T-00, Drainage Channel Debris Removal, FEMA-4035-DR-KS, Project Worksheet (PW) 41
Dear General Tafanelli:
This letter is in response to a letter from your office, dated May 17, 2012, which transmitted the referenced second appeal on behalf of the Elwood-Gladden Drainage District (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $69,215 in funding for removal of sediment and debris from the Applicant’s drainage ditches.
Between June 1 and August 1, 2011, severe flooding deposited silt in the Applicant’s drainage ditches. The Elwood-Gladden Drainage District begins in Wathena, Kansas, and extends upstream along the Missouri River for fourteen miles. The levee associated with the drainage district is a United States Army Corps of Engineers (USACE) system, and protects the cities of Wathena and Elwood, residential areas, farms, and the Rosecrans Memorial Airport. FEMA prepared PW 41 on September 23, 2011, to document $69,215 in costs associated with removing the debris, including $68,815 in contract costs and $400 in Direct Administrative Costs. On January 17, 2012, FEMA reduced the eligible amount for PW 41 to zero dollars and determined that the requested scope of work was ineligible for FEMA assistance because the debris was located in outlet channels to the Missouri River and did not pose an immediate threat.
In a first appeal letter submitted on January 4, 2012, the Applicant stated that the emergency work for which it seeks federal disaster assistance is the removal of debris from the sides and toe of the levee and excavation of silt from drainage ditches which carry water from the interior of the levee to the Missouri River. The Applicant argued that the work is eligible because it resulted from the declared disaster and that the debris constitutes an immediate threat because flooding had deposited debris on the facility for two consecutive years. The Applicant argued that the debris must be removed before the levee can be reseeded and explained that reseeding of the levee is necessary to reinforce the structure and reduce the chance that future floods will breach the levee.
The FEMA Region VII Regional Administrator (RA) denied the first appeal with a letter dated March 16, 2012. The RA acknowledged that pursuant to Disaster Assistance Policy 9524.3, Rehabilitation Assistance for Levees and other Flood Control Works, FEMA may provide assistance for debris removal from flood control works that are eligible for USACE’s RIP program; however, the applicant must demonstrate that the debris poses an immediate threat to life, health and safety, or improved property. The RA noted that the Applicant had not submitted documentation demonstrating that the debris posed an immediate threat, as the debris was located in channels along agricultural lands which are not considered improved property. The RA also stated that the Applicant had not provided documentation to show that removal of debris, which FEMA had funded under preceding major disaster declaration DR-1932, had been completed prior to the beginning of the incident period for DR-4035. FEMA determined that reimbursement of the same work twice constituted a duplication of benefits, which is prohibited under Section 312 of the Stafford Act.
The Applicant argued in a second appeal letter dated May 8, 2012, that the debris in the channels posed an immediate threat to the improved property within the district, which has an assessed value for nonagricultural real property of $87,366,360. The improved property that the Applicant claims would be impacted by flood water if the debris is not removed includes the waste disposal systems for both Wathena and Elwood that are adjacent to the drainage structure. The Applicant states that the City of Elwood uses the drainage ditches to drain water away from the City and into the Missouri River. Furthermore, the Applicant points out that the levee protects the entire City of Elwood and half of the City of Wathena, as well as US Highway 36. In addressing the existence of an immediate threat, the Applicant noted that the area flooded in 2010 and 2011, and was likely to flood again within the next three years. Additionally, the Applicant maintains that the levee needs to be reseeded due to the amount of time that water had covered the structure. However, USACE would not initiate reseeding until the debris had been removed and any further delay could ultimately compromise the structure’s integrity. To demonstrate that the funded work from DR-1932 was completed prior to DR-4035, the Applicant submitted copies of invoices and payments to contractors for removal of the debris.
Section 312 of the Stafford Act prohibits duplication of benefits, or FEMA providing funding for work or damage for which an applicant has another source of funding, such as insurance proceeds. This situation would also arise if an applicant had received FEMA funding for the same damage under a previous disaster and had not yet completed the work. With the second appeal, the Applicant provided invoices and copies of payments made between March and May 2011, which sufficiently demonstrate that the work documented on PW 472 under DR-1932 was completed prior to the DR-4035 incident begin date of June 1, 2011. Therefore, there is no duplication of benefits.
Pursuant to Title 44 Code of Federal Regulations (44 CFR) §§ 206.224(a)(1) and (2), for debris removal to be eligible, it must either “eliminate immediate threats to life, public health, and safety; or eliminate immediate threats of significant damage to improved public or private property.” FEMA funded debris and sediment removal from these channels under DR-1932 when the depth of the sediment was determined to be approximately five feet, noting that the ditches are an integral part of protecting improved property in the cities of Elwood and Wathena. PW 41 documents the sediment depth at two to four feet in the channels following DR-4035 and indicates that this prevented the ditches from draining, thereby demonstrating that the sediment posed an immediate threat to the improved property located within the drainage district.
Therefore, the reasonable cost to remove debris from the drainage channel in order to eliminate the immediate threat of significant damage to improved public or private property is eligible for Public Assistance Program funding. As the cost estimate for this project exceeds the small project threshold for Fiscal Year 2011 ($63,900) final project funding and project closeout will be based on documented eligible actual costs pursuant to 44 CFR § 206.205(b), Large projects.
I have reviewed the information submitted with this appeal and have determined that the Applicant has provided documentation to support that this work is eligible. Therefore, I am granting the Applicant’s second appeal. By copy of this letter I am requesting that the Regional Administrator take appropriate action to implement this determination.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
cc: Beth Freeman
FEMA Region VII