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Second Appeal Brief
PA ID# 027-06610-00; Town of Boonton
PW ID# 1539; Slope Stabilization – Immediate Threat
Conclusion: On second appeal, the Town of Boonton (Applicant) fails to demonstrate that the slope failure caused by Hurricane Irene presents an immediate threat to life or improved property.
In August 2011, rain and flooding resulting from Hurricane Irene caused the Applicant’s slope, located at Grace Lord Park, to fail. The Applicant requested PA funding for emergency protective measures, including placing large Rip Rap along the base of the of the slope failure, to stabilize it. In PW 1539, FEMA determined that emergency protective measures to stabilize the slope were ineligible because of the lack of immediate threat to improved property, required by 44 C.F.R. § 206.221(c) and FEMA RP 9524.2. In the first appeal, the Applicant asserted that the slope failure was the result of erosion due to flood waters caused by Hurricane Irene. In addition, the Applicant asserted that, based on U.S. Geological Survey (USGS) records, additional erosion caused by future flooding could reasonably result in a threat to lives and improved property. The Region II Acting Regional Administrator (RA) denied the appeal because “it was determined that the 600 foot section of failed slope… is a Natural Ground Slope and is classified as an unimproved earthen material which has not been reworked, mechanically altered or improved.” In addition, the Acting RA agreed with the initial determination that the slope failure did not present an immediate threat to life or improved property. In the second appeal, the Applicant asserts that the slope failure presents an immediate threat to improved property.
Authorities and Second Appeals
- Stafford Act § 403, 42 U.S.C. § 5170b.
- 44 CFR § 206.201(b).
- 44 CFR § 206.204(c), (d).
- 44 CFR § 206.225(a).
- 44 CFR § 206.221(c).
- PA Guide, at 1, 2, 29, 71, 74.
- RP 9524.2, Landslides and Slope Stability Related to Public Facilities, at 5.
- Stafford Act § 403 authorizes FEMA to “provide assistance essential to meeting immediate threats to life and property resulting from a major disaster.”
- Pursuant to 44 C.F.R. § 206.225(a), emergency protective measures to save lives, to protect public health and safety, and to protect improved property are eligible for PA funding.
- Under 44 C.F.R. § 206.204(c), emergency work must be completed within six months of a disaster unless extenuating circumstances are present.
- The Applicant failed to implement any emergency protective measures to stabilize its slope more than 32 months after Hurricane Irene occurred.
- According to the PA Guide at 2, recovery actions should not be dependent upon whether there will be Federal assistance.
- The Applicant asserts that, due to FEMA’s lack of diligence, it has not yet implemented emergency protective measures to stabilize its slope.
- Anticipation of a FEMA eligibility determination is not a basis for delay of emergency work.
- According to the PA Guide at 71, FEMA considers emergency protective measures to include activities undertaken by a community before, during, and following a disaster to eliminate or reduce an immediate threat to improved public or private property.
- The Applicant failed to demonstrate that the slope failure presents an immediate threat to improved property.