Conclusion: The Applicant’s construction of the spur dike is ineligible for PA funding as permanent work (Category C) because the river bank was not an improved and maintained facility and the spur dike did not exist prior to the disaster. The project is also ineligible for PA funding as emergency work (Category B) because construction of the spur dike was permanent work, not a temporary emergency protective measure.
Between June 1 and August 29, 2010, severe storms and flooding washed out the south embankment of the North Loup River, located in Blaine County (Applicant), for several hundred feet upstream and downstream of the Guggenmos Bridge. To return the river to its original channel, the Applicant built a 500 foot long spur dike along the bank of the river. FEMA prepared project worksheet (PW) 270, Version 0, for Category B emergency work. During review of the PW, FEMA determined the work to be ineligible for PA funding because it was for permanent construction that would not be removed. PW 270 was prepared for zero dollars. On December 2012, FEMA prepared PW 270, Version 1, to amend the scope of work to include deconstruction of the spur dike. The PW was obligated for $76,249.24. On July 3, 2013, the Applicant submitted its first appeal requesting FEMA prepare a Category C permanent work PW to fund the spur dike and Hazard Mitigation Proposal (HMP). On January 13, 2014, the FEMA Region VII Regional Administrator denied the first appeal, determining that: construction of the spur dike was not a result of the disaster; the river bank was an unmaintained natural feature; the spur dike did not exist prior to the disaster, and therefore it cannot be funded as permanent work; and FEMA was not afforded the opportunity to perform an environmental review of the project. On March 10, 2014, the Applicant submitted its second appeal, which reiterates concerns expressed in the first appeal and asserts that the facility is the river bank and construction of the spur dike was done on an emergency basis, but was intended to be permanent in nature.
Authorities and Second Appeals
- Stafford Act §§ 316, 403, 406.
- 44 C.F.R. §§ 10.4(a), 206.201(b), 206.201(j), 206.223(a)(1).
- PA Guide, at 66, 71-74, 128-129.
- 44 C.F.R. § 206.201(c) defines facility to mean any publicly or privately owned building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature.
- The Applicant did not demonstrate that the river bank was an improved and maintained natural feature.
- 44 C.F.R. § 206.201(j) defines permanent work as “restorative work that must be performed through repairs or replacement, to restore an eligible facility on the basis of its predisaster design and current applicable standards.”
- The spur dike is not an eligible facility because it did not exist prior to the disaster.
- Stafford Act § 403(a)(3)(I) permits FEMA to provide essential assistance to reduce immediate threats to life, property, and public health and safety.
- Construction of a spur dike is not eligible emergency work because the measure was permanent, not temporary.