Immediate Threat

Appeal Brief

Appeal Letter

Appeal Analysis

Background

Between June 1 and August 29, 2010, severe storms and flooding caused a stretch of the North Loup River, located in Blaine County (Applicant), to reroute and erode the unpaved roadway approach to the Guggenmos Bridge.  The south embankment of the river was washed out for several hundred feet upstream and downstream of the bridge, and the river began to flow behind the bridge.  To return the river to its original channel, the Applicant built a 500 foot long spur dike along the bank of the river.

For at least three years prior to the disaster, the Applicant was in the process of applying for a permit from the United States Army Corps of Engineers (USACE) to authorize construction of the spur dike.  On July 6, 2010, the USACE authorized the Applicant to “construct a 500-foot long spur dike.”[1]

FEMA prepared project worksheet (PW) 270, Version 0, a Category B emergency work PW, to document the damage to the south embankment of the river, the Applicant’s construction of a spur dike, and the Applicant’s Hazard Mitigation Proposal (HMP) to line the spur dike with rip rap and geotextile filter fabric.  On September 28, 2011, FEMA determined the work to be ineligible for PA funding because it is permanent in nature and will not be removed.[2]  FEMA notified the Applicant that the work would be documented in PW 1169, an existing Category C permanent work PW documenting permanent repairs and hazard mitigation to the roadway approach to the Guggenmos Bridge and associated guardrail,[3]and PW 270 would be written for zero dollars.

FEMA considered increasing the scope of work for PW 1169 to include the Applicant’s construction of the spur dike.  However, FEMA determined that the work was ineligible for PA funding because it was constructed in noncompliance with FEMA Environmental Memo #3 and various federal environmental laws, including the Clean Water Act.[4]  Ultimately, PW 1169 was approved and obligated in March 2013 for the restoration of the roadway without inclusion of the Applicant’s construction of the spur dike.

In December 2012, FEMA prepared PW 270, Version 1, to amend the scope of work to include construction as well as deconstruction of the spur dike.  By including deconstruction of the spur dike, FEMA found the project could be considered eligible as an emergency protective measure because it would no longer be permanent.  Based on similar rationale, FEMA determined that the project was statutorily excluded from environmental review.  On March 22, 2013, FEMA obligated $38,124.62 to construct the spur dike and $38,124.62 to deconstruct the spur dike, for a total amount of $76,249.24 in PA funding.

First Appeal     

On July 3, 2013, the Applicant submitted its first appeal to the Nebraska Emergency Management Agency (Grantee).  The Applicant requested that FEMA prepare a Category C permanent work PW in the amount of $92,233.41 to fund construction of the spur dike and the HMP.  The Applicant described the work as “rebuilding of the south bank in order to move the river back to its pre-storm channel.”[5]  On July 8, 2013, the Grantee transmitted the first appeal to FEMA Region VII.    

On January 13, 2014, the FEMA Region VII Regional Administrator (RA) denied the Applicant’s first appeal on five grounds.  First, the RA determined that the Applicant was making plans to build the spur dike to address an erosion issue at the site before the disaster occurred and, as a result, the damage addressed by construction of the spur dike was not a result of the disaster.  Second, the RA found that the spur dike did not exist prior to the disaster; and therefore, could not fund the work because 44 C.F.R. § 206.226 limits funding to restoring facilities based on the design of such facilities as they existed immediately prior to the disaster.  Third, the RA explained that FEMA separated the Applicant’s work into PW 270 and 1169, to allow some funding to be eligible, as the two projects could not be combined into one single permanent work PW.  Fourth, the RA determined that FEMA was not afforded the opportunity to perform a National Environmental Policy Act (NEPA) review of the project; and due to the fact that the spur dike did not exist prior to the disaster, the statutory exclusion is not applicable because it only applies when FEMA is funding work that has the effect of restoring a facility substantially to its condition prior to the disaster.  Finally, the RA determined that the river bank is not an eligible facility because prior to the disaster it was an unmaintained natural feature.  Accordingly, the RA deobligated $76,249.24 in previously approved funding in PW 270.[6]

Second Appeal

On March 10, 2014, the Applicant submitted its second appeal to the Grantee to request relief.  The Grantee transmitted the appeal to FEMA Region VII on March 21, 2014.

The Applicant makes four arguments.  First, it asserts that the facility is a river bank that is “part and parcel of the County road,” and is “an integral part of a roadway.”[7]  The Applicant claims that the entire roadway has long been maintained by it and thereby meets FEMA’s definition of a facility as a “maintained natural feature.”[8]  The Applicant notes that the facility is not a spur dike.  Second, the Applicant argues that its prior plans to repair and improve the facility do not make the facility ineligible.[9]  Based on FEMA policy, the Applicant contends that the facility should be treated as one that was under contract for repair or replacement using non-Federal funds.  Third, the Applicant claims that all of the work was done on an emergency basis, but was intended to be permanent in nature and constitutes an integral part of the roadway.[10]  The Applicant claims that if it failed to act, it would have been deemed “negligent” and ineligible for PA funding pursuant to 44 C.F.R. § 206.223(e).[11]  Fourth, the Applicant contends that the repairs were made to a roadway embankment, not a spur dike, and therefore the work falls within the scope of the NEPA statutory exclusion.[12]  In total, the Applicant requests $92,233.41 in PA funding, including $31,406.44 for the HMP, though the Applicant does not discuss the HMP. 

Discussion

Based on authorities in the Stafford Act, FEMA divides disaster-related work into two broad categories, permanent work and emergency work, each with its own corresponding statutory and regulatory eligibility requirements.[13]  On second appeal, the Applicant claims that all work was performed on an emergency basis but was intended to be permanent.[14]  It is not clear whether the Applicant is claiming or requesting that FEMA consider construction of the spur dike as permanent work or emergency work.  Regardless, the following sections address the Applicant’s second appeal issues in the broader context of whether the work performed meets specific eligibility requirements for funding as permanent work or emergency work.

Spur Dike Construction as Permanent Work

The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 406(a)(1)(A) authorizes FEMA to make contributions to a State or local government for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster.[15]  FEMA’s implementing regulations define 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.”[16]

To be eligible for permanent work, repair or replacement work must occur on an eligible facility.  FEMA regulation defines “facility” as “any publicly or privately owned building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature.”[17]  The improvement of a natural feature must be based on a documented design that changes and improves the natural characteristics of the feature.[18]  The Applicant has characterized the damaged “facility” in different ways throughout the appeal process.  On first appeal, the Applicant referred to the facility as “the south bank.”[19]  While on second appeal, in response to the RA’s determination that the river bank was not an improved and maintained natural feature, the Applicant now argues that the river bank is “an integral part” of the roadway, which was maintained for a long time, thus complying with FEMA’s definition of a “maintained natural feature.”[20]  The Applicant, however, has not provided documentation or other records to demonstrate that the river bank was an integral[21] part of the roadway or improved and maintained in accordance with a design.

A FEMA Professional Engineer (PE) reviewed historical and topographical maps of the area around the Guggenmos Bridge as it existed prior to the disaster and verified that the river bank immediately adjacent the bridge was integral ground because it structurally supported the roadway approach.  FEMA appropriately provided PA funding, in PW 1169, to repair the roadway approach, including its integral ground, and the placement of riprap and geotextile non-woven fabric on the west side of the roadway approach to mitigate the “risk of slope failure” [22] because this slope is structurally integral to the roadway approach.

The Applicant, however, is claiming that in addition to the integral ground FEMA funded to restore the roadway approach, several hundred feet of upstream river bank is also integral ground.  This argument is without factual basis.  Prior to the storm, the river bank extended southwest from the bridge with an ever increasing distance between the roadway and river bank.  The upstream river bank was physically separate and distinct from the roadway such that no structural relationship existed.  Thus, the several hundred feet of upstream river bank that the Applicant replaced with a spur dike was not integral ground necessary to restore the roadway approach.  Additionally, the USACE’s Evaluation and Decision Document for Blaine County Highway Department, prepared in furtherance of the permit action, described the river bank as “instable” and subject to “continued erosion,” which suggests that the river bank was unimproved and unmaintained.[23]  As a result, the river bank is not an eligible facility under the PA Program.

Similarly, the facility an applicant seeks to restore or repair must have existed prior to the disaster.  Section 406 of the Stafford Act specifically authorizes restoration, repair, or replacement of a previous, preexisting structure.  The spur dike did not exist before the disaster, as evident from the USACE permit dated July 6, 2010, which characterizes the permitted work as a “spur dike,” not a river bank.[24]  Therefore the Applicant’s construction work is ineligible because FEMA does not have the authority to fund a new permanent facility where none existed prior to the disaster.

The Applicant’s claim that the river bank should be viewed as a facility under contract for repair or replacement using non-federal funds misapplies FEMA policy.  FEMA policy provides that if a disaster occurs when a facility or portion of that facility is under contract for repair or replacement using non-federal funds and the applicant is legally responsible for repairs, damage to the portion of the facility under contract may be deemed eligible.[25]  The Applicant references this policy to argue that its prior plans to repair and improve the river bank do not make the facility ineligible.[26]  The Applicant’s reference to this policy is misplaced because the policy only applies to facilities under construction or in existence at the time of the disaster.  As the spur dike was not under construction and did not exist prior to the disaster, the policy is not applicable.

Spur Dike Construction as Emergency Work

The Applicant performed permanent construction to address potential erosion to the roadway, but funding such work that is permanent in nature is not eligible as an emergency protective measure under criteria established by the Stafford Act.  Section 403(a) of the Stafford Act authorizes FEMA to provide assistance essential to meet immediate threats to life and property resulting from a major disaster, including work that “reduce[s] immediate threats to life, property, and public health and safety.”[27]  FEMA categorizes this work as emergency work,

Section 403 of the Stafford Act authorizes funding for the minimal level of action necessary to address immediate threats.[28]  Examples of Category B emergency work include temporary generators, temporary facilities for schools, activation of a state or local emergency operations center, sandbagging, and temporary dikes.[29]  Construction of the spur dike was not a temporary emergency protective measure, but rather an action that is permanent in nature that will have continuing effects. 

FEMA prepared PW 270 to fund the construction and deconstruction of the spur dike to fund work that is temporary and the minimal action necessary to address the immediate threat to meet the requirements of the Stafford Act and implementing regulations.  The Applicant has not provided documentation to substantiate that constructing a permanent spur dike was the minimal action necessary to restore access to the Guggenmos Bridge in order to restore public services.  Likewise, the Applicant’s decision to leave the spur dike in place changes the nature of the work from temporary to permanent.  Funding this work contravenes the intent of the Stafford Act and FEMA regulations.

Hazard Mitigation Project

As discussed earlier, the Applicant’s construction of the spur dike is ineligible.  Therefore, the Applicant’s second appeal request for $31,406.44 in PA funding for the HMP as part of the spur dike is likewise ineligible.[30]

Conclusion

The river bank was not an improved and maintained natural feature nor an integral part of another facility.  Consequently, the Applicant’s construction of the spur dike is ineligible for PA funding as permanent work (Category C).  The project is also ineligible for PA funding as emergency work (Category B) because construction of the spur dike was permanent and not a temporary emergency protective measure.  For the foregoing reasons, the second appeal is denied.