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Second Appeal Analysis
PA ID# 000-UK5O0-00; Puerto Rico Aqueduct and Sewer Authority
PW ID# 1966 and 1996; Debris Removal; Immediate Threat
Between August 21 and 24, 2011, heavy rains from Hurricane Irene caused debris and sediment deposits in De Loiza and La Plata reservoirs. Both facilities are major water sources for the population of San Juan, Puerto Rico. The Puerto Rico Aqueduct and Sewer Authority (Applicant) requested Category A Public Assistance (PA) funding for debris removal at both facilities.
FEMA prepared PWs 1966 (La Loiza) and 1996 (La Plata) for Category A debris removal. According to the Applicant, the intense rainfall from Hurricane Irene deposited approximately 1,220,000 cubic meters of sand and debris in La Loiza and 731,000 cubic meters of sediment in La Plata. The Applicant requested $20,964,600.00 in dredging costs for PW 1966, $5,000.00 of which pertained to administrative expenses and $12,572,170.00 in dredging costs for PW 1996, $5,000.00 of which was attributed to administrative expenses.
De Loiza was constructed in 1953 and it was never designated as a flood control work. From August 1993 to September 1994, a drought occurred, which revealed the reduced storage capacity of the reservoir. La Plata was built by 1974 with bascule gates that were installed in 1989.
Two hurricanes affected the area in 1996 and 1998. As a result, De Loiza was dredged from 1997 to 1999, increasing the capacity of the reservoir. A United States Geological Survey (USGS) bathymetric survey was performed at La Plata in 1998, which showed that sediment accumulation had reduced the reservoir’s storage capacity by 12 percent. In 2004, the USGS conducted a bathymetric survey at De Loiza to assess the impact of the 1996 and 1998 hurricanes and found the storage capacity of the reservoir greater than it was in 1994.
In 2006, another bathymetric survey was completed at La Plata to update the reservoir storage capacity data, determine the sediment rate by comparing the 1998 and 2006 data, and define areas of substantial sediment accumulation. The survey revealed that the storage capacity was reduced by 22 percent from 1974, as a result of land erosion and urban development within the vicinity of the reservoir. A 2009 bathymetric survey showed that the capacity of De Loiza had decreased and concluded that size and shape of the reservoir, the location and mechanism of the discharge schedule, and other factors affected the rate of sedimentation.
FEMA evaluated eligibility for both facilities under Category A and Category D and determined that dredging would not qualify for Category A funding because it did not lessen or eliminate immediate threats to lives, public health and safety, or nearby public and private property. Nor would dredging ensure the economic recovery of the community or mitigate risk to life and property under FEMA’s hazard mitigation program.
FEMA also found the work ineligible for Category D funding because the facilities were not designated water control facilities, whose repair would fall under United States Army Corps of Engineers’ (USACE) authority. The facilities also did not qualify for storage capacity restoration because the Applicant did not provide necessary maintenance records and clearance schedules to show pre- and post-disaster levels of debris.
Subsequent meetings with the USGS, USACE, and the Applicant revealed the following: (1) the gauge stations used for the bathymetric surveys for De Loiza and La Plata were inoperable by 2006; (2) bathymetric surveys were only performed by USGS at the Applicant’s request, not regularly; (3) the water discharge from Hurricane Irene did not constitute an extraordinary event—extraordinary discharge events are not necessarily the product of hurricanes; (4) there was no regular maintenance program of the facilities and USGS was not aware of any regularly scheduled maintenance program; and (5) La Plata was not considered, by USGS, a flood control work.
As a result, FEMA issued a determination letter finding that the Applicant did not adequately substantiate the claimed amount of disaster-related sediment. FEMA contended that, with five declared events since 2004, many more non-declared rain events, and a lack of a maintenance program continuously measuring sediment levels, the Applicant did not adequately substantiate the amount of disaster-related sediment. Moreover, FEMA found that neither De Loiza, which had only had isolated dredging in 1997, nor La Plata, which had never been dredged, were the subject of a formal routine maintenance program.
Regarding the immediate threat issue, FEMA determined that the Applicant’s claim that the sediment reduced drinking water capacity was without merit as sediment infiltration was “an ongoing issue for all reservoirs” and thus could not be considered an immediate threat. FEMA also found the adverse effects of organic matter to be “a perpetual issue” with these reservoirs and the Applicant’s continued use of the water for nearly 10 months after the event significantly undercutting the assertion of an immediate threat.
By letter dated July 12, 2013, the Applicant appealed FEMA’s determination. The Applicant asserted that the debris was caused by the disaster. The applicant submitted a report from its engineer that established the specific amount of material deposited by Hurricane Irene using sensors from the USGS and alleged that, contrary to FEMA’s finding, the stations were operable. According to the Applicant, FEMA personnel, the Applicant’s engineer, and the Governor’s Authorized Representative agreed that the methodology used to estimate disaster-related debris for both reservoirs was appropriate. The Applicant also stated that the sediment posed an immediate threat as, during periods of low rainfall, water capacity would be severely diminished. As for maintenance plans, the Applicant claimed that a letter was submitted referencing annual cleaning programs. There is no record of such a letter. The Applicant also stated that regular dredging was not common practice in lakes in the United States.
On April 7, 2014, FEMA sent a Final Request for Information soliciting documentation on volume calculation, threat to public health, and maintenance plans. The Applicant provided extensive documentation from experts explaining methodologies that can be used to measure sediments as well as that specifically used to calculate sediments for La Plata and De Loiza.
On May 14, 2014, the Regional Administrator (RA) issued a decision denying the first appeal. The RA determined that the sediment calculations directly related to the disaster lacked precision because the Applicant estimated suspended solids contribution of 28 and 38 percent, respectively, of the total drainage area. The RA found that the Applicant’s estimates could vary greatly depending upon the location along streams and rivers and, therefore, were not persuasive. The RA mentioned that an alternative method, obtaining soil borings of the reservoir, could provide the data points necessary to map the reservoir and determine the thickness and volume of deposited material. The RA also found that maintenance of the reservoirs was at best intermittent and a formal routine did not exist. Therefore, FEMA could not accurately determine the predisaster condition of the reservoirs or conclude that the sediments were caused by the disaster.
Regarding immediate threats to public health, the RA determined that the Applicant did not provide documentation supporting its claim that diminished water capacity posed an immediate threat. Nor did the Applicant perform a statistical risk analysis to show that a drought would pose an immediate threat.
The Applicant submitted a second appeal on July 11, 2014, with another report from its engineer explaining the methods and procedures utilized in calculating sediments discharged into La Plata. The Applicant disputes FEMA’s conclusions regarding the importance of the sediments discharged into the reservoirs by the disaster. The Applicant claims that FEMA should not have relied on comments from the hydrologist from USGS, who was not familiar with the Applicant’s operations and had no direct knowledge of the management of the water supplies in San Juan.
The Applicant disputes FEMA’s method of calculating sediments discharged, and provided data on the sources of water for each reservoir and calculation of the reduction in yield during recent droughts, which showed the effects of a severe drought on water capacity. Notably, the second appeal states that Hurricane Irene reduced capacity by 7 percent in De Loiza and 2.4 percent in La Plata. According to the Applicant, after Hurricane Irene, De Loiza had a total capacity of 55.3 percent of its original capacity (a projected remaining life of 60 years) and La Plata had a total capacity of 82.2 percent of its original capacity (a remaining useful life of 171 years).
Further, the Applicant disputes FEMA’s conclusions about the potential impacts of the diminished capacity to the health and safety of the population of San Juan. Specifically, the Applicant asserts that, in the event of a drought, the reduced water capacity would require water rationing, causing great hardship to the population, particularly the elderly. In addition, the large amount of organic matter, as a result of the sediment in the reservoir, reduces water quality and can result in toxic compound concentrations. Finally, the Applicant alleges that it has drafted a plan for perpetual dredging which was under review at the time the appeal was submitted.
The Commonwealth of Puerto Rico Emergency Management Agency (Grantee) timely transmitted the second appeal on September 4, 2014. The Grantee supports the Applicant’s second appeal.
As stated above, the Applicant disputes FEMA’s conclusions regarding (1) the importance of the sediments discharged into the reservoirs by the disaster; (2) the methods used to calculate the sediments discharged; and (3) FEMA’s conclusions about the potential impacts of the diminished capacity on the health and safety of the population of San Juan. The Applicant also noted that a draft plan of perpetual dredging was under review at the time the appeal was submitted.
Immediate Threats Posed by the Reduced Capacity under Category A
The Applicant has not demonstrated the presence of an immediate threat. 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.” Section 403 specifically names debris removal as an example of such work. The Stafford Act also defines emergency work as work performed to clear and remove debris and wreckage. In 44 C.F.R. § 206.201(b), emergency work is defined as work which must be done immediately to save lives and to protect improved property and public health and safety, or to avert or lessen the threat of a major disaster. An immediate threat is the threat of additional damage or destruction from an event which can reasonably be expected to occur within five years.
The Applicant asserts two arguments: (1) that the presence of the sediments causes diminished water capacity such that in the event of a drought, water supplies would be critically low; and (2) the relatively large amounts of organic matter reduce water quality. As a result, the Applicant avers that FEMA does not comprehend the magnitude of the risks posed by the presence of this debris within the reservoirs.
The Applicant’s concerns relate to the cumulative effect of the debris within the channel, not only the debris related to Irene. The second appeal contains a table showing that, after Irene, the remaining capacity in De Loiza was about 55 percent while the capacity in La Plata was about 82 percent, yet, per the Applicant’s own appeal submission, Hurricane Irene only reduced the capacity of Loiza by about 7 percent and 2.4 percent for La Plata. La Plata was never dredged and De Loiza was only dredged once. As such, while FEMA acknowledges that in the event of a drought, the capacity and quality of the water might be compromised due to the cumulative debris, the Applicant has not established that the relatively low (less than 10 percent of pre-Irene capacity) sediment deposits related to Irene are the cause of those threats. Instead, the threats to the quality and quantity of the water within the reservoirs are caused by the effect of several declared and non-declared events as well as a lack of maintenance to address the accumulated sediment from those events. Thus, the Applicant has not substantiated immediate threats specifically related to Irene.
Performance of Eligible Work
In addition, FEMA notes that the Applicant never commenced the work. As stated above, debris removal is eligible emergency work which must be done immediately to save lives and to protect improved property and public health and safety, or to avert or lessen the threat of a major disaster. Typically, FEMA mandates that emergency work be completed within six months of the disaster declaration. The grantee may extend that deadline by an additional six months where unusual project requirements or extenuating circumstances beyond the applicant’s control exist. Still, if an applicant requires additional time beyond what the grantee is authorized to provide, the applicant must request a time extension from FEMA, in writing, with a detailed justification for the delay and a projected completion date. Performance of eligible work should not be dependent upon the availability of federal assistance.
Even assuming that there were extenuating circumstances requiring the Applicant to delay debris removal operations, there is no evidence on record showing that the Applicant requested time extensions from the Grantee or FEMA. Since the disaster occurred in August 2011, debris removal should have been completed no later than February of 2012, or a time extension should have been requested. As such, funding for debris removal operations has not met established time requirements.
Category D Debris Removal from Water Control Facilities
Although the PWs were created as Category A work, FEMA also considered whether this work qualified as Category D permanent work. Section 406 of the Stafford Act authorizes FEMA to fund restoration of a public facility, including clearing debris from public waters resulting from a major disaster. As such, debris removal must be required as a result of a major disaster event to be eligible for financial assistance. Debris removal to restore the capacity of a reservoir could be classified as Category D permanent work. In such an instance, FEMA requires two things: (1) maintenance records or surveys to show predisaster levels of debris to determine the amount of disaster-related debris and (2) regular clearance schedules to demonstrate that the facility is maintained and actively used.
To determine the amount of disaster-related debris, FEMA requested maintenance records for both reservoirs. The Applicant did not provide maintenance records, but on second appeal, proffered documentation showing the methodology it employed to estimate disaster related debris. To estimate sediment deposits, the Applicant assessed the contribution, in terms of suspended solids, of individual tributaries that make up the drainage area of each reservoir. However, data was not available for all tributaries. As a result, the Applicant determined the ratio of unknown to known drainage area and attributed that ratio (percentage) to the unknown area. This assumption was based on an observation that the flow hydrographs for these tributaries were very similar to those in rivers where data was available for Hurricane Irene. Further, the Applicant stated that even if the values it assumed for suspended sediment in the unknown portions of the drainage area were at the lowest or highest extremes, expected sediment in the reservoir would not be greatly impacted.
The RA, on first appeal, disputed the Applicant’s volume calculation methodology, primarily the Applicant’s estimations for the amount of suspended solids contributed by 28 and 38 percent of the total drainage areas for the De Loiza and La Plata reservoirs, respectively. FEMA concurs that the Applicant followed generally accepted practices for performing its calculations and the assumptions it made were reasonable and well supported. Therefore, the Applicant sufficiently substantiated the amount of disaster related debris.
However, the Applicant did not provide clearance schedules required to show that the facilities were actively used and maintained. Rather, the Applicant admits that no such schedules exist, but that it has a plan of perpetual dredging currently under review. While FEMA commends the Applicant’s future endeavors, this does not change the fact that no relevant maintenance schedules existed for the facilities at the time of the disaster. For this reason, the RA correctly determined that the work was ineligible for Category D funding.
The Applicant has not established that debris removal was necessary to alleviate an immediate threat. The Applicant has also not substantiated that there was an immediate threat. In addition, the Applicant did not complete debris removal operations within the FEMA regulatory timeline, nor request time extensions to accommodate the delay. Finally, the Applicant did not have a regular clearance schedule to show that the facilities were actively used and maintained, to justify eligibility for Category D funding. For these reasons, the second appeal is denied.
 Project Worksheet 1966, Puerto Rico Aqueducts Sewer and Authority (May 8, 2012).
 Project Worksheet 1996, Puerto Rico Aqueducts Sewer and Authority (May 8, 2012).
 PW 1966, Puerto Rico Aqueducts Sewer and Authority.
 PW 1996, Puerto Rico Aqueducts Sewer and Authority.
 Power Point Presentation, Puerto Rico Aqueducts Sewer and Authority, Request for the Dredging of Lake La Plata: PW #1996 (on file with FEMA) [hereinafter PW 1966 PowerPoint Presentation].
 Power Point Presentation, Puerto Rico Aqueducts Sewer and Authority, Request for the Dredging of Lake De Loiza: PW #1966 (Undated) (on file with FEMA) [hereinafter PW 1996 PowerPoint Presentation].
 PW 1966 PowerPoint Presentation.
 PW 1996 PowerPoint Presentation.
 FEMA Project Specialist, P.E., PW 1966 Summary of Conclusions (Undated); FEMA Project Specialist, P.E., PW 1996 Summary of Conclusions (Undated).
 PW 1966 PowerPoint Presentation; PW 1996 PowerPoint Presentation.
 Letter from Reg’l Adm’r, FEMA, to Governor’s Authorized Representative, Commonwealth of Puerto Rico, at 2 (July 18, 2012).
 According to the Applicant, the data can be checked at the following electronic address: //pr.water.gov/.
 Ferdinand Quinones, P.E., Consultant to PRASA, Methods and Procedures Utilized in the Calculation of the Amount of Sediments Discharged into La Plata Reservoir, Puerto Rico, By the Floods Induced By Hurricane Irene During August 21-26, 2011 (Aug. 2014).
 Appeal Letter from Exec. President, Puerto Rico Aqueducts Sewer and Authority, to FEMA, at 4 (July 11, 2014) [hereinafter Applicant’s Second Appeal Letter].
 Applicant’s Second Appeal Letter, at 3.
 As the sediment decays, it consumes oxygen resulting in dissolution of organic carbon. The organic matter also produces high amounts or iron and manganese which dissolve in this anoxic condition. The reduction in oxygen also results in dissolution of organic carbon. High amounts of organic carbon can be converted into trihalomethanes during filtration, which are a carcinogen.
 At the time of the issuance of this response, FEMA has not received an update regarding this matter.
 The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 403(a), 42 U.S.C. § 5170b (2007).
 Stafford Act § 403(c)(6)(B).
 44 C.F.R. § 206.201(b) (2010).
 Public Assistance Guide, FEMA 322, at 66 (June 2007) [hereinafter PA Guide].
 44 C.F.R. § 206.201(b).
 Id. § 206.204(c)(1).
 Id. § 206.204(c)(2)(ii).
 Id. § 206.204(d)(2).
 44 C.F.R. § 206.223(a); PA Guide, at 23.
 For example, if the total area were 100 square miles, 25 of which were unknown (25 percent) and the remainder of the area contributed 60 tons of sediment, one would assume that an additional 30 percent of the known contribution (25 percent of 60 tons = 15 tons) could be added to account for the unknown area. In this example, the total suspended solids contribution from the 100 square mile area would be 75 tons.
 See Applicant’s Second Appeal Letter, Appendix 1, at 6-7 (citing T. K. Edwards & G. D. Glysson, Field Methods for Measurement of Fluvial Sediment, Book 3, ch. C2 of Techniques of Water-Resources Investigations of the USGS (1998); George Potterfield, Computation of Fluvial Sediment Discharge, Book 3, ch. 3 of Techniques of Water-Resources Investigations of the USGS (1972); Douglas Glysson, Sediment Transport Curves, USGS OFR 87-218 (1987)).