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Second Appeal Analysis
PA ID# 093-38010-00; City of Ida Grove
PW ID# 177; Support Documentation
From June 26, 2014 through July 7, 2014, severe storms, high winds, and flooding damaged the banks of Badger Creek and Maple River in the City of Ida Grove (Applicant). A bike and walking trail and residential properties run adjacent to Badger Creek. The Applicant identified 28 sites along Badger Creek, and 13 sites along Maple River, where flooding damaged the banks of the waterways, particularly where the flood water caused sloughing along the banks. FEMA prepared, but did not fund, Project Worksheet (PW) 177 on October 3, 2014, to repair damage to the banks of the creek and the river in the amount of $115,800.64. The scope of work included bringing in, placing, and grading fill, and seeding eroded areas. It also included a hazard mitigation measure of placing riprap along the restored banks. On January 8, 2015, FEMA determined the work was ineligible, citing the Applicant’s failure to demonstrate the drainage features along the creek and river were improved and maintained, as required under the provisions of 44 C.F.R. §206.201(c).
In its first appeal dated February 27, 2015, the Applicant disagreed with FEMA’s determination that it submitted insufficient documentation to demonstrate the eligibility of the Badger Creek embankments. The Applicant argued that it improved and maintained the creek based on the design and maintenance of the area adjacent to the creek, as well as the flood control measures present in certain areas along the creek. The Applicant contended that it began improving the creek in 1982 and has made numerous improvements to the Badger Creek system since that time. These improvements included placing riprap to facilitate silting over exposed pipes in 1984, placing riprap to control bank erosion from 1995-2005, and placing sheet piling and riprap where water and sewer mains join the creek. The Applicant argued that on numerous occasions it worked to stabilize the banks and return them to their original design, specifically highlighting two prior disasters, in which FEMA approved and funded work on the Badger Creek system. The Applicant also included a financial report listing its budget for mowing, spraying herbicide, grubbing trees, and removing trash adjacent to the creek.
The State of Iowa Homeland Security and Emergency Management Department (Grantee) concurred with the Applicant’s appeal, stating the Applicant demonstrated a documented design that improved the natural characteristics of what it described as a “recreational system,” while also maintaining it. The Grantee also mentioned that the Applicant was not contesting the claim for sloughing along the banks of the Maple River. The Grantee pointed to the work done by the Applicant adjacent to the creek in response to the number of people and pets frequenting the area as measurable improvements. As such, it requested $42,063.84 in funding.
On August 4, 2015, FEMA Region VII sent a Final Request for Information (RFI) for the original engineering design and documentation demonstrating maintenance of the embankments, placement of riprap, how specific project locations corresponded to areas where flood control or erosion improvements were made, and any additional measures, not funded by FEMA, undertaken to prevent erosion from flooding. In the Final RFI, FEMA advised the Applicant of the likely basis for denial, as well as that the administrative record would close upon issuance of the first appeal decision and FEMA would not consider any additional documentation on second appeal. The Applicant responded to the RA’s letter with the 1982 plans for the Badger Creek Drainway Improvements, and the City Council meeting minutes outlining the plan, including the provisions referring to reshaping the creek banks, excavating the channel, and installing or improving drainage features. The Applicant also provided photographs, a statement that it “does repair work as necessary to maintain the integrity of the drain-way,” and a statement referring to work done through a grant from the Department of Agriculture Natural Resource Conservation Service (NRCS). With the NRCS funds, the Applicant installed a stabilization weir for a water main and riprap under a new bridge, and conducted repairs to protect a sewer main in a contributory stream.
The Region VII Regional Administrator (RA) denied the appeal in a letter dated October 22, 2015. In her decision, the RA found that the additional documentation the Applicant provided on appeal was insufficient to demonstrate that the bank protection measures along Badger Creek both improved and maintained the creek pursuant to 44 C.F.R. §206.201(c). The RA determined that while the Applicant demonstrated through the 1982 plans that it improved Badger Creek, it failed to show routine maintenance of the creek. The RA noted that the walking and bike path, which runs alongside the creek, in no way affected the flow of the water to act as a flood control system. The RA also noted with regard to the improvements claimed, that FEMA, not the Applicant, provided the majority of the erosion control maintenance either as a repair or mitigation measure and the FEMA funded work did not constitute maintenance.
In its second appeal dated December 22, 2015, the Applicant requests reconsideration of the determination that it failed to demonstrate maintenance of the creek. The Applicant also included, for the first time, four affidavits submitted by city workers and its engineers, Sundquist Engineering, P.C., detailing alleged maintenance of the creek. The Sundquist affidavit includes a statement that “natural streams tend to incur damage from relatively minor storm events. In contrast, [Badger Creek] is an engineered channel designed to withstand flows from most storm events.” The Applicant also cites its brush control program as evidence of its maintenance. The Sundquist affidavit claims that the program removes undesirable trees along the channel, so they will not impede flow in the channel or be a detriment to the integrity of the channel banks.
The Grantee transmitted the second appeal in a letter dated February 10, 2016 and concurs with the Applicant’s appeal. The Grantee argues that it is irrelevant who funded maintenance work on the creek and claims there is nothing in FEMA’s regulations or guidance suggesting that if FEMA funded the repair or mitigation work, then that work would not constitute maintenance. The Grantee notes that the Applicant performed routine mowing along the banks, weed control, and grubbing of trees, which are important to the integrity of the improved channel to prevent overgrowth which could impede flow of the creek.
Maintenance of the Improved Natural Feature
The Robert T. Stafford Disaster Relief and Emergency Act (Stafford Act) § 406 authorizes FEMA to provide federal assistance to local governments for the repair or restoration of a public facility damaged by a major disaster. Pursuant to Title 44 of the Code of Federal Regulations (44 C.F.R.) §206.201(c), a natural feature may be considered an eligible facility under the Stafford Act § 406 if it is improved and maintained. FEMA’s Public Assistance Guide (PA Guide) provides clarification regarding what constitutes maintenance of an improved natural feature, stating, “It is…the improvement itself that must be maintained for the natural feature to be considered a facility. The maintenance of this improvement must have been done on a regular schedule and to standards to ensure that the improvement performed as designed.”
The closed administrative record included the following documentation, which the Applicant claims demonstrate both that it improved and regularly maintains Badger Creek:
City Council meeting notes dated April 10, 1982 granting $100,000.00 for construction of Badger Creek Improvements
Ida Grove City Council meeting notes dated October 1, 1984 to purchase riprap and install it in the creek approximately 20 feet from the pipes and install more riprap further down to initiate the silting process
NRCS funded work in 2007, in which the Applicant installed a stabilization weir for a water main and riprap under a new bridge, and conducted repairs to protect a sewer main in a contributory stream
From 1995-2005 the Applicant placed recycled concrete riprap to control bank erosion
FEMA funded repair work including placing grass and riprap along various areas of berms that needed to be replaced to prevent future erosion
FEMA funded repairs including riprap and dirt work, and hazard mitigation work including fill, riprap, and seeding for erosion control concrete collar
Multiple photographs, plans and images of Badger Creek
The Applicant argues that it performed regular maintenance of the creek, in addition to repairs performed along the creek following flood events. While the Applicant provides some documentation to show its completion of work on an intermittent or non-routine basis, it did not demonstrate facility inspections or maintenance on a regular timetable following the FEMA funded work in 2010. To that end, FEMA’s review of satellite images and the photographs in the administrative record show a deteriorating creek bank due to lack of maintenance. These images between 2010 and the disaster reveal erosion, as well as a failure to clean sediment and reshape the creeks banks. Moreover, there are multiple areas where it is impossible to distinguish between damage due to lack of maintenance and damage resulting from the disaster. In addition, the work that was performed by the Applicant, specifically mowing the grass, is not the type of maintenance performed in keeping with “standards to ensure that the improvement performed as designed.” FEMA recognizes that the Applicant did perform mowing of grass in certain areas along and adjacent to Badger Creek, but finds this work was largely done to maintain areas along a biking and walking trail and that the cutting of such grass could actually create faster runoff and adversely impact the creek’s bank. FEMA also notes the Iowa Department of Natural Resources recommends measures to maintain creeks, including planting native grasses in the banks and keeping a buffer zone of tall grass adjacent to the creek, which were not carried out at this location. In considering all of this information, FEMA finds that the Applicant did not demonstrate it routinely maintained Badger Creek. As such, Badger Creek is ineligible for PA funding.
Affidavits Submitted on Second Appeal
The Applicant submits, for the first time, four affidavits on second appeal, which assert performance of maintenance on unspecified dates. Despite being explicitly advised that new information would not be considered on second appeal through Region VII’s Final RFI, the affidavits were provided after the administrative record closed. Accordingly, FEMA will not consider them as part of the second appeal. In arguendo, if FEMA were to accept the affidavits, they still fail to demonstrate routine maintenance or even that the disaster caused all of the damaged. The affidavits likewise fail to distinguish between routine work performed in the area adjacent to the walking or bike path, which is not considered maintenance of the creek, and regular work that would constitute maintenance, such as placing of riprap or other erosion control measures along the banks of Badger Creek.
In sum, the Applicant performed piecemeal improvements or repairs on certain parts of the creek, but as the PA Guide states maintenance must be done on what was originally improved, not just the parts the Applicant chooses. The affidavits do not establish when all of the damage claimed occurred or that the Applicant conducted routine or scheduled maintenance of the creek. Accordingly, even if the affidavits were part of the administrative record, they fail to demonstrate regular maintenance.
The Applicant failed to demonstrate that it routinely maintained Badger Creek. As such, the creek is not considered a facility under 44 C.F.R. §206.201(c), and is ineligible for PA funding.
 44 C.F.R. §206.201(c) defines “Facility” as “any publicly or privately owned building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature.”
 Letter from Alt. Governor’s Authorized Rep., St. of Iowa, to Reg. Adm’r, FEMA (May 1, 2015) (noting that this improved facility is a “recreational system comprising interrelated man-made components designed, constructed and maintained for the purpose of delivering recreational outputs for the public.”).
 The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406, 42 U.S.C. § 5170(b) (2007).
 44 C.F.R. § 206.201(c).
 Public Assistance Guide, FEMA 322, at 22 (2007) [hereinafter PA Guide].
 While the Applicant also included four affidavits in its second appeal, these will be discussed later in the analysis. Letter from City Clerk, City of Ida Grove, to Iowa Homeland Security and Emergency Management Department (December 22, 2015) [hereinafter Second Appeal Letter].
 Project Worksheet 399, City of Ida Grove, Version 0 (Jul. 12, 2007).
 Project Worksheet 1042, City of Ida Grove, Version 0 (Nov. 29, 2010).
 Second Appeal Letter, at 1.
 Moreover, the FEMA funded repair work occurred only twice in 32 years and only in response to a disaster, which by its nature, is not often enough to constitute regular maintenance.
 Second Appeal Letter, Exhibits A-B (alleging maintenance through: mud jacking to fix the undermining of a concrete channel under a bridge; installing and repacking dirt around another bridge and top of the bank; NRCS funded sheet piling, riprap and grouting; two occasions where city employees put concrete chunks in areas of minor washouts and let it fill in naturally with dirt and vegetation; inspections of the banks, water flow, and vegetation from May through October each year; weekly mowing, weed spraying, tree removal, herbicide application, in order to prevent clogging the bank or interrupting water flow; and an inspection conducted in 2014 noting damage from the 2014 flood, as well as damage from prior events).
 Id. at Exhibit A - 4 of 5. (One affidavit states “One example of the importance of inspections is the inspection after the 2014 flood. I found, and the engineer confirmed, numerous sites that needed repair. Some of these were from the flood and some probably were from prior events.”)