Conclusion: Meadow Lake is part of a system of lakes supplying water to the Applicant’s residents. FEMA has already funded the percentage of space dedicated to eligible services for the entire system of lakes. Therefore, additional assistance for Meadow Lake is not available. The water flow meter at Meadow Lake is a component of a water supply system. Consequently, repairs to it are eligible for Public Assistance.
The Applicant is a private nonprofit (PNP) homeowner’s association, governing a planned community comprised of 166 homes and cabins, located in Boulder and Larimer Counties, Colorado. The Applicant owns and operates five sequential manmade earthen-dammed lakes—Sunset, Rainbow, Willow, Mirror and Meadow Lakes. From September 11 to 30, 2013, severe storms, flooding, landslides, and mudslides impacted parts of the State of Colorado. The disaster caused riverine flooding that breached and washed out all five dams that formed the Applicant’s lakes. To address disaster-related work associated with Meadow Lake Dam, FEMA prepared Project Worksheet (PW) 318 estimating project costs at $651,997.00. FEMA subsequently reduced the PW to $24,005.41 (costs associated with repairing a water flow meter) after determining that, as a PNP facility, Meadow Lake was not a critical facility because it did not provide potable water for the immediate community, and therefore, was not eligible for PA reimbursement. The Applicant appealed FEMA’s determination asserting that Meadow Lake was eligible pursuant to 44 C.F.R. § 206.221(e) as part of a water supply system comprised of five lakes. The Region VIII Regional Administrator (RA) denied the first appeal stating that, while Meadow Lake was part of a system, it was only used for water augmentation and recreational purposes—neither of which were critical services as defined by regulation. The RA also deobligated funding provided to repair the water flow meter associated with Meadow Lake. The Applicant’s second appeal restates its contention that Meadow Lake, as part of a water supply system, is eligible for cost reimbursement associated to disaster-related repairs.
Authorities and Second Appeals
- Stafford Act §§ 102(10) and 406(a)(1)(B), (a)(3).
- 44 C.F.R. §§ 206.221(e)(2), 206.226(c)(1).
- PA Guide, at 18 and 27.
- DAP 9521.3, Private Nonprofit (PNP) Facility Eligibility, at 4.
- Stafford Act § 406, as implemented by 44 C.F.R. § 206.226, authorizes FEMA to reimburse costs associated with disaster-related repairs to a PNP-owned facility providing critical services, including water.
- Per Stafford Act §102(10), the definition of PNP facility includes “utility.” Further defined by 44 C.F.R. § 206.221(e)(2), a PNP utility facility may include buildings, structures, or systems of water supply.
- Through the Articles of Incorporation, engineering memoranda, court documents, and Google images, FEMA is able to establish that Meadow Lake is one of five lakes comprising Applicant’s overall water supply system, with water flow meters at the beginning and end of the system.
- DAP 9521.3 states that assistance is in direct proportion to the percentage of space dedicated to eligible services.
- Region VIII calculated that 52 acre-feet of the Applicant’s water was eligible and provided proportional funding. Therefore, no additional funding is available.