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Second Appeal Brief
PA ID# 000-006E9-00; Grand River Dam Authority
PW ID# PW 124; Predisaster Conditions – Environmental Compliance
The Grand River Dam Authority’s (Applicant’s) Kerr Dam experienced a severe storm and flood event declared on May 26, 2017. In response, FEMA prepared Project Worksheet (PW) 124 for costs totaling $629,200.00 to dredge and remove 45,000 cubic yards of scoured rock from the bottom of the dam stilling basin and replace 45,000 cubic feet of river gravel and rip rap that washed out from the north berm. Five months after the Kickoff Meeting, the Applicant notified FEMA of additional damage discovered at the dam, including significant undermining of the dam foundation, with repair costs estimated at $4 million. FEMA issued a determination memo (DM) denying all costs for the project, finding the Applicant did not report the damage to the dam foundation within the 60-day timeframe, did not allow FEMA the opportunity to conduct environmental and historic preservation (EHP) reviews prior to completing the dredging work, and did not provide documentation of the predisaster condition of the sediment build-up or the dam foundation. The Applicant appealed, arguing it needed a time extension beyond the 60-day deadline because of the difficulty of assessing underwater damage. The Applicant also offered aerial photographs to demonstrate the predisaster condition of the sediment build-up, and stated it believed it responded correctly to any EHP issues in the work completed to clear the basin. FEMA denied the first appeal for similar reasons stated in the DM. The Applicant filed a second appeal, with similar arguments. The inaccessibility of the underwater portions of the dam and the need for technical assessments may have created extenuating circumstances to justify a time extension for identifying damage, however, this issue is moot and FEMA will not discuss it on second appeal.
Authorities and Second Appeals
- Stafford Act §§ 406(a), (e).
- 44 C.F.R. §§ 206.223(a)(1), 206.226.
- PAPPG, at 20, 87, 118.
- Puerto Rico Aqueduct and Sewer Authority, FEMA-4017-DR-PR, at 7 (Mar. 16, 2016).
- North Wilkesboro, FEMA-4153-DR-NC, at 5 (Aug. 17, 2016)
- Restoring the pre-disaster storage capacity of sediment basins may be eligible, but only if the Applicant provides documentation to establish the pre-disaster capacity of the facility and the Applicant maintains the facility on a regular schedule.
- The applicant did not provide documentation to establish the pre-disaster capacity of the sediment basin or indicate that it maintains the facility on a regular schedule.
- For work to be eligible, it must be required as a direct result of a declared disaster.
- The Applicant did not provide information to determine the predisaster condition of the dam or its foundation that would demonstrate damages were a direct result of the disaster.
- FEMA is required to consult with Federal, State, Territorial, and Tribal government resource agencies prior to the start of construction for any permanent work project. These agencies may include the U.S. Fish and Wildlife Service (USFWS) for impacts to endangered species.
- The Applicant did not consult with the USFWS regarding a potential endangered species area prior to completing the sediment removal work.
The Applicant did not provide documentation demonstrating the predisaster capacity and maintenance of the sediment basin, or the condition of the dam foundation, nor did it allow FEMA the opportunity to conduct the proper EHP reviews prior to completing the work for sediment removal. The appeal is denied.