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Indian Creek Levee Erosion

Appeal Brief Appeal Letter

Appeal Brief

Disaster1998-DR-IA
ApplicantCouncil Bluffs Water Works
Appeal TypeSecond
PA ID#155-U59RE-00
PW ID#442
Date Signed2013-01-29T00:00:00

Citation:  FEMA-1998-DR-IA, Council Bluffs Water Works, Indian Creek Levee Erosion, Project Worksheet (PW) 442

Cross-
Reference:
  Flood Control Works (FCWs); Other Federal Agency (OFAs)

Summary:  As a result of heavy rains and flooding along the Missouri River, the Council Bluffs Water Works (Applicant) pumped excess water over a levee and into Indian Creek.  The emergency pumping resulted in erosion to the east side of the west levee on Indian Creek.  The Applicant’s contractor placed rip rap on the levee in order to prevent additional damage to the levee.  FEMA prepared PW 442 for $25,439 to fund the emergency work, but upon review, determined that the costs for emergency repair of the Applicant’s levee system was ineligible for reimbursement.  According to FEMA’s Disaster Assistance Policy (DAP) 9524.3, Rehabilitation Assistance for Levees and other Flood Control Works, flood control works that are enrolled in the United States Army Corps of Engineers’ (USACE) Rehabilitation and Inspection Program (RIP), whether active or inactive, are ineligible for FEMA assistance.  In the first appeal, the Applicant claimed that USACE assistance did not cover the cost of the Emergency Protective Measures, which were necessary to reduce an immediate threat to lives and property.  FEMA denied the appeal, determining that emergency repairs to flood control works that are eligible for RIP are not eligible for FEMA funding.  Further, the Regional Administrator concluded that according to Title 44 Code of Federal Regulations (44 CFR) §206.226(a)(1), Restoration of damaged facilities, Assistance under other Federal agency (OFA) Programs, “[g]enerally, disaster assistance will not be made available under the Stafford Act when another Federal agency has specific authority to restore facilities damaged or destroyed by an event which is declared a major disaster.”  In the second appeal, the Applicant asserts that the rip rap did not serve as an emergency repair, rather the work constituted a flood fighting measure to protect the facility.  According to an August 5, 2009, memorandum from the Assistant Administrator for FEMA’s Disaster Assistance Directorate, which amended the February 25, 2009, version of DAP9524.3, FEMA may provide assistance for the placement and removal of flood fighting measures on flood control works that are eligible for RIP, if such activity is necessary to eliminate an immediate threat to life, public health and safety, or improved property.

Issue:  Is the emergency work of placing rip rap on the portion of the Applicant’s RIP-eligible levee that was subjected to erosion from the drainage pipes eligible for funding through FEMA’s Public Assistance Program?

Finding:  Yes.

Rationale:  44 CFR §206.226(a); DAP 9524.3; Rehabilitation Assistance for Levees & Other Flood Control Works

Appeal Letter

January 29, 2013

Mark Schouten
Administrator
Iowa Homeland Security and Emergency Management Division
7105 NW 70th Avenue
Camp Dodge, Building W-4
Johnston, Iowa 50131-1824

Re: Second Appeal – Council Bluffs Water Works, 155-U59RE-00, Indian Creek Levee Erosion, FEMA-1998-DR-IA, Project Worksheet (PW) 442

Dear Mr. Schouten:

This letter is in response to a letter from your office dated June 13, 2012, which transmitted a second appeal on behalf of Council Bluffs Water Works (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny $25,439 for the placement of riprap on the Indian Creek levee.

Background

Heavy rains from May 25 through August 1, 2011, resulted in extensive flooding in Pottawattamie County, Iowa.  An increase in the water released from upstream dams flooded the Missouri River, causing immediate threats to lives and improved property in communities along the river’s path.  In response to flooding at the Council Point south water treatment plant construction site, the Applicant pumped excess water over the levee into Indian Creek.  FEMA awarded PW 290 on March 28, 2012, in the amount of $204,507 for the emergency pumping.

While the pump intakes dewatered the construction site, the water that was discharged into Indian Creek eroded the west levee.  The Applicant’s contractor placed riprap on the levee in order to prevent further erosion as the pumping of the flooded site continued.  On January 12, 2012, FEMA prepared PW 442 for $25,439 to fund the emergency repair of the levee.  However, upon review FEMA determined that costs for repair of the Applicant’s levee system were ineligible for reimbursement because the facility was enrolled in the United States Army Corps of Engineer (USACE) Rehabilitation and Inspection Program (RIP) and according to FEMA’s Disaster Assistance Policy (DAP) 9524.3, Rehabilitation Assistance for Levees and other Flood Control Works, flood control works that are enrolled in USACE’s RIP are ineligible for FEMA assistance.

First Appeal

The Applicant submitted a first appeal letter, dated March 15, 2012, to the Iowa Homeland Security and Emergency Management Division (Grantee).  In the appeal, the Applicant requested that FEMA approve the emergency work because USACE’s RIP did not cover the cost of the Emergency Protective Measures.  The Applicant also maintained that the work was necessary to address an immediate threat to life and property.  The Grantee forwarded but did not support the Applicant’s appeal with a letter dated April 4, 2012.  The Grantee stated that DAP 9524.3 precludes FEMA from reimbursing the costs of emergency and permanent repairs on flood control works that are eligible for the RIP.

In a May 1, 2012, letter denying the Applicant’s first appeal, the FEMA Region VII Regional Administrator agreed that under DAP9524.3 repairs to flood control works, which are eligible for RIP, are not eligible for FEMA funding.  The Regional Administrator explained that the work fell under the purview of USACE and according to Title 44 Code of Federal Regulations (44 CFR) §206.226(a)(1), “[g]enerally, disaster assistance will not be made available under the Stafford Act when another Federal agency has specific authority to restore facilities damaged or destroyed by an event which is declared a major disaster.”  As evidence of USACE’s authority to provide assistance, the first appeal response analysis noted that the Grantee submitted correspondence from USACE stating that USACE might have considered funding the emergency repairs if the Applicant requested it.

Second Appeal

In a second appeal, which the Applicant submitted on June 6, 2012, the Applicant asserted that the project was incorrectly considered to be repair of the levee, whereas the work more accurately represented flood fighting.  In support of this argument, the Applicant explained that the rip rap was placed only to buttress the levee as there was insufficient time to perform permanent or even temporary emergency repairs.  Furthermore, when USACE completed the permanent repair of the levee, all of the material placed by the Applicant’s contractor was removed.  The Applicant concluded by pointing out that DAP9524.3 allowed FEMA to reimburse Applicants for the costs of performing flood fighting activities.

On June 13, 2012, the Grantee transmitted the Applicant’s second appeal to FEMA.  The Grantee’s letter stated that flood fighting activities are those actions taken in advance or during a flood event to prevent or minimize damage and loss.  It is the prevention of damage that is fundamental to flood fighting.  In this case, as the erosion of the levee had already occurred when the rip rap was deposited, the Grantee insisted that the work was emergency repair of the eroded area and pursuant to DAP9524.3 was ineligible for reimbursement.

Discussion

Section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) recognizes flood control facilities (including levees) owned by a state or local government as public facilities that are eligible for Public Assistance.  However, this Federal disaster assistance, as was indicated in the Regional Administrator’s response to the first appeal, is limited to eligible work that is not under the specific authority of another Federal agency. 

Under the Flood Control and Coastal Emergency Act, USACE is responsible for repair of flood damage to non-Federal water projects installed for the purpose of controlling flood waters, including appurtenant stream bank erosion control and prevention.  This normally includes repairs to non-Federal flood protection projects (channels, levees, or similar works) in urbanized areas regardless of watershed size.  Through the RIP, USACE provides assistance for the inspection and rehabilitation of Federal and non-Federal flood control projects.  While USACE can also provide flood fighting assistance during a flood event, it is not authorized to reimburse applicants for their own flood fighting efforts or for the removal of debris from flood control works.  In recognition of the limitations for the RIP to reimburse these costs, DAP9524.3 states that the cost of debris removal and flood fighting may be eligible for FEMA Public Assistance funding when they eliminate an immediate threat to life, public health and safety, or improved property.

Contrary to the assertion that USACE would have funded the emergency repairs if the Applicant had requested, the USACE correspondence actually stated that the placement of rip rap “is something that USACE might have considered to perform under Emergency Operations during the flood fight if the City would have requested assistance…”  It is clear from this statement that not only did USACE consider the work to be part of the ‘flood fight’, but that USACE had the authority to perform the work, not reimburse the costs.  While the Grantee is correct that the purpose of flood fighting is to prevent damage, which would include eliminating an immediate threat to life, public health and safety, or improved property, the placement of rip rap on the eroding area of the levee was clearly an emergency flood fighting effort to prevent additional damage to the levee.  Under DAP9524.3, FEMA may provide assistance for the placement and removal of flood fighting measures on flood control works that are eligible for USACE’s RIP, if such activity is necessary to eliminate an immediate threat to life, public health and safety, or improved property.

Conclusion

I have reviewed all of the information submitted with the appeal and determined that the Applicant’s appeal should be granted in full.  By this letter, I am requesting that the Regional Administrator take appropriate action to implement my decision.

Please inform the applicant of my decision.  This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206, Appeals.

Sincerely,

/s/

Deborah Ingram
Assistant Administrator
Recovery Directorate

cc:  Beth Freeman
       Regional Administrator
       FEMA Region VII

Last updated February 4, 2020