Predisaster Conditions – Environmental Compliance

Appeal Brief

Summary Paragraph

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)

Headnotes

• • 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.

Conclusion

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.

Appeal Letter

Appeal Analysis

Background

The Grand River Dam Authority’s (Applicant) Kerr Dam experienced two severe storm and flood events in 2016 and 2017 that were declared major disasters:  FEMA-4256-DR was declared on February 10, 2016 and FEMA-4315-DR was declared on May 26, 2017.  After the 2017 incident, FEMA held a Kickoff Meeting with the Applicant on July 20, 2017, and FEMA prepared Project Worksheet (PW) 124 to document the damage to the dam.  This included 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 spillway training berm.

On December 8, 2017, the Applicant notified FEMA of additional damage discovered at the dam, including damage to the spillway and significant undermining of the dam foundation, with repair costs estimated at $4 million.  FEMA replied on February 7, 2018 notifying the Applicant that the additional damage was not reported within the regulatory timeframe and was not eligible for Public Assistance (PA) funding.  The Oklahoma Department of Emergency Management (Grantee) forwarded a request to FEMA on March 12, 2018 to allow the additional damage due to extenuating circumstances because of the underwater location of the damage and the complexity of amassing the data.  The Grantee explained that in developing the PW, FEMA only considered the visible damage of the scoured rock build up and not the source of the scour.  After a more in-depth sonar investigation, the Applicant realized that the scour, consisting of bedrock, came from four different locations at the toe of the dam.  Scheduling, field inspections/testing, and reporting by an independent sonar consultant took additional time.  

FEMA issued a determination memorandum on July 10, 2018, denying all assistance for PW 124.  FEMA found that: (1) the Applicant did not request PA funding for the dam toe foundation damages within the required 60-day timeframe; (2) because the Applicant completed the dredging and debris removal work before FEMA was able to consult with environmental and historic preservation (EHP) specialists, FEMA was not able to fulfill its EHP consultation responsibilities; and (3) the Applicant did not provide documentation to support predisaster conditions or disaster-related sediment accumulation.

First Appeal

The Applicant submitted a first appeal on September 10, 2018.  The Applicant believed it advised FEMA of the project’s condition in a timely manner with an understanding that identifying the full scope of damage was not a big concern because the project was deemed a large project.  The Applicant stated it used progressive and ongoing damage assessment methods until more rigorous underwater methods finally quantified the full extent of the damage.  The Applicant noted that 2003 satellite images show significantly improved, nearly clean, conditions of rock accumulation compared to 1995 images, but admits that the exact conditions prior to the 2017 disaster are unknown.  The Applicant states that all the “images are scattered in time and relation to one another in such a manner that no clear comparison of before and after the 2017 event exists.”  The Applicant proposed that the parties develop an agreement to distinguish pre- and post-event material due to the limited level of detailed quantifiable evidence.

Regarding environmental reviews, the Applicant consulted with the State Historical Preservation Office and the Oklahoma Archaeological Survey, which indicated the projects could potentially have specific areas of concern if they affected the dam.  The Grantee reminded the Applicant environmental reviews would need to be coordinated through the appropriate federal agency.  However, the Applicant moved forward with the dredging work and believed it responded regarding the presence of any historic or archaeological issues at the site. The Applicant noted that it was still waiting on a habitat survey report concerning the existence of the Neosho Mucket, an endangered mussel species.

The Grantee forwarded the Applicant’s first appeal in a letter dated November 8, 2018.  The Grantee asserted that neither the Federal Energy Regulatory Commission (FERC) nor the U.S. Army Corps of Engineers (USACE) identified any concerns regarding the Neosho Mucket habitat.  The Grantee stated that the nature of the damage concealed the magnitude of the impact to the facility and the time required to procure a specialized contractor warranted a time extension.  The Grantee also supported the Applicant’s request for funding to repair the dam toe/foundation because it is directly related to the work originally written into PW 124.

FEMA sent the Applicant a request for information on January 29, 2019, requesting: (1) information to support maintenance of the dam and predisaster capacity of the rock accumulation; (2) justification of extenuating circumstances that would prevent identification of damages within 60-day timeframe; and (3) justification of circumstances preventing FEMA from conducting EHP reviews, and (4) clarification of the appeal amount.

The Applicant responded in a memorandum dated February 28, 2019.  The Applicant first clarified the appeal amount: $4 million for the dam foundation restoration, and $411,222.28 for the rock accumulation removal (a decrease from the estimated $630,000.00).  The Applicant explained that there was sediment accumulation in the stilling basin prior to the 2017 storm event.  Aerial photographs show that basin had been restored sometime between 1995 and 2003, and again in 2017 (post-event).  The Applicant indicated that its bathymetry consultant was reviewing the source data from a pre-event study to show some comparison between the pre- and post-2015 condition of the dam foundation, but estimated the restoration costs to be around $4 million.  The Applicant also stated that it completed an environmental habitat evaluation prior to conducting the sediment removal and found no evidence of endangered habitats, and argued that the removal process was incapable of having historical significance.

FEMA denied the Applicant’s first appeal in a decision issued April 17, 2019.  First, FEMA found that the Applicant did not provide records necessary to establish predisaster sediment levels.  The Applicant’s narrative on first appeal admitted that the exact source and quantity of the sediment was unclear, and the documentation provided could not establish routine maintenance at the facility site.  Second, the Applicant completed the work on November 25, 2017, before FEMA could conduct an EHP review.  According to a habitat assessment of the endangered Neosho Mucket submitted to FEMA after commencement of work, FEMA was required to consult with the U.S. Fish and Wildlife Service (USFWS) on the project but was not given the opportunity.  Third, the Applicant did not provide justification supporting the existence of extenuating circumstances that prevented the identification of additional damage to the dam foundation within the 60-day timeframe.  Finally, the Applicant did not demonstrate the damage to the dam foundation resulted directly from events occurring during the incident period. 

Second Appeal

The Applicant submitted a second appeal on June 19, 2019, requesting $395,000.00[1] associated with the sediment removal work.  The Applicant explains that it completed the sediment removal prior to obtaining FEMA environmental reviews because of the pressing need to prevent additional dam foundation damage.  The Applicant justified moving forward with the work based on USACE guidance to disturb the water as few times as possible and complete the work as quickly as possible.  It also states that it did not believe the spillway to be a critical habitat because of its turbulent, rocky, deep water characteristics.

The Applicant is amending the requested costs for the dam restoration work to $2,395,000.00 because of the difficulties associated with determining the predisaster condition of the dam foundation and the likely extensive effects of both flood events.  The Applicant states that establishing accurate estimates of disaster-related damage in difficult underwater environments requires significant planning, execution, and review.  It is still in the process of completing its analyses and may have additional information on the condition of the dam foundation within the next few months.  The Applicant indicates that the conditions of the dam are not easily documented nor readily established on a routine or day-to-day basis.  The most recent comprehensive study of the dam foundation was completed in 2002.  Evaluations found that foundation deterioration prior to the disaster was closer to the dam, but not as significant as that shown from the post-2017 evaluation.  A study completed in 2014 did not provide information with the desired level of accuracy, but did not indicate foundation issues and could not indicate the absolute condition of the foundation at that time.

The Grantee forwarded the Applicant’s appeal in a letter dated August 15, 2019 restating points from the first appeal. 

Discussion[2]

Predisaster Capacity of the Sediment Basin

Section 406 of the Stafford Act authorizes FEMA to fund the restoration of damaged public facilities to their predisaster capacity and condition. ^[3]  Restoration of sediment basins, reservoirs, and other water control facilities may be eligible for assistance, but only if the Applicant provides documentation to establish the predisaster capacity of the facility and that the applicant maintains the facility on a regular schedule.^[4]  This documentation may be in the form of “a written maintenance plan and/or activity logs documenting regular intervals of activity.”^[5

The Applicant presented aerial photographs to demonstrate that the stilling basin appeared to be cleared sometime between 1995 and 2003, however, evidence of isolated dredging to clear sediment from a reservoir is insufficient to establish the reservoir is actively used and regularly maintained.^[6]  The Applicant has not provided documentation to demonstrate the pre-disaster capacity of the sediment basin and has confirmed that the conditions of the dam are not readily documented, therefore FEMA is unable to determine the amount of sediment build-up attributable to FEMA-4315-DR.  Funding for the completed dredging and removal work under PW 124 is ineligible.

Predisaster Condition of the Dam Foundation

Federal regulations provide that for work to be eligible, it must be required as the result of a declared disaster.[7]  The Applicant must demonstrate that damage was caused directly by the declared incident.[8] FEMA does not provide PA funding for the repair of damage caused by deferred maintenance.[9]

The Applicant acknowledged that the conditions of the dam and its foundation are not easily documented nor readily established on a routine or day-to-day basis.  The Applicant states that the last significant foundation inspection was completed in 2002 which revealed no issues at the dam toe.  However, “[t]hough not conclusive, this history suggests…the foundation damage is likely attributable, at least to some very large degree, to the excessive flooding [from DR-4315].”^[10]  In further support of the Applicant’s inability to ascertain the predisaster condition of the dam foundation, the Applicant amended its monetary claim for the dam/toe foundation work from $4,000,000.00 to $2,000,000.00 on second appeal, stating that the damage related to the two disaster events was determined to be less than originally estimated, but providing no basis or documentation to demonstrate that the damage was at all related.  

The Applicant maintains that it does not have enough information to determine the condition of the dam foundation prior to FEMA-4315-DR, nor has it provided any specific information about which parts of the damage can be attributed to this event.  Because the Applicant has not provided information to determine the predisaster condition of the dam toe/foundation, funding in the amount of $2,000,000.00 is not eligible.

Environmental Compliance

FEMA is required to consult with Federal, State, Territorial, and Tribal government resource agencies about environmental and historic preservation prior to the start of construction for any permanent work project.[11]  These agencies may include the USFWS and the National Marine Fisheries Service for impacts to federally listed threatened and endangered species.  Proceeding with such a project before FEMA completes EHP reviews jeopardizes FEMA funding.^[12]    

The Applicant began work to dredge and remove sediment from dam stilling basin before receiving a report from habitat specialists regarding potential impacts to an endangered species.  The Applicant explained that it completed the sediment removal work prior to obtaining FEMA environmental reviews because of the pressing need to prevent additional dam foundation damage.  It also stated that it did not believe the dam spillway to be a critical habitat because of its turbulent, rocky, deep water characteristics.  This does not excuse the Applicant from complying with regulatory requirements for EHP reviews.  The area was potentially sensitive to an endangered species and the Applicant was required to consult with the USFWS prior to beginning any work associated with the federal grant.  The Applicant did not allow FEMA the opportunity to conduct the proper EHP reviews prior to completing the work for sediment removal.  Therefore, requested funding in the amount of $395,000.00 is not eligible.

Conclusion

The Applicant has not provided information to determine the predisaster capacity of the sediment basin or the predisaster condition of the dam foundation, and did not provide FEMA an opportunity to conduct the proper EHP reviews prior to completing the work for sediment removal.  The items of work at issue, with estimated costs in the amount of $2,395,000.00, are therefore ineligible for PA funding.  This appeal is denied.