Restoration of an Emergency Control Structure (levee)
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1112-DR-IL; Hager Slough Special Drainage District; DSR 40076
Cross Reference: Other Federal Agency, Emergency Work
Summary: An Emergency Control Structure (levee) located in the Hager Slough Special Drainage District was damaged during the declared event. Damage Survey Report (DSR) 40076 was prepared for the restoration of the damaged levee to its original cross-section. The DSR was denied because the repair of the levee is under the authority of the Natural Resources Conservation Service (NRCS). The NRCS determined that the project was ineligible for funding, because the District had already initiated the repairs. The Region reconsidered their position on two occasions, and on both occasions they concurred with their original determination that the repairs were ineligible for funding. The District appealed this determination. The Region submitted the appeal to the Executive Associate Director to be treated as a second appeal. The District stated in their appeal that the repairs were emergency in nature, and they are requesting that FEMA fund the levee restoration.
Issues:
An Emergency Control Structure (levee) located in the Hager Slough Special Drainage District was damaged during the declared event. Damage Survey Report (DSR) 40076 was prepared on June 6, 1996, for the restoration of the damaged levee to its original cross-section. The DSR was denied because the repair of the levee is under the authority of the Natural Resources Conservation Service (NRCS).
The NRCS inspected the damaged levee in order to determine if the funding for the repairs was eligible under their Emergency Watershed Protection (EWP) program. Because the repairs had already been initiated, the NRCS determined that the project was ineligible for EWP funding. This determination was submitted to the State by letter dated August 30, 1996.
The District requested reconsideration on the eligibility determination of DSR 40076 by letter dated August 30, 1996, submitted to FEMA Region V (Region) by the State by letter dated September 3, 1996. The District stated that they were seeking funding for this project from FEMA, because the NRCS did not have the "funds to do emergency repairs. The earliest they could have funding was in the summer of 1997." The District states in their letter that if the emergency repair work had not been completed, public roads, utilities services, and homeowners would have been susceptible to additional flooding.
The Region determined that their original determination regarding the eligibility of DSR 40076 was correct, and submitted this determination to the State by letter dated October 28, 1996. The letter states that that the repairs were not considered to be emergency repairs; therefore, the project was not eligible for FEMA funding.
The District again requested reconsideration by letter to the State dated November 15, 1996. This request was submitted to the Region by letter dated November 18, 1996. The District provided no additional information with the second request, and this request was also denied. By letter to the State dated December 16, 1996, the Region reiterated their position regarding the eligibility of DSR 40076. The letter states that "the damage sustained at the Hager Slough Drainage District was determined to be necessary, but not of an emergency nature and could be removed/repaired as a part of the District's normal maintenance program."
The District submitted an appeal by letter dated January 6, 1997, through the State by letter dated January 8, 1997. Because the Region had already reconsidered the eligibility of DSR 40076 on two occasions, they submitted the appeal to the Executive Associate Director on February 13, 1997, to be reviewed as a second appeal. The District did not submit any additional documentation with their appeal. They state that a FEMA representative informed them that if they repaired the damages FEMA "would take care of it upon completion." They are requesting that FEMA "honor their word" and fund the project.
DISCUSSION
No documentation has been submitted to support that the repairs to the levee had ever been determined by FEMA to be eligible for funding. Accordingly, the review of this appeal must be based on the eligibility issues at hand, and not the District's claim that FEMA had previously promised assistance for this project.
The District states in their appeal letter that the NRCS determined that the repairs to the levee were eligible under their EWP program; however, the NRCS did not have funds available at that time. They would not be able to repair the levee until the summer of 1997. This statement conflicts with NRCS' letter dated August 30, 1996. This letter, as stated above, states that NRCS could not fund the project, because repairs had already been initiated by the District.
FEMA funding is not available for work that another Federal agency has the statutory authority to fund. The NRCS has the statutory authority to fund the restoration of the damaged levee; however, they deemed the project ineligible, because the District had already begun the repairs at the time of the inspection by the NRCS. In this situation, FEMA may consider providing funding for emergency work already performed by the applicant.
The work that the District is seeking FEMA funding for is the restoration of the damaged levee. Emergency work that is eligible for funding includes emergency protective measures that are necessary to eliminate or lessen immediate threats to life, public health or safety, or threats of significant additional damage to improved public or private property through measures which are cost effective. An immediate threat is defined as the threat of additional damage or destruction from an event which can reasonably be expected to occur within five years. Therefore, eligible emergency work is limited to that which would provide protection from a five-year storm event. The work performed was the restoration of the levee which is above and beyond what was necessary to relieve an immediate threat. Further, the levee protects farmland which is not considered to be improved property.
CONCLUSION
The Hager Slough Special Drainage District's second appeal of DSR 40076 should be denied. The restoration of the damaged levee is under the authority of another Federal agency (NRCS). In addition, the restoration of the levee was above and beyond what was necessary to provide protection from a five-year storm event, and therefore, not eligible as emergency work.
Appeal Brief
| Disaster | FEMA-1112-DR |
| Applicant | Hager Slough Special Drainage District |
| Appeal Type | Second |
| PA ID# | 017-91020 |
| PW ID# | 40076 |
| Date Signed | 1997-06-16T04:00:00 |
Cross Reference: Other Federal Agency, Emergency Work
Summary: An Emergency Control Structure (levee) located in the Hager Slough Special Drainage District was damaged during the declared event. Damage Survey Report (DSR) 40076 was prepared for the restoration of the damaged levee to its original cross-section. The DSR was denied because the repair of the levee is under the authority of the Natural Resources Conservation Service (NRCS). The NRCS determined that the project was ineligible for funding, because the District had already initiated the repairs. The Region reconsidered their position on two occasions, and on both occasions they concurred with their original determination that the repairs were ineligible for funding. The District appealed this determination. The Region submitted the appeal to the Executive Associate Director to be treated as a second appeal. The District stated in their appeal that the repairs were emergency in nature, and they are requesting that FEMA fund the levee restoration.
Issues:
- Is the restoration of the levee eligible for FEMA funding?
- Could the project be eligible as Emergency Work?
- No. The restoration of the levee is under the authority of another Federal agency (NRCS).
- No. The work that was performed was above and beyond what was necessary to protect against a five-year storm event.
Appeal Letter
June 16, 1997
Mr. David L. Smith
Illinois Emergency Management Agency
Disaster Recovery Office
500 West Monroe Street, 1st Floor
Springfield, Illinois 62704-1887
Dear Mr. Smith:
This letter is in response to your January 8, 1997, submittal of Hager Slough Special Drainage District's second appeal of Damage Survey Report (DSR) 40076 under FEMA-1112-DR-IL. The applicant is requesting funding for the repair of damages to an Emergency Control Structure (levee) located in their district.
Based on the review of the documentation submitted, I have denied this appeal as explained in the attached appeal analysis. Briefly, the repair of the damaged levee is under the authority of the Natural Resources Conservation Service; therefore, the project is ineligible for FEMA funding as restorative work. Further, because the repairs that were performed were above and beyond what was necessary to protect against a five-year storm event, funding for emergency work is also ineligible.
Please inform the applicant of this determination and their right to submit a third appeal pursuant to 44 CFR 206.206(e).
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Mr. David L. Smith
Illinois Emergency Management Agency
Disaster Recovery Office
500 West Monroe Street, 1st Floor
Springfield, Illinois 62704-1887
Dear Mr. Smith:
This letter is in response to your January 8, 1997, submittal of Hager Slough Special Drainage District's second appeal of Damage Survey Report (DSR) 40076 under FEMA-1112-DR-IL. The applicant is requesting funding for the repair of damages to an Emergency Control Structure (levee) located in their district.
Based on the review of the documentation submitted, I have denied this appeal as explained in the attached appeal analysis. Briefly, the repair of the damaged levee is under the authority of the Natural Resources Conservation Service; therefore, the project is ineligible for FEMA funding as restorative work. Further, because the repairs that were performed were above and beyond what was necessary to protect against a five-year storm event, funding for emergency work is also ineligible.
Please inform the applicant of this determination and their right to submit a third appeal pursuant to 44 CFR 206.206(e).
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Appeal Analysis
BACKGROUNDAn Emergency Control Structure (levee) located in the Hager Slough Special Drainage District was damaged during the declared event. Damage Survey Report (DSR) 40076 was prepared on June 6, 1996, for the restoration of the damaged levee to its original cross-section. The DSR was denied because the repair of the levee is under the authority of the Natural Resources Conservation Service (NRCS).
The NRCS inspected the damaged levee in order to determine if the funding for the repairs was eligible under their Emergency Watershed Protection (EWP) program. Because the repairs had already been initiated, the NRCS determined that the project was ineligible for EWP funding. This determination was submitted to the State by letter dated August 30, 1996.
The District requested reconsideration on the eligibility determination of DSR 40076 by letter dated August 30, 1996, submitted to FEMA Region V (Region) by the State by letter dated September 3, 1996. The District stated that they were seeking funding for this project from FEMA, because the NRCS did not have the "funds to do emergency repairs. The earliest they could have funding was in the summer of 1997." The District states in their letter that if the emergency repair work had not been completed, public roads, utilities services, and homeowners would have been susceptible to additional flooding.
The Region determined that their original determination regarding the eligibility of DSR 40076 was correct, and submitted this determination to the State by letter dated October 28, 1996. The letter states that that the repairs were not considered to be emergency repairs; therefore, the project was not eligible for FEMA funding.
The District again requested reconsideration by letter to the State dated November 15, 1996. This request was submitted to the Region by letter dated November 18, 1996. The District provided no additional information with the second request, and this request was also denied. By letter to the State dated December 16, 1996, the Region reiterated their position regarding the eligibility of DSR 40076. The letter states that "the damage sustained at the Hager Slough Drainage District was determined to be necessary, but not of an emergency nature and could be removed/repaired as a part of the District's normal maintenance program."
The District submitted an appeal by letter dated January 6, 1997, through the State by letter dated January 8, 1997. Because the Region had already reconsidered the eligibility of DSR 40076 on two occasions, they submitted the appeal to the Executive Associate Director on February 13, 1997, to be reviewed as a second appeal. The District did not submit any additional documentation with their appeal. They state that a FEMA representative informed them that if they repaired the damages FEMA "would take care of it upon completion." They are requesting that FEMA "honor their word" and fund the project.
DISCUSSION
No documentation has been submitted to support that the repairs to the levee had ever been determined by FEMA to be eligible for funding. Accordingly, the review of this appeal must be based on the eligibility issues at hand, and not the District's claim that FEMA had previously promised assistance for this project.
The District states in their appeal letter that the NRCS determined that the repairs to the levee were eligible under their EWP program; however, the NRCS did not have funds available at that time. They would not be able to repair the levee until the summer of 1997. This statement conflicts with NRCS' letter dated August 30, 1996. This letter, as stated above, states that NRCS could not fund the project, because repairs had already been initiated by the District.
FEMA funding is not available for work that another Federal agency has the statutory authority to fund. The NRCS has the statutory authority to fund the restoration of the damaged levee; however, they deemed the project ineligible, because the District had already begun the repairs at the time of the inspection by the NRCS. In this situation, FEMA may consider providing funding for emergency work already performed by the applicant.
The work that the District is seeking FEMA funding for is the restoration of the damaged levee. Emergency work that is eligible for funding includes emergency protective measures that are necessary to eliminate or lessen immediate threats to life, public health or safety, or threats of significant additional damage to improved public or private property through measures which are cost effective. An immediate threat is defined as the threat of additional damage or destruction from an event which can reasonably be expected to occur within five years. Therefore, eligible emergency work is limited to that which would provide protection from a five-year storm event. The work performed was the restoration of the levee which is above and beyond what was necessary to relieve an immediate threat. Further, the levee protects farmland which is not considered to be improved property.
CONCLUSION
The Hager Slough Special Drainage District's second appeal of DSR 40076 should be denied. The restoration of the damaged levee is under the authority of another Federal agency (NRCS). In addition, the restoration of the levee was above and beyond what was necessary to provide protection from a five-year storm event, and therefore, not eligible as emergency work.
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