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Bryson Revetment

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DesastreFEMA-1499-DR
ApplicantSkagit County
Appeal TypeSecond
PA ID#057-99057-00
PW ID#165
Date Signed2005-04-12T04:00:00
Citation: FEMA 1499-DR-WA; Skagit County, Washington; PW 165; Bryson Revetment

Cross-reference: Facility Eligibility, Flood Control Works, Other Federal Agencies

Summary: Between October 15 and 23, 2003, Skagit County experienced flooding, which caused damage to Bryson Revetment, along the Sauk River. The flood washed out approximately 300 feet of the revetment, washed away up to 100 feet of land behind the damaged revetment, and caused a change in course of the Sauk River in a westerly direction. FEMA determined that the NRCS was responsible for the repairs and found the work ineligible. Skagit County appealed the decision, stating that the repairs were necessary to protect public health and safety and that the NRCS did not have the funds to pay for the repairs. The State of Washington conducted a site visit and determined that the damage did not appear to cause a threat to public health or safety. It was also determined that that repairs would not be feasible, as the migration of the river has made repairs impossible from an engineering standpoint. The FEMA Regional Director denied the appeal, stating that it could not provide funds even if the responsible agency did not have the funds. The Applicant submitted a second appeal, reiterating that the NRCS does not have the funds to repair the revetment and that the repairs are necessary to protect public health and safety.

Issues: (1) Are the repairs of the revetment necessary to reduce or eliminate a threat to public health and safety?
(2) Is the NRCS responsible for the repairs to the revetment?

Findings: (1) No. Based on a report by the Grantee following a site visit, there is no threat to lives, public health and safety, or improved property from a 5-year event.
(2) Yes. The NRCS found repairs to the revetment eligible under the Emergency Watershed Protection. Therefore, permanent repairs to the facility are not eligible in accordance with 44 CFR § 206.226(a).

Rationale: 44 CFR § 206.225(a) and § 206.226(a).

Appeal Letter

April 12, 2005

Ms. Diane Offord
Governor’s Authorized Representative
Emergency Management Division
State of Washington Military Department
MS: TA-20, Building 20
Camp Murray, WA 98430-5122

Re: Second Appeal - Skagit County, Washington, PA ID 057-99057-00 Bryson Revetment, 1499-DR-WA, Project Worksheet 165

Dear Ms. Offord:

This is in response to your August 12, 2004, letter forwarding the second appeal from Skagit County (Applicant). On June 16, 2004, the Applicant requested that the Federal Emergency Management Agency (FEMA) reconsider its denial of funding for Project Worksheet 165. FEMA denied Public Assistance funding because the repairs were the responsibility of the Natural Resources Conservation Service (NRCS). The Applicant submitted a cost estimate of $330,525 for the repairs.

The FEMA Region X Regional Director denied the Applicant’s first appeal on June 21, 2004. He determined that the NRCS was responsible for the repairs of the revetment regardless of whether the agency had the funds to do the work. He also determined that the work would not qualify as emergency work, as observations made during a field inspection of the site indicated that there was only a minimal threat to the public. After a thorough review of the documentation provided, I agree that the damaged revetment does not constitute a threat to public health and safety and the repairs should not be considered emergency protective measures. I also agree that permanent repairs of the revetment are the responsibility of the NRCS and are therefore not eligible in accordance with Title 44 Code of Federal Regulations § 206.226(a). FEMA cannot fund the proposed repairs to the revetment. The details of the determination can be found in the Appeal Analysis enclosed with this letter.

Please inform the Applicant of my determination. My determination constitutes the final decision on this matter, as set forth in 44 CFR § 206.206.

Sincerely,
/S/
Daniel A. Craig
Director
Recovery Division

Enclosure

cc: John E. Pennington
Regional Director
FEMA Region X

Appeal Analysis

BACKGROUND

Between October 15 and 23, 2003, Skagit County experienced flooding (FEMA-1499), which caused damage to Bryson Revetment, along the Sauk River. The flood washed out approximately 300 feet of the rock rip-rap revetment, washed away up to 100 feet of land behind the damaged revetment, and caused a change in the course of the Sauk River in a westerly direction. The revetment is owned by Skagit County (Applicant) and maintained by the county Department of Public Works; however, the Natural Resources Conservation Service (NRCS) originally built the revetment in 1996. The NRCS assessed the site after the flood and determined that it was eligible under the Emergency Watershed Protection Program, but the program did not have the funds available for the needed repairs. The Applicant estimated the cost of the repairs to be $330,525.
The Federal Emergency Management Agency (FEMA) prepared Project Worksheet (PW) 165 as a Category D project for permanent repairs to the revetment on February 16, 2004. FEMA determined that the costs to repair the revetment were ineligible for Public Assistance (PA) Program funding because the work was the responsibility of the NRCS.

First Appeal
On April 30, 2004, the State of Washington’s Emergency Management Division (EMD) forwarded the Applicant’s appeal of FEMA’s decision to deny the eligibility of repairs to the revetment. The Applicant’s request, dated March 2, 2004, claimed that the repairs to the revetment were necessary to “protect human lives and property…and the public and private infrastructure that serves those homes and property.” The EMD performed an assessment of the site on April 28, 2004. Based on field observations, the EMD concluded that the work did not meet the criteria for an emergency repair, as the damage did not cause a threat to public health and safety. The EMD also concluded that, the “reconstruction of the lost section is not feasible from an environmental, economic, or engineering standpoint” due to the fact that the thalweg had migrated behind where the damaged portion of the revetment used to be. In addition to these conclusions, in the April 30, 2004 letter, the EMD recommended that the appeal be denied, as it agreed that the repairs fell under the authority of another Federal agency.

FEMA denied the appeal in a letter dated June 21, 2004. The letter stated that even though the NRCS did not have funds for the repairs, “Public Assistance funding under the Stafford Act is not available for the purpose of timely completion of the project.” The letter also stated that field observations indicated that there was insufficient threat to qualify the repairs as emergency work.

Second Appeal
On August 12, 2004, the EMD forwarded a request by the Applicant, dated June 16, 2004, for a second appeal of FEMA’s determination. The EMD once again recommended that the appeal be denied. The Applicant again contended that the work was necessary to protect human lives and property, as damage to public infrastructure was known to have occurred during the disaster. The Applicant also reiterated the fact that the NRCS does not have funding for the repairs and stated that federal funding is necessary to protect lives and property.

With the appeal, the Applicant provided a letter from the NRCS, dated May 25, 2004, that stated that the NRCS “has no available funds.” However, the letter also stated that the Sauk River is protected by the Wild and Scenic Rivers Act. According to the Act, the river “must remain in a free flowing state, which means flowing in a natural condition without impoundment, diversion, straightening, rip rapping, or other modification.” The Applicant acknowledges that the replacement of the rock riprap may not be allowed under the Act, but suggests that alternate projects are possible.

DISCUSSION
The Applicant’s appeal is based on the following Issues:
1) The damage to the revetment caused a threat to lives and public property. Therefore, the repairs should be considered emergency measures and should be funded by FEMA.
2) Although the repairs are admittedly the responsibility of the NRCS, the NRCS does not have the funds to pay for the repairs at this time. Therefore, FEMA should provide the funds.
Fund Repairs to Revetment as Emergency Work

Pursuant to Title 44 of the Code of Federal Regulations (44 CFR) § 206.225(3), emergency protective measures must:
(i) Eliminate or lessen immediate threat to lives, public health or safety; or
(ii) Eliminate or lessen immediate threats of significant additional damage to improved public or private property through measures which are cost effective.
(iii) An immediate threat, as defined by 44 CFR § 206.221(c), means the threat of additional damage or destruction from an event that can reasonably be expected to occur within five years or, in this case, the 5-year storm event. The Applicant has not demonstrated that the work meets these criteria.

An EMD Project Officer and an EMD Reservist, escorted by a representative of the Applicant, visited the site on April 28, 2004. According to their report, the land behind the revetment that was washed away by the storms was purchased by the Applicant and the buildings removed prior to the October 2003 storms. The report further states that a trailer house is located 50 to 80 feet from the river, which is posted as being for sale, and another house and dog kennel operation are located 100 feet further to the west. EMD determined that these properties are likely beyond the threat of a 5-year flood event. The report also states that even though Bryson Road and perhaps some utilities are within the vicinity of the river, they would also not likely be impacted by a 5-year event. The Applicant has not provided information that supports its claim of a threat or that challenges the EMD’s conclusion. Therefore, there is no evidence that the repairs to the revetment should be funded as an emergency protective measure.

Fund Repairs to Revetment as Permanent Work

The NRCS originally constructed the revetment and found the repairs to the facility to be eligible under the Emergency Watershed Protection Program. Therefore, the NRCS is responsible for the repairs to the revetment. According to 44 CFR § 206.226(a)(1), “Generally, 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.” The only exception to this policy is for public school facilities. Therefore, the permanent work to restore the revetment is ineligible for funding under the PA Program. Since there are no eligible funds, an alternate project is not possible, as proposed by the Applicant.

CONCLUSION
No evidence has been provided that shows that a threat to public health and safety exists due to the damaged revetment. Therefore, the project is not eligible as an emergency protective measure. In addition, since the project is eligible for funding by the NRCS, the permanent restoration of the revetment is not eligible for funding in accordance with 44 CFR § 206.226(a)(1).