Wahoo, NE, Lake Wanahoo Earth Embankment
Appeal Brief
Appeal Letter
Appeal Analysis
2. Projects in Progress - FEMA-DR-1674-NE guidance requirements are found in the HMGP Desk Reference. The Desk Reference directs that projects already in progress are not eligible for funding under the HMGP. The proposed project has to be taken in its totality and therefore the ogee weir crest can only be considered an enhancement to the earthen embankment and not a stand-alone mitigation project. The weir crest is in fact a requirement of dam safety regulations giving further credence to the idea that this is not a separate mitigation project unto itself.
Sincerely,
cc: Sheila Hascall, State Hazard Mitigation Officer, Nebraska Emergency Management Agency
Beth Freeman, Regional Administrator, FEMA Region VII
Robert Bissell, Director, Flood Insurance & Mitigation Division, FEMA Region VII
Appeal Brief
| Applicant | Nebraska Emergency Management Agency |
| Appeal Type | 2nd |
| Date Signed | 2010-07-14T00:00:00 |
1st Appeal
• Issue
o The City of Wahoo, Nebraska, and the North Platte Natural Resources District submitted an HMGP application through Nebraska Emergency Management Agency (NEMA) for HMGP funding of the Lake Wanahoo Earth Embankment, a major flood control project. The project was not approved, and a 1st level appeal was denied by Region VII.
• Reason for Denial
o The 1st appeal denial cited three reasons: Duplication of Programs (DOP), because the HMGP funding application was for a part of a larger project that had been awarded funding through the U.S. Army Corps of Engineers (USACE); Project in Progress, being that the larger project to which the earth embankment project was a part was already under construction, thus ineligible for HMGP funding; HMGP NEPA review requirement, because construction began before NEPA review process implementation by FEMA.
• Reference(s)
o 44 CFR 206.434 - HMGP Eligibility; 44 CFR 206.440 - Appeals; HMGP Desk Reference - Projects in Progress
2nd Appeal
• Issue
o NEMA, as the Applicant, supported the 2nd appeal to overturn the Region VII 1st appeal denial, regarding the HMGP ineligibility of the proposed project to improve the earthen embankment on Lake Wanahoo, as a project separate from the Sand Creek Watershed Environmental Restoration Project.
• FEMA Findings
o The 2nd appeal decision upheld the 1st appeal denial, denying HMGP funding for the Lake Wanahoo Earth Embankment.
o The rationale for 2nd appeal denial closely supported the rationale for the 1st appeal denial by Region VII. Regarding DOP, the USACE had received annual appropriations to support construction of the Sand Creek Watershed Environmental Restoration Project of which the proposed project was a smaller part. The applicant later removed the Lake Wanahoo Dam from the larger USACE sponsored project. Region VII determined that HMGP funding of the Lake Wanahoo Dam (or Earth Embankment) would be a DOP, because funding had been available through the USACE, and there were no extraordinary threats to lives, public health and safety, or improved property that would allow for HMGP eligibility.
o The proposed earth embankment was part of a larger ongoing project, the Sand creek Watershed Environmental Restoration Project, and therefore was a Project in Progress. The HMGP Desk reference provides that projects already in progress are not eligible for funding under the HMGP.
o Construction of the embankment began prior to completion of the NEPA review process, required to be implemented by FEMA prior to project approval and funding. The NEPA review completed by USACE was determined to not be allowable as a substitute for FEMA’s review, and the initiation of construction of the overall Sand Creek project, before FEMA completed NEPA review, rendered the proposed Wanahoo Earth Embankment project ineligible for HMGP consideration.
o Reference(s): 44 CFR 206.434 - HMGP Eligibility; 44 CFR 206.440 - Appeals; HMGP Desk Reference - Projects in Progress
• Issue
o The City of Wahoo, Nebraska, and the North Platte Natural Resources District submitted an HMGP application through Nebraska Emergency Management Agency (NEMA) for HMGP funding of the Lake Wanahoo Earth Embankment, a major flood control project. The project was not approved, and a 1st level appeal was denied by Region VII.
• Reason for Denial
o The 1st appeal denial cited three reasons: Duplication of Programs (DOP), because the HMGP funding application was for a part of a larger project that had been awarded funding through the U.S. Army Corps of Engineers (USACE); Project in Progress, being that the larger project to which the earth embankment project was a part was already under construction, thus ineligible for HMGP funding; HMGP NEPA review requirement, because construction began before NEPA review process implementation by FEMA.
• Reference(s)
o 44 CFR 206.434 - HMGP Eligibility; 44 CFR 206.440 - Appeals; HMGP Desk Reference - Projects in Progress
2nd Appeal
• Issue
o NEMA, as the Applicant, supported the 2nd appeal to overturn the Region VII 1st appeal denial, regarding the HMGP ineligibility of the proposed project to improve the earthen embankment on Lake Wanahoo, as a project separate from the Sand Creek Watershed Environmental Restoration Project.
• FEMA Findings
o The 2nd appeal decision upheld the 1st appeal denial, denying HMGP funding for the Lake Wanahoo Earth Embankment.
o The rationale for 2nd appeal denial closely supported the rationale for the 1st appeal denial by Region VII. Regarding DOP, the USACE had received annual appropriations to support construction of the Sand Creek Watershed Environmental Restoration Project of which the proposed project was a smaller part. The applicant later removed the Lake Wanahoo Dam from the larger USACE sponsored project. Region VII determined that HMGP funding of the Lake Wanahoo Dam (or Earth Embankment) would be a DOP, because funding had been available through the USACE, and there were no extraordinary threats to lives, public health and safety, or improved property that would allow for HMGP eligibility.
o The proposed earth embankment was part of a larger ongoing project, the Sand creek Watershed Environmental Restoration Project, and therefore was a Project in Progress. The HMGP Desk reference provides that projects already in progress are not eligible for funding under the HMGP.
o Construction of the embankment began prior to completion of the NEPA review process, required to be implemented by FEMA prior to project approval and funding. The NEPA review completed by USACE was determined to not be allowable as a substitute for FEMA’s review, and the initiation of construction of the overall Sand Creek project, before FEMA completed NEPA review, rendered the proposed Wanahoo Earth Embankment project ineligible for HMGP consideration.
o Reference(s): 44 CFR 206.434 - HMGP Eligibility; 44 CFR 206.440 - Appeals; HMGP Desk Reference - Projects in Progress
Appeal Letter
JUL 14 2010
AI Berndt
Assistant Director
Nebraska Emergency Management Agency
1300 Military Road
Lincoln, NE 68508
Assistant Director
Nebraska Emergency Management Agency
1300 Military Road
Lincoln, NE 68508
Dear Mr. Berndt:
Thank you for your letter dated June 7, 2010 on behalf of the City of Wahoo and the North Platte Natural Resource District. In your letter you expressed support for the second appeal by the City of Wahoo and the North Platte Natural Resource District (applicant) as it pertains to the question of eligibility for a proposed project to improve an earthen embankment on Lake Wanahoo through funding from the Hazard Mitigation Grant Program (HMGP).
As you are aware, FEMA initially made a determination that the proposed project was not eligible for funding under the HMGP and the terms of the Robert T. Stafford Disaster Relief and Emergency Assistance Act. FEMA Headquarters Mitigation staff has been in close contact with FEMA Region VII to coordinate review of this second appeal.
After reviewing the information associated with this second appeal I regret to inform you that the decision made previously by FEMA Region VII should stand. After further review the issues identified in the denial of the original application as well as the first appeal cannot be dismissed. The reasons previously cited included the following:
1. Duplication of Programs - As stated in the appeal denial correspondence of April 2010, the provisions cited in Title 44 CFR, Sec. 206.434(f) remain valid. Section 404 funds cannot be used as a substitute or replacement to fund projects or programs that are available under other Federal authorities. The U.S. Army Corps of Engineers (USACE) has been receiving annual appropriations to support construction of the Sand Creek Watershed Environmental Restoration Project of which the proposed project is a smaller part. The applicant elected to remove the Lake Wanahoo Dam from the larger USACE sponsored project.
2. Projects in Progress - FEMA-DR-1674-NE guidance requirements are found in the HMGP Desk Reference. The Desk Reference directs that projects already in progress are not eligible for funding under the HMGP. The proposed project has to be taken in its totality and therefore the ogee weir crest can only be considered an enhancement to the earthen embankment and not a stand-alone mitigation project. The weir crest is in fact a requirement of dam safety regulations giving further credence to the idea that this is not a separate mitigation project unto itself.
3. National Environmental Policy Act (NEPA) - FEMA is required to implement the NEPA process prior to project approval and funding. In this case construction of the embankment began prior to completion ofthe NEPA process. The construction of the earthen embankment cannot be separated from the proposed ogee weir crest which is an enhancement to that embankment.
In conclusion, after review of the second level appeal documentation, FEMA Headquarters concurs with the determination by the Region that the proposed project does not meet Mitigation eligibility standards and should not be awarded.
Moving forward, FEMA mitigation staff will continue to work with NEMA and local communities on issues associated with eligibility and project implementation. If you have further questions on this matter please contact Melissa Janssen, Chief: Hazard Mitigation Assistance Branch, FEMA Region VII, at (816) 283-7012.
Sincerely,
Sandra K. Knight, PhD, PE
Deputy Federal Insurance and Mitigation Administrator, Mitigation
Deputy Federal Insurance and Mitigation Administrator, Mitigation
cc: Sheila Hascall, State Hazard Mitigation Officer, Nebraska Emergency Management Agency
Beth Freeman, Regional Administrator, FEMA Region VII
Robert Bissell, Director, Flood Insurance & Mitigation Division, FEMA Region VII
Appeal Analysis
Duplication of Programs (DOP): Title 44 CFR Part 206.434(£) directs that Section 404 funds cannot be used as a substitute or replacement to fund projects or programs that are available under other Federal authorities, except under limited circumstances in which there are extraordinary threats to lives, public health or safety or improved property. The Lake Wanahoo Dam is the keystone of the Sand Creek Watershed Environmental Restoration Project, a project authorized under the Water Resources Development Act of2000 (WRDA 2000, Public Law No. 106-541) as administered by the U.S. Army Corps of Engineers. The Sand creek Watershed Environmental Restoration Project is a multi-faceted project that will provide environmental restoration, flood control, and recreational benefits for the Sand Creek Watershed area in Saunders County, Nebraska. The estimated cost of the overall Federal project is $30M, and the USACE received annual appropriations to support construction. The project sponsor (Lower Platte North Natural Resources District) elected to remove the Lake Wanahoo Dam from the USACE project. As there were no extraordinary threats to lives, public health or safety or improved property, this project did not meet the basic HMGP DOP eligibility criteria.
NEPA requirements: Although USACE implemented NEPA in their decision-making process, FEMA as a Federal funding agency is wholly responsible for the content in connection with FEMA funded projects. Under NEPA, FEMA is required to perform its own analysis, issue its own independent findings, and involve the public and cannot rely on another Federal agency for NEPA analysis and finding that was completed prior. Consistent with FEMA Environmental Policy Memorandum #3 issued March 1995, as construction was initiated without fulfilling specific documentation and procedural requirements of FEMA and NEPA, the project could not be considered for FEMA funding.
Projects in Progress: FEMA-DR-1674-NE guidance requirements are outlined in the HMGP Desk Reference directing that projects in progress are not eligible for consideration under the HMGP. The project as a whole was determined in progress and therefore ineligible for funding.
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