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Wichita, KS - Dry Creek Detention Basin

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

ApplicantKansas Division of Emergency Management
Appeal Type2nd
Project Number48
Date Signed2011-08-19T00:00:00
1st Appeal
• Issue
o The State of Kansas submitted an application on behalf of the City of Wichita to construct a detention basin to relieve downstream flooding, including the acquisition of 546 acres and the construction of a 12,000-foot berm with outlet (dam and spillway). Region VII denied the project application on the basis the project constituted a major flood control project, did not conform to program requirements, and imposed residual risk associated with construction of a high-hazard dam. The State of Kansas submitted an appeal requesting reconsideration and the Regional Administrator upheld the denial of the application.
• Reason for Denial
o The reasons for Region VII’s denial of the 1st appeal were unchanged from those given for the original denial of the application. The Region’s response cited 44 CFR 206.434, HMGP eligibility requirements.
• Reference(s)
o 44 CFR 206.434 Eligibility;   HMGP Desk Reference (page 7-1) Residual Risk; 44 CFR 206.440 Appeals
2nd Appeal
• Issue
o The subgrantee filed a second appeal through Region VII asking for a review of the justification and rationale set forth in the first appeal, and claiming that the project met all requirements and that the Desk Reference does not define major flood control projects. 
• FEMA Findings
o FEMA HQ denied the 2nd appeal, upholding Region VII’s decision to deny the 1st appeal.
o Rationale: The large size of the project was not consistent with FEMA’s goal of restoring and preserving the natural and beneficial use of floodplains, and constituted an unwise use of Federal funds.
o Reference(s):  44 CFR 206.440 Appeals; 44 CFR 206.434 Eligibility; HMGP Desk Reference (page 7-1) Residual Risk;  EO 11988; 44 CFR 9.2(b)(7) Preserving the natural and beneficial use of floodplains

Appeal Letter

AUG 19 2011
 
Angee Morgan
Deputy Director
Kansas Division of Emergency Management
2800 Southwest Topeka Boulevard
Topeka, Kansas 6661 1-1287
Re: Second Appeal: City of Wichita, Dry Creek Detention Basin, FEMA DR-1741-KS, HMGP
Project No. 48
 
Dear Ms. Morgan:

This is in response to your letter dated March 2, 2011, which transmitted the referenced appeal on behalf of the City of Wichita (City) to the Department of Homeland Security, Federal Emergency Management Agency (FEMA). The City requests that FEMA approve funds for the Dry Creek Detention Basin hazard mitigation project.
 
Background:
On July 28, 2009, the State of Kansas submitted a Hazard Mitigation Grant Program (HMGP) subapplication on behalf of the City to construct a detention facility to relieve downstream flooding problems along the North Fork of Calfskin Creek. The project consisted of acquiring 546 acres of land and constructing a 12,000-foot berm with an outlet (dam and spillway) to store 2,560 acre-feet of water. The project is designed to stop inter-basin transfer of floodwaters from Dry Creek to the North Fork of Calfskin Creek. The project will reduce or eliminate the flooding of approximately 300 structures during the 100-year flood. In a letter dated September 2, 2010, the FEMA Region VII Mitigation Division Director formally denied the project application because he determined that the proposed project was a major flood-control project; it did not conform with the Code of Federal Regulations (44 CFR 206.434) and the HMGP Desk Reference (page 7-1); and because of the residual risk associated with the construction of a high-hazard dam (Size 4, Hazard Class C). On October 27, 2010, the State of Kansas submitted an appeal to the Regional Administrator requesting reconsideration of the original denial of the project. In a letter dated January 21, 20 II, the Regional Administrator upheld the original denial of the project. On March 22, 2011. the City submitted a second appeal to FEMA through the State. The City claimed that the proposed project meets all requirements of 44 CFR 206.434 and that the HMGP Desk Reference does not provide a definition of major flood-control project or preclude funding for such a project. The City also cited three drainage projects that FEMA funded that cost more than its proposed project. The costs of the cited drainage projects were $6.7 million, $17.2 million, and $31.7 million. FEMA staff met with State and City representatives, their consulting engineers, and Congressional staff members on May 12, 2011, to
review the details of the proposed project.
 
Analysis:
44 CFR 206.434, Eligibility
The Regional response to the first appeal stated that the proposed project did not meet the requirements of 44 CFR 206.434. However, it did not cite the specific eligibility requirements that the project did not meet. The additional information that the City provided adequately explained how its project meets the requirements of 44 CFR 206.434. FEMA develops policy and guidance documents and relies on past practices to make final decisions on applications for hazard mitigation grants.

Major Flood-Control Project Section 404, Hazard Mitigation, of the Stafford Act and 44 CFR Subpart N, Hazard Mitigation Grant Program, give FEMA broad discretion in determining the types of mitigation projects to fund. While FEMA' s preferred methods of mitigating the effects of floods are the acquisition and elevation of flood prone structures, FEMA does fund other types of flood mitigation projects. The least preferred method of reducing flood risks is the construction of levees and dams, primarily because other Federal agencies have statutory authority to construct these types of facilities, as well as the residual risk associated with these types of facilities. FEMA has funded levees to protect critical facilities in the past. However, the construction of a two-mile berm is not consistent with FEMA's stated goal of restoring and preserving the natural and beneficial use of floodplains, in accordance with Executive Order 11988 and 44 CFR 9 .2(b )(7), and is an unwise use of Federal funds.

FEMA recognizes the need for additional policy guidance on the eligibility of levees, dams, and other major flood-control projects. FEMA is currently developing a policy that clarifies the eligibility of minor, localized flood reduction measures and addresses the eligibility of major flood reduction measures.

Conclusion:
Based on the review of all information submitted with the appeal, I support the Regional Administrator's determination that the proposed project is not eligible for funding under the HMGP.
 
Please inform the City of my determination. My determination is FEMA's final decision on this matter pursuant to 44 CFR 206.440, Appeals.
 
Sincerely,

Sandra K. Knight, PhD, PE
Deputy Federal Insurance and Mitigation Administrator, Mitigation
 
cc: Beth Freeman, Regional Administrator, FEMA Region VII

 

Appeal Analysis

The Regional response to the first appeal stated that the proposed project did not meet the requirements of 44 CFR 206.434. It did not cite the specific eligibility requirements that the project did not meet. The additional information that the City provided adequately explained how its project meets the requirements of 44 CFR 206.434.
 
Section 404, Hazard Mitigation, of the Stafford Act and 44 CFR Subpart N, Hazard Mitigation Grant Program, give FEMA broad discretion in determining the types of mitigation projects to fund. While FEMA' s preferred methods of mitigating the effects of floods are the acquisition and elevation of flood prone structures, FEMA does fund other types of flood mitigation projects. The least preferred method of reducing flood risks is the construction of levees and dams, primarily because other Federal agencies have statutory authority to construct these types of facilities, as well as the residual risk associated with these types of facilities. The construction of a two-mile berm is not consistent with FEMA's stated goal of restoring and preserving the natural and beneficial use of floodplains, in accordance with Executive Order 11988 and 44 CFR 9 .2(b )(7), and is an unwise use of Federal funds.
Last updated Aug 19, 2014