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Leavenworth, KS - Riverfront Community Center Floodwall

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

ApplicantKansas Division of Emergency Management
Appeal Type2nd
Project Number2
Date Signed2014-02-26T00:00:00
1st Appeal
• Issue
o The State of Kansas in January 2012 submitted an HMGP subapplication for a floodwall project, requesting $389,332. The 375-foot limestone wall was designed to a height of 1.5 feet above base flood, with concrete sills on both ends where sandbags would be placed in the event of a large event flood. Portable pumps would also be used behind the floodwall. Region VII in March 2013 determined the project was ineligible for funding, and the City of Leavenworth submitted an appeal.
• Reason for Denial
o Region VII denied the 1st appeal on the basis that the project was ineligible as an activity because it relies upon emergency protective measures (sandbagging and temporary pumps), and the project without the sandbags, pumps and human intervention would not reduce the risk of future damage and solve the flooding problem independently.
• Reference(s)
o 44 CFR 206.434 (c) (4) Eligibility;   FY 2010 UHMA Guidance; 44 CFR 206.431 Definitions
2nd Appeal
• Issue
o The State claimed that many mitigation projects having residual risk are approved, and referred to an example of a similar floodwall project requirijng human intervention for its function that was approved. The claim was reinforced with another example of a project requiring human intervention after early warning of an impending event, that of a saferoom. The City argued that the gradual nature of flooding in the project area provides ample warning time to install the sandbags and pumps. The issue is therefore whether the floodwall project as proposed can be considered a mitigation activity as defined in regulation or whether the concomitant measures needed to make the floodwall fully effective should characterize the overall activity as a preparedness measure. 
• FEMA Findings
o FEMA HQ overturned the 1st appeal finding that the activity as proposed can be considered a mitigation activity even though there is some level of human intervention required to make the measure fully effective.
o The rationale for the 2nd level appeal decision was that the nature of flooding in the project area provides sufficient lead time for additional measures to be installed, resulting in relatively low risk of project failure. There is some residual risk associated with this project type as well as all mitigation projects.
o Reference(s):  44 CFR 206.440 Appeals; 44 CFR 206.434(c) Eligibility; FY 2010 UHMA Guidance

 

Appeal Letter

Ms. Angee Morgan
Deputy Director
Kansas Division of Emergency Management
2800 SW Topeka Boulevard
Topeka, KS 66611-1287

RE:   Second Appeal: City of Leavenworth, Riverfront Community Center Floodwall Project, DR-1932-KS, Project #0002

Dear Ms. Morgan:

This is in response to your letter dated November 8, 2013, which transmitted the referenced appeal on behalf of the City of Leavenworth, Kansas.  The City is appealing the Regional Administrator’s decision to deny funding for the above referenced floodwall project application under the Hazard Mitigation Grant Program.

Background:

On January 25, 2012, the State of Kansas submitted an HMGP project application to FEMA for the City of Leavenworth floodwall project.  The application requested $389,332 in federal funds to complete the project.  The proposed floodwall, designed to protect the Riverfront Community Center, would be approximately 375 feet in length with a concrete sill on both the north and south ends of the permanent wall onto which sandbags could be placed in the event of a large scale flood.  The sill where sandbags would be placed is approximately 10 feet in length on the north end of the wall and 85 feet in length on the south end of the wall.  The 10- foot gap on the north end would be filled with sandbags and tie into an existing limestone wall.  Similarly, the 85-foot gap on the south end would be filled with sandbags and tie in with high ground such that no flooding would occur at the Community Center site.  The proposed project design is to construct the floodwall to a height of approximately 1.5 feet above the base flood elevation (100-year flood).  Part of the floodwall operation also includes provision for installation of portable pumps on the “dry” side of the floodwall to alleviate localized flooding from interior drainage.

On March 13, 2013, the FEMA Regional office determined that the proposed project was ineligible for funding under the HMGP program.  The rationale for this determination was based upon the following:

• The proposed project is not a FEMA HMA-eligible activity.  Title 44 CFR 206.431, Definitions, defines “activity” as any mitigation measure, project, or action proposed to reduce risk of future damage, hardship, loss or suffering from disasters.  Because the proposed project relies upon emergency protective measures (sandbagging), the project alone does not reduce the risk of future damage.  HMA Guidance (Part III, Section D.2) which reinforces 44 CFR 206.431 is also cited. 
• The project does not solve a problem independently or constitute a functional portion of a solution.  Title 44 CFR, 206.434(c)(4), Eligibility, states that a project must “solve a problem independently or constitute a functional portion of a solution where there is assurance that the project as a whole will be completed.”  The proposed project, to be fully effective, would require human intervention to install sandbags on each end of the floodwall and temporary pumps.  Because the project, as proposed, is dependent on additional measures for effectiveness, it does not constitute a functional portion of a solution. 

On May 8, 2013, the City of Leavenworth submitted an appeal of the decision by the FEMA Regional office on the proposed project.  On May 13, 2013, the State of Kansas forwarded the appeal to the FEMA Regional office.  The State supported the City’s appeal.  The City contends that the proposed project does indeed reduce the risk of future damage as the floodwall and associated stormwater drainage improvements will significantly reduce the time, materials and labor required to control flooding in the area. The appeal further asserts that due to the nature of the flood threat in the area, placement of sandbags cannot be construed as “emergency protective measures.”  The rationale for this is because the flood source is the Missouri River which encompasses a very large drainage area and flooding events build over a considerable amount of time.  There is more than ample lead time to place sandbags when flood warnings are issued.  The area is not prone to flash flooding but flooding that builds over several days and weeks.  The argument is that these supplemental activities would be more “routine” than “emergency” in nature.

On August 6, 2013, the FEMA Regional Administrator denied the appeal.  The rationale for the appeal denial was essentially the same as that cited in the original denial letter of March 13, 2013.  In short, the proposed project was viewed as more of a preparedness activity rather than a mitigation activity. 

On September 26, 2013, the City of Leavenworth submitted a second level appeal to the State of Kansas, who forwarded it to FEMA Headquarters on November 8, 2013.  The second level appeal reiterated arguments made with the first appeal.  Namely, the construction of a 375-foot permanent floodwall, along with “companion solutions” to complete the full project should be considered a mitigation activity rather than a preparedness activity.  The assertion is that the proposed floodwall is indeed a “functional part of a solution.”  The City further asserts that it undertook a thorough evaluation process to come up with the proposed design solution.  This evaluation considered the surrounding landscape and location, the facility to be protected, access to that facility, and the nature of flooding in the area.  After this evaluation process the best alternative was chosen. 

Analysis:

The issue in this appeal is whether the flood protection project, which will require the temporary placement of sandbags immediately prior to a flood to protect the community center, is an eligible project as defined at 44 CFR 206.431 and 206.434(c)(4).

Title 44 CFR 206.434(c), Minimum project criteria, states in part: “To be eligible for the Hazard Mitigation Grant Program, a project must:…(4) solve a problem independently or constitute a functional portion of a solution where there is assurance that the project as a whole will be completed.”  The proposed flood protection project consists of constructing a 375-foot concrete wall now and the placing temporary sand bags to fill a 10-foot section at one end of the wall and an 85-foot section at the other end of the wall immediately prior to a flood.  Together, the concrete wall and the temporary sand bags will protect the community center during a 100-year flood.  Due to the nature of flooding along the Missouri River in the City of Leavenworth, there is a high probability that the city will have sufficient lead time to place the sandbags to complete the flood projection project immediately prior to a flood.  In fact, the City successfully placed temporary sand bags to protect the community center during a past flood.  Therefore, the proposed flood protection project  meets the eligibility requirements outlined at 44 CFR 206.434(c)(4).  

Conclusion:

I have reviewed all documentation the State submitted with the appeal and have determined that the proposed project is eligible for funding under HMGP.  Therefore, I approve the appeal for $389,332.  By copy of this letter, I request the Regional Administrator to take appropriate action to implement this determination.

Region VII staff discussed aspects of this project with my staff before it made the initial eligibility determination on the project.  The Region’s previous decisions were consistent with guidance we provided.  However, after reviewing all materials submitted with the second appeal, I have determined that the proposed concrete floodwall is eligible for funding.  I apologize for any inconvenience this may have caused.

Please inform the City of Leavenworth of my determination.  My determination is the final decision on this issue in accordance with 44 CFR 206.440, Appeals.

Sincerely,

 

Roy E. Wright
Deputy Associate Administrator for Mitigation 
Federal Insurance and Mitigation Administration                                                 

 


cc: Beth A. Freeman (via email)
       Regional Administrator
       FEMA Region VII

      Mike Scott (via email)
      Director
      Mitigation Division
      FEMA Region VII

 

Appeal Analysis

The issue in this appeal is whether the flood protection project, which will require the temporary placement of sandbags immediately prior to a flood to protect the community center, is an eligible project as defined at 44 CFR 206.431 and 206.434(c)(4).
 
Title 44 CFR 206.434(c), Minimum project criteria, states in part: “To be eligible for the Hazard Mitigation Grant Program, a project must:…(4) solve a problem independently or constitute a functional portion of a solution where there is assurance that the project as a whole will be completed.”  The proposed flood protection project consists of constructing a 375-foot concrete wall now and the placing temporary sand bags to fill a 10-foot section at one end of the wall and an 85-foot section at the other end of the wall immediately prior to a flood.  Together, the concrete wall and the temporary sand bags will protect the community center during a 100-year flood.  Due to the nature of flooding along the Missouri River in the City of Leavenworth, there is a high probability that the city will have sufficient lead time to place the sandbags to complete the flood projection project immediately prior to a flood.  In fact, the City successfully placed temporary sand bags to protect the community center during a past flood.  Therefore, the proposed flood protection project  meets the eligibility requirements outlined at 44 CFR 206.434(c)(4).
Last updated August 19, 2014