Appeal Type:
2nd
Report Type:
PW
Appeal Categories:
Debris Removal – Soil, Silt, Rock
Direct Result of Disaster
Applicant Name:
City of North Wilkesboro
Disaster Number:
FEMA-4153
DSR:
PW 23
Date Signed:
Wednesday, August 17, 2016
PA ID:
193-47880-00
Summary/Brief:
Conclusion: North Wilkesboro (Applicant) did not provide sufficient information to substantiate that sedimentation resulting from the disaster created immediate threats at other areas of the reservoir aside from the threats posed to the intake mechanism. In addition, the Applicant did not demonstrate compliance with requirements to maintain the reservoir or provide records necessary to establish pre-event sediment levels. Finally, the information presented does not adequately delineate the amount of sediment that was deposited as a direct result of the event.
Summary Paragraph
In July 2013, severe storms produced heavy rainfall which flooded the Reddies River in North Carolina, depositing storm-generated sediment into the town of North Wilkesboro’s (Applicant) reservoir that impacted the flow of water through the intake. The reservoir supplies the water for the North Wilkesboro Water Treatment Plant (“Plant”) and town. FEMA established a single-day incident period of July 27, 2013 for the event. In January 2014, FEMA determined that an immediate threat existed immediately surrounding the water intake area and obligated Project Worksheet (PW) 23 for $29,640.00 to remove approximately 1,482 CY in sediment. FEMA denied funding for sediment deposited after the incident period and also noted indicators of long-standing, pre-event sediment accumulation. In a first appeal, the Applicant requested $396,574.87 in additional funding from FEMA, including $393,320.00 for additional sediment removal from a larger impacted area that it claimed was deposited as a result of the event from July 27-30, 2013. To substantiate its claims, the Applicant provided an Engineering Report. The FEMA Region IV Regional Administrator (RA) denied the appeal because the Applicant’s documentation did not substantiate that the additional sediment was deposited as a direct result of the event. Further, the information provided did not establish pre-storm capacity, active use, and that the Applicant regularly dredged the reservoir. On second appeal, the Applicant again requests $393,320.00 for increased sediment removal. It reiterates the same first appeal arguments and contends further that removal of the sediment is necessary to allow continued safe operation of governmental functions and to alleviate an immediate threat caused by the event.
Authorities and Second Appeals
Stafford Act §§ 403 and 406.
44 C.F.R. §§ 206.223 and 206.224.
PA Guide, at 29-30; 82-83.
Headnotes
Stafford Act § 403, as implemented by 44 § C.F.R. 206.224, authorizes FEMA to provide assistance to address immediate threats to life and property resulting from a major disaster; FEMA may reimburse eligible applicants for emergency debris removal from public and private lands and waters when removal is in the public interest.
The Applicant has not demonstrated the presence of an immediate threat in other areas of the reservoir, including upstream and the reservoir as a whole.
According to the PA Guide, funding to restore a reservoir to its predisaster capacity is contingent upon the Applicant’s ability to produce maintenance records or surveys to establish pre-event capacity and that the reservoir (i.e., facility) was actively used and maintained.
The Applicant did not substantiate that it regularly clears out the reservoir or provide records to establish pre-event sediment levels.In addition, the information presented does not adequately delineate the amount of sediment that was deposited as a direct result of the event.Therefore, FEMA cannot approve funding to restore the reservoir.
FEMA established a one day incident period for the event.Pursuant to 44 C.F.R. 206.223, all work must be shown to be a direct result of the event.According to the PA Guide, FEMA considers work to address damage that occurs after the close of an incident period but only if the applicant demonstrates that the work is directly tied to the event and not generated to correct inadequacies that existed pre-event.
Letter:
Michael Sprayberry
Director
North Carolina Division of Emergency Management
4713 Mail Service Center
Raleigh, North Carolina 27699-4713
Re: Second Appeal – North Wilkesboro, PA ID 193-47880-00, FEMA-4153-DR-NC, Project Worksheet (PW) 23 – Direct Result of Disaster – Debris Removal – Soil, Silt, Rock
Dear Mr. Sprayberry:
This is in response to a letter from your office dated May 26, 2015, which transmitted the referenced second appeal on behalf of North Wilkesboro (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $393,320.00 in Public Assistance (PA) funding for sediment removal.
As explained in the enclosed analysis, I have determined that the Applicant has not demonstrated that sedimentation resulting from the event caused immediate threats at other areas of the reservoir, as required for emergency work funding. In addition, the Applicant failed to produce maintenance records or surveys to establish the pre-event capacity, active use, and regular clearance of the reservoir, as required for permanent work funding. Accordingly, I am denying the appeal.
Please inform the Applicant of my decision. This determination is the final Agency decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.
Sincerely,
/s/
Christopher Logan
Acting Director
Public Assistance Division
Enclosure
cc: Gracia Szczech
Regional Administrator
FEMA Region IV
Analysis:
Background
On July 27, 2013, severe storms produced heavy rainfall which resulted in the flooding of the Reddies River in North Carolina. In the town of North Wilkesboro (Applicant), the Reddies River is dammed and creates a reservoir that supplies water for the North Wilkesboro Water Treatment Plant (“Plant”) and the water for the town. Storm-generated sediment deposited in and around the Plant’s raw water intake adversely impacted the flow of water through the intake.
The Applicant requested $639,080.00 in Public Assistance (PA) funding to remove approximately 9,832 cubic yards (CY) of sediment it claimed was deposited in the reservoir as a result of the storm during a four-day period of July 27-30, 2013. In December 2013, FEMA prepared a PA Determination Memo (Determination Memo)[1] to document the Applicant’s initial request. Within the Determination Memo, FEMA noted that the official incident period established for the event was July 27, 2013 (i.e., one day only). FEMA also indicated that it would not approve funding to dredge the entire reservoir because the Applicant had not provided the information required to establish the amount of sediment that existed previously, which was necessary to determine the amount deposited as a direct result of the event; and had not substantiated that it maintained the reservoir on a regular basis.
Based on its initial inspection of the intake and reservoir, FEMA prepared Project Worksheet (PW) 23 to reimburse the Applicant for removal of approximately 1,482 CY in sediment from the area immediately surrounding the raw water intake in order to restore functionality to the Plant’s intake mechanism. FEMA determined that sediment deposited after the incident period was ineligible and also noted indicators of long-standing, pre-event sediment accumulation. On January 8, 2014, FEMA obligated PW 23 for $29,640.00.[2]
First Appeal
In a letter dated January 31, 2014, the Applicant appealed the eligible amount determined by FEMA in PW 23 and requested $396,574.87[3] in additional funding. According to the Applicant, at a meeting held on December 10, 2013, FEMA had formulated an eligibility determination without consideration of the Applicant’s supporting documentation, which it had compiled at FEMA’s request and made available at the meeting. This documentation included: an Engineering Report[4] that detailed the calculations of the amount of sediment deposited by the event, prepared by the Applicant’s engineer; a Notice of Award[5] offered as proof that it had contracted with a company to dredge the reservoir in October of 2008; and information reporting $3,245.87 for direct administrative costs.[6] With its appeal, the Applicant enclosed copies of the information it provided at this meeting.
The Applicant objected to FEMA’s exclusion of the area above the water intake from the eligible scope of PW 23. It argued that the area above the water intake was impacted by the event and further, that the area was maintained by pre-event dredging. In addition, the Applicant refuted FEMA’s statement that severe sedimentation accumulated prior to the event and argued that the Engineering Report substantiates that all of the sediment claimed was deposited during the four-day period of July 27-30, 2013. Further, the Engineering Report indicates the river did not return to relatively normal flow and depth levels until after the four-day period, which resulted in the deposit of 10,941 CY of sediment on July 27 and an aggregate total of 21,148 CY from July 27 through July 30. Thus, utilizing FEMA’s $20 per CY removal rate, FEMA should allow $422,960.00 to remove the sediment generated by the event.[7]
On March 25, 2014, the North Carolina Division of Emergency Management (Grantee) forwarded the Applicant’s appeal to FEMA. The Grantee characterized the decision to include only the sediment deposited on the declared incident period of July 27 as arbitrary, and countered that the full four-day period should be considered a direct result of the event because the storm effects that began on July 27 continued without interruption through July 30.[8]
Upon completing the examination of the first appeal package, the FEMA Region IV Regional Administrator (RA) sent a final Request for Information (RFI) to inform the Applicant that the information comprising the current administrative record on which the appeal decision would be based, was inadequate to support the Applicant’s assertion that additional sediment removal was eligible.[9] Specifically, the Region noted that the Applicant presented insufficient evidence documenting sediment levels before the event that could be reviewed for comparison. In addition, the Region stated none of the information on record demonstrated that the Applicant performed regular clearance and maintenance of the reservoir. In its response,[10] the Applicant forwarded a letter from its engineering company as additional documentation relating to sediment levels and prior sediment removal,[11] which included a Project Status Report summarizing work completed in 2009 to dredge the reservoir.[12]
In a decision dated April 1, 2015, the FEMA Region IV RA denied the appeal because the Applicant’s documentation did not substantiate that the sediment was deposited as a direct result of the disaster. In her analysis, the RA stated that although FEMA determined the event impacted primarily the area surrounding the raw water intake, it inspected the entire river basin and reservoir. As noted in PW 23, FEMA determined that the majority of sediment was deposited before the event, and even quantified approximate areas with visible sedimentation built up along both river banks that had gradually accumulated over a lengthy period, in addition to observing severe shoaling. Further, the RA explained that funding to restore a reservoir is contingent upon information provided by an applicant to establish pre-event capacity, active use, and that it was maintained based upon a regular clearance schedule. The information provided did not establish pre-storm capacity and that the Applicant regularly dredged the reservoir. Finally, the RA asserted that the Engineering Report was inadequate to alter FEMA’s initial findings as it did not contain maps, sketches, or photos of the area evaluated.
Second Appeal
In a letter dated May 6, 2015, the Applicant submitted a second appeal. The Applicant reiterates the same arguments from its first appeal and contends further that removal of additional sediment is necessary to alleviate an immediate threat caused by the event, and to allow for the continued operation of its water treatment plant which supplies the Town’s water. The Applicant is seeking $393,320.00 in increased funding to remove 21,148 CY of sediment it claims was deposited by the event.[13] On May 26, 2015, the Grantee forwarded the second appeal to FEMA.
Discussion
Funding Debris Removal as Emergency Work under Category A
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) authorizes FEMA to provide assistance to meet immediate threats to life and property resulting from a major disaster.[14] FEMA may reimburse eligible applicants for emergency debris removal from public and private lands and waters[15] when removal is in the public interest.[16] Emergency work must be performed immediately following a disaster.[17]
At issue is whether the Applicant provided sufficient documentation to demonstrate that sedimentation resulting from the event caused immediate threats at other areas of the Applicant’s reservoir, necessitating emergency debris removal.[18] Here, FEMA determined that debris generated by the event posed an immediate threat of clogging or damaging the area immediately surrounding the water intake structure; therefore, removal of that debris is eligible as emergency work under Category A. However, the Applicant has not demonstrated the presence of an immediate threat in other areas of the reservoir, including upstream and the reservoir as a whole. On appeal, the Applicant emphasizes the significance of a fully-functioning intake and reservoir in providing water to the town. It argues that FEMA should approve additional funding for sediment removal to “allow continued safe operation of governmental functions or to alleviate an immediate threat.”[19] However, it provided no data or specific explanation to support that removal of the additional quantity as estimated by its engineer ameliorates any immediate threat to the intake mechanism caused by the event in question. Moreover, the Applicant did not offer any documentation to indicate that it has completed the removal work funded by FEMA in PW 23 or initiated any action to dredge sediment from other areas claimed to have been impacted by the event.[20] The totality of the documentation submitted for consideration does not substantiate increasing the original estimate of sediment removal previously obligated by FEMA.
Funding Debris Removal from Water Control Facilities under Category D
Although FEMA prepared a Category A PW to address the initial funding request, FEMA also considered whether the Applicant’s claim for sediment removal qualified for additional assistance under permanent work criteria, specifically Category D – Water Control Facilities. Stafford Act § 406 authorizes FEMA to fund the restoration of damaged public facilities,[21] including the restoration of reservoirs to their pre-disaster capacity.[22] To fund this work, FEMA requires documentation from an applicant to substantiate a reservoir’s pre-event capacity, active use, and maintenance history.[23]
The Applicant’s claim for additional funding is based on sediment quantities presented in its Engineering Report dated December 9, 2013.[24] To calculate the volume of sediment deposited by the event, the Applicant’s engineer analyzed river flow data and sediment concentration levels from a nearby gauging station at the time of the event. Specifically, the Applicant’s engineer used flow rate data from the gauging station for the period of July 24 through August 4, 2013, in combination with the sediment concentration level obtained from a single water sample taken on November 15, 2013, to estimate the total solids volume in the river during the storm.[25] The Applicant’s engineer notes that this is a conservative estimate because sediment concentration was likely higher during the storm. Using the total solids volume and the flow rate, the Applicant’s engineer was able to estimate the volume of sediment that would have settled in the reservoir based on generally accepted practices.[26]
While this method comports with generally accepted engineering practice for determining sedimentation, pursuant to FEMA guidance, the Applicant must demonstrate that it routinely clears out the reservoir (i.e., the facility) for it to be considered “an actively used and maintained facility.”[27] Throughout the PA process, FEMA communicated this requirement and other permanent work requirements in addition to noting that the Applicant’s documentation was inadequate, as evidenced by language included in the Determination Memo,[28] PW 23,[29] and Region IV’s Final RFI.[30] In response to the Final RFI, the Applicant submitted a copy of the Project Status Report as proof that it completed a project to dredge the reservoir four years prior to the incident, in 2009, together with a letter from the Applicant’s engineer dated September 15, 2013. This is a singular example of prior maintenance, but does not establish that the Applicant performed routine clearance of the reservoir.[31] In fact, according to the letter, the Applicant’s engineer stated that prior to the dredging in 2009, no sediment removal had been performed for “many, many, many years [and] at the time of the dredging project, the Town was having difficulty getting water to its water plant intake because of the excessive sediment that had built up behind the dam.”[32] This demonstrates that the same problem attributed to sediment accumulation that restricted the flow of water through the intake pre-dated the event. Even if the Applicant remediated this issue once through dredging completed in 2009, several years elapsed between then and the subject event. Further, the Applicant has not provided any other documentation to substantiate regular clearance.
PA funding to restore a reservoir is contingent upon the Applicant’s ability to produce maintenance records or surveys to establish the predisaster capacity. According to FEMA guidance, the predisaster level of debris in a reservoir is of particular importance to determine the amount of newly deposited disaster-related debris or sediment.[33] Although the Project Status Report mentions the total quantity of material dredged in 2009, it neither delineates from where the sediment was removed nor does it provide the resulting capacity of the reservoir.[34] Absent specific documentation to illustrate that the Applicant performed regular clearance of the reservoir and records to establish its pre-event capacity, FEMA cannot distinguish the amount of disaster-deposited sediment from sediment that accumulated prior to the event. Consequently, due to the inadequacy of the information provided, there is no compelling basis to support increasing the amount of funding previously awarded by FEMA.
Incident Period
All work for which PA funding is sought must be shown to be a direct result of the declared event. Damage resulting from a cause other than the declared event is not eligible.[35] For the event in question, FEMA established a one day incident period. Regulations define the incident period as the “time interval during which the disaster-causing incident occurs,” and further narrows the provision of assistance to alleviate damage or hardship caused by the incident which took place during the incident period or in anticipation of the incident.[36] FEMA considers work to address damage that occurs after the close of an incident period but only if the Applicant demonstrates that the work is directly tied to the event and not generated to correct inadequacies that existed prior to the event.[37] As explained throughout this analysis, the Applicant has not done so.
Conclusion
The Applicant did not provide information to substantiate that sedimentation resulting from the disaster created immediate threats at other areas of the reservoir aside from the threats posed to the intake mechanism. In addition, the Applicant did not demonstrate compliance with requirements to maintain the reservoir or provide records necessary to establish pre-event sediment levels. Finally, the information presented does not delineate the amount of sediment that existed previously from what was deposited as a direct result of the event. Consequently, additional funding to restore the reservoir is not eligible for FEMA funding.
[1] Memorandum from FEMA Pub. Assistance Rep., to North Wilkesboro, at 1-2 (Dec. 10, 2013) [hereinafter Determination Memo] (chronicling, in a separate attachment saved to the project record in EMMIE, issues impacting the overall eligibility of the Applicant’s request for funding to remove sediment from the reservoir beyond the raw water intake area due to insufficient documentation).
[2] Project Worksheet 23, North Wilkesboro (Jan. 8, 2013) (determining the immediate threat area surrounding the raw water intake as eligible for removal, and calculating the quantity of removal work based on approximate dimensions of 50 ft. wide by 100 ft. long by 8 ft. deep [divided by 27 to convert to cubic yards] for a total of 1,482 CY at $20.00 per CY).
[3] Letter from Town Mg’r, Town of N. Wilkesboro, to Pub. Assistance Mg’r, N.C. Dep’t of Pub. Safety, at 1-2 (Jan. 31, 2014) [hereinafter Applicant’s First Appeal]. Although the Applicant stated it could support approximately $450,000.00 in costs, the lesser amount of $396,574.87 is supported by documentation forwarded for review.
[4] Municipal Engineering Services Co., PA, Engineering Report, Sedimentation Calculations Reddies River Impoundment (Dec. 9, 2013) [hereinafter Eng’g Report].
[5] Notice of Award, Tarheel Sand and Stone, Inc. and Town of North Wilkesboro (Oct. 16, 2008) (notifying the Contractor that the Applicant accepted its base proposal of $276,000.00 to dredge the reservoir).
[6] Applicant’s First Appeal, at 2. The Applicant stated that it incurred $3,234.49 in direct administrative costs but this total includes an arithmetic error. The total of $3,245.87 is supported by the cost documentation forwarded for review.
[7] Id. (using FEMA’s $20.00 per CY removal rate, removal of 21,148 CY amounts to $422,960.00 and not $422,920.00).
[8] Letter from Pub. Assistance Mg’r, N.C. Dep’t of Pub. Safety, to Reg’l Administrator, FEMA Region IV, at 2 (Mar. 25, 2014).
[9] Letter from Reg’l Adm’r, FEMA Region IV, to Dir., N.C. Div. of Emergency Mgmt. and Town Mg’r, Town of N. Wilkesboro, at 1 (Aug. 22, 2014) [hereinafter, Region’s Final RFI] (transmitting FEMA’s Final Request for Information (RFI) together with the Administrative Record Index, and notifying the Applicant that no new information would be considered upon issuance of the first appeal response).
[10] Letter from Town Mg’r, Town of N. Wilkesboro, to Pub. Assistance Branch Chief, FEMA Region IV, at 1 (Sep. 22, 2013) (responding to FEMA’s RFI). This was forwarded by the Grantee in a letter dated September 25, 2014.
[11] Letter from Senior Project Eng’r, Mun. Eng’g Services Co., P.A., to Town Mg’r, Town of N. Wilkesboro, at 1 (Sep. 15, 2013) [hereinafter Letter from Eng’r].
[12] Id. at Attachment, N.C. Rural Economic Development Center Water/Sewer Grant Programs, Project Status Report, Raw Water Impoundment Dredging Contract No. 2009-026-40101-112, at 1 (June 8, 2009) [hereinafter Project Status Report] (summarizing work contracted by the Applicant from 2008-2009 to dredge and remove 45,000 CY of sediment from the reservoir at a total cost of $362,575.00).
[13] Letter from Town Mg’r, Town of N. Wilkesboro, to Pub. Assistance Mg’r, N.C. Dep’t of Pub. Safety Div. of Emergency Mgmt., at 1 (May 6, 2015) [hereinafter, Applicant’s Second Appeal Letter]. On second appeal, the Applicant identifies $393,280.00 as the amount requested but does not specify a quantity for removal. This amount plus the obligated amount of $29,640.00 equals $422,920.00, or the amount requested on first appeal to remove 21,148 CY of sediment (July 27-30, 2013). Although FEMA believes the quantity is unchanged from what was requested previously, the first appeal total included calculation errors. Using FEMA’s $20 per CY rate, the cost to remove 21,148 CY amounts to $422,960.00. Thus, the second appeal request for sediment removal less the existing obligation of $29,640.00 amounts to $393,320.00. As no amount was specified for direct administrative costs, FEMA has not addressed this issue in its response.
[14] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288 § 403(a), 42 U.S.C. 5170b(a) (2007).
[15] Stafford Act §§ 403 & 407.
[16] 44 C.F.R. § 206.224(a) (2013) (defining “public interest” to include removal work “necessary to: (1) Eliminate immediate threats to life, public health, and safety; or (2) Eliminate immediate threats of significant damage to improved public or private property; or (3) Ensure economic recovery of the affected community to the benefit of the community-at-large; or (4) Mitigate the risk to life and property by removing substantially damaged structures and associated appurtenances as needed to convert property acquired through a FEMA hazard mitigation program to uses compatible with open space, recreation, or wetlands management practices. Such removal must be completed within two years of the declaration date, unless the Associate Director for Readiness, Response and Recovery extends this period.”).
[17] 44 C.F.R. § 206.201(b).
[18] During the review of the second appeal, a FEMA Engineer conducted an independent review of the Applicant’s Engineering Report together with all other information comprising the administrative record.
[19]Applicant’s Second Appeal Letter, at 1.
[20] Public Assistance Guide, FEMA 322, at 2 (June 2007) [hereinafter PA Guide] (emphasizing that “local and State government officials should not delay in taking the necessary responses and recovery actions” and that “actions should not be dependent upon whether there will be Federal assistance.”).
[21] Stafford Act § 406.
[22] PA Guide, at 82.
[23] Id.
[24] See generally Eng’g Report, at 1-2, including Appendices A-F.
[25] Id. Sediment concentration data was not available during the storm, which is why the Applicant’s engineer used a sample taken on a later date (November 15, 2013).
[26] See FEMA Second Appeal Analysis, Puerto Rico Aqueduct and Sewer Authority, FEMA-4017-DR-PR, at 7 (Mar. 16, 2016) (acknowledging that “the Applicant followed generally accepted practices for performing its calculations and the assumptions it made were reasonable and well supported” in approximating the volume of sediment deposited by the event through similar analysis of water flow rate and sediment concentration data).
[27] PA Guide, at 82-83.
[28] Determination Memo, at 1-2 (stating that the “Applicant seeks to have the entire reservoir dredged but has not provided documentation demonstrating the amount of silt deposited in the reservoir as a result of the declared event;” and that “the Applicant has not shown proper documentation to justify their claims for the debris removal that was only deposited around the intake pipe.”).
[29] PW 23, North Wilkesboro (Version 0) (noting that “during a previous meeting [the] Applicant was informed of limitations and documentation requirements” for debris removal).
[30] Region’s Final RFI, at 1 (explaining that the administrative record lacked “any records of a regular reservoir clearance schedule and maintenance schedule prior to the event. Records of pre-storm sediment levels would allow a more representative comparison to post-disaster levels. Furthermore, records showing a periodic reservoir clearance and maintenance program would assist in FEMA’s determination of the extent of damage.”).
[31] Puerto Rico Aqueduct and Sewer Authority, FEMA-4017-DR-PR, at 6-7 (determining that proof of isolated dredging to clear sediment from a reservoir is insufficient to establish the reservoir is actively used and regularly maintained).
[32] Letter from Eng’r, at 1.
[33] PA Guide, at 82-83.
[34] Project Status Report, at 1. Here, it should be noted that this is a one-page final report form. Neither the dredging contract documents nor the photos referenced in the report were submitted for FEMA review. In addition, the resulting capacity of the reservoir is not provided.
[35] 44 C.F.R. § 206.223(a)(1); PA Guide, at 29.
[36] 44 C.F.R. § 206.32(f).
[37] PA Guide, at 29-30.