Second Appeal Brief

FEMA-4022-DR
PA ID# 003-08425-00; Town of Bennington
PW ID# 3094; Immediate Threat
09/15/2015

Summary Paragraph

The Applicant is appealing FEMA’s determination in Project Worksheet (PW) 3094 that bank armoring, sediment reworking, and associated construction mobilization and engineering costs were ineligible for PA funding as emergency protective measures.  Heavy rains from Tropical Storm Irene (“Irene”) deposited large quantities of debris and sediment along the Roaring Branch of the Walloomsac River causing flooding, bank erosion, redirected flow, and compromised channel capacity.  The Applicant requested about $3.5 million for debris removal, bank armoring, and sediment reworking as emergency protective measures.  FEMA determined that sediment reworking and bank armoring were ineligible for funding as emergency protective measures because the work exceeded that which was necessary to lessen or eliminate immediate threats.  On first appeal, the Applicant contended that bank armoring and sediment reworking were essential to reduce immediate threats.  The FEMA Region I Regional Administrator found that bank armoring and sediment reworking were ineligible for funding both as emergency protective measures and as permanent work.  On second appeal, the Applicant maintains that sediment reworking and bank armoring were performed to reduce immediate threats.  FEMA subsequently requested that the Applicant provide additional support that the damage was directly caused by the declared disaster, given the occurrence of subsequent Tropical Storm Lee shortly after Irene, the work performed reduced immediate threats, including characterization of the 5-year flood event on Roaring Branch, and predisaster design and maintenance records for the armored banks.  The Applicant provided documents stating that (1) the damage was directly related to Irene and distinguished the work from that previously identified in a river corridor plan, (2) the work lessened immediate threats to nearby property from a 5-year flood event and Lee was only a 4.6-year flood event, and (3) prior bank armoring was not engineered.  On April 3, 2015, the Applicant presented the information at Headquarters. 

Authorities Discussed

• Stafford Act § 403(a)(3)(I); § 403(c)(6)(B).

• 44 CFR § 206.201(b).

• 44 CFR § 206.221(c).

• 44 CFR § 206.225(a)(3).

• Public Assistance Guide, FEMA 322, at 66; 71 (June 2007).

Headnotes

• Stafford Act § 403(a)(3)(I) permits FEMAto provide essential assistance to reduce immediate threats to life, property, and public health and safety.

• 44 C.F.R. § 206.201(b) defines emergency work as work done immediately following a disaster to save lives and protect improved property, public health, and safety.

• To be eligible, emergency protective measures must eliminate or lessen immediate threats to lives, public health or safety, or threats of significant additional damage to improved public or private property through cost effective measures. 44 C.F.R. § 206.225(a)(3), 44 C.F.R. § 206.221(c) and the PA Guide define an immediate threat as the threat of additional damage from an event which can reasonably be expected to occur within five years.

  • Rather than carrying out the approved scope of work to remove debris necessary to eliminate the immediate threat, the Applicant permanently engineered an unimproved river channel to address longstanding issues associated with being located in an alluvial fan.