TOWNSHEND — A second appeal to the Federal Emergency Management Agency (FEMA) has resulted in the agency agreeing that a box culvert, replaced after Tropical Storm Irene swept through in 2011, is eligible for additional funds under a separate disaster relief program that offers more flexibility.
The staff of state and federal lawmakers stressed that the decision to make the project eligible as a “406 hazard mitigation measure” - so-named after the section of the 1988 Robert T. Stafford Disaster Relief and Emergency Assistance Act, which funds federal disaster relief to state and local governments - applies only to this one appeal for Townshend, for a corrugated metal pipe culvert on Dam Road that was washed away by floodwaters.
The culvert was replaced to the specifications of the state Agency of Natural Resources (ANR) by a precast concrete arched culvert designed to withstand such flooding.
But FEMA's policy has been to refuse to pay for work that exceeded the scope of the original infrastructure that was washed away - in Townshend's case, more than $100,000 worth of work.
As a result, towns originally banking on flood relief to pay for 95 percent of the cost of these projects were denied significant funding only after the towns have already paid for the emergency construction work.
In the aftermath of Irene, numerous towns in the state have confronted this double-bind as their rebuilding efforts were designed to comply with the ANR's Stream Alteration General Permit.
Between FEMA and the state disagreeing on the best way to fix the damage - FEMA objecting because “they said the repairs were an 'upgrade'” - Townshend was “left holding the bag,” said Town Bookkeeper Kim Ellison.
Many southeastern Vermont towns could benefit from the determination of Townshend's appeal.
Dave Rapaport, the state's Irene recovery officer, said, “We believe that the same argument can prevail in a number of other project worksheets (PWs) being appealed. They will have to be determined on a case-by-case basis.”
Rapaport explained, “The PWs are the write-ups for repair work that are the basis for FEMA reimbursements under their Public Assistance Program.”
“There have been over 3,300 resulting from Irene, most related to municipal infrastructure, but also some for state facilities damaged during Irene as well,” he said.
Higher Vermont standards
According to a letter from FEMA Recovery Directorate Assistant Administrator Deborah Ingram to Joe Flynn, the state's emergency management director announcing the success of the state's second appeal on behalf of the town, the agency still considers the ANR's standards “discretionary,” meaning that state laws and the permit process “do not establish any specific engineering design or measurable performance criteria that are required to be followed for a replacement culvert.”
Vermont's ANR set new performance goals and measures in 2011, which call for the “channel and the channel protective system” rate, among other attributes, to be considered, as well as the physical conditions of slopes and the channel or water flow through a bridge, according to Rapaport.
“For the dam culvert permit, ANR issued the permit and told us, 'This is what [we] want to see here,'” Ellison said.
“ANR doesn't have something that says in this instance, a culvert has to be this size,” she said. “It's a case-by-case basis, and that is where FEMA has the issue - it's not something applied the same across the board.”
“What Vermont does not have in place is codes and standards. It's an interpretation,” she said - not a standard applied across the board, a policy that FEMA objected to.
She said that the state standards permit work based on the history of that area.
Ellison said the town went ahead and had ANR do hydraulic studies, thinking they were doing what they were supposed to be doing because it was what the state required them to do.
A year and a half later, many municipalities repairing damage from the tropical storm have similarly found budgets strained to the max as they try to comply with state standards.
New math
“Both the federal government and the state increased what was allowed for disasters because there was so much damage in this storm,” Ellison said. “Because of the enormity, a total of 95 percent of costs is covered between federal and state, which left the towns with only having to pay 5 percent.”
FEMA valued the eligible work at $444,230.37. The total cost in the submitted PW for the dam culvert project is $550,813.70. If FEMA and the state come through with their combined 95 percent of the cost, Townshend will end up paying only for 5 percent of that figure, or $27,540.69.
Ellison said, “It certainly had an impact on us in terms of having to raise the additional money.” She said the tax rate was raised about 10 percent. “But because of being responsible for 5 percent, between the shortfall plus our share of the total cost, we [were] short $109,000,” on the dam culvert project, she said.
“At Town Meeting, we had to assume that we were not going to get the money and needed the funds to raise to cover that project,” she said. “Hopefully, we will know what we will have in time to set the tax rate so that we can adjust our revenues.”
“The ANR and the state needed to fight for us and other towns because they were the ones who put us in this position,” Ellison said. “We were caught between 'do we do what the permit says' or '[do we do] what FEMA will cover,' and obviously we always do what the state says.”
“The bottom line is: the town has already paid out the $128,794.85” - the difference between what FEMA has already approved and the final cost of the culvert - “and is hoping to recover as much of that as possible,” she said.
A new precedent?
In a press release issued jointly by the governor's office and the state's congressional delegation, Shumlin said, “This is critical for Townshend and the dozens of other small Vermont communities that rebuilt culverts strong enough to withstand future flooding.”
Several similar projects “have been contested by FEMA and could now be funded thanks to Townshend's successful appeal,” the governor added.
“It has been a truly monumental effort, especially considering that prior to Irene and the spring floods, the state never had to deal with more than a few PWs resulting from very limited disasters,” he said.