Shumlin administration appeals FEMA denial for culvert repair

An excavator clears rubble blocking a culvert along Route 100 in Rochester in September 2011. VTD File Photo/Josh Larkin

In the latest back and forth with FEMA, the Shumlin administration apparently hopes the third time will be the charm. FEMA has twice denied the state and local requests for funding for bigger better culverts, and now the state is taking its case to Washington.

The culvert in question — a concrete “box” culvert in Townshend — is a test case that could have big budget implications for towns. Sue Minter, Vermont’s Irene Recovery officer, says Townshend, for example, will have to come up with the $100,000 difference if FEMA doesn’t approve the project for funding. In Mendon, the latest estimate for culvert repair costs not yet been covered by FEMA, is $400,000 to $500,000. (The town’s annual budget is $900,000.)

In all, about 40 towns could face a shortfall if the state is unsuccessful.

The total price tag is about $10 million.

It’s unclear when FEMA will make a decision. The agency must respond in 90 days, but could ask for more information at that point, which would extend the deadline another 90 days. By that time, the Legislature will be wrapping up its work at the Statehouse.

Minter says towns are facing huge financial pressure, but it’s too early for the state to start talking about funding the difference until FEMA responds to the latest appeal.

“Right now we are pushing to maximize federal participation,” Minter said. “Can the state find a way to pay for it? That will be a good conversation for the Legislature to have.”

In the meantime, towns are bonding or taking out lines of credit for the projects, many of which have been completed or are under way.

Steve Jeffrey, executive director of the Vermont League of Cities and Towns, said the best outcome would be for the state to be successful in its appeal to Washington.

“We don’t want to give up on the feds,” but if the state isn’t successful, Jeffrey said, his organization will be lobbying the Legislature to pay for the additional costs. The state has required the installation of the larger culverts and “if the state is the one that is saying there no exception to the plan for state requirements there should be some state responsibility for helping towns with the difference.”

A dispute over codes

Tropical Storm Irene wiped out 500 miles of roadways and washed out thousands of culverts in southern Vermont in August 2011, and federal, state and local governments scrambled last fall to put temporary infrastructure in place to ensure that communities wouldn’t remain isolated over the winter. Since then, FEMA and the state have reviewed 3,000 project worksheets in 200 towns.

Now towns are making permanent repairs to highway infrastructure. The box culverts are a key element in the state’s long-term infrastructure fix for what officials see as an ongoing problem: climate change. The Agency of Natural Resources and the Agency of Transportation are planning for the next deluge that could destroy highway infrastructure and leave Vermonters stranded or exposed to dangerous situations. State officials say they required that towns build box culverts in an effort to build infrastructure that will survive the next big flood.

The federal agency has said it would reimburse towns for replacing existing culverts. These narrower culverts clogged or washed out during Irene. FEMA officials first rejected towns reimbursement requests for the larger culverts last spring because the state does not have uniform standards for culvert sizes.

Dave Mace, a spokesman for FEMA, says the federal agency has argued that the state’s stream alteration permitting system is discretionary in nature. “That’s the point of law that FEMA has been adhering to all along,” Mace said.

The state has three different standards for stream permits. “There is a level of discretion in applying those standards, in FEMA’s opinion,” Mace said.

Mace said when the code or standard that an applicant is citing meets FEMA’s criteria – including that it is not discretionary – that the agency can be assured the code or standard is followed whether or not federal funds are available. The federal agency uses the same protocol across states, municipalities and counties nationwide to ensure “there is an even playing field.”

State attorneys are arguing that FEMA’s recommendations violate the agency’s own environmental standards for minimizing floodplain development impacts. They also say in the appeal that the agency should follow standards set by the Army Corps of Engineers for “fish passage.”

In a statement, the governor’s office says FEMA’s regional officials are taking “an unnecessarily stringent view of the law and are ignoring the fact that Townsend has chosen the least cost means of complying with state and federal standards.”

“We have to make smart choices with public funds, consistent with the law. In this case the Town of Townshend has done both,” Gov. Peter Shumlin said. “We are committed to rebuilding stronger post-Irene, and Vermont’s towns should not be denied FEMA reimbursement for meeting state infrastructure repair standards designed to withstand future storms.”

Minter said the state is not only appealing the decision for towns in Vermont, but also attempting to set a national precedent.

“We see this as a national policy issue,” Minter said. “We believe FEMA should be reimbursing states to the codes that set the stage for looking to future and mitigating future hazards, particularly in light of our changing climate.”

Jeffrey says his organization, which represents more than 200 municipalities, agrees with the state that FEMA should pay for larger culverts so that when the next storm comes along, “they’re not back here next year replacing with a too small culvert.”

“From our perspective, there’s no choice,” Jeffrey said. “It’s not discretionary. We had to have done it. It seems to meet the needs that FEMA wants to accomplish with its program so that they’re not back here next year replacing with a too small culvert.”

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Anne Galloway

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  • Jim Barrett

    File suit Shumlin and Sorrell…this is what you guys do for a living when your not trying to force good companies out of the state. Just about everyone gets a lawsuit in this state unless you march to the left wings orders.

  • rosemarie jackowski

    Gov Shumlin needs to learn from Gov Christie.