Minimizing Roadway Embankment Damage from Flooding (2016)

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53 CHAPTER SIX LEGAL, REGULATORY, AND FUNDING ASPECTS INTRODUCTION Design to minimize damage of roadway embankments during flooding is subject to a number of legal, regula- tory, and funding limitations. Key issues include decid- ing how to design the embankment and determining the available funding options. Design considerations include the purpose of the structure and the design freeboard to mitigate overtopping potential and minimize the foreseen damages. Federal disaster funding reimbursement pro- grams are FHWA ER and FEMA public assistance. Other considerations and constraints also play a role in the deci- sion-making process for roadway embankment design. Such constraints include right-of-way limitations, stream and wetland impacts that could often occur in floodplains, environmental considerations, permitting, feasibility and time considerations, and prioritization of projects. Because limited information was gathered about these considerations, this section will only discuss the purpose of the structure, the freeboard issue, and the federal fund- ing disaster reimbursement programs. DESIGNING EMBANKMENTS AS LEVEES As explained in chapter one, roadway embankments dif- fer in purpose from flood control structures such as levees. After most of the National Highway System was built, FEMA carried out a program to identify areas threatened by flood damages through flood insurance studies that are a part of the National Flood Insurance Program. Some road- way embankments lie within the high-risk areas and were mistakenly classified as levees. In this regard, FHWA issued a memo (dated September 10, 2008) in response to incorrect designations of some roadway embankments as levees and to levee certification initiatives. The memo discourages certifying embank- ments as levees and advises against any assumptions that embankments offer any degree of protection against flood- ing. As stated by some of the participating states in the survey, DOTs do not design embankments as flood con- trol structures. This is generally discouraged but allowed in very few cases. In such cases, USACE is the agency responsible for the levee certification. Designing to protect against flooding, however, has become an increasing con- cern. The available options are either to increase the free- board to avoid overtopping or to provide adequate design with suitable measures to protect the embankment during extreme events. These options are further discussed in the next section. FREEBOARD ISSUE The freeboard is a form of safety factor that is applied as feet above a certain level. This freeboard provides a margin of safety against unforeseen issues that include a flood larger than the design flood, an unanticipated failure in a culvert, a wave higher than the design wave, and so on. Freeboard con- siderations as applied to roadway embankments are subject to state-by-state requirements. So why is increasing the freeboard height not adopted as an alternative solution to prevent overtopping, to avoid costly protection measures and to minimize damage result- ing from other factors caused by high headwaters? The reason is that roads subject to flooding action gen- erally lie within the floodplain. The floodplain is sub- ject to regulations imposed by a number of agencies that include FEMA, the state’s National Flood Insurance Pro- gram Coordinating Agency, local watershed boards, and related authorities. Depending on the type and location of the roadway embankment, a number of requirements need to be considered to allow for an increase in the freeboard. For example, if the roadway embankment lies within the regulatory floodway, no development is allowed unless the developer can prove that this development would not lead to an increase in the flood elevation at any location during the 100-year flood. Such processes are time consuming and not fruitful. As a result, different alternatives are visited. It is worth noting that, in some cases, it may be desirable to have a fuse plug where the embankment is lower than the rest of the roadway over a short length. This ensures that overtopping will occur at that location, which allows the fail to occur in a controlled fashion. Also, in coastal cases, the roadway is designed to be overtopped on the assumption that sand will cover the roadway during overtopping, thereby protecting it from excessive damage. Such practices should be assessed on a case-by-case basis.

54 FUNDING OPTIONS Failures among roadway embankments resulting from flood- ing are commonly encountered, and they impose challeng- ing situations and burdensome costs. Two federal emergency reimbursement programs—FHWA Emergency Relief (ER) and FEMA Public Assistance (FEMA PA)—were developed to supplement state and local resources to address the finan- cial challenges imposed by extraordinary conditions such as natural disasters. FHWA’s most recent ER program manual is the Emergency Relief Manual (Federal-Aid Highways) released May 31, 2013. FEMA’s most recent PA handbook is FEMA P-323, the Public Assistance Applicant Handbook (2010). The programs feature significant differences and are not intended to fully reimburse state DOTs. Nakanishi and Auza (2015) provide a synthesis on FEMA PA and FHWA ER reimbursements to state DOTs. The synthesis presents a valuable resource on relevant current practice and lat- est literature. It includes a description of the programs and interviews with 10 state DOT personnel to identify effective practices based on case examples. The following paragraphs state the aim of each of these programs and highlight the dif- ferences in scope and funding. The FHWA ER program is administered by FHWA and aims to “aid States in repairing road facilities which have suffered widespread serious damage resulting from a natural disaster over a wide area or serious damage from a cata- strophic failure” [Code of Federal Regulations (CFR), Title 23, § 668.105, “Policy”]. The facilities eligible for this pro- gram are federal-aid highways; federal-aid highways are all public roads including bridges that are not classified as local or rural minor collectors (or minor collectors located in rural areas) [U.S.C., Title 23, § 101(a) (5)]. FHWA ER’s goal has been to fix damage resulting from catastrophic events and not to fix “preexisting, non-disaster related deficiencies” (CFR, Title 23, § 668.105, “Policy”). Based on the Emergency Relief Manual (FHA 2013), the purpose of the ER funds is to provide reimbursement for the repair or reconstruction costs of the federal-aid facilities. Title 23 Code of Federal Regulations (23 CFR) Part 668, Subpart A states that an event generally must have caused at least $700,000 (federal share) in eligible damage for the event to be eligible for ER funding. If the disaster damage is less than this value, it is generally considered to be heavy maintenance or routine emergency repair. The Emergency Relief Manual identifies two categories of emergency relief: emergency repairs and perma- nent repairs. Emergency repairs are those undertaken during or immediately after a disaster to restore essential traffic, to mini- mize the extent of damage, or to protect the remaining facilities. Permanent repairs are those undertaken after the occurrence of a disaster to restore the highway to its pre-disaster condition. The ER program allows for betterments in permanent repairs, if justified. Betterments are added protective features, such as the rebuilding of roadways at a higher elevation or the lengthen- ing of bridges, or changes that modify the function or character of a highway facility from what existed before the disaster or catastrophic failure, such as additional lanes or added access control (CFR, Title 23, § 668.103, “Definitions”). Betterments can be justified for ER funding by comparing the projected cost to the ER program from potential recurring damage over the design life for the basic repair to the cost of the betterment (FHWA 2013). TABLE 13 ELEMENTS OF FEMA PA AND FHWA ER PROGRAMS1 Program Elements FEMA Public Assistance FHWA Emergency Relief Facility Non federal-aid facilities, except for debris Roads and bridges on federal-aid highways Cause Major disaster or emergency “Natural disaster, cata- strophic failure due to external cause” Cause-Fire If there is an uncontrolled forest, woodland, or grass- land fire, consider seeking FEMA Fire Management Assistance Grant funding Declaration required Presidential declaration Presidential declaration or governor’s declara- tion/proclamation Declaration impact indica- tors/minimum thresholds Impact indicators: State- wide per capita impact indicator, $1.39; county- wide per capita impact indicator, $3.50 (cf. 44 CFR 206.48; impact indi- cators updated annually in the Federal Register) Minimum thresholds for federal share: $700,000 statewide [23 CFR 668, Subpart A; exceptions are listed in 23 CFR 668.105(j)] Scope N/A Wide area affected (e.g., multiple counties) Project size Differentiates between small and large projects Does not differentiate between small and large projects Applicant Subgrantees: state and local governments, tribes, eligible Provincial Nomi- nee Program State DOT Emergency repair/work (federal share) Minimum of 75% (p. 2, FEMA P-323, 2010) 100% (p. 13, ER Man- ual, 2013) Permanent res- toration (federal share) Minimum of 75% (p. 2, FEMA P-323, 2010) Minimum of 90% for Interstate, 80% for other federal-aid highways (p. 52, ER Manual, 2013) Project form Project worksheet usually prepared by FEMA DDIR/DAF completed by state DOT Documentation retention Minimum of 3 years from the date of the final status report Minimum of 3 years after FHWA’s closeout of final voucher N/A = not applicable Note: Minimum per project for FEMA PA projects has been increased from $1,000 to $3,000. For FEMA PA projects, the president may increase the federal share and occasionally has done so for limited emergency work if severe damage is noted (e.g., Hurricane Sandy in 2012 and the Gulf Coast disasters of 2005). Further, there is a federal cost share increase under standard procedures for alternate projects (FEMA Headquarters Public Assistance Division Staff, April 30, 2014). Note that the state determines how the nonfederal share is assigned to each of its subgrantees. 1 After Nakanishi and Auza (2015).

55 The FEMA PA program has a larger scope than that of the FHWA ER program. The applicant to the FEMA PA program could be a state agency, local government, Indian tribe, authorized tribal organization, Alaska Native village or organization, or one of certain private nonprofit organi- zations that submit a request for disaster assistance under the presidentially declared major disaster or emergency. The program’s mission is “to support our citizens and first responders to ensure that as a nation we work together to build, sustain, and improve our capability to prepare for, protect against, respond to, recover from, and mitigate all hazards” (FEMA 2014). Unlike FHWA ER, which is cost- reimbursable, FEMA PA essentially is grant funding. Based on the Public Assistance Applicant Handbook (FEMA 2010), the federal government shares the cost with the appli- cant (usually 75% federal and 25% nonfederal) according to the FEMA–State Agreement (a formal legal document stat- ing the understandings, commitments, and binding condi- tions) for the major disaster or emergency. When conditions warrant and if authorized by the president, 100% federal funding may even be available for a limited period. Similar to FHWA ER, FEMA PA also differentiated between emer- gency and permanent repair works. Unlike the FHWA ER program, however, FEMA PA doesn’t allow for betterments and requires an “in-kind” replacement. Table 14 presents a comparison between the elements of the two programs (Nakanishi and Auza 2015). It mainly covers the facilities eligible for the aid, the cause of dam- age, the declaration required for eligibility to the funds, the scope covered by the program, the project scale, the eligible applicants, the emergency work, the current resto- ration, the project form, and the documentation retention. As shown through the comparison, the scope of FEMA PA is broader than that of FHWA ER in terms of the range of projects and applicants. PREPAREDNESS An important part of dealing with flooding consequences is preparedness. Based on the synthesis carried out by TABLE 14 ELIGIBILITY CRITERIA FOR FEMA PA AND FHWA ER PROGRAMS1 Measure Needed FEMA PA FHWA ER Emergency work/repair Categories A and B: performed “before, during, and following a disaster to save lives, protect public health and safety, or eliminate immediate threat of signifi- cant damage to improved public and private property through cost effective measures” (FEMA 2010, p. 14) Performed during or immediately after a disaster to • Restore essential traffic, • Minimize the extent of damage, or • Protect the remaining facilities (FHA 2013, p. 3). Debris removal (Category A) Debris removal from non-federal-aid highways. Given a presidential declaration and a FEMA deter- mination, removal of debris from federal-aid high- ways may be eligible under sections 403, 407, or 502 of the Stafford Act. Requirements in 44 CFR 206.224 apply (FHA 2013, p. 10). Debris removal under certain circumstances. Disaster-related debris removal that is eligible for FEMA funding is not eligible for FHWA ER funds (FHA 2013, p. 10). Emergency protective measures (Category B) Examples include: • Emergency evacuations • Protection for an eligible facility • Security in the disaster area • Warning of risks and hazards (FEMA 2010, p. 14) N/A Permanent work/repair • Must repair, restore, or replace disaster-damaged facilities in accordance with regulations • Must restore to predisaster design capacity, and function in accordance with applicable codes and standards (FEMA 2010, p. 15) • Must be required as a result of the disaster (FEMA 2010, p. 6) • May include cost-effective hazard mitigation measures (FEMA 2010, p. 23) • Project improvements or alternative projects may be proposed Undertaken after a disaster to restore the highway to a compa- rable facility. Comparable facility is defined as “a facility that meets the cur- rent geometric and construction standards required for the types and volumes of traffic that the facility will carry over its design life” (FHA 2013, p. 2). Note that “[f]features that will improve the resilience of repaired federal aid highways should be considered and evalu- ated consistent with risk, cost effectiveness and regulatory conditions” (FHA 2013, p. 60). Eligible cause Presidentially declared disaster or emergency (FEMA 2010, p. 1) Natural disaster or catastrophic failure (FHA 2013, p. 1). Eligible elements Non-federal-aid highways (except for debris removal) and other facilities Elements within the cross section of a federal-aid highway (FHA 2013, pp. 1 and 3). N/A= Not applicable 1 After Nakanishi and Auza (2015)

56 Nakanishi and Auza (2015), state DOTs are generally knowledgeable of FHWA and federal aid processes and related procedures. However, they tend to be less familiar with FEMA’s processes and requirements. State DOTs also consider additional training on both funding programs to be desirable for local public agencies. Additionally, to maxi- mize the eligible reimbursement, state DOTs have to meet applicable design and construction deadlines specified by funding agencies. SPECIAL CONSIDERATIONS Based on Nakanishi and Auza (2015), special considerations apply to both programs that could affect eligibility and the scope of work. Such considerations include the following: environmental protection, insurance, hazard mitigation, historic preservation, cultural resources, and floodplain management. Compliance with all environmental protection laws and regulations is required and includes the following: • National Environmental Policy Act (NEPA) • Endangered Species Act • Clean Water Act • Clean Air Act. Although an FHWA ER program project shall comply with the NEPA of 1969, “emergency repairs and in-kind replace- ments usually receive categorical exclusions. However, an envi- ronmental evaluation can be required though for FHWA ER project that includes betterments (Nakanishi and Auza 2015). SUMMARY In addition to hydraulic, hydrological, and geotechnical considerations in roadway embankment design, other con- siderations interfere in the decision-making process. These considerations include right-of-way constraints, stream and wetland impacts that could often occur in floodplains, envi- ronmental considerations, permitting, feasibility and time considerations, prioritization of projects, the purpose of the embankment, the freeboard issue, and the federal funding disaster reimbursement programs. This section elaborated on the purpose of latter three factors based on information gathered through the survey and interviews. The next chap- ter presents concepts in probability and risk that would fur- ther affect the decision-making process.