Vermont Culvert Rebuilding after Tropical Storm Irene
Vermont experienced significant barriers to using disaster relief funding to install larger culverts after Tropical Storm Irene. The storm caused massive damage to the state’s transportation infrastructure and warranted a presidential disaster declaration. In the aftermath of the event, the Vermont Transportation agency (VTrans) and localities followed state regulations that required the installation of larger culverts to address increased stream flow and to allow for fish passage. Localities, however, were denied reimbursement for these “improvements” by the Federal Emergency Management Agency (FEMA), the agency that administers disaster relief funding for rebuilding local roads and bridges. Vermont’s experience shows one of the challenges of adapting transportation infrastructure during the critical window of opportunity after a disaster.
Tropical Storm Irene hit Vermont in late August of 2011, bringing 40 mile per hour winds and over seven inches of rain to parts of the state over the course of two days. 2260 road segments, 289 bridges, and 963 culverts were damaged, destroyed, or blown-out as a result. The total damage to infrastructure was estimated at between $250 and $300 million dollars, all for a state of just over 600,000 residents. On September 1, 2011, President Obama declared Vermont a major disaster area, setting in motion the full spectrum of federal disaster relief operations.
After assessing the damage and removing structures that posed an immediate danger to public health and safety, municipalities set about restoring or replacing washed out roads and bridges, including hundreds of blown out pipe culverts which had failed on account of the sheer force of the water and debris that was carried downstream by the floodwaters. In replacing the culverts, the towns implemented design standards mandated by Vermont statute, replacing washed out pipe culverts with larger, more advanced open bottom structures which would be able to withstand a future storm of Irene’s proportions and take into account fish and wildlife impacts.
The Vermont statute regulating stream alteration permitting (10 V.S.A. § 1023) provides that permits shall be granted if the change:
(1) will not adversely affect the public safety by increasing flood or fluvial erosion hazards;
(2) will not significantly damage fish life or wildlife;
(3) will not significantly damage the rights of riparian owners; and
(4) in case of any waters designated by the secretary as outstanding resource waters, will not adversely affect the values sought to be protected by designation.
While the statute was implemented in substantial part many years prior to any discussion of climate change, it was intended to be flexible in that it does not contain a mandatory design standard based on water flow alone, but mandates that all these statutory considerations be addressed in the permitting process. For some towns, it cost $100,000 to $500,000 per culvert to comply with these state requirements during the rebuilding process.
A variety of federal programs reimburse states and localities for the costs of rebuilding after major federal disasters. Particularly problematic for Vermont localities was the Public Assistance (PA) program created by the Robert T. Stafford Act (“Stafford Act,” 42 U.S.C. §§ 5121 et seq.). The PA program is the source of funding normally associated with the rebuilding of local roads and bridges. FEMA administers the program and funds the restoration or replacement of damaged public facilities. The PA program allows for reimbursement to rebuild facilities to their pre-existing design or to codes, specifications, and standards applicable at the time of the disaster. The codes and standards, however, have to meet criteria set forth in FEMA’s implementing regulations. Among those criteria is a requirement that the standards “apply uniformly to all similar types of facilities within the jurisdiction of [the] owner of the facility.”
Many Vermont municipalities initially had their claims for full reimbursement of culvert rebuilding costs denied by FEMA. One example was Townshend, VT where a pipe culvert blew out during Irene. The town replaced the culvert with an open-bottom, pre-cast arch culvert to accommodate increased streamflow. However, FEMA denied their request stating that PA funding could only be used to reimburse for the costs of infrastructure upgrades necessary to meet specific requirements of reasonable and currently enforced codes and standards. FEMA deemed Vermont’s stream alteration permitting process to be “discretionary“ and not uniformly applied, and determined that it would only fund the least-cost structure that met specific hydraulic criteria, namely the pre-existing pipe-design. This decision left the town of Townshend with an immediate $100,000 deficit. The statewide culvert deficit estimated at well over $3 million.
Using the culvert in Townshend as their flagship case, Vermont appealed FEMA’s decision to the Region 1 Administrator, and the claim was denied. The State of Vermont then filed a second, final appeal with FEMA Headquarters via the Region 1 Administrator. In a 25-page memorandum, Vermont argued that FEMA’s denial of funding had violated both the letter and spirit of the Stafford Act and its implementing regulations. On March 21, 2013, FEMA Headquarters answered Vermont’s second appeal, standing by the opinion of the Region 1 Administrator in stating that the Vermont permitting process did not establish any specific engineering design standards or measurable performance criteria. Headquarters did ultimately grant Townshend relief, however. By finding that the Townshend culvert could be funded as hazard mitigation permitted under the PA program, even though hazard mitigation requires advance FEMA approval of cost-effectiveness and technical feasibility. FEMA agreed to reimburse Townshend for the additional culvert costs, waiving the pre-approval requirement. As a result of the appeal, Vermont officials are currently in the process of reviewing all culvert projects that may qualify as hazard mitigation under the PA program and intend to appeal other FEMA denials in the state.
This Adaptation Clearinghouse entry was prepared with support from the Federal Highway Administration. This entry was last updated on December 29, 2014.
Publication Date: December 2013
- Vermont Agency of Transportation (VTrans)
- Georgetown Climate Center
- Case study
- Legal Analysis
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