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Third Appeal Analysis
PA ID# 087-91007; Santa Cruz Flood Control and Water Conservation District
DSR ID# 15298,75169,75170; Pajaro River
During the winter storms of 1995 (disaster 1046), flooding occurred along a 7.5-mile stretch of the Pajaro River in Santa Cruz County. This stretch of the Pajaro River serves as a geographic boundary between Santa Cruz and Monterey Counties, which share responsibility for its maintenance. In 1948, the U.S. Army Corps of Engineers (USACE) constructed levees along the river as flood control works. The levees were set back from the channel bank creating a "bench" between the top of the bank and the inboard toe of the levee. During the years leading up to the disaster, vegetation grew along the bench and channel, and sediments were deposited along the bottom of the channel. During the disaster, the levees were breached by floodwaters on both sides of the river in part because of restrictions to flow caused by the vegetation and sediments. The breaches in the levees were repaired by USACE. The floodwaters also deposited additional debris and sediments along the bench and in the channel. The Santa Cruz County Flood Control and Water Conservation District (subgrantee) requested public assistance funding for emergency protective measures to remove the vegetation, debris, and sediments from their half of the drainage channel.
An inspection was performed on July 11, 1995, by the Federal Emergency Management Agency (FEMA), the Governor's Office of Emergency Services (OES), and the subgrantee. The inspectors prepared Category A Damage Survey Report (DSR) 15298 for $398,285 to remove vegetation and approximately 2,500 trees from the bench and channel along five miles of the river. The work was about 40 percent complete at the time of the inspection. The heavy equipment used for these activities caused rutting of the bench. The subgrantee requested hazard mitigation funding pursuant to section 406 of the Stafford Act to repair the bench and to remove sediments from the channel bottom. Consequently, the inspectors prepared Category D DSR 75169 for $105,581 on December 8, 1995, to re-grade and hydroseed the bench. Additionally, the inspectors prepared Category A DSR 75170 for $2,143,798 on January 25, 1996, for the removal of 147,950 cubic yards (cy) of sediments from the channel bottom.
Upon review of these DSRs, FEMA determined that the cost of removing vegetation that existed before the disaster was ineligible for disaster assistance funding. Consequently, DSR 15298 was revised to show no eligible costs. Further, DSRs 75169 and 75170 were determined to be ineligible for hazard mitigation funding under section 406 of the Stafford Act because there was no eligible permanent restoration at the site.
On November 15, 1996, OES forwarded the subgrantee's first appeal of all three DSRs to the Regional Director. The subgrantee requested that FEMA reconsider funding for DSRs 15298 and its supplement 75170 as emergency work. OES further requested that DSRs 75169 and 75170 not be considered as Stafford Act section 406 hazard mitigation. They stated that the vegetation, debris, and sediment removal were necessary to alleviate an immediate threat. Bench restoration was necessary as the result of this eligible emergency work, so DSR 75169 should also be eligible.
In response to these appeals, FEMA determined that the vegetation removed under DSR 15298 was ineligible because it pre-dated the disaster. Also, the debris removal under DSRs 15298 and 75170 was ineligible because FEMA could not determine the quantity of debris or sediments attributable to the disaster. Furthermore, the debris accumulated principally because of the pre-disaster vegetation problem. DSR 75169 was ineligible because the damage to the bench was the result of ineligible vegetation and debris removal.
On October 10, 1997, OES forwarded the subgrantee's second appeal of the three DSRs to the Executive Associate Director. With regards to DSR 15298, the subgrantee contended that much of the debris that was removed was deposited by the disaster 1046 floodwaters. They agreed that quantifying the amount of disaster-related debris would be difficult, but they argued that quantification is not necessary for DSR approval. They reasoned that the removal of vegetation and debris was necessary as an emergency protective measure. They asserted that the pre-disaster presence of vegetation and some of the debris is not relevant to the eligibility of emergency removal. Therefore, the claimed amount was the full amount of the DSR, $398,285.
Regarding DSR 75170, the subgrantee responded to the first appeal's denial by attempting to estimate the quantity of sediments deposited by the disaster. The subgrantee hired a hydraulics consultant, Northwest Hydraulics Consultants, whose studies indicated that between 52,600 and 78,900 cy of sediments were deposited in the subject stretch of the river channel by the disaster. The upper limit of this range is approximately two-thirds of the actual amount of sediment removed (120,980 cy). Therefore, the subgrantee reduced their claimed amount to $1,429,199 which is two-thirds of the DSR amount of $2,143,798. No explanation was given as to why the actual amount of removed sediment was less than the 147,950 cy estimated in the DSR. In a subsequent conversation, the subgrantee said that the 147,950 cy estimate was the basis for a contract to remove pre-disaster and disaster sediments. The quantity was apparently calculated from inaccurate field measurements.
The subgrantee claimed that the work performed under DSR 75169 for bench restoration was incidental to the work performed under DSRs 15298 and 75170. They asserted that this latter work was eligible, so the DSR amount for bench restoration, $105,581, should also be eligible.
FEMA responded to the second appeal as follows. For DSRs 15298 and 75170, the subgrantee did not demonstrate that a five-year flood event would threaten persons or property should the vegetation, debris, and sediment not be removed. Further, the property in question is mostly agricultural, and the protection of agricultural property is ineligible. Lacking a demonstration of an immediate threat, removal of debris and sediments was found to be ineligible because the Pajaro River channel is not improved and maintained. Therefore, DSRs 15298 and 75170 were also found to be ineligible. DSR 75169 was found ineligible because the damage to the bench was the result of ineligible vegetation and debris removal. Additionally, the bench is not an improved and maintained natural feature so it is not considered to be a facility.
On October 9, 1998, OES transmitted the subgrantee's third appeal of the three DSRs to the Director of FEMA. Regarding the need for emergency protective measures, the subgrantee argues that there was a risk of further flooding because a levee breach occurred on March 10, 1995, which is well within the normal rainy season. Additional rains after this date would not be uncommon. The severity of the damage and the risks of further flooding prompted the Santa Cruz County board of Supervisors to declare a state of emergency. They claim that the potential damage to homes and other flood-related costs would be well above the DSR amount. They present documentation supporting their claim that the Pajaro River channel is an engineered channel, having been improved and maintained since 1949 when the USACE constructed the levees. No specific dollar amount is claimed in the third appeal, but it is assumed that the claimed costs are $398,285 for DSR 15298, $1,429,199 for DSR 75170, and $105,581 for DSR 75169.
The Subgrantee has provided sufficient documentation to support that the Pajaro River channel and the adjacent benches are part of an engineered structure. Accordingly, i s banks is eligible for disaster assistance as Category D. As such, demonstration of a threat for emergency debris removal eligibility (Category A) is not required. However, only the quantity of debris that can reasonably be attributed to the disaster event is eligible for assistance. Removal of vegetation, debris and sediments that existed prior to the disaster are not eligible for funding. A discussion of the estimated quantities of eligible debris and sediment removal is provided below.
Reasonable Actual Costs
On February 17, 1999, the subgrantee transmitted actual contractor costs for the three DSRs to FEMA by facsimile. In a subsequent telephone conversation, the subgrantee said that they also had force account costs for inspection and management, but that the amounts of these costs had not yet been compiled. It was agreed that this appeal would be based on contractor costs only. The eligibility of force account costs would be determined during project closeout for any work determined to be eligible during third appeal deliberations.
DSR 15298 was prepared for the removal of vegetation and debris from the bench and channel. The bench and channel were heavily overgrown with vegetation prior to the disaster. The disaster's floodwater deposited a considerable amount of organic debris that was removed by the contractor along with the growing vegetation from March through the summer of 1995. As noted above, the removal of the growing vegetation is not eligible. The applicant admits that there is no way to quantify the amount of debris deposited by the disaster. For the purposes of this appeal, it is judged that 25 percent of the costs under this DSR were for the removal of debris deposited by the disaster. This judgement is based on the documents submitted with the third appeal that describe and show in pictures dense vegetation in the channel and on the bench. The amount of documented contractor costs for vegetation and debris removal is $184,656. Twenty five percent of this amount is $46,164.
DSR 75170 was prepared for the removal of 147,950 cy of sediments from the channel. According to the subgrantee's second appeal, the amount of sediment actually removed was 120,980 cy. The amount of sediment that was deposited by the disaster could not be accurately calculated because there was no pre-disaster topographic survey of the channel and bench. The subgrantee's hydraulic consultant estimated that 52,600 cy to 78,900 cy of sediments were deposited by the disaster based on their studies of 55 years of sedimentation on the Pajaro River and the magnitude of the flows during disaster 1046. The subgrantee has not provided justification for choosing a sediment volume greater than the lower end of this range. Therefore, the lower end of this range will be used to determine eligible costs. The ratio of disaster-related sediments to total removed sediments is 52,600/120,980 or 43 percent. The amount of documented contractor costs for sediment removal is $1,849,850. Forty three percent of this amount is $795,436.
DSR 75169 was prepared for the restoration of the bench damaged during removal activities by re-grading and hydroseeding. Part of the bench damage was caused by the ineligible removal of vegetation, debris and sediments, and part of the bench damage was caused by eligible removal activities. For the purposes of this appeal, it is judged that the ratio of eligible to total restoration costs equals the ratio of eligible to total costs for DSRs 15298 and 75170 combined, 41.4 percent. The amount of documented contractor costs for bench restoration is $43,877. This amount times 41.4 percent is $18,150.
It is concluded that the subject 7.5-mile stretch of the Pajaro River channel is an engineered channel such that debris and sediment removal activities to restore the channel and its banks to pre-disaster condition are eligible as Category D. However, removal of vegetation, debris and sediments which were present prior to the disaster are not eligible for assistance. The eligible portions of the claimed costs are $46,164 for DSR 15298, $795,436 for DSR 75170 and $18,150 for DSR 75169. The Regional Director will prepare a Category D DSR for the scope of work described in this analysis. This appeal is partially granted.