Repair 12-inch Water Line - San Juan Creek

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1044-DR
ApplicantCapistrano Valley Water District
Appeal TypeSecond
PA ID#059-91095
PW ID#31609
Date Signed1999-03-11T05:00:00
Citation: FEMA-1044-DR-CA; PA ID 059-91095; DSR 31609.

Cross Reference: Winter storm and flooding; damage to water pipelines; creek bed water mains; NEPA review; DR-979 disaster; DSR 84122.

Summary: A 12-inch water pipeline belonging to the Capistrano Valley Water District (CVWD), which had been partially exposed but not ruptured in DR-979, suffered rupture damage from the January 1995 DR-1044 storms. In the aftermath of DR-979, FEMA wrote DSR 84122 for $115,087 to replace the pipeline but reduced the cost by 25% because the pipeline suffered from deferred maintenance. The applicant had not started the repairs by the time DR-1044 struck. FEMA wrote DSR 31609 under DR-1044 for $458,950 to repair the new damage using data provided by CVWD. On review, only $23,214 was approved for lost water and an engineering study. The repair portion was suspended pending the completion of the study to determine the repair method. The applicant proceeded to replace the pipeline at a cost of $462,490 in accordance with recommendations in an October 4, 1994, report from its engineering consultant. The report recommended that the pipeline be relocated approximately 100 feet away from the original crossing and that it be buried 17 feet below the streambed. The project that CVWD completed was an improved project that included significant hazard mitigation measures. The GAR was not requested to approve an improved project nor was FEMA requested to approve either hazard mitigation. The applicant did not subject the repair project to a NEPA review as required because of the change of scope.

Issue: Should FEMA fund the work the applicant performed in replacing the pipeline?

Findings: No. Increased funding under DSR 31609 is denied. The DSR authorized an engineering study that was not done. FEMA originally approved DSR 84122 for $86,315 ($115,087 less 25%) in DR-979 to replace the pipeline in a manner that would have restored it to essentially its predisaster design. On its own initiative, the applicant escalated the scope of work and performed an improved project. FEMA will retroactively approve the improved project and will reinstate the DSR 84122 funding of $86,315 towards the project.

Rationale: The DR-1044 DSR 31609 did not authorize repair-only a study. The applicant performed repairs under DR-979 DSR 84122 and FEMA retroactively authorized the improved project and excluded the project from a review under the National Environmental Policy Act.

Appeal Letter

March 11, 1999

Mr. D.A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, Second Floor
Pasadena, California 91103

Dear Mr. Christian:

This is in response to your July 15, 1998, letter forwarding the May 7, 1998, second appeal from the Capistrano Valley Water District (CVWD) and its July 1, 1998, letter with additional information. The District is appealing the Federal Emergency Management Agency's (FEMA's) denial of its request for a supplement to Damage Survey Report (DSR) 31609 for the replacement cost of a damaged 12-inch pipeline crossing San Juan Creek east of the I-5 freeway.

I have reviewed the information submitted with the second appeal, as well as our response to your first appeal. I concluded that the Regional Director's decision on the first appeal regarding the pipeline repair under DSR 31609 (FEMA-1044-DR-CA) is consistent with program statute and regulations. Therefore, I am denying this appeal. I am, however, reinstating DSR 84122 (FEMA-979-DR-CA). The enclosed Appeal Analysis contains the reasons for my denial of the applicant's appeal of DSR 31609 and for the reinstatement of funding of $86,315 under DSR 84122.

By copy of this letter, I am requesting the Regional Director to take appropriate action to reinstate DSR 84122 in the amount of $86,315. Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.

Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

Enclosure

cc: Martha Z. Whetstone
Regional Director
FEMA Region IX

Appeal Analysis

Background
The Capistrano Valley Water District's (CVWD's) 12-inch water pipeline sustained storm damage where it crossed under the San Juan Creek at the intersection with Interstate Highway 5. The pipeline suffered damage from the heavy runoff in the 1993 winter storm disaster (FEMA-979-DR-CA) and again in the January 1995 winter storm disaster (FEMA-1044-DR-CA). The pipeline did not rupture in DR-979; however, because the streambed level changed from the heavy runoff, the gravel cover over the pipeline was partially removed and the pipeline concrete encasement became exposed. The pipeline suffered rupture damage in the DR-1044 disaster.

In the aftermath of the 1993 event, the Federal Emergency Management Agency's (FEMA's) inspectors determined that the exposed pipeline was vulnerable to further damage and on July 14, 1993, wrote Damage Survey Report (DSR) 84122 for $115,087 to remove and replace the pipeline. The intent was to fund the burial of the pipeline to a depth of approximately three feet below the new streambed level. The inspectors also determined that the pipeline had suffered damage from previous non-disaster storms and had not been repaired. Because the pipeline had not been properly maintained and suffered from the effects of deferred maintenance, the DSR was reduced by 25% to account for the predisaster damage.

CVWD had not started the repair project by the time DR-1044 occurred (January 3 to February 10, 1995) and was advised by the State to apply for an extension of time to complete the repairs. The applicant applied for the time extension on February 14, 1995, more than a month after DR-1044 started, explaining that the project was delayed because of the time involved in securing necessary permits and drawing up engineering plans. FEMA took no action on the request for the extension-DR-979 events had been overtaken by DR-1044. On February 10, 1995, FEMA wrote DSR 31609 to repair the DR-1044 damage to the pipeline at an estimated cost of $458,950. The inspectors could not view the damage because of standing water and wrote the DSR using data presented by the applicant from its consultant's October 4, 1994, report. The report indicated that the preferred method of repairing the DR-979 damage was to use micro-tunneling techniques to reinsert the pipeline. DSR 31609 was reviewed on July 12, 1995, and the project cost was reduced to $23,214, $18,214 to reimburse CVWD the cost of the water lost because of the rupture and $5,000 for an Engineering and Design study. The repair project suspended until the engineering report from the study established a cost effective repair plan and for the effort to be coordinated with DSR 84122 from DR-979.

Continuing with the DR-979 repair effort, CVWD filed a Notice of Determination with the Office of Planning and Research on January 18, 1995, indicating that a Negative Declaration was prepared for the project pursuant to the provisions of the California Environmental Quality Act (CEQA). With this notice, the applicant indicated its intent to proceed with the DR-979 DSR 84122 project to replace the pipeline. CVWD requested in a March 15, 1995, letter to OES that the DSR 84122 funding be increased to the bid of $400,669. However, it immediately proceeded with the project without receiving approval of additional funding and filed a Notice of Completion and Acceptance on June 19, 1996. The pipeline had been relocated 100 feet upstream from its original crossing and had been buried at a depth of 17 feet below the streambed. The applicant made these changes without either seeking approval under the National Environmental Policy Act (NEPA) as was required, or applying to the Governor's Authorized Representative (GAR) for an improved project. The notation on DSR 84122 clearly stated that any change to the scope of work would require resubmission to FEMA for re-evaluation for compliance with NEPA. Relocation of the pipeline constituted an improved project for which the applicant required the GAR's approval.

CVWD submitted a June 18, 1997, appeal in which it requested FEMA to supplement DSR 31609 to include funding for the replacement cost of the pipeline. The applicant claimed that it was preparing to bid the replacement of the pipeline under DR-979 before DR-1044 disaster struck and that it was unaware that FEMA had suspended DSR 31609. CVWD, therefore, proceeded with the pipeline replacement awarding the contract on April 18, 1995, to Miramontes Construction Co. The contractor completed the project in June 1996. The GAR forwarded the appeal with its recommendation on July 23, 1997.

In a February 20, 1998, letter to the GAR, the Regional Director denied the applicant's request. The Regional Director pointed out that FEMA awaited the receipt of the engineering report to assess the damage and analyze alternatives for the repair. Because the applicant did not prepare the engineering report but proceeded to relocate the pipeline, FEMA was unable to perform the required NEPA review of the reasonable alternatives. The regulations at 40 CFR 1506.1(a)(2) provide that no action that is federally funded can be taken which would limit the choice of reasonable alternatives before a record of a decision in regard to NEPA is obtained.

The applicant submitted a May 7, 1998, second appeal in which it challenged the finding of the Regional Director that CVWD did not submit an engineering report defining the scope of work for DSR 31609. CVWD had tasked the firm of Robert Bein, William Frost and Associates (RBF), Professional Engineers, Planners and Surveyors with performing a study of the damage and producing a design report identifying the project alternatives, key issues and design parameters for the repair project. RBF wrote a preliminary design report dated October 4, 1994, which was adopted by the applicant. CVWD charged that the FEMA inspectors extracted information from the report to write DSR 31609 and implied that the report had, therefore, been presented to FEMA.

In response to a request from the State, CVWD submitted a July 1, 1998, letter in which it presented additional information regarding the Regional Director's determination that the repair was an improved project. In opposing the Regional Director's finding, the applicant presented ground profiles over the pipeline alignment taken in the years 1969, 1993, and 1998. These profiles showed the 1993 storm as removing cover to within one foot of the 1969 pipeline alignment in places, but showed improved cover of at least five feet after the 1995 storm. In its July 15, 1998, letter, the GAR forwarded the appeal package indicating its support for the applicant's request.

Discussion
At the time that FEMA wrote DSR 84122, the scope of work was categorically excluded from environmental considerations. However, the applicant was advised that any change to the scope of work would require resubmission to FEMA for re-evaluation for compliance with NEPA provisions. The minutes of the April 18, 1995, CVWD Board of Directors meeting showed that CVWD decided to adopt the recommendations of its firm of consulting engineers contained in their October 4, 1994, report. The consultants proposed that the replacement crossing be placed four feet below the 100-year storm streambed elevation resulting in the pipeline eventually being buried 17 feet below the current streambed elevation, 35 feet at the banks. In addition, the crossing was relocated 100 feet. The Board also discussed a request to FEMA for hazard mitigation funding for the pipeline and was aware that FEMA would not consider the request until the site was inspected.

In awarding the replacement contract to its consultants' specifications at a cost of $400,669, the applicant unilaterally changed the DSR 84122 scope of work. CVWD selected a repair pg the plans to a NEPA review. Therefore, FEMA was unable to accept the work. The Notice of Determination filed by the applicant on January 20, 1995, indicated that mitigation measures were also made a condition of the project. The documentation, however, does not show that a hazard mitigation proposal was submitted or that a cost/benefit study was performed. Burying the pipeline 17 feet below the streambed is a mitigation measure that FEMA did not approve and, therefore, will not fund.

The applicant's claim that the repair was authorized by DSR 31609 was not correct. Although a DSR is written for estimated costs, those costs are not approved costs until the DSR is approved and the funds are obligated. The estimated costs for repair in DSR 31609 were suspended and FEMA has still not received an engineering report. The applicant cites the inclusion of information in the DSR as evidence that FEMA received the engineering report. The report to assess the damage and to analyze alternatives for repair of the facility authorized in DSR 31609 was never prepared. The applicant provided the inspectors witha a report that its engineering consultant had generated for the DR-979 repairs indictating its preferred method of repairing the DR-1044 damage.

FEMA's subsequent review of the repairs indicated that the project as implemented may be considered as repairing the pipeline substantially to perform the predisaster function. Consequently, it was excluded from the NEPA review. The applicant undertook an improved project without prior authorization. In view of the fact that such authorization was almost automatic, FEMA will retroactively allow the improved project and will reinstate the funding of $86,315 ($115,087 less 25% for deferred maintenance) under DSR 84122.

Conclusion
The applicant's second appeal for FEMA to supplement funding under DSR 31609 to cover the cost of the pipeline replacement for damages incurred in DR-1044 is denied. FEMA will, however, reinstate the DSR 84122 funding of $86,315 under DR-979 to be applied towards the improved project the applicant undertook in repairing the damages.
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