Clear Lake Hydroelectric Power Plant

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1046-DR
ApplicantYolo County Flood Control & Water Conservation Dist.
Appeal TypeSecond
PA ID#113-91001
PW ID#05422
Date Signed1999-03-05T05:00:00
Citation: FEMA-DR-1046-CA, Yolo County Flood Control and Water Conservation District, DSR 05422

Cross Reference: Alternate Design, Improved Project, Unexpected Site Conditions, Cost Overrun

Summary: The Clear Lake hydroelectric power plant has a tailrace that was protected from debris deposition by a concrete wall. Runoff from disasters 1044 and 1046 dislodged boulders that broke the wall into pieces, and washed the pieces into the tailrace. DSR 75310 was written under disaster 1044 for $18,835 to replace the function of the concrete wall by extending the tailrace to make it self-cleaning. The Department of Fish and Game stipulated that the construction be completed on an emergency basis before the next high winter flows. For this reason, the subgrantee constructed the tailrace extension in November 1995 without an approved DSR. Although DSR 75310 was written in April 1995, it was not approved until October 1996 because of environmental concerns. The scope of work was changed from extending the tailrace to replacing the damaged wall. In its response to a net small project overrun request, FEMA de-obligated DSR 75310, re-obligated it as disaster 1046 DSR 05422, determined that the work was an improved project, and funded $64,631 as an eligible overrun. This request and response were considered as a first appeal so the subgrantee's "first appeal" is being treated as a second appeal. The subgrantee contends that changing the scope of work more than one year after the project was completed is inappropriate, that the tailrace extension was not an improved project, and that the work was done in an emergency situation as defined by the California Department of Fish and Game so the work was exempt from environmental review. The costs for constructing the tailrace extension were higher than those in the DSR because the irregular shape of the streambed precluded the use of large equipment and because of additional de-watering costs. The subgrantee is requesting an additional $64,461, and that the scope of work be changed to the constructed tailrace extension.

Issues:
  1. Is the tailrace extension an improved project?
  2. Are the actual costs reasonable for the work performed?
Findings:
  1. No. It is a cost-effective alternate design to replace the function of the damaged wall.
  2. Yes. Excavating the hard fractured rock required extensive drilling with hand-operated equipment and more de-watering pump capacity than anticipated.

Rationale: An alternate method of repair may be eligible if it is reasonable and cost-effective.

Appeal Letter

March 5, 1999

Mr. D.A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 419023
Rancho Cordova, California 95741-9023

Dear Mr. Christian:

This letter is in response to your August 27, 1998, submittal of the Yolo County Flood Control and Water Conservation District's second appeal of Damage Survey Report (DSR) 05422 under FEMA-1046-DR-CA. In their appeal, the subgrantee is claiming an additional $64,461 in funding for the completed scope of work, and is requesting that the eligible scope of work be changed to the constructed tailrace extension.

As discussed in the enclosed analysis, I have determined that the tailrace extension is not an improved project. It is a cost-effective alternate design to replace the function of the damaged wall. I have also determined that the actual costs are reasonable for the work performed. By copy of this letter, I am requesting the Regional Director to prepare a supplemental DSR that changes the scope of work to the constructed tailrace extension, and that adds $64,461 to the current project funding.
Sincerely,

/S/

Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure

cc: Richard A. Buck
Disaster Recovery Manager
Building 103, Presidio of San Francisco

Appeal Analysis

BACKGROUND

Cache Creek dam impounds Clear Lake, and is owned and operated by the Yolo County Flood Control and Water Conservation District. The dam facility includes a hydroelectric power plant that has a tailrace. Prior to the winter storms of 1995 (disasters 1044 and 1046), a concrete wall protected the tailrace from debris deposition during heavy rains. However, the runoff from these disasters dislodged boulders that broke the wall into pieces, and washed the pieces into the tailrace.

Category B Damage Survey Report (DSR) 18998 was written on April 19, 1995, under disaster 1046 for $39,100 to repair access roads and to clear debris out of the tailrace. Category F DSR 75310 was also written on April 19, 1995, but it was written under disaster 1044 for $18,835. The scope of work was to replace the function of the concrete wall by extending the tailrace by 120 feet to make it self-cleaning. The analyses prepared by the Federal Emergency Management Agency (FEMA) inspector indicated that this was a cost-effective method of repairing the damage. The FEMA, State and subgrantee inspectors agreed to the scope of work.

FEMA wrote a letter to the Governor's Office of Emergency Services (OES) on October 16, 1995, stating that the National Environmental Protection Act (NEPA) process had been initiated. However, the subgrantee was responsible for contacting the U.S. Army Corps of Engineers (USACE) regarding a possible permit pursuant to section 404 of the Clean Water Act. A determination by the USACE was necessary before the NEPA review could be completed.

On October 19, 1995, the subgrantee signed a permit from the California Department of Fish and Game that stipulated a number of conditions relating to the construction of the tailrace extension. One of the conditions was that the construction be completed on an emergency basis before the next high winter flows. For this reason, the subgrantee constructed the tailrace extension in October and November of 1995 despite not having a determination from the USACE regarding the section 404 permit nor an approved DSR.

The USACE wrote a letter to the subgrantee on May 23, 1996, stating that the work qualified under the exemption for emergency reconstruction of recently damaged structures. Therefore, a permit was not required. On September 10, 1996, FEMA determined that the tailrace extension qualified for a categorical exclusion under NEPA. FEMA approved DSR 75310 on
October 12, 1996, for $18,804. The scope of work was changed "to reflect repair of the facility to its pre-disaster design and function." That is, the scope of work now stated that the damaged wall should be replaced in-kind.

First Appeal

The subgrantee issued a letter on June 27, 1997 requesting additional funding for a net small project overrun (NSPO) under disaster 1046. The NSPO combined the actual costs for seven small projects including the tailrace repair. It was also requested that DSR 75310 be moved from disaster 1044 to disaster 1046 and combined with disaster 1046 DSR 18998 because both of these DSRs were for the tailrace repair. In a letter dated May 1, 1998, FEMA responded as follows:
  • DSR 75310 was de-obligated ($18,804).
  • DSR 05421 was written as a supplement to DSR 18998 for $289 of debris removal previously included in DSR 75310.
  • The remainder of DSR 75310 was re-obligated as disaster 1046 DSR 05422 for $18,515.
  • The tailrace extension was determined to be an improved project because the subgrantee did not perform the scope of work approved in DSR 75310.
  • FEMA added $64,631 as an eligible overrun to DSR 05422 for de-watering costs. However, $64,461 of additional claimed costs for DSR 05422 were determined to be ineligible. These costs were for the tailrace extension project, and were not related to the approved scope of work for wall reconstruction.

Second Appeal

The subgrantee submitted a first appeal of these determinations on July 1, 1998. This appeal is being treated as if it were a second appeal because the subgrantee's request for additional funding for a NSPO is considered to constitute the subgrantee's first appeal. The subgrantee's appeal asserts that the tailrace extension was not an improved project but a cost-effective design alternative that replaced the function of the original concrete wall. The subgrantee requests an additional $64,461 for the actual tailrace extension project above the amount granted in the NSPO determination. If approved, the total grant would then be $147,607. The subgrantee notes that the estimate for the approved, but not constructed, wall replacement project was $185,618, demonstrating that the tailrace extension alternative was more cost-effective.

DISCUSSION

The major issues being contested in the second appeal are the designation of the work as an improved project, the change in the scope of work after construction was completed, and the eligibility of the actual construction costs.

A videotape submitted with the appeal shows the operations conducted in June 1995 to remove debris from the tailrace. This work was covered under DSR 18998. The videotape showed the nature of the site where the concrete wall had been. The rock slope that had supported the wall had failed during the disaster. The resulting rock slope was very irregular. The concrete wall could not have been rebuilt without completing a significant reconstruction of the foundation for the wall. The videotape also showed the irregular nature of the bedrock in the streambed, the stream bypass and de-watering systems, and the large quantity of fish killed by the de-watering.

Improved Project
In the NSPO determination, FEMA stated that the tailrace extension was an improved project because the approved scope of work was not performed. The subgrantee claims that the constructed tailrace extension was a cost-effective alternate design, and that it was inappropriate for FEMA to change the scope of work after construction was completed.

The narrative attached to DSR 75310 indicated that the tailrace extension was a cost-effective alternate design to replace the function of the concrete wall. The narrative was written in July 1995 after a site visit in June 1995, a few days after the end of the tailrace debris removal project. At that time, the site was no longer de-watered so the FEMA inspectors could not see the streambed, the stream bypass system, or the de-watering system. Therefore, the comparative analysis did not account for several significant site conditions identified on the videotape. These conditions caused a large increase in the actual cost of the tailrace extension and an even larger increase in the estimated cost of the wall reconstruction. A consultant to the subgrantee estimated the cost of the wall and its foundation to be $185,618. The consultant's analysis appears to be reasonable. Based on this estimate, the constructed alternate-design project was less expensive at $147,607 than the re-construction of the pre-disaster concrete wall would have been. Even though the DSR's comparative analysis was not correct in an absolute sense, it was correct in a relative sense.

Scope of Work Change
The subgrantee felt compelled to do the repair work in the fall of 1995 because of the conditions contained in the permit from the California Department of Fish and Game dated
October 19, 1995. In addition, this may have been a reasonable and prudent action because without the concrete training wall even a normal rainy season could have resulted, once again, in the deposition of sediments and debris in the tailrace. The backpressure caused by the debris would have had a negative impact on the performance of the hydroelectric power plprause of environmental concerns. In their letter of October 16, 1995, FEMA stated that the NEPA process could not be completed until the subgrantee had a Clean Water Act determination from the USACE. The USACE determination did not come until May 23, 1996. NEPA review for the tailrace extension was completed by FEMA on September 10, 1996. DSR 75310 was approved on October 12, 1996 approximately one year after the tailrace extension was completed. The scope of work in the draft DSR had been changed from the extension of the tailrace to the reconstruction of the concrete training wall. This determination was made without knowledge of the actual site conditions for the reasons described above.

Eligibility of Actual Construction Costs
The severe irregularities of the streambed did not allow the use of large equipment to drill the blast holes in the streambed for the tailrace extension. The holes had to be drilled with hand-held air-rotary jackhammers which took much longer and was much more expensive. The videotape showed a man using a jackhammer on a boulder in the tailrace. The rock was obviously very hard. All of this work had to be done in the dry. The videotape showed the stream bypass and de-watering systems needed for the removal of debris from the tailrace. The bypass pipe was 10 inches in diameter and 300 feet long. A similar bypass system was constructed for the tailrace extension. The costs for the crane, pipe, pumps, generators, and related items were not included in DSR 05422. Furthermore, the de-watering system was much more extensive than the one included in DSR 05422. Thus it appears that the large increase in actual costs over the DSR cost estimate is justified. The specific cost items being appealed are $59,648 for the company that drilled, shot, and excavated the rock for the tailrace extension, and $4,813 for miscellaneous de-watering costs.

Comment
The subgrantee did not completely follow the processes intended by the Stafford Act, 44 CFR 206, and NEPA during the course of this project. The subgrantee should have informed FEMA of the need to construct the tailrace extension in the fall of 1995, and the likelihood of large cost increases before they occurred. Given the opportunity, FEMA might have been able to respond with an approved DSR, including a NEPA review, in a timely manner. As it was, government approvals came after the end of construction. In retrospect, however, the subgrantee responded to the environmental concerns expressed by the California Department of Fish and Game. Siltation controls and a 10 cfs stream bypass were constructed. Eventually both FEMA and the USACE granted categorical exclusions regarding environmental matters. Also, the tailrace extension appears to be the less expensive of the considered design alternatives. In this case, it appears that the intent of the processes was achieved even though the processes were not completely followed.

CONCLUSION

The tailrace extension is not an improved project. It is a cost-effective alternate design to replace the function of the damaged wall. The actual costs are reasonable for the work performed. The Regional Director will prepare a DSR that changes the scope of work to the constructed tailrace extension, and that adds the requested amount, $64,461, to the current project funding.
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