Proposed Bike Trail Site Restoration
Appeal Brief
Appeal Letter
Citation: FEMA-1155-DR-CA; Tahoe City Public Utility District, DSR 76127, Proposed Bike Trail Site Restoration
Cross Reference: Eligible facility, improved natural feature
Summary: The winter storms of December 1996-January 1997 caused flooding that resulted in erosion and slides on a proposed right-of-way for a bicycle trail. FEMA prepared DSR 76127 to document the hillside slide damage. The FEMA inspector noted that no improvements existed at the site at the time of the disaster. During final review, the site was determined not to be a facility and DSR 76127 was prepared for $0. The applicant submitted a first appeal requesting FEMA fund the repair the site of the proposed bicycle trail. The applicant supported this request by claiming the site was an eligible facility because an unpaved trail existed on the site and project development costs were incurred prior to the disaster; and the site was an inactive facility. The project development costs were for design and permitting fees, not construction. FEMA determined that an improved facility did not exist at the time of the disaster. Accordingly, FEMA stated that the site was not an "inactive facility" because a "facility" did not exist at the time of the disaster. FEMA also determined that the property was owned and maintained by the USFS. Therefore, the site was not the legal responsibility of the applicant. FEMA concluded the repairs were not eligible for funding. The applicant's second appeal restates that a trail was in existence at the site and that project development costs represent improvements to the site completed prior to the disaster. The applicant also claims the legal responsibility for the site per a multi-agency agreement.
Issues: 1) Did a facility in the form of an improved natural feature exist prior to the disaster?
Findings: 1) No. Construction had not begun prior to the disaster, therefore, the development costs do not represent improvements to the site. Further, "social trails," trials created by visitors, may have existed at the site prior to the disaster, however, an improved trail did not exist at the site.
Rationale: To be eligible to receive funding, the site must meet the definition of a facility. 44 CFR 206.201
Appeal Brief
| Disaster | FEMA-1155-DR |
| Applicant | Tahoe City Public Utility District |
| Appeal Type | Second |
| PA ID# | 061-91003 |
| PW ID# | 76127 |
| Date Signed | 1999-03-08T05:00:00 |
Cross Reference: Eligible facility, improved natural feature
Summary: The winter storms of December 1996-January 1997 caused flooding that resulted in erosion and slides on a proposed right-of-way for a bicycle trail. FEMA prepared DSR 76127 to document the hillside slide damage. The FEMA inspector noted that no improvements existed at the site at the time of the disaster. During final review, the site was determined not to be a facility and DSR 76127 was prepared for $0. The applicant submitted a first appeal requesting FEMA fund the repair the site of the proposed bicycle trail. The applicant supported this request by claiming the site was an eligible facility because an unpaved trail existed on the site and project development costs were incurred prior to the disaster; and the site was an inactive facility. The project development costs were for design and permitting fees, not construction. FEMA determined that an improved facility did not exist at the time of the disaster. Accordingly, FEMA stated that the site was not an "inactive facility" because a "facility" did not exist at the time of the disaster. FEMA also determined that the property was owned and maintained by the USFS. Therefore, the site was not the legal responsibility of the applicant. FEMA concluded the repairs were not eligible for funding. The applicant's second appeal restates that a trail was in existence at the site and that project development costs represent improvements to the site completed prior to the disaster. The applicant also claims the legal responsibility for the site per a multi-agency agreement.
Issues: 1) Did a facility in the form of an improved natural feature exist prior to the disaster?
Findings: 1) No. Construction had not begun prior to the disaster, therefore, the development costs do not represent improvements to the site. Further, "social trails," trials created by visitors, may have existed at the site prior to the disaster, however, an improved trail did not exist at the site.
Rationale: To be eligible to receive funding, the site must meet the definition of a facility. 44 CFR 206.201
Appeal Letter
March 8, 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 is in response to your September 9, 1998, submittal of the Tahoe City Public Utility District's (applicant's) second appeal of Damage Survey Report (DSR) 76127 prepared to document hillside slide damage to a proposed bicycle trail site. The applicant is appealing the Federal Emergency Management Agency's (FEMA's) determination that the repair of the hillside and proposed bicycle path site damaged during the FEMA-1155 disaster event is not eligible for funding.
The December 1996-January 1997 winter storms caused flooding that resulted in erosion and slides of the proposed bike trail area along the Trukee River. The site was inspected on April 30, 1997, by a team of representatives from FEMA, the Governor's Office of Emergency Services (OES), and the applicant. The FEMA inspector prepared DSR 76127 in the amount of $585,000 to fund the stabilization of the proposed trail location against further damage by the river and allow for construction of the proposed bicycle trail. The FEMA inspector noted that no improvements existed at the site at the time of the disaster, and did not recommend the approval of this DSR. The OES and applicant representatives submitted a statement of non-concurrence. During final review, DSR 76127 was determined to be ineligible for funding because the site is not an eligible facility.
The applicant submitted a first appeal requesting FEMA reconsider the eligibility of this site. The applicant supported this request by claiming the site was an eligible facility because:
Title 44 of the Code of Federal Regulations (44 CFR), Section 206.201(c) states, "Facility means. an improved and maintained natural feature." The "project development costs" represent only design and permitting costs as construction was not started prior to the disaster. Therefore, the development costs do not represent improvements to the site. Accordingly, FEMA determined that an improved facility did not exist at the time of the disaster. It follows that the site was not an "inactive facility" because a "facility" did not exist at the time of the disaster. FEMA also determined that the property is owned and maintained by the USFS. Therefore, the site is not the legal responsibility of the applicant. As the site is not a facility nor owned by the applicant, FEMA concluded the repairs were not eligible for funding.
As in the first appeal, the applicant's second appeal requests that FEMA reconsider the eligibility of the damaged site. The applicant restates that the site is an eligible facility because a trail was in existence at the site and project development costs represent completed improvements to the site prior to the disaster. The applicant also claims the legal responsibility for the site per a multi-agency agreement, which states that the bicycle trail will be the applicant's responsibility when the project is complete.
All relevant information has been reviewed and analyzed regarding the applicant's second appeal. At the time of the disaster, a construction contract had not been executed and work had not started on the bicycle trail. Therefore, the project development cost of the proposed bicycle trail project does not suggest an actual improvement of this site; rather, it represents the planned improvement of this site. Additionally, the FEMA inspector noted that no facility or improvements existed at the site prior to the disaster and the November 4, 1997, USFS letter states:
.the Western States trail is located immediately adjacent to the area in question. This trail is maintained for recreational use, generally twice a year. We also manage the dispersed recreation on this land. This entails . managing the social (visitor created) trails. In the case of the social trails adjacent to the river, we have been working with your and other agencies for a number of years to provide an effective solution to this problem.. By replacing these trails with a paved bicycle trail, we will avoid this continual, ineffective management of these trails..
Therefore, "social trails" may have existed at the site prior to the disaster, however, there is no evidence that suggests an improved trail existed at the site. In accordance with 44 CFR 206.201(c) this site is not an eligible facility because the site does not represent an improved natural feature.
Based on the above discussion, I have found that the repairs to the hillside and proposed bicycle trail site are not eligible for FEMA funding. Accordingly, the applicant's appeal is denied. 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, which constitutes the final level of appeal in accordance with 44 CFR 206.206(e).
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: Martha Z. Whetstone
Regional Director
FEMA Region IX
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 is in response to your September 9, 1998, submittal of the Tahoe City Public Utility District's (applicant's) second appeal of Damage Survey Report (DSR) 76127 prepared to document hillside slide damage to a proposed bicycle trail site. The applicant is appealing the Federal Emergency Management Agency's (FEMA's) determination that the repair of the hillside and proposed bicycle path site damaged during the FEMA-1155 disaster event is not eligible for funding.
The December 1996-January 1997 winter storms caused flooding that resulted in erosion and slides of the proposed bike trail area along the Trukee River. The site was inspected on April 30, 1997, by a team of representatives from FEMA, the Governor's Office of Emergency Services (OES), and the applicant. The FEMA inspector prepared DSR 76127 in the amount of $585,000 to fund the stabilization of the proposed trail location against further damage by the river and allow for construction of the proposed bicycle trail. The FEMA inspector noted that no improvements existed at the site at the time of the disaster, and did not recommend the approval of this DSR. The OES and applicant representatives submitted a statement of non-concurrence. During final review, DSR 76127 was determined to be ineligible for funding because the site is not an eligible facility.
The applicant submitted a first appeal requesting FEMA reconsider the eligibility of this site. The applicant supported this request by claiming the site was an eligible facility because:
- project development costs for the proposed bike trail were incurred prior to the disaster and district funding data document these costs;
- the site is an inactive facility; and
- an unpaved trail existed on the site and was maintained by the US Forest Service (USFS) prior to the disaster as documented in a letter from the USFS dated November 4, 1997.
Title 44 of the Code of Federal Regulations (44 CFR), Section 206.201(c) states, "Facility means. an improved and maintained natural feature." The "project development costs" represent only design and permitting costs as construction was not started prior to the disaster. Therefore, the development costs do not represent improvements to the site. Accordingly, FEMA determined that an improved facility did not exist at the time of the disaster. It follows that the site was not an "inactive facility" because a "facility" did not exist at the time of the disaster. FEMA also determined that the property is owned and maintained by the USFS. Therefore, the site is not the legal responsibility of the applicant. As the site is not a facility nor owned by the applicant, FEMA concluded the repairs were not eligible for funding.
As in the first appeal, the applicant's second appeal requests that FEMA reconsider the eligibility of the damaged site. The applicant restates that the site is an eligible facility because a trail was in existence at the site and project development costs represent completed improvements to the site prior to the disaster. The applicant also claims the legal responsibility for the site per a multi-agency agreement, which states that the bicycle trail will be the applicant's responsibility when the project is complete.
All relevant information has been reviewed and analyzed regarding the applicant's second appeal. At the time of the disaster, a construction contract had not been executed and work had not started on the bicycle trail. Therefore, the project development cost of the proposed bicycle trail project does not suggest an actual improvement of this site; rather, it represents the planned improvement of this site. Additionally, the FEMA inspector noted that no facility or improvements existed at the site prior to the disaster and the November 4, 1997, USFS letter states:
Therefore, "social trails" may have existed at the site prior to the disaster, however, there is no evidence that suggests an improved trail existed at the site. In accordance with 44 CFR 206.201(c) this site is not an eligible facility because the site does not represent an improved natural feature.
Based on the above discussion, I have found that the repairs to the hillside and proposed bicycle trail site are not eligible for FEMA funding. Accordingly, the applicant's appeal is denied. 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, which constitutes the final level of appeal in accordance with 44 CFR 206.206(e).
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: Martha Z. Whetstone
Regional Director
FEMA Region IX
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