Appeal Summary | Appeal Letter | Appeal Analysis | Back
Second Appeal Analysis
PA ID# 095-91045; Reclamation District #1607
DSR ID# 96640,96641,96642; VAN SICKLE ISLAND - Hazard Mitigation Plan Compliance
Flooding in California resulted in a major disaster declaration on February 25, 1986 (FEMA-758-DR-CA). Amendment #5 was added to the FEMA/State Agreement on April 28, 1987. Amendment #5 outlined requirements that must be fulfilled by reclamation districts located within the Sacramento/San Joaquin Delta and Reclamation District 1607, Van Sickles Island, in order to receive funding for the 1986 disaster and future disasters.
Amendment #5 (A)(1)(a) required districts to establish a five-year schedule to comply with the standards of the Short-term Levee Rehabilitation Plan of September 15, 1983. This was the FEMA-required Hazard Mitigation Plan (HMP) for the Sacramento/San Joaquin Delta. In accordance with Amendment #5, HMP compliance programs were to begin September 10, 1986, and be complete by September 10, 1991.
On January 4, 1997, a major disaster was declared in California as a result of severe storms and flooding. Damage Survey Reports (DSRs) 96640, 96641, 96642 totaled $46,788 and were prepared to fund the flood-fighting and levee repair efforts of the District. FEMA obligated each for $0 on November 14, 1997, because the District had not complied with the HMP in accordance with Amendment #5. DSR 96702 was prepared for debris removal and obligated for $0 on November 14, 1997, because there was no eligible damage.
FEMA informed the Governor's Office of Emergency Services (OES) on November 18, 1997, that the District was not eligible for assistance under FEMA-1155-DR-CA. FEMA stated that the District had not complied with the HMP, according to Amendment #5. Specifically:"The District did not meet the compliance deadline of September 10, 1991, had no approved time extension that provided documentation of soil or geological conditions beyond their control and there is no evidence of compliance efforts since the last inspection report of 1991."The District submitted its first appeal on February 6, 1998. It claimed that deep peat-soil foundation conditions beyond its control prevented it from meeting the September 10, 1991, compliance deadline. In its April 22, 1998, transmittal letter, OES cited the District's compliance efforts from 1991 to 1997 and referenced the amount spent on levee improvements and maintenance during this time. Based on these efforts and its attention to environmental concerns, OES stated that the District "has demonstrated substantial compliance efforts in accordance with HMP requirements."
On October 20, 1998, FEMA denied the appeal because the District did not meet the compliance deadline of September 10, 1991. The District did not have an approved time extension and FEMA found no reason to make an exception to the implementation schedule. The District submitted its second appeal on December 18, 1998.
The District's second appeal stated that the area was prone to subsoil instability, which created a special condition preventing the District from meeting the September 10, 1991, compliance deadline. It referred to three areas that did not meet HMP requirements as of August 22, 1997. The District described levee repair and maintenance, primarily in the three identified areas, that cost more than $650,000 between 1997 and 1998. It also referred to $690,000 spent between 1991 and 1997. The District stated that compliance with HMP requirements "will continue to vary with time" and asked for an exception to the implementation schedule.
OES transmitted the District's second appeal on February 12, 1999. It stated that $606,805 was in contention, but did not explain how it calculated this figure. The DSRs submitted with the appeal total just $46,788. OES claimed that the District has made substantial upgrades since it submitted its first appeal and that two sections now in "substantial compliance" will meet full compliance standards by the summer of 1999. OES concluded, "the District has demonstrated substantial compliance with the HMP requirements of Amendment #5 through additional repairs and upgrades since the first appeal."
The District did not meet the HMP compliance deadline of September 10, 1991, and this point has not been disputed. Amendment #5 (A)(1)(e) states that a district must immediately notify FEMA, through OES, if the aforementioned deadline cannot be met. Amendment #5 (A)(1)(b) says that FEMA may grant exceptions to the implementation schedule "if a district is restricted in the placement of material because of sub-soil instability or other geological conditions affecting stability."
There is no evidence to indicate that the District met the requirements of this provision. In its appeals, the District states that subsoil instability has affected its implementation of the HMP. However, it did not notify FEMA of these restrictions prior to the September 10, 1991, compliance deadline. The District and OES repeatedly refer to levee repairs and maintenance between 1991 and 1998 and state that the District has demonstrated "substantial" compliance with HMP requirements.
Amendment #5 categorically denies any future funding to districts that did not meet the September 10, 1991 compliance deadline. Amendment #5 (A)(1)(e) states:Failure to comply with the approved schedule, without ustification acceptable to FEMA (see b. above) will result in the withdrawal of eligible disaster assistance funding, the issuance of a Bill for Collection for advanced or reimbursed funding provided under major disaster declaration FEMA-758-DR, and a determination by FEMA of ineligibility for future disaster assistance.The purpose of this amendment and the HMP was to establish DSR approval requirements for FEMA-758-DR-CA and "define eligibility criteria for reclamation districts requesting Federal disaster assistance in the event of future declarations under Public Law 93-288 (PL 93-288) or subsequent applicable Federal law." These criteria included meeting the September 10, 1991, compliance deadline. There is nothing in Amendment #5 to indicate that once a district "substantially" complied with the HMP that it could receive funds for future disasters.
The District is not eligible for disaster assistance under FEMA-1155-DR-CA. Amendment #5 issued a September 10, 1991 deadline for compliance with the HMP of 1983. The District did not comply with the HMP, in accordance with Amendment #5, and had no approved exception to the implementation schedule. Therefore, the appeal is denied.