Various Flood Control Channels

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1044-DR
ApplicantOrange County Environmental Management Agency
Appeal TypeSecond
PA ID#059-00000
PW ID#24313,94278,94297
Date Signed1999-11-08T05:00:00
Citation: FEMA-1044-DR-CA; Orange County EMA; DSRs 24313, 94278, and 94297

Cross Reference: Federal Levee Policy, Eligible Facility

Summary: The winter storms of 1995 (FEMA-1044-DR-CA) caused extensive damage to flood control facilities throughout Orange County. DSRs 24313, 94278, and 94297 were prepared to fund repair of washed out concrete panels in Rosalia Channel and Fullerton Creek, and to repair erosion of the earth slopes in Rossmoor Storm Channel, respectively. All three DSRs were prepared to restore the facilities to pre-disaster condition, though the subgrantee requested that all repairs be performed according to their channel repair codes and standards. During eligibility review, these DSRs were found ineligible on the basis that the channels meet the United States Army Corps of Engineers' (USACE's) definition of a flood control work (FCW), such that restoration funding for the channels would be under the specific authority of the USACE. The subgrantee's first appeal asserted that completed repairs are not eligible for the USACE PL-84-99 Rehabilitation and Inspection Program funding and that the DSRs did not include codes and standards. The Regional Director upheld the initial determination of ineligibility. The issue of the subgrantee's codes and standards for channel repair was not addressed due to the FCW issue. The second appeals challenge the Policy itself as well as FEMA's coordination of disaster assistance as it relates to FCWs and the Policy. As with the first appeals, the subgrantee did not contest that the channels meet the USACE definition of an FCW and also restated that FEMA failed to approve the subgrantee's codes and standards.

Issues:
  1. Is permanent restoration of these flood control facilities eligible for FEMA Public Assistance funding?
  2. Are the subgrantee's codes and standards eligible for funding?
Findings:
  1. Yes. The FEMA Director has determined that flood control facilities damaged during the FEMA-1044 disaster event may be considered eligible facilities under the Public Assistance Program; the scope of work in those DSRs may also be considered for permanent restoration funding.
  2. No. The Director has previously determined that the subgrantee's codes and standards are not eligible for funding.
Rationale: During the FEMA-1044/1046 disaster events, a determination has been made that flood control facilities damaged during these events, and which were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program for these disasters only. Some subgrantees may have relied on previous funding from FEMA and expected disaster related funding in subsequent disasters. FEMA's delay in notifying subgrantees that their facilities were under the authority of the USACE or NRCS may have contributed to a subgrantee's failure to receive Federal funding for disaster related damages.

Appeal Letter

November 8, 1999

Mr. Gilbert Najera
Governor's Authorized Representative
Disaster Field Office-Public Assistance Section
74 North Pasadena Avenue
West Annex, 2nd Floor
Pasadena, CA 91103-3678

Re: Second Appeal - Orange County EMA - DSRs 24313, 94278, and 94297 (Flood Control Works) - FEMA-1044-DR-CA

Dear Mr. Najera:

This is in response to your December 24, 1996, and May 30, 1997, submittals of the Orange County Environmental Management Agency's second appeals of Damage Survey Reports (DSRs) 24313, 94278, and 94297 for FEMA-1044-DR-CA. These DSRs were prepared for permanent restoration of three flood control channels, Rosalia Channel, Fullerton Creek Channel, and Rossmoor Storm Channel, damaged during the disaster event. Each of the DSRs was found ineligible on the basis that the channels meet the United States Army Corps of Engineers' (USACE's) definition of a Flood Control Work (FCW), such that restoration funding for the channel would be under the specific authority of the USACE. Due to the large number of DSRs for this subgrantee affected by this issue, some facilities were overlooked in earlier appeal decisions. After the initiation of the closeout process, it was discovered that these three facilities had not yet been addressed.

Based on a review of the circumstances regarding the implementation of the Federal Levee Policy during FEMA-1044 and FEMA-1046 disaster events, the FEMA Director has concluded that some flood control facilities damaged during these events, and which were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program. Accordingly, DSRs 24313, 94278, and 94297 have been reviewed for eligibility for permanent restoration funding through the Public Assistance Program. Documentation submitted by the subgrantee as applicable codes and standards was reviewed and determined to not meet the requirements of 44 CFR 206.226(b). The enclosed analysis explains the details of my determinations.

By copy of this letter, I am requesting the Disaster Recovery Manager prepare supplemental DSRs consistent with the scope of work and the estimated costs as described in the enclosed analysis. Accordingly, the subgrantee's appeals are partially granted.

Please inform the subgrantee 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

Enclosures

cc: Richard A. Buck
Disaster Recovery Manager
RIX Disaster Closeout Center

Appeal Analysis

BACKGROUND

Due to the severe winter storms and flooding that occurred during the FEMA-1044 and FEMA-1046 (1044/1046) winter storm events, various flood control channels in Orange County were damaged. The Orange County Environmental Management Agency (subgrantee) requested disaster assistance from the Federal Emergency Management Agency (FEMA) for the repair of these channels. Inspection teams, consisting of representatives of FEMA, the California Governor's Office of Emergency Services (OES), and the subgrantee, visited the individual sites to document damages and prepare Damage Survey Reports (DSRs). DSRs 24313, 94278, and 94297 are addressed in this appeal analysis.

DSRs 24313, 94278, and 94297 proposed funding to repair washed out concrete panels in Rosalia Channel and Fullerton Creek Channel and to repair erosion of the earth slopes in Rossmoor Storm Channel, respectively. The subgrantee requested that all repairs be performed according to its channel repair codes and standards. During review, the FEMA regional staff concluded that the subgrantee's channel repair codes and standards were not eligible for funding. At the time of the inspection, DSR 24313 was 95% complete, DSR 94278 was 99% complete, and DSR 94297 was 0% complete.

During the eligibility review, FEMA concluded that each of these channels meet the United States Army Corps of Engineer's (USACE's) definition of a flood control work (FCW), such that restoration funding for the channels would be under the specific authority of the USACE. Accordingly, FEMA denied funding for each of these DSRs. The subgrantee, however, was not notified of this determination until the DSRs were finalized, several months after the initial site inspections, and after work was completed for DSRs 24313 and 94278.

First Appeal

The subgrantee issued first appeals of FEMA's determination of ineligibility in August 1995 and June 1996. The subgrantee did not contest that the channels meet the definition of an FCW, but rather asserted that completed repairs are not eligible for the USACE PL 84-99 Rehabilitation and Inspection Program funding. The subgrantee contested that the DSRs were prepared based on FEMA's determination that the codes and standards requested did not meet the requirements of 44 CFR, Section 206.226.

The Regional Director responded to these appeals stating that all three channels meet the USACE's definition of an FCW and were therefore not eligible for FEMA funding. The issue of the subgrantee's codes and standards for channel repair was not addressed due to the FCW issue.

Second Appeal

The subgrantee submitted second appeals to FEMA in several letters in March 1996 and March 1997 for these DSRs. The subgrantee's appeals primarily challenge the Federal Levee Policy itself as well as FEMA's coordination of disaster assistance as it relates to FCWs and the Policy. As with the first appeals, the subgrantee did not contest that the channels meet the USACE definition of an FCW and also restated that FEMA failed to accept the subgrantee's codes and standards.

DISCUSSION

Consideration for Funding of Flood Control Facilities

In response to numerous appeals from various subgrantees regarding the implementation of the Federal Levee Policy during the 1044/1046 disaster events, we have conducted an extensive review of the circumstances associated with eligibility determinations regarding flood control facilities prior to and during the response to these disasters. Based on this review, it was apparent that there was some confusion as to the eligibility of flood control facilities. Some subgrantees had received funding for such facilities during previous disasters, particularly the 979 disaster event in 1993, supporting these subgrantees' positions that they relied on funding from previous disasters. For many subgrantees who did apply before the disaster to the USACE for enrollment in their PL 84-99 Rehabilitation and Inspection Program, inspections of the facilities by the USACE were often not completed prior to the disaster, making them ineligible for the PL 84-99 Program. Some inspections were not completed within a year of the request, and then not all the requested facilities were inspected. Finally, a review of the DSRs in this appeal found that FEMA did not notify the subgrantee that the facilities were under the funding authority of another Federal agency until the DSRs were finalized, several months after the initial site inspections, and after work was completed for DSRs 24313 and 94278.

Although the Federal Levee Policy specifically states that permanent restoration of FCWs is not eligible for FEMA funding, some subgrantees may have relied on previous funding from FEMA and expected disaster related funding in subsequent disasters. FEMA's delay in notifying subgrantees that their facilities were under the authority of the USACE or Natural Resources Conservation Service (NRCS) may have contributed to a subgrantee's failure to receive Federal funding for disaster related damages. Accordingly, FEMA has concluded that flood control facilities damaged during the 1044/1046 disaster that were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program for these disasters. Although some of the circumstances described above do not specifically apply to this subgrantee's request for funding, the decision to consider permanent restoration funding of FCWs applies to all FCWs damaged as a result of the 1044/1046 disaster events.

Eligible Work

In accordance with the discussion presented above, DSRs 24313, 94278, and 94297 have been reviewed for eligibility for permanent restoration funding through the Public Assistance Program, consistent with FEMA regulations and policy for restoration of eligible facilities. As these DSRs were found to be ineligible based on the FCW issue, further review of the specific scope of work recommended by the inspector was not performed. Therefore, in response to this second appeal reversal of eligibility, an independent review of each of these DSRs has been performed to determine the eligible scope of work and cost. DSRs 24313, 94278, and 94297 are described with regard to specific conditions and scope items below. A summary of the eligible scope and costs is provided in Enclosure 1.

DSRs 24313 and 94278

DSRs 24313 and 94278 were prepared to fund the repair of damaged sections of concrete-lined channels. The pre-disaster designs for these sections include four-inch (4-in.) reinforced concrete. The subgrantee repaired these channels in accordance with formally adopted codes and standards for concrete-lined channels, which include repairing the sections with eight-inch (8-in.) reinforced concrete.

The subgrantee has requested that its channel repair standards be considered eligible for funding and in support of its position the subgrantee cites the "Design Manual for Channel Hydraulics and Structure" approved by the Chief Engineer of the OCFCD in July 1972 (Design manual). The subgrantee claims that the Design Manual constitutes a "current applicable code and standard." The subgrantee, therefore, claims that costs to repair the channel in compliance with the Design Manual standards are eligible for FEMA funding.

As previously determined in our letter dated November 2, 1998, responding to the subgrantee's third appeal of various DSRs for flood control channels (copy enclosed), the subgrantee's standard for use of 8-in. reinforced concrete does not meet the criteria for an acceptable code or standard. Accordingly, the eligible scope of work for these DSRs is limited to repair to pre-disaster design. Therefore, supplemental DSRs will be prepared bin 206.203(d)(1) of Title 44 of the Code of Federal Regulations (44 CFR), if the subgrantee desires to make improvements beyond the eligible scope of work, the project becomes an "improved project" and Federal funding for the project will be capped at the Federal share of the approved estimate of eligible costs. As the subgrantee has already performed improvements beyond the approved scope of work by installing 8-in. reinforced concrete, these projects are considered improved projects and funding will be capped at the approved estimate.

DSR 94297

For DSR 94297, localized sections of the earthen channel banks were eroded within a given reach of the channel. At the time of the inspection, the subgrantee requested that FEMA provide funding for lining the entire reach with riprap, including the undamaged portions of the channel. However, after the inspection, the subgrantee re-evaluated the flood threat along the reach of Rossmoor Channel addressed by DSR 94297 and determined that installation of a concrete channel lining was necessary. The repairs were completed during the appeal process and the actual costs submitted by the subgrantee.

Based on the review of many other facilities, as well as previous second and third appeal determinations, we consider the eligible scope of work for the restoration of the subgrantee's earthen channel banks to include the use of dumped riprap, for constructibility reasons. As the scope of work presented on DSR 94297 is not consistent with this method of repair, we have reviewed many other DSRs for this subgrantee in which the scope of work was consistent with this method of repair. Based on this review, we have determined that $5 per damaged square foot is a reasonable cost estimate for restoring the subgrantee's earthen channel banks with riprap. A supplemental DSR will be prepared for DSR 94297, providing $92,400 ($5/sf of damaged bank) in funding for dumped riprap on the damaged portions of the channel. As previously determined in our letter dated November 2, 1998, responding to the subgrantee's third appeal of various DSRs for flood control channels (copy enclosed), funding for the undamaged portions of the channel is not eligible.

Pursuant to 44 CFR 206.203(d)(1), if the subgrantee desires to make improvements beyond the eligible scope of work, the project becomes an "improved project" and Federal funding for the project will be capped at the Federal share of the approved estimate of eligible costs. As the subgrantee has already performed improvements beyond the approved scope of work by installing concrete lining, this project is considered an improved project and funding will be capped at the approved estimate.

Future Assistance

Although FEMA is providing this exception for funding of flood control channels for the conditions stated above, it should be understood that the Federal Levee Policy will be strictly adhered to for all disasters occurring after the 1044/1046 events. A copy of the 1996 Policy entitled "Policy for Rehabilitation Assistance for Levees and Other Flood Control Works" is enclosed for reference regarding funding for flood control channels damaged after 1996.

In preparation for future disaster events, it is recommended that the subgrantee take appropriate steps to apply to the USACE PL 84-99 Program or to take steps to meet the criteria of the NRCS Emergency Watershed Protection Program. Facilities that meet the USACE's definition of an FCW will not be eligible for FEMA permanent restoration assistance. As indicated in the attached Policy, the USACE defines a flood control work as a "structure designed and constructed to have appreciable and dependable effects in preventing damage by irregular and unusual rises in water level." To determine if a certain facility meets this definition, the USACE will review the design of that facility and, in most cases, perform a site inspection. Facilities that meet the definition of an FCW but are not "active" in the PL 84-99 Program due to lack of inspection request, failure to meet design or maintenance criteria, or other reasons determined by the USACE, will not be eligible under the Public Assistance Program. As a result, a facility that meets the USACE definition but is not in "active" status in the program may not be eligible for any Federal disaster assistance for permanent restoration.

Other channels that do not meet the USACE's definition of an FCW are eligible for FEMA assistance. To be considered an eligible facility, the subgrantee must provide appropriate documentation to demonstrate that the facility does not meet the USACE's definition of an FCW. To best support their position, it is recommended that the subgrantee provide a letter from the USACE indicating that they do not consider the facility an FCW. The subgrantee should anticipate that it may be necessary for the USACE to perform an inspection of a site to definitively determine that a facility does not meet their definition of an FCW. This documentation would be significantly important to those facilities that were found ineligible in previous disasters.

CONCLUSION

Flood control facilities that were found ineligible based on the Federal Levee Policy during the 1044/1046 disaster response may be considered eligible facilities under the Public Assistance Program. DSRs 24313, 94278, and 94297 have been reviewed for eligibility for permanent restoration funding through the Public Assistance Program, and funding determinations and limits have been addressed. The Regional Director will prepare supplemental DSRs to fund the scopes of work for these DSRs as described above. The subgrantee's appeal is partially granted.

Enclosure 1
Proposed Scope of Work
Orange County EMA
DSRs 24313, 94278, and 94297 for Flood Control Channels


DSR 24313

Damage Description: Heavy rains during the incident period washed out a 20' x 8.5' concrete panel in the drainage channel. The eligible scope of work includes removing and replacing the damaged 20ft long x 8.5ft high x 4" thick panel.

ITEM

CODE

MATERIAL AND/OR DESCRIPTION

UNIT OF MEASURE

QUANTITY

UNIT PRICE

COST

1

3060

GRADING (SUBGRADE SHAPING)

SY

23.0

$1.75

$40.25

2

3151

SAWCUT PAVEMENT

LF

37.0

$1.25

$46.25

3

CY

2.6

$265.00

$689.00

4

4151

CONCRETE (TRAPEZOIDAL CHANNEL)

CY

2.6

$536.00

$1,393.60

TOTAL

$2,169.10

Comments: The original DSR contained the wrong code for grading the slopes. As grading is required to prepare the slopes for concrete, the appropriate code for this work is 3060 (subgrade shaping), as indicated above.

DSR 94278

Damage Description: During the winter storms, Fullerton Creek Channel was inundated by a high volume of floodwaters which overtopped the channel, damaging a 60ft long x 21ft high concrete panel. Remove and replace the damaged 60ft long x 21ft high x 4" thick concrete panel.

ITEM

CODE

MATERIAL AND/OR DESCRIPTION

UNIT OF MEASURE

QUANTITY

UNIT PRICE

COST

1

3060

GRADING (SUBGRADE SHAPING)

SY

153.3

$1.75

$268.33

2

3151

SAWCUT PAVEMENT

LF

106.0

$1.25

$132.50

3

4050

CONCRETE REMOVAL, REINFORCED

CY

17.0

$265.00

$4,505.00

4

4151

CONCRETE (TRAPEZOIDAL CHANNEL)

CY

17.0

$536.00

$9,112.00

TOTAL

$14,017.83

Comments: In reviewing this DSR, a mathematical error was discovered. The correct length of pavement for sawcutting is (21+2)*2+60=106LF.

DSR 94297

Damage Description: Excessive runoff during the 1044 incident caused erosion of 1680 feet of 11 foot high earthen channel banks. Restore the banks with a 2-foot thickness of riprap along the damaged sections only.

ITEM

CODE

MATERIAL AND/OR DESCRIPTION

UNIT OF MEASURE

QUANTITY

UNIT PRICE

COST

1

9999

RIPRAP BANK REPAIR

SF

18,480

$5.00

$92,400.00

TOTAL

$92,400.00

Comments: As the subgrantee has completed the repairs to this channel by installing concrete lining, funding will be based on the estimate for riprap bank repair for the damaged portion of the banks only.

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