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Second Appeal Letter
PA ID# 077-91062; Reclamation District #544
DSR ID# 79674; Upper Roberts Island (Emergency Pumping)
June 14, 1999
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 419023
Rancho Cordova, California 95741-9023
Re: Second Appeal - Reclamation District 544 (Upper Roberts Island), Upper Roberts Levee 544, FEMA-1155-DR-CA, DSR 79674
Dear Mr. Christian:
This is in response to the referenced second appeal submitted on January 27, 1999. Damage Survey Report (DSR) 79674 was originally prepared for $21,837 to pump water from Reclamation District 544 (Upper Roberts Island). FEMA obligated $0 for the DSR because there was no evidence of a threat to improved property.
The District submitted its first appeal on February 13, 1998. It claimed that FEMA had mistakenly described the project as the dewatering of agricultural land. The District maintained that the work was necessary to protect the stability of a District levee. It stated that if the levee failed, approximately 35,000 acres of property that included a highway, water aqueducts and a wastewater treatment plant would be flooded. FEMA denied the appeal on October 20, 1998, because there was no evidence of an imminent threat to improved property. Maps indicated that the pumps were located next to farmland and not in the vicinity of improved property.
On December 1, 1998, the District submitted its second appeal. The District stated the pumps were located in an area that would most efficiently remove water from the base of the levee. It said that descriptions of the threatened facilities and property were previously submitted. In the DSR attachment, improved property is listed as "homes, businesses, churches, warehouses, domestic well systems and sewer systems." Other facilities were mentioned in the first appeal, as well as "approximately 1,000 permanent residents" that rely on its flood protection.
Assuming that the stability of the levee was threatened, there must be evidence that its failure would cause an immediate risk to lives, public health or safety, or improved property. Levees protecting only agricultural land are not eligible facilities. FEMA's levee policy states that the "dewatering of areas behind levees by breaching the levees or pumping is eligible if there is a threat to health and safety or improved property." This is based on the definition of emergency protective measures. Emergency protective measures to protect improved property must eliminate or lessen immediate threats of significant additional damage through cost-effective measures, according to 44 CFR 206.225(a)(3)(ii).
The District has not demonstrated that this project is eligible emergency work. There are vague references to improved property, but no evidence of an actual threat. No estimates regarding the physical damage floodwater would have caused were provided to support the claim that improved property was at risk. Maps and photographs contained in the District's file do not indicate a threat to improved property. There is no other evidence to indicate that levee failure would cause physical damage to improved property or jeopardize lives, health or safety. Therefore, I am denying the appeal.
Please inform the applicant of my determination. In accordance with the procedure governing appeal decisions made on or after May 8, 1998, my determination 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).
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: Martha Whetstone
FEMA Region IX