King Island

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1155-DR
ApplicantReclamation District No. 2044
Appeal TypeSecond
PA ID#000-92114
PW ID#N/A
Date Signed1999-04-28T04:00:00
Citation: FEMA-1155-DR-CA; Reclamation District 2044, King Island

Cross Reference: Hazard Mitigation; Conditions precedent to disaster assistance eligibility

Summary: On April 28, 1987, the FEMA/State Agreement for FEMA-758-DR-CA was modified by Amendment #5. Pursuant to Amendment #5, the subgrantee was required to upgrade levees by September 10, 1991 to meet the criteria of the Flood Hazard Mitigation Plan (HMP), titled the "Short-Term Levee Rehabilitation Plan of September 15, 1983." Further, the amendment stated that failure to meet that deadline, without justification acceptable to FEMA, would result in a determination by FEMA of ineligibility for future disaster assistance. At the September 21, 1991, deadline the subgrantee had 2% of its levee to upgrade in order to comply with the requirements of the HMP and Amendment #5. The subgrantee, therefore, requested a series of time extensions. The last time extension that was granted was to June 30, 1993. By June 30, 1993, the requirements of the HMP and Amendment #5 had still not been met. The subgrantee submitted a letter dated January 9, 1995, stating that all minimum requirements of the HMP had been met. An inspection was conducted in June 1995 which showed that there was 4200 feet of levee that did not meet the requirements of the HMP. Another review conducted in 1997 showed that the subgrantee was still not in compliance. The subgrantee appealed this determination stating that they were in substantial compliance. The first appeal was denied. In the second appeal, the subgrantee states that all but 121 feet of the levee meets the requirements of the HMP.

Issues: Did the subgrantee meet the mitigation requirements of Amendment #5 by the September 10, 1991, deadline or meet the requirements by the date established by approved time extensions?

Findings: No. The last approved time extension was to June 30, 1993. All documentation shows that the subgrantee had not met the short-term mitigation requirements by June 30, 1993. The subgrantee is not, therefore, eligible for disaster assistance.

Rationale: Amendment #5 of the FEMA/State Agreement for FEMA-758-DR-CA

Appeal Letter

April 28, 1999

Ms. Nancy Ward
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 419023
Rancho Cordova, California 95741-9023

Dear Ms Ward:

This letter is in response to your January 8, 1999, submittal of the second appeal by Reclamation District 2044, King Island (subgrantee) of our determination that it is not in compliance with Amendment #5 of the FEMA/State Agreement for FEMA-758-DR-CA and not, therefore, eligible for disaster assistance under FEMA-1155-DR-CA. The amendment establishes requirements to meet the criteria of the Flood Hazard Mitigation Plan, titled Short-Term Levee Rehabilitation Plan of September 15, 1983.

In response to the subgrantee's appeal, all related documentation and correspondence have been reviewed. As explained in the enclosed analysis, the subgrantee has not met the requirements of the amendment. Accordingly, the subgrantee is not in compliance with Amendment #5 and is not eligible for disaster assistance under FEMA-1155-DR-CA. The appeal is, therefore, denied.

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

cc: Martha Whetstone
Regional Director
FEMA Region IX

Appeal Analysis

BACKGROUND

FEMA-758-DR-CA, Severe Storms and Flooding, was declared on February 21, 1986. On April 28, 1987, the FEMA/State Agreement was modified by Amendment #5. Amendment #5 required reclamation districts in the Sacramento/San Joaquin Delta to submit an Implementation Plan, to be approved by FEMA, to upgrade their levees to the standards of the FEMA required Flood Hazard Mitigation Plan (HMP), titled the "Short-Term Levee Rehabilitation Plan of September 15, 1983." Amendment #5 outlined the required contents of the Implementation Plan and established a deadline of November 1, 1987, for the submittal of the Implementation Plans. Reclamation District 2044, King Island (subgrantee) was one of the districts directed to comply with Amendment #5.

Amendment #5 states that the Implementation Plan must include a schedule establishing a five-year time frame to upgrade levees to the HMP, and all required short-term mitigation must be completed by September 10, 1991. Further, it states that failure to comply with the schedule, without justification acceptable to FEMA, will result in a determination by FEMA of ineligibility for future disaster assistance.

At the September 21, 1991, deadline the subgrantee had 2% of its levee to upgrade in order to comply with the amendment; therefore, they requested a series of time extensions. The last time extension that was granted was to June 30, 1993. By June 30, 1993, the requirements of Amendment #5 had still not been met. The subgrantee submitted a letter dated January 9, 1995, stating that all minimum requirements of the HMP had been met. An inspection was conducted in June 1995 which showed that there was 4200 feet of levee that did not meet the requirements of the HMP.

In June 1997, a joint FEMA/OES/Department of Water Resources (DWR) team reviewed the subgrantee for its level of compliance with Amendment #5 and determined that the subgrantee did not meet the requirements of the HMP. On November 24, 1997, we submitted a letter to the State stating that the subgrantee was not in compliance with Amendment #5.

First Appeal
The subgrantee appealed the November 24, 1997, determination that they were not in compliance with the amendment. The appeal states that the subgrantee was in substantial compliance, and that "its rehabilitation [of the levee] was well within, and even exceeded, the spirit of cooperation under the HMP."
It is noted that this appeal was submitted under FEMA-1155-DR-CA; however, it was processed under DR-758 and our first appeal determination mistakenly characterized it as such. Because the determination at issue is that the subgrantee is not eligible for assistance under DR-1155 as a result of its noncompliance, the subgrantee's appeal should have been considered under DR-1155. This error has now been rectified.

FEMA reviewed the arguments presented by the subgrantee and found no reason to overturn its original determination. The Regional Director denied the subgrantee's first appeal by letter dated September 29, 1998.

Second Appeal
The subgrantee submitted a second appeal stating that in 1995-1996, 3,339 feet of the 4,207 feet of deficient levee were raised. Further, they state that an additional 747 feet were raised in 1997-1998 and that the remaining 121 feet (two sites) are located at county roads and work on these sites, therefore, requires coordination with county road maintenance scheduling. The subgrantee intends on raising the levee at the two deficient sites in the spring of 1999.

DISCUSSION

Amendment #5 stated that the subgrantee must meet the levee upgrade requirements of the HMP by September 10, 1991. The subgrantee was granted a time extension to June 30, 1993, at which time the required upgrades had not been completed. The subgrantee states in its letter dated November 6, 1998, that 121 feet of deficient levee remains. The subgrantee did not, therefore, comply with requirements of the HMP in a timely manner and, thus, is not in compliance with Amendment #5 of the FEMA/State Agreement.

CONCLUSION

To date, the subgrantee has not yet fully complied with the HMP and Amendment #5. The subgrantee's appeal, therefore, is denied. Accordingly, the subgrantee is not eligible for disaster assistance under DR-1155.
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