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Second Appeal Summary
PA ID# 059-00000; Orange County Emergency Management Agency
DSR ID# 84182,05793; Santa Ana-Delhi Channel
Citation: FEMA-0979-DR-CA; Orange County Emergency Management Agency
Cross Reference: Federal Levee Policy, Improved Project, NEPA
Summary: Flood waters eroded the side slopes of the Santa Ana-Delhi Channel. DSR 84182 was prepared ($11,419,737) in July 1993 to reconstruct the slopes and was subsequently voided. DSR 05793 was prepared ($1,909,888) in March 1994 to restore 6,000 feet of the channel and two hazard mitigation projects. Prior to June 1994, construction of an improved project began. In February 1995, OES sent the subgrantee's December 1994 letter of non-concurrence on DSR 05793 stating that the proposed repair is not constructable and that current standards require a 100-year flow capacity, which requires a vertical channel wall as described in DSR 84182. FEMA sent a September 1996 letter to OES stating that the channel is under USACE authority and FEMA assistance is not available. OES forwarded the subgrantee's first appeal in February 1997, stating that a threat existed to adjacent properties, the actual cost was $9,896,923, FEMA failed to coordinate assistance, a clerical error resulted in DSR 05793 being suspended, and DSR 05793 should be approved; while recognizing that OES approval for an improved project should have been requested. FEMA's September 1997 response refuted that it could provide funding in spite of USACE eligibility and that it failed to coordinate disaster assistance. FEMA stated a request for an improved project and NEPA documentation was never received. A November 1997 second appeal maintains that work should have been categorically excluded, that documentation was provided in 1993, and that no policy was in place that addressed channels at the time of the disaster. The subgrantee believed that the note indicating that DSR 05793 was in suspension for environmental review was an error because the environmental documentation was submitted and a payment was received.
- Is this flood control channel an eligible facility?
- Is funding for the completed scope of work eligible?
- Yes. The FEMA Director has determined that flood control facilities that were found ineligible based on the Federal Levee Policy, and under the circumstances described herein, may be considered eligible facilities under the Public Assistance Program.
- No. The completed work constitutes an improved project for which construction was initiated prior to project approval and NEPA compliance.
Rationale: FEMA Environmental Policy Memo #5 requires that FEMA conclude NEPA review prior to initiation of certain projects [categorical exclusion (xvi)].