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Second Appeal Analysis
PA ID# 059-00000; Orange County Emergency Management Agency
DSR ID# 84182,05793; Santa Ana-Delhi Channel
Due to the heavy rains of January 1993 flood waters eroded the side slopes of the earthen Santa Ana-Delhi Channel in Orange County. Damage Survey Report (DSR) 84182 was prepared in the amount of $11,419,737 in July 1993 to reconstruct 9,196 feet of the damaged channel as an improved project with a concrete-lined channel with increased capacity. DSR 84182 was never approved and was subsequently voided. DSR 05793 was prepared in the amount of $1,909,888 on March 3, 1994, to restore approximately 6,000 feet of the channel and for two hazard mitigation projects. Hazard mitigation project "A" ($162,914) involved asphalt-concrete paving of the service road and hazard mitigation project "B" ($523,564) involved placement of riprap on the channel. On April 12, 1994, DSR team representatives from FEMA and the California Governor's Office of Emergency Services (OES) delivered DSR 05793 to the subgrantee for review/concurrence. A June 23, 1994, letter from the subgrantee to OES stated that the construction contract for work described in DSR 84182 was awarded. The total estimated costs including construction and engineering was $10,013,417. In July 1994, FEMA suspended DSR 05793 stating "costs will be approved only on the condition that FEMA will be provided with the necessary documentation to enable FEMA to comply with NEPA."
A July 29, 1994, letter from OES to the subgrantee stated that DSR 84182 was voided and replaced with DSR 05793, provided information on the eligibility of standards, and stated that the new DSR was currently suspended pending the submittal of National Environmental Policy Act (NEPA) documentation. OES suggested that a letter of non-concurrence be sent if they disagree with DSR 05793.
On February 6, 1995, OES sent the subgrantee's letter of non-concurrence regarding DSR 05793 stating that the repair proposed is not constructable and that current standards require the channel to convey a 100-year flow, which can only be accomplished with a vertical wall channel as described in DSR 84182.
FEMA sent a September 5, 1996, letter to OES stating that the channel falls under the USACE rehabilitation authority and that assistance from FEMA is generally not available for work that another federal agency has specific authority to fund.
On February 7, 1997, OES transmitted the subgrantee's first appeal of FEMA's decision described in the September 5, 1996 letter. The subgrantee stated that:
- a threat existed to adjacent properties necessitating a rapid repair at a cost of $9,896,923,
- FEMA failed to coordinate disaster assistance,
- environmental documentation was submitted to OES on December 28, 1993,
- DSR 05793 should have been categorically excluded by FEMA,
- a clerical error resulted in DSR 05793 being suspended for environmental issues, and
- DSR 05793 $1,909,888 should be reapproved.
The subgrantee also recognized that it should have requested OES approval for an improved project.
The FEMA Regional Director's September 12, 1997, first appeal response refuted arguments that it could provide funding in spite of USACE eligibility and that had FEMA failed to coordinate disaster assistance. FEMA also stated that it had never received an official request for an improved project, nor was documentation provided to enable a NEPA review for an improved project with potential significant impacts. Further, it was stated that it is the responsibility of the subgrantee and OES to ensure that FEMA is notified of the subgrantee's desire to perform work that is neither statutorily excluded nor has received a prior NEPA clearance. In addition, OES and the subgrantee must ensure that the project is not initiated prior to completion of the NEPA process. Once an improved project, such as a large increase in the channel flow capacity, is initiated prior to completion of the NEPA review, FEMA may not fund the project. Therefore, the Regional Director denied the appeal.
The subgrantee's second appeal was transmitted by OES in a letter dated January 12, 1998. The subgrantee's appeal challenges the Federal Levee Policy, requests reconsideration regarding the NEPA issue, and addresses the issue of not having submitted a request for an Improved Project. The subgrantee is requesting that DSR 05793 be funded as an improved project for $1,909,888.
Consideration for Funding of Flood Control Facilities
The subgrantee expressed its belief that at the time of the disaster no policy was in place that addressed agency responsibility for channels. Further, the subgrantee states that no reference was made to such a policy during the applicant's briefing and DSR preparation. Therefore, the subgrantee maintains that FEMA should not apply a policy retroactively. In the letter transmitting the subgrantee's second appeal, OES states that FEMA failed in its responsibility to coordinate disaster assistance with other agencies, such as the USACE.
The Federal approach to repairing flood control works is articulated in the Federal Levee Policy (Policy). For the subgrantee's reference, a copy of the most recent, 1996 Policy entitled, "Policy for Rehabilitation Assistance for Levees and Other Flood Control Works" is enclosed. This Policy, as well as the earlier versions, states that permanent restoration of facilities that meet the USACE's definition of a "flood control work" (FCW) is work that is considered to be within the specific authority of either the USACE or the Natural Resource Conservation Service (NRCS). Accordingly, the Policy concludes that no FEMA funding is available for permanent restoration of FCWs.
However, during review of the circumstances associated with eligibility determinations regarding flood control facilities, FEMA has concluded that some confusion as to the appropriate funding agency was apparent during various flood disasters. It has been found that some applicants may have relied on previous funding from FEMA to expect disaster related funding in subsequent disasters. Additionally, it was found that some applicants had applied to the USACE before the disaster for enrollment in their PL 84-99 Rehabilitation and Inspection Program, but that inspections of the facilities by the USACE were often not completed prior to the disaster, making them ineligible for the PL 84-99 Program. Additionally, the subgrantee asserts that at the time of the 979 disaster they were unaware of a policy which indicates funding authority for flood control works rests with the USACE or NRCS, nor were they adequately notified by FEMA that such a policy existed. The fact that the FEMA regional office did not notify this subgrantee that this DSR was ineligible for funding until September 1996, approximately 3-1/2 years after the disaster, supports the subgrantee's position that information was not provided in a timely manner. It is recognized that even if the subgrantee was active in the USACE PL 84-99 Inspection and Rehabilitation Program, USACE funding would no longer have been available at the time of that notification.
Based on the above analysis, the FEMA Director has determined that flood control facilities that were found ineligible based on the Federal Levee Policy, and for circumstances as those described above, may be considered eligible facilities under the Public Assistance Program. However, FEMA review of the eligibility of requested repairs of such facilities must be consistent with FEMA regulations and policy for permanent restoration of eligible facilities. Further discussion regarding the eligibility of the specific repair method for this channel is provided in the following section.
Improved Project and NEPA Compliance
Although the above analysis would allow consideration of this channel as an o with the subgrantee's failure to comply with the NEPA regulations. It is noted that the NEPA issue had been identified prior to the region's reference to the Federal Levee Policy. Therefore, the primary issue regarding eligibility of this DSR again focuses on the issue of NEPA compliance.
The subgrantee maintains that DSR 05793 should have been categorically excluded from NEPA review since it called for restoring the facility to its pre-disaster design. Further, the subgrantee maintains that by including mitigation plans in DSR 05793 and requesting NEPA documentation for a project already in progress, FEMA created a situation for which compliance was not possible. The subgrantee also states that all available environmental documentation was provided on December 28, 1993. The subgrantee again recognizes that it may have failed to request approval for funds for an improved project.
Despite the subgrantee's assertion that the channel was repaired to its pre-disaster design, it is noted that the completed work modified the channel walls from earth-lined to concrete-lined, and increased the flow capacity of the channel by 230% (from a flow of 2050 cubic feet per second [cfs] to the 100-year event flow of 6700 cfs). Although the pre-disaster function of the channel may have been restored, such level of change to the design of a facility, not required by an applicable code or standard, is considered an improvement, and thus must meet the criteria set forth in 44 CFR 206.203(d). However, as confirmed by the subgrantee, approval for funding of this improved project was not requested by the subgrantee.
For improved projects such as that completed by the subgrantee, an environmental assessment would typically be required. Despite the subgrantee's assertion that environmental documentation was submitted to FEMA, our review has concluded that documentation was not provided which would enable a NEPA review. The procedural requirements of NEPA preclude actions (e.g., obligation of Federal funds and/or construction) prior to completion of NEPA documentation. Since the subgrantee initiated construction prior to project approval and compliance with NEPA, FEMA is unable to fund the project.
The subgrantee believed that the note indicating that DSR 05793 was in suspension was a clerical error because they believed that the environmental documentation was submitted. In addition, an actual payment from the State of California to the subgrantee was received.
It is found that OES did issue a check to the subgrantee on March 10, 1995, in the amount of $1,909,888 (the estimated cost in DSR 05793). However, FEMA never papped or obligated funds for DSR 05793, and therefore, took no action to cause the disbursement of the check. Therefore, FEMA did not contribute to the misconception that the project was approved. Further, construction began on the improved project in 1994, before the check was received by the subgrantee in 1995.
It is concluded that the flood control facility in this appeal, that was found ineligible based on the Federal Levee Policy and under the circumstances described herein, may be considered an eligible facility under the Public Assistance Program. However, review of eligibility for this facility must be consistent with FEMA regulations and policy. The completed scope of work constitutes an improved project which was completed prior to project approval and NEPA compliance. Accordingly, FEMA is unable to fund the project. The appeal is denied.