San Ramon Creek

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1044-DR
ApplicantContra Costa County Public Works Department
Appeal TypeSecond
PA ID#013-92100
PW ID#28395,11054,28398,11007
Date Signed1998-12-09T05:00:00
Citation: FEMA-1044-DR-CA; Contra Costa county Public works Department, San Ramon Creek, DSRs 28395/11054 and 28398/11007

Cross Reference: Eligible Codes and Standards

Summary: The winter storms of 1995 (FEMA-1044-DR-CA) eroded portions of the earth banks of San Ramon Creek. The FEMA inspector prepared DSRs 28395 and 28398 to repair the slopes in accordance with the subgrantee's earth slope repair policy (Policy), which requires repair with riprap slope protection. The FEMA reviewer concluded that the Policy was not an eligible code or standard, and limited the scope of work to restoring the slope to its predisaster condition with soil fill. However, during eligibility review, it was concluded that San Ramon Creek meets the USACE's definition of a flood control work (FCW), and the DSRs were found ineligible. The subgrantee submitted a first appeal, asserting that the creek was not an FCW, and requesting the repair method per their Policy be found eligible. The Regional Director found that Pine Creek was not an FCW, and prepared supplemental DSRs 11054 and 11007 to fund repair of the slopes, limiting the scope of work to repair with soil fill (pre-disaster condition). The second appeal requested that the eligible scope of work include repair with riprap per their Policy, plus associated dewatering and engineering costs.

Issues:
  1. Is the subgrantee's repair policy an eligible code?
  2. Is repair with riprap an eligible method of repair?
Findings:
  1. No. The Policy is found to be ineligible primarily because it does not provide objective criteria for when and how the subgrantee's official determines when a particular construction method must be used.
  2. Yes. The general method of repair utilizing riprap is found to be a reasonable scope for repair, and dewatering is considered necessary to facilitate the construction. Additionally, engineering efforts are also considered eligible for this scope of work.
Rationale: 44 CFR 206.226(b) Standards

Appeal Letter

December 9, 1998

Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 419023
Rancho Cordova, California 95741-9023

Dear Mr. Christian:

This in response to your May 4, 1998, submittal of the Contra Costa County Public Works Department's (subgrantee) second appeal of Damage Survey Reports (DSRs) 28395/11054 and 28398/11007 prepared for permanent restoration of San Ramon Creek damaged during the FEMA-1044 disaster event. The subgrantee is appealing the determination that their earth channel repair policy (Policy) is not an eligible code, and is requesting that associated dewatering and engineering efforts be included in the eligible scope of work.

Based on a review of the available documentation, it is concluded that the subgrantee's repair Policy is not an eligible standard. However, as described in the enclosed analysis, the general method of repair utilizing riprap is found to be a reasonable scope for repair, and dewatering is considered necessary to facilitate the construction. Additionally, engineering efforts are also considered eligible, estimated at 9 to 11% of the total eligible project cost. Accordingly, by copy of this letter, I am requesting the Regional Director to prepare supplemental DSRs to fund the eligible scope of work as described herein.

The deadline for completing permanent work for the FEMA-1044 disaster is January 10, 1999, assuming OES has granted a time extension to their maximum authority. If there are justifiable extenuating circumstances for the delay that are beyond the subgrantee's control, a request for a further time extension can be submitted through OES for consideration by FEMA. Failure to obtain the time extension may limit eligible funding to the actual costs for work completed prior to the January 10, 1999 deadline.

The subgrantee's appeal is partially granted. Please inform the applicant 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

Enclosure

cc: Richard A. Buck
Disaster Recovery Manager
FEMA Region IX

Appeal Analysis

BACKGROUND
Severe winter storms and flooding that occurred during the FEMA-1044 winter storm event damaged portions of San Ramon Creek (Creek), an earth-lined channel in Contra Costa County. The Contra Costa County Public Works Department (subgrantee) requested disaster assistance from the Federal Emergency Management Agency (FEMA) for permanent restoration of this Creek. FEMA inspection teams, consisting of representatives of FEMA, the California Governor's Office of Emergency Services (OES), and the subgrantee, visited the site on April 4 and 5, 1995, to document damages and prepare Category D Damage Survey Reports (DSRs).

The FEMA inspector prepared DSRs 28395 and 28398, in the amounts of $171,166 and $102,761, respectively, to remove sloughed material from within the channel and to repair the earth banks with riprap slope protection in accordance with the subgrantee's earth channel repair policy (Policy). Additionally, at the request of the subgrantee, the DSRs included an allowance for the following engineering related efforts based on a percentage of the total project cost; engineering design at 14%, environmental processing at 4%, and construction inspection at 13%. However, during eligibility review by FEMA, the Levee Task Force concluded that San Ramon Creek meets the USACE's definition of a flood control work (FCW), such that in accordance with the Federal Levee Policy, restoration funding for the Creek would be under the specific authority of the USACE and, therefore, not eligible for FEMA assistance.

Although the facilities were found to be ineligible based on the FCW determination, the FEMA reviewer did review the inspector's recommended scope of work. This review concluded that the subgrantee's Policy did not satisfy the criteria for an acceptable code as defined in 44 CFR 206.226(b), such that the eligible scope of work would otherwise be limited to repair of the channel to pre-disaster design, that being earth-lined banks.

First Appeal
The subgrantee submitted first appeals of the determination of ineligibility for these DSRs in letters dated November 14, 1996 (DSR 28395), and February 27, 1997 (DSR 28398). The subgrantee provided documentation from the USACE plus channel design information to support their position that San Ramon Creek does not meet the USACE's definition of an FCW, and is, therefore, not under the funding authority of the USACE. The subgrantee requested repairs be performed in accordance with their repair Policy.

The Regional Director concluded that, based on the documentation provided with the first appeal, that the damaged portions of the Creek do not meet the definition of an FCW, such that the channel is eligible for FEMA assistance. Regarding the subgrantee's Policy, the Regional Director again found that the Policy did not meet the criteria for an acceptable code, primarily because it does not provide objective criteria for when and how the subgrantee's official determines when a particular construction method must be used. Therefore, the Regional Director determined that the eligible scope of work is limited to that necessary to restore the creek bank to its predisaster condition, including only repair with compacted clay fill and hydroseeding, with an allowance for dewatering. Engineering was determined not to be necessary for this limited effort. Accordingly, supplemental DSRs 11054 and 11007 were prepared to repair the channel sections in DSRs 28395 and 28398, respectively, to their pre-disaster design. The revised scope was estimated at a cost of $47,111 (DSR 11054) and $15,096 (DSR 11007).

Second Appeal
The subgrantee submitted a second appeal of these determinations in a letter dated February 12, 1998, again requesting that the repair Policy be used in determining the eligible scope of work for the damages to San Ramon Creek, and that the associated dewatering and engineering efforts be included in the eligible scope of work.

DISCUSSION
The primary issue of this appeal is regarding the eligibility of the subgrantee's earth channel repair policy (Policy) for use in determining the eligible scope of repair. The subgrantee argues that the Policy had been determined to be acceptable at a meeting with Mr. Daryl Wait of FEMA on September 12, 1995. While we do not disagree that some agreement may have been made regarding the Policy at the referenced meeting, further legal review of the specific wording of the Policy found that it does not satisfy all criteria for an eligible code or standard. Please refer to the enclosed first appeal response for a more detailed discussion regarding review of the Policy and FEMA's determination. Our review of the Policy finds that the Regional Director's denial of it's application is appropriate.

However, in response to this second appeal, we have conducted a review of the proposed scopes of work presented on the various DSRs to determine if the proposed work provided for on the supplemental DSRs (repair with soil fill) would be considered a reasonable method of repair. Although it is found that the subgrantee's Policy for repair with riprap does not meet the criteria for an acceptable code or standard, FEMA does recognize that restoration of a relatively steep slope with compacted fill is not always technically feasible, or practical to construct. Therefore, FEMA often considers the use of riprap to be a reasonable alternative to placement of soil fill.

The scope of work as initially presented by the FEMA inspector on DSR 28395 consisted generally of placement of soil fill to within 2-ft. of the final slope grade, placement of filter fabric over the soil, followed by a 2-ft. thickness of riprap over the face of the slope, keyed into a riprap toe trench. This method is found to be consistent with generally accepted engineering practices. Accordingly, it is found that the scope of work to place riprap and underlying filter fabric is eligible for the damaged section. However, it is noted that for DSR 28398 the FEMA inspector proposed placement of dumped riprap in lieu of soil backfill. Use of riprap is not considered necessary in this application, and therefore, the eligible scope of work for this DSR will again be initial placement of soil fill overlain by riprap. Removal of the sloughed bank material deposited within the channel is also eligible.

The subgrantee is requesting that dewatering be considered an eligible scope item. Based on the information provided by the inspector in the initial DSRs, it is understood that the channel has some continuous flow, typically less than 2-ft. Additionally, because construction of the toe trench requires excavation into the channel bottom, it is expected that some dewatering may be necessary to facilitate this work. Accordingly, funding will be provided for a cofferdam to divert the flow, plus pumping efforts, consistent with the method proposed in the initial DSRs.

The subgrantee has also requested funding for various engineering related efforts, as described earlier in this analysis. While our review concurs that such costs may be required for these repairs, it is noted that the subgrantee requested funding for these efforts estimated at a total of 31% of the proposed repair cost. Such a percentage is considered excessive for projects of this nature. Accordingly, the eligible cost for the described engineering efforts will be estimated utilizing the FEMA engineering cost estimating curve (Curve B), which provides for a 9 to 11% allowance, including construction inspection efforts, for projects of the sizes included in this appeal. These curves are based on engineering experience over a period of time, and are considered a reasonable, approximate correlation between engineering costs and construction costs.

Based on comments made by the s pyet been initiated. The subgrantee should be aware that the deadline for completing permanent work for the FEMA-1044 disaster is January 10, 1999, assuming OES has granted a time extension to their maximum authority. The subgrantee can submit a request through OES to FEMA for a further time extension, if there are justifiable extenuating circumstances for the delay that are beyond the subgrantee's control. The request must clearly state the circumstances, and must contain a reasonable schedule for completion of the work. Failure to obtain the time extension may limit eligible funding to the actual costs for work completed prior to the January 10, 1999 deadline.

CONCLUSION
It is concluded that the subgrantee's repair Policy is not an eligible standard; however, the general method of repair utilizing riprap is found to be a reasonable scope for repair. Additionally, engineering efforts are also considered eligible, estimated at 9 to 11% of the total eligible project cost. Accordingly, the Regional Director will prepare supplemental DSRs to fund the eligible scope of work as described herein. A summary of the eligible scope of work is presented on Enclosure 1.

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