Permanent Restoration of Wildwood Creek

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1044-DR
ApplicantSan Bernardino Flood Control District
Appeal TypeThird
PA ID#071-91103
PW ID#26564
Date Signed1998-08-18T04:00:00
PURPOSE: Respond to third appeal submitted by the San Bernardino Flood Control District for permanent restoration of Wildwood Creek.

DISCUSSION: The winter storms of January 1995 (FEMA-1044-DR-CA) caused damage to a portion of Wildwood Creek in San Bernardino County. The FEMA inspector prepared Damage Survey Report (DSR) 26564 on behalf of the San Bernardino Flood Control District (subgrantee) to provide permanent restoration of this channel. However, FEMA determined that Wildwood Creek meets the United State Army Corps of Engineer's (USACE's) definition of a Flood Control Work (FCW) and was, therefore, ineligible for Public Assistance funding. The subgrantee submitted first and second appeals, primarily challenging the Federal Levee Policy itself as well as FEMA's coordination of disaster assistance as it relates to FCWs and the Policy. The subgrantee did not, however, provide adequate documentation to support that the channel does not meet the USACE's definition of an FCW. The appeals were denied. In support of their third appeal, the subgrantee has submitted a letter from the USACE, dated March 12, 1998, which states that Wildwood Creek is a bank erosion protection project and is not an FCW. Therefore, the damaged facility is eligible for permanent restoration assistance. The Regional Director should prepare a supplemental DSR to fund the eligible scope of work for the appealed DSR.

RECOMMENDED ACTION: Sign the letter granting this appeal.

Appeal Letter

August 18, 1998

Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, Second Floor
Pasadena, California 91103-3678

Dear Mr. Najera:

This is in response to your March 12, 1998, letter transmitting the third appeal of Damage Survey Report (DSR) 26564 on behalf of the San Bernardino Flood Control District (subgrantee) under FEMA-1044-DR-CA. The subgrantee is appealing the Federal Emergency Management Agency's (FEMA's) denial of funding for permanent restoration of Wildwood Creek.

Wildwood Creek is an earth-lined channel with an adjacent gravel access road. Flooding from the disaster event resulted in erosion of the channel banks and access roads, deposition of sediment in the channel invert, and damage to three gates. DSR 26564 was prepared in the amount of $156,170 to repair the channel banks and access road with excavated sediments from within the channel, and to repair the gates. During eligibility review, the FEMA reviewer determined that Wildwood Creek meets the United State Army Corps of Engineer's (USACE's) definition of a Flood Control Work (FCW) and is, therefore, ineligible for Public Assistance funding.

The subgrantee submitted first and second appeals regarding FEMA's determination of ineligibility for Wildwood Creek. The subgrantee's appeals primarily challenged the Federal Levee Policy itself as well as FEMA's coordination of disaster assistance as it relates to FCWs and the Policy. The subgrantee did not, however, provide adequate documentation to support that this channel does not meet the USACE's definition of an FCW. FEMA responded to these appeals by further clarifying the intent of the Federal Levee Policy and stressing the importance of providing Federal assistance within the appropriate funding authority. In support of the USACE Program and the Federal Levee Policy, the Regional Director and the Executive Associate Director upheld the determination of ineligibility.

The subgrantee's third appeal asserts that Wildwood Creek is not an FCW, and should, therefore, be eligible for FEMA assistance. In support of their third appeal, the subgrantee has submitted a letter from the USACE, dated March 12, 1998, which states that Wildwood Creek is a bank erosion protection project and not an FCW. Therefore, based on the USACE's determination that this channel does not meet the definition of an FCW, I have found that the damaged facility is eligible for permanent restoration assistance.

In response to this determination, we have conducted a review of the eligible scope of work for DSR 26564. It is found that the scope of work and cost estimate originally presented on the DSR is reasonable to restore the channel to its pre-disaster condition. Therefore, by copy of this letter, I am requesting the Regional Director to prepare a supplemental DSR to restore funding as originally presented on DSR 26564.

Accordingly, the subgrantee's appeal is granted. Please inform the subgrantee of my determination.

Sincerely,
/S/
James L. Witt
Director

cc: Martha Z. Whetstone
Regional Director
FEMA Region IX
Last updated