Pine Creek
Appeal Brief
Appeal Letter
Appeal Analysis
PURPOSE: Respond to third appeal of the Contra Costa County Public Works Department for permanent restoration of Pine Creek.
DISCUSSION: The winter storms of 1995 (FEMA-1044-DR-CA) eroded portions of the earth banks of Pine Creek. The FEMA inspector prepared DSRs 28371 and 28372 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 Pine 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 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. However, the Executive Associate Director found again that Pine Creek is an FCW, and deobligated funding provided for in response to the first appeal. The subgrantee's third appeal asserts that Pine Creek is not an FCW, and asserts their Policy should be eligible. No documentation was provided with the appeal to demonstrate that Pine Creek is not an FCW. However, as it has been determined that flood control facilities damaged during the 1044/1046 disaster events, that were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program for these disasters, the scope of work for the appeal DSRs has been reviewed for eligibility for permanent restoration funding. Although it is found that the subgrantee's repair Policy is not an eligible standard, the general method of repair utilizing riprap is found to be a reasonable scope for repair. Associated engineering efforts are also considered eligible, estimated at 11% of the total eligible project cost. Supplemental DSRs should be prepared to fund the eligible scope of work as described in the enclosed analysis.
RECOMMENDED ACTION: Sign the letter granting this appeal.
Severe winter storms and flooding that occurred during the FEMA-1044 winter storm event damaged portions of Pine 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 March 30, 1995 to document damages and prepare Category D Damage Survey Reports (DSRs).
The FEMA inspector prepared DSRs 28371 and 28372, in the amounts of $9,958 and $14,168, respectively, 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 Pine 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. The subgrantee was notified of this determination on or about June 28, 1995.
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). To restore the creek bank to its predisaster condition, the FEMA reviewer reduced the scope of work to include only repair with compacted clay fill and hydroseeding, with an allowance for dewatering. Associated engineering efforts as requested by the subgrantee were not included in the reviewer's revised scope. The revised scope was estimated at a cost of $2,946 (DSR 28371) and $3,746 (DSR 28372), but as indicated above, the DSRs were found to be ineligible.
First Appeal
The subgrantee submitted a first appeal of the determination of ineligibility for these DSRs in a letter dated November 20, 1995. The subgrantee asserted that Pine Creek is not under the funding authority of the USACE and, therefore, should be eligible for FEMA assistance. 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. The Regional Director found that the revised scope of work described by the FEMA reviewer on the initial DSRs was an acceptable method of repair. Accordingly, supplemental DSRs 20354 and 20356 were prepared in the amounts of $2,946 and $3,746, respectively.
Second Appeal
The subgrantee submitted a second appeal of these determinations in letters dated January 2, 1997, again requesting that the repair Policy be used in determining the eligible scope of work for the damages to Pine Creek, and that the associated engineering efforts be included in the eligible scope of work. However, the second appeal review concluded that, based on the Levee Task Force review and the documentation submitted by the subgrantee, the damaged portion of Pine Creek is considered an FCW. Accordingly, previously obligated funding from DSRs 20354 and 20356 was deobligated in supplemental DSR 29675 (<2,946>) and DSR 29678 (<$3,746>), respectively.
Third Appeal
The subgrantee submitted a third appeal of these determinations in a letter dated January 29, 1998. The subgrantee asserted that Pine Creek is not an FCW, but has not provided specific documentation to support this position. Again, the subgrantee is requesting that their repair Policy be used in determining the eligible scope of work for the damages to Pine Creek, and that the associated engineering efforts be included in the eligible scope of work.
DISCUSSION
Consideration for Funding of Flood Control Facilities
As stated above, the subgrantee's third appeal asserts that Pine Creek is not an FCW, but has not provided specific documentation to support this position. In OES's third appeal transmittal letter, dated April 10, 1998, it is stated that a representative of the USACE has confirmed that Pine Creek is not an FCW, and that a letter from the USACE would be forwarded to FEMA. To date, no such document has been received by either the Regional Director of the office of the FEMA Director. Accordingly, there is no basis for FEMA to alter our earlier determination that Pine Creek is an FCW.
However, in response to numerous appeals from various applicants regarding the implementation of the Federal Levee Policy during the FEMA-1044 and FEMA-1046 (1044/1046) disaster events, we have conducted an extensive review of the circumstances associated with eligibility determinations regarding flood control facilities prior to and during the response to these disasters. Based on this review, it has been concluded that some confusion as to the eligibility of flood control facilities was apparent. We have found that some applicants received funding for such facilities during previous disasters, particularly FEMA-979 in 1993, supporting these applicants' positions that they relied on funding from previous disasters. Additionally, for many applicants who did apply before the disaster to the USACE for enrollment in their PL 84-99 Rehabilitation and Inspection Program, inspections of the facilities by the USACE were often not completed prior to the disaster, maintaining the applicants' "inactive" status in the PL 84-99 Program. It is noted that some inspections were not completed within a year of the request, and then not all requested facilities were inspected. Additionally, review of numerous DSRs prepared for the various applicants in these disasters found that the FEMA inspector often did not notify the applicants that their facilities were under the funding authority of another Federal agency, and that the applicants were not notified of these determinations until the DSRs were finalized, often one year or more after the initial site inspections.
Therefore, although the Federal Levee Policy does specifically indicate that permanent restoration of FCWs is not eligible for FEMA funding, it is recognized that some applicants may have relied on previous funding from FEMA to expect disaster related funding in subsequent disasters. Further, FEMA's delay in notifying applicants during the 1995 Storms that their facilities were under the authority of the USACE or Natural Resources Conservation Service (NRCS) may have contributed to an applicant's failure to receive Federal funding for disaster related damages. Accordingly, FEMA has concluded that flood control facilities damaged during the 1044/1046 disaster that were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program for these disasters. Although the circumstances described above do not specifically apply to this subgrantee's request for funding, the decision to consider permanent restorat risaster events.
Eligible Work
In accordance with the discussion presented above, the appeal DSRs for repair of Pine Creek have been reviewed for eligibility for permanent restoration funding through the Public Assistance Program, consistent with FEMA regulations and policy for restoration of eligible facilities. The subgrantee is requesting that their repair Policy be used in determining the eligible scope of work for the damages to Pine Creek, and that the associated engineering efforts be included in the eligible scope of work.
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 application is appropriate.
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. Further, it is found that the requested scope of work, consisting generally of placement of a 2-foot thickness of riprap over the surface of the eroded slope, is consistent with generally accepted engineering practices. Accordingly, it is found that the scope of work to place riprap and underlying filter fabric, to the extent described in the original FEMA inspector's DSRs (DSRs 28371 and 28372) is eligible for funding. Dewatering, as originally presented, is also an eligible scope item.
The subgrantee has also requested funding for various engineering related efforts, including engineering design, environmental processing and construction inspection. As much of this work is now complete, the subgrantee asserts that such items were in fact necessary to complete the work. While our review concurs that such costs may have been required for these repairs, it is noted that the subgrantee requested funding for these efforts estimated at 31% of the proposed repair cost. Such a percentage is considered excessive for a project 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 11% allowance for such engineering efforts for projects of this size.
Future Assistance
Although FEMA is providing this exception for funding of flood control channels for those facilities damaged during the 1044/1046 disaster events, it should be understood that the Federal Levee Policy will be strictly adhered to for all disasters occurring after December 31, 1996. I have enclosed a copy of the 1996 Policy entitled, "Policy for Rehabilitation Assistance for Levees and Other Flood Control Works" for reference regarding funding for flood control channels damaged after 1996.
In preparation for future disaster events, the subgrantee should take appropriate steps to apply to and meet the criteria of the USACE PL 84-99 Program or to take steps to meet the criteria of the NRCS Emergency Watershed Protection Program. Facilities that meet the USACE's definition of an FCW will not be eligible for FEMA permanent restoration assistance. As indicated in the attached Policy, the USACE defines a flood control work as a "structure designed and constructed to have appreciable and dependable effects in preventing damage by irregular and unusual rises in water level." To determine if a certain facility meets this definition, the USACE will review the design of that facility and in most cases, perform a site inspection. Facilities that meet the definition of an FCW but are not "active" ("inactive") in the PL 84-99 Program due to lack of inspection request, failure to meet design or maintenance criteria, or other reasons determined by the USACE, will not be eligible under the Public Assistance Program. As a result, a facility that meets the USACE definition but is not in "active" status in the program may not be eligible for any Federal disaster assistance for permanent restoration.
Other channels that do not meet the USACE's definition of an FCW may be eligible for FEMA assistance. However, for those channels which appear to meet the definition of an FCW, it may be necessary for the subgrantee to provide appropriate documentation to demonstrate that the facility does not meet the USACE's definition, in order for the channel to be considered an eligible facility. To best support their position, it is recommended that the subgrantee provide a letter from the USACE indicating that they do not consider the facility an FCW. Applicants should anticipate that it may be necessary for the USACE to perform an inspection of a site to definitively determine that a facility does not meet their definition of an FCW. This documentation would be significantly important to those facilities which were found ineligible in the 1044/1046 or previous disasters.
CONCLUSION
The subgrantee asserts that Pine Creek is not an FCW, but has not provided sufficient documentation to support this position. However, it has been determined that flood control facilities damaged during the 1044/1046 disaster events, that were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program for these disasters. Accordingly, the scope of work for the appeal DSRs has been reviewed for eligibility for permanent restoration funding through the Public Assistance Program. Although it is found that the subgrantee's repair Policy is not an eligible standard, 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 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.
Appeal Brief
| Disaster | FEMA-1044-DR |
| Applicant | Contra Costa County Public Works Department |
| Appeal Type | Third |
| PA ID# | 013-92100 |
| PW ID# | 28371,20354,29675,28372,20356,29678 |
| Date Signed | 1998-12-22T05:00:00 |
DISCUSSION: The winter storms of 1995 (FEMA-1044-DR-CA) eroded portions of the earth banks of Pine Creek. The FEMA inspector prepared DSRs 28371 and 28372 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 Pine 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 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. However, the Executive Associate Director found again that Pine Creek is an FCW, and deobligated funding provided for in response to the first appeal. The subgrantee's third appeal asserts that Pine Creek is not an FCW, and asserts their Policy should be eligible. No documentation was provided with the appeal to demonstrate that Pine Creek is not an FCW. However, as it has been determined that flood control facilities damaged during the 1044/1046 disaster events, that were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program for these disasters, the scope of work for the appeal DSRs has been reviewed for eligibility for permanent restoration funding. Although it is found that the subgrantee's repair Policy is not an eligible standard, the general method of repair utilizing riprap is found to be a reasonable scope for repair. Associated engineering efforts are also considered eligible, estimated at 11% of the total eligible project cost. Supplemental DSRs should be prepared to fund the eligible scope of work as described in the enclosed analysis.
RECOMMENDED ACTION: Sign the letter granting this appeal.
Appeal Letter
December 22, 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 April 10, 1998, submittal of the Contra Costa County Public Works Department's (subgrantee) third appeal of Damage Survey Reports (DSRs) 28371/20354/29675 and 28372/20356/29678 prepared for permanent restoration of Pine Creek damaged during the FEMA-1044 disaster event. The requested repairs were found ineligible on the basis that Pine Creek meets the United States Army Corps of Engineers' (USACE's) definition of a Flood Control Work (FCW). Additionally, the subgrantee's earth channel repair policy (Policy) was found to not be an eligible code or standard.
It has been determined that flood control facilities damaged during the 1044/1046 disaster events, that were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program for these disasters. Accordingly, the scope of work for the appeal DSRs has been reviewed for eligibility for permanent restoration funding. Although it is found that the subgrantee's repair Policy is not an eligible standard, the general method of repair utilizing riprap is found to be a reasonable scope for repair, including some efforts for dewatering and engineering. By copy of this letter, I am requesting the Regional Director to prepare supplemental DSRs to fund the eligible scope of work as described in the enclosed analysis.
The subgrantee's appeal is partially granted. Please inform the subgrantee of my determination, which constitutes the final level of appeal in accordance with 44 CFR 206.206(e).
Sincerely,
/S/
James L. Witt
Director
Enclosure
cc: Martha Z. Whetstone
Regional Director
FEMA Region IX
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 April 10, 1998, submittal of the Contra Costa County Public Works Department's (subgrantee) third appeal of Damage Survey Reports (DSRs) 28371/20354/29675 and 28372/20356/29678 prepared for permanent restoration of Pine Creek damaged during the FEMA-1044 disaster event. The requested repairs were found ineligible on the basis that Pine Creek meets the United States Army Corps of Engineers' (USACE's) definition of a Flood Control Work (FCW). Additionally, the subgrantee's earth channel repair policy (Policy) was found to not be an eligible code or standard.
It has been determined that flood control facilities damaged during the 1044/1046 disaster events, that were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program for these disasters. Accordingly, the scope of work for the appeal DSRs has been reviewed for eligibility for permanent restoration funding. Although it is found that the subgrantee's repair Policy is not an eligible standard, the general method of repair utilizing riprap is found to be a reasonable scope for repair, including some efforts for dewatering and engineering. By copy of this letter, I am requesting the Regional Director to prepare supplemental DSRs to fund the eligible scope of work as described in the enclosed analysis.
The subgrantee's appeal is partially granted. Please inform the subgrantee of my determination, which constitutes the final level of appeal in accordance with 44 CFR 206.206(e).
Sincerely,
/S/
James L. Witt
Director
Enclosure
cc: Martha Z. Whetstone
Regional Director
FEMA Region IX
Appeal Analysis
BACKGROUNDSevere winter storms and flooding that occurred during the FEMA-1044 winter storm event damaged portions of Pine 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 March 30, 1995 to document damages and prepare Category D Damage Survey Reports (DSRs).
The FEMA inspector prepared DSRs 28371 and 28372, in the amounts of $9,958 and $14,168, respectively, 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 Pine 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. The subgrantee was notified of this determination on or about June 28, 1995.
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). To restore the creek bank to its predisaster condition, the FEMA reviewer reduced the scope of work to include only repair with compacted clay fill and hydroseeding, with an allowance for dewatering. Associated engineering efforts as requested by the subgrantee were not included in the reviewer's revised scope. The revised scope was estimated at a cost of $2,946 (DSR 28371) and $3,746 (DSR 28372), but as indicated above, the DSRs were found to be ineligible.
First Appeal
The subgrantee submitted a first appeal of the determination of ineligibility for these DSRs in a letter dated November 20, 1995. The subgrantee asserted that Pine Creek is not under the funding authority of the USACE and, therefore, should be eligible for FEMA assistance. 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. The Regional Director found that the revised scope of work described by the FEMA reviewer on the initial DSRs was an acceptable method of repair. Accordingly, supplemental DSRs 20354 and 20356 were prepared in the amounts of $2,946 and $3,746, respectively.
Second Appeal
The subgrantee submitted a second appeal of these determinations in letters dated January 2, 1997, again requesting that the repair Policy be used in determining the eligible scope of work for the damages to Pine Creek, and that the associated engineering efforts be included in the eligible scope of work. However, the second appeal review concluded that, based on the Levee Task Force review and the documentation submitted by the subgrantee, the damaged portion of Pine Creek is considered an FCW. Accordingly, previously obligated funding from DSRs 20354 and 20356 was deobligated in supplemental DSR 29675 (<2,946>) and DSR 29678 (<$3,746>), respectively.
Third Appeal
The subgrantee submitted a third appeal of these determinations in a letter dated January 29, 1998. The subgrantee asserted that Pine Creek is not an FCW, but has not provided specific documentation to support this position. Again, the subgrantee is requesting that their repair Policy be used in determining the eligible scope of work for the damages to Pine Creek, and that the associated engineering efforts be included in the eligible scope of work.
DISCUSSION
Consideration for Funding of Flood Control Facilities
As stated above, the subgrantee's third appeal asserts that Pine Creek is not an FCW, but has not provided specific documentation to support this position. In OES's third appeal transmittal letter, dated April 10, 1998, it is stated that a representative of the USACE has confirmed that Pine Creek is not an FCW, and that a letter from the USACE would be forwarded to FEMA. To date, no such document has been received by either the Regional Director of the office of the FEMA Director. Accordingly, there is no basis for FEMA to alter our earlier determination that Pine Creek is an FCW.
However, in response to numerous appeals from various applicants regarding the implementation of the Federal Levee Policy during the FEMA-1044 and FEMA-1046 (1044/1046) disaster events, we have conducted an extensive review of the circumstances associated with eligibility determinations regarding flood control facilities prior to and during the response to these disasters. Based on this review, it has been concluded that some confusion as to the eligibility of flood control facilities was apparent. We have found that some applicants received funding for such facilities during previous disasters, particularly FEMA-979 in 1993, supporting these applicants' positions that they relied on funding from previous disasters. Additionally, for many applicants who did apply before the disaster to the USACE for enrollment in their PL 84-99 Rehabilitation and Inspection Program, inspections of the facilities by the USACE were often not completed prior to the disaster, maintaining the applicants' "inactive" status in the PL 84-99 Program. It is noted that some inspections were not completed within a year of the request, and then not all requested facilities were inspected. Additionally, review of numerous DSRs prepared for the various applicants in these disasters found that the FEMA inspector often did not notify the applicants that their facilities were under the funding authority of another Federal agency, and that the applicants were not notified of these determinations until the DSRs were finalized, often one year or more after the initial site inspections.
Therefore, although the Federal Levee Policy does specifically indicate that permanent restoration of FCWs is not eligible for FEMA funding, it is recognized that some applicants may have relied on previous funding from FEMA to expect disaster related funding in subsequent disasters. Further, FEMA's delay in notifying applicants during the 1995 Storms that their facilities were under the authority of the USACE or Natural Resources Conservation Service (NRCS) may have contributed to an applicant's failure to receive Federal funding for disaster related damages. Accordingly, FEMA has concluded that flood control facilities damaged during the 1044/1046 disaster that were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program for these disasters. Although the circumstances described above do not specifically apply to this subgrantee's request for funding, the decision to consider permanent restorat risaster events.
Eligible Work
In accordance with the discussion presented above, the appeal DSRs for repair of Pine Creek have been reviewed for eligibility for permanent restoration funding through the Public Assistance Program, consistent with FEMA regulations and policy for restoration of eligible facilities. The subgrantee is requesting that their repair Policy be used in determining the eligible scope of work for the damages to Pine Creek, and that the associated engineering efforts be included in the eligible scope of work.
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 application is appropriate.
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. Further, it is found that the requested scope of work, consisting generally of placement of a 2-foot thickness of riprap over the surface of the eroded slope, is consistent with generally accepted engineering practices. Accordingly, it is found that the scope of work to place riprap and underlying filter fabric, to the extent described in the original FEMA inspector's DSRs (DSRs 28371 and 28372) is eligible for funding. Dewatering, as originally presented, is also an eligible scope item.
The subgrantee has also requested funding for various engineering related efforts, including engineering design, environmental processing and construction inspection. As much of this work is now complete, the subgrantee asserts that such items were in fact necessary to complete the work. While our review concurs that such costs may have been required for these repairs, it is noted that the subgrantee requested funding for these efforts estimated at 31% of the proposed repair cost. Such a percentage is considered excessive for a project 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 11% allowance for such engineering efforts for projects of this size.
Future Assistance
Although FEMA is providing this exception for funding of flood control channels for those facilities damaged during the 1044/1046 disaster events, it should be understood that the Federal Levee Policy will be strictly adhered to for all disasters occurring after December 31, 1996. I have enclosed a copy of the 1996 Policy entitled, "Policy for Rehabilitation Assistance for Levees and Other Flood Control Works" for reference regarding funding for flood control channels damaged after 1996.
In preparation for future disaster events, the subgrantee should take appropriate steps to apply to and meet the criteria of the USACE PL 84-99 Program or to take steps to meet the criteria of the NRCS Emergency Watershed Protection Program. Facilities that meet the USACE's definition of an FCW will not be eligible for FEMA permanent restoration assistance. As indicated in the attached Policy, the USACE defines a flood control work as a "structure designed and constructed to have appreciable and dependable effects in preventing damage by irregular and unusual rises in water level." To determine if a certain facility meets this definition, the USACE will review the design of that facility and in most cases, perform a site inspection. Facilities that meet the definition of an FCW but are not "active" ("inactive") in the PL 84-99 Program due to lack of inspection request, failure to meet design or maintenance criteria, or other reasons determined by the USACE, will not be eligible under the Public Assistance Program. As a result, a facility that meets the USACE definition but is not in "active" status in the program may not be eligible for any Federal disaster assistance for permanent restoration.
Other channels that do not meet the USACE's definition of an FCW may be eligible for FEMA assistance. However, for those channels which appear to meet the definition of an FCW, it may be necessary for the subgrantee to provide appropriate documentation to demonstrate that the facility does not meet the USACE's definition, in order for the channel to be considered an eligible facility. To best support their position, it is recommended that the subgrantee provide a letter from the USACE indicating that they do not consider the facility an FCW. Applicants should anticipate that it may be necessary for the USACE to perform an inspection of a site to definitively determine that a facility does not meet their definition of an FCW. This documentation would be significantly important to those facilities which were found ineligible in the 1044/1046 or previous disasters.
CONCLUSION
The subgrantee asserts that Pine Creek is not an FCW, but has not provided sufficient documentation to support this position. However, it has been determined that flood control facilities damaged during the 1044/1046 disaster events, that were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program for these disasters. Accordingly, the scope of work for the appeal DSRs has been reviewed for eligibility for permanent restoration funding through the Public Assistance Program. Although it is found that the subgrantee's repair Policy is not an eligible standard, 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 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.
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