Repairs to the Kennedy Park Levee

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1046-DR
ApplicantCity of Napa
Appeal TypeThird
PA ID#055-50258
PW ID#21702
Date Signed1998-04-07T04:00:00
N/A

Appeal Letter

April 7, 1998

Ms. Nancy Ward
Governor's Authorized Representative
Governor's Office of Emergency Services
P.O. Box 239013
Sacramento, California 95823-9013

Dear Ms. Ward:

This letter is in response to your September 17, 1997, submittal of the City of Napa's third appeal of Damage Survey Report (DSR) 21702 under FEMA-1046-DR-CA. This DSR was prepared for the permanent restoration of the Kennedy Park Levee to its pre-disaster condition.

As explained in the enclosed analysis, review of the documentation submitted shows that the facility meets the U.S. Army Corps of Engineers' (USACE's) definition of a flood control work. Therefore, under the Federal Levee Policy, funding for the restoration of the facility is not eligible for FEMA funding. The City of NAPA has also not provided any information that substantiates its claim that the levee (even in its damaged condition) does not provide protection against a five-year storm event. Further, the City's lack of action to repair the facility three years after the event without Federal funding does not reflect the existence of an immediate threat to life, public health, safety, or improved property. Therefore, I am denying this appeal.

Please inform the applicant 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: Acting Regional Director
FEMA Region IX

Appeal Analysis

BACKGROUND
Excessive flood flows from the winter storms in March 1995 eroded portions of the Kennedy Park Levee located in the City of Napa. The Kennedy Park Levee lies directly along the Napa River and provides flood protection for Kennedy Park, the Napa Municipal Golf Course, and Napa Valley College. The levee embankment and riprap slope protection was washed out at 29 separate sites along the western, riverward side of the levee, totaling approximately 1815 linear feet. At Site 11 of 29, the floodwaters overtopped the levee and caused erosion on the eastern, landward side of the levee.

The Federal Emergency Management Agency (FEMA) prepared damage survey report (DSR) 21702 for $718,389 for the permanent restoration of the Kennedy Park Levee. The DSR covered the costs to dump 566 cubic yards (cy) of unclassified fill to restore the levee's pre-disaster slope and to place 1,911 cy of riprap over 1,419 square yards (sy) of fabric for slope protection in the riverward areas of erosion. The DSR also covered the costs of excavating, dumping 1,344 cy of riprap, grading to protect the toe of the levee and regrading of 511 sy of the levee where overtopping caused erosion along the landward side of the levee.

Upon review of the DSR the levee task force determined that the Kennedy Park Levee fit the U.S. Army Corps of Engineers' (USACE's) definition of a flood control work (FCW) and, therefore, was under the authority of the USACE. In accordance with the FEMA Levee Policy, the permanent restoration of the FCW was found not eligible for FEMA assistance.

First Appeal
The State of California Governor's Office of Emergency Services (OES) transmitted the subgrantee's first appeal with a letter dated February 8, 1996. The subgrantee contended that the facility was not part of the USACE levee system and never had been. With the appeal, the subgrantee enclosed a December 1, 1995, letter from the USACE, Sacramento District that stated that the Kennedy Park Levee was not eligible for USACE assistance because the facility was not a Federal flood control project and was not active in the USACE non-Federal levee rehabilitation program. The subgrantee also stated that the damaged levee was endangering public safety and property and emergency repairs should be funded as allowed by the 1993 Federal levee policy.

The Regional Director denied the appeal in an April 25, 1996, letter. The letter explained that permanent repair of an FCW is under the specific authority of the USACE, and failure of the subgrantee to participate in the USACE program did not make the facility eligible for FEMA assistance. The Regional Director also determined that the scope of work described in the DSR was for permanent work, which was excessive for consideration as emergency protective measures. Because documentation had not been provided demonstrating that the condition of the levee posed an immediate threat to life, public health, safety or improved property, the levee was found not eligible for funding of emergency repairs.

Second Appeal
The subgrantee submitted a second appeal dated July 31, 1996. The subgrantee requested that repair of the damaged levee be approved as either Category D, permanent work or Category B, emergency work. The subgrantee stated, "Whether the City has or has not participated in the USACE program is not relevant. The City is under no obligation to do so." With regards to the request for Category B assistance, the subgrantee stated that repairs had not been made to the damaged section of the levee and river levels like those experienced in March 1995 could cause total failure of the facility. The subgrantee also explained that due to the loss of riprap along the levee, even normal winter flows could be expected to further erode the levee, threatening the levee's ability to protect adjacent property.

The Executive Associate Director upheld the Regional Director's first appeal determination and denied the second appeal. The Associate Director explained that although the subgrantee is under no obligation to participate in the USACE rehabilitation program, Federal funding of permanent restoration of an FCW is not available unless that facility is active in the USACE program. The Associate Director also stated that for emergency protective measures to be eligible for FEMA funding they must eliminate or reduce an immediate threat of significant damage to improved public or private property that could result from a five-year storm event. The Associate Director stated that the subgrantee did not provide documentation to illustrate that such a threat existed.

Third Appeal
The subgrantee submitted a third appeal dated June 19, 1997. The subgrantee restates that maintenance of the facility is the responsibility of the City and not the USACE. The subgrantee does not contest FEMA's determination that the facility meets the USACE definition of an FCW, but contends that, because the facility was never active in the USACE rehabilitation program it is not under the authority of the USACE and should be eligible for FEMA assistance. The subgrantee also states that the facility is still in the same condition as immediately following the disaster and could overtop or suffer additional scour, causing the facility to fail. The subgrantee opines that the facility should at least be eligible for funding of emergency protective measures.

DISCUSSION
The subgrantee argues that maintenance and repair of the damaged facility are the responsibility of the City, not the USACE. The subgrantee contends that, because the facility has never been enrolled in the USACE rehabilitation program funding is not under USACE authority. Therefore, the subgrantee continues, the repairs should be eligible for FEMA assistance.

Eligibility of Flood Control Works
Congress authorized both FEMA and USACE to fund repairs to FCWs. When two Federal agencies are authorized to perform the same function, the agencies must determine the best way to implement public policy consistent with congressional intent. In the present case, USACE has a specific program that encourages owners of FCWs to build or upgrade their facilities to specific standards and maintain them on a regular basis to ensure that they perform as designed. If the owners meet USACE's requirements and join its program, USACE will fund repairs to those facilities when they are damaged during an unusual event, for example, a flood that is declared a major disaster by the President.

When carrying out its responsibilities under the Stafford Act, FEMA must work with other Federal agencies to provide disaster assistance to applicants without undermining the programs of the other agencies. All Federal agencies must work together towards a common
goal - assisting victims and eligible applicants in recovering from the devastating effects of disasters as quickly as possible. USACE provides assistance to owners of FCWs who commit to certain actions to ensure the integrity of their facilities. It is not good public policy for FEMA to fund the repair of FCWs when owners have not made similar commitments to protect the integrity of their facilities by meeting USACE's program requirements. If FEMA were to fund permanent repairs of FCWs that are not participating in the USACE program, this would possibly remove the incentive for those owners to join the USACE program. With this incentive, more FCWs are better maintained and the public is better protected.

The subgrantee's assertion that the maintenance of the channel is their responsibility may be correct. However, it should be understood that the responsibility for routine maintenance of an FCW and the eligibility for Federal assistance for damages due to a Federally declared disaster event are of facility meeting the definition of an FCW is under the authority of the USACE. Such a facility is not eligible for FEMA assistance.

Eligibility for Emergency Work
The subgrantee contends that the project should qualify for Category B, emergency repairs. Pursuant to Title 44 of the Code of Federal Regulations (CFR) section 206.225(a)(3), for emergency protective measures to be eligible for Federal funding they must eliminate or lessen immediate threats to life, public health or safety, or eliminate or lessen immediate threats of significant additional damage to improved public or private property through cost effective measures. Also, 44 CFR 206.204 requires that emergency work be completed within six months of the disaster declaration date. Further, the scope of emergency work must be consistent with the requirements of 44 CFR 206.225 and reasonable within the context of providing protection from an immediate threat. As addressed in the following discussion, the subgrantee has not satisfied these conditions.

The subgrantee cites a threat posed by portions of the facility that were eroded or overtopped by flood flows from the disaster. In accordance with current interagency policy for FCWs, FEMA may provide, on a one-time basis, funding for emergency repair of FCWs that are not currently participating in the USACE Levee Rehabilitation Program or the NRCS Emergency Watershed Protection Program. For disasters 1044 and 1046, FEMA may also provide funding assistance for emergency repair of FCWs that are participating in the USACE or NRCS programs. Emergency repairs that may be funded by FEMA, however, are limited to those necessary to maintain the original elevation of the FCW or to provide an elevation designed to protect against the five-year flood event, whichever is less. In this case, the subgrantee has provided no documentation to indicate that the FCW, even in its damaged condition, could not convey floodwaters from a five-year storm event.

To convey the urgency for repairs the subgrantee states that the washed out area "is still in the condition it was then, and if we experience the river levels this coming winter that we did in March of 1995, we can expect the levee to be overtopped again and the scour effect across the top could cause the total levee to fail." As stated above, emergency repairs are not intended to protect from a subsequent disastrous event, only from an event with a five-year recurrence interval. The subgrantee's lack of action to this point, three years after the event, does not reflect the existence of an immediate threat to life, public health, safety or improved property from such an event. Emergency repairs should not be contingent upon Federal funding. Protective measures should be employed immediately to assuage the existence of a threat and reimbursement should be sought later. Because the subgrantee has not demonstrated the existence of an immediate threat, the repair of the FCW as emergency work is not eligible for funding.

CONCLUSION
The permanent restoration of the Kennedy Park Levee is not eligible for funding in accordance with 44 CFR 206.226 and the FEMA levee policy as this facility is under the authority of the USACE. The repair of the levee also does not qualify for funding as emergency work under 44 CFR 206.225(a), as it has not been shown that the facility is unable to convey flows from a five-year storm event. Therefore, this appeal is denied.
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