Threat to Improved Public Property

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1046-DR
ApplicantOrange County
Appeal TypeSecond
PA ID#059-00000
PW ID#93577
Date Signed1997-08-12T04:00:00
Citation: FEMA-1046-DR-CA; Orange County

Cross-Reference: Eligible facility; immediate threat

Summary: As a result of winter storms in March of 1995, DSR 93577 was prepared to fund the restoration of a 300-foot long portion of the north embankment of Bell Creek. The DSR was deemed ineligible because the affected portion of the creek was a natural stream and not an eligible facility. The first appeal provided information on improvements to nearby portions of the creek but not the portion in question and added that repairs were needed as emergency protective measures to protect the public campsites and roads nearby. The first appeal was denied since it did not support that an immediate threat existed from a 5-year storm on improved public property. The second appeal and subsequent faxes from the subgrantee provided additional information on the effects of a 5-year storm event on the creek. However, the information did not establish that an immediate threat to improved property exists.

Issues:
  1. Is the eroded section of Bell Creek eligible for repair?
  2. Is there an immediate threat?
Findings:
  1. No. Bell Creek an unimproved, natural feature, not an eligible facility.
  2. No. There is no immediate threat to the roadway and the campsites.
Rationale: Per documentation provided in a November 3, 1995, letter by Orange County, the predisaster condition of the portion of the Bell Creek in question was not improved or maintained. Also, the analysis provided does not establish that an immediate threat to improved public property from a 5-year storm event exists.

Appeal Letter

August 12, 1997

Mr. Richard Ray
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 239013
Sacramento, CA 95823-9013

Dear Mr. Ray:

This letter is in response to your December 13, 1996, submittal of Orange County's second appeal of Damage Survey Report (DSR) 93577 under FEMA-1046-DR-CA. This DSR proposed the repair to an eroded portion of Bell Creek, which was subsequently denied.

Although repairing the damaged portion of Bell Creek with riprap is a sound engineering practice, such work is not eligible for FEMA funding. As explained in the enclosed analysis, a review of the submitted documentation shows that the subject portion of Bell Creek is a natural feature that is not improved and maintained. The gabions, which are nearby on Bell Creek, do not establish that the affected portion is improved. Accordingly, the affected portion of the creek is not an eligible facility. Further, several attempts were made to collect specific additional information directly from the subgrantee to establish whether or not an immediate threat to improved public property existed. The additional information requested related to establishing whether there was an immediate threat from a 5-year storm event. The information submitted is insufficient to establish that there was an immediate threat to improved property. Therefore, the second appeal is denied. Please refer to the enclosed appeal analysis.

Please inform the applicant of this determination and their right to submit a third appeal pursuant to 44 CFR 206.206(e).

Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

Enclosure

Appeal Analysis

BACKGROUND
As a result of winter storms in March of 1995, Damage Survey Report (DSR) 93577 was prepared to fund the restoration of the north embankment of Bell Creek near the Live Oak Campground within the Caspers Wilderness Park. The original scope of work proposed stabilization and repair with unclassified fill of a 300-foot long eroded section of the embankment for the amount of $21,436. The review of the DSR indicated that the creek is a natural stream, not an eligible facility, and that there was no immediate threat to human life or improved public property. Therefore, the DSR was deemed ineligible for FEMA assistance. Orange County (subgrantee) did not concur with the ineligibility determination.

First Appeal
On November 3, 1995, the subgrantee transmitted a letter to the California's Governor's Office of Emergency Services (State) appealing the determination that DSR 93577 was ineligible. The subgrantee stated that a downstream portion of the creek is improved by gabions and, therefore, the portion of the creek in question is improved and maintained natural feature and, as such, is an eligible facility. The subgrantee also stated that the park had been improved with roadways and campsites. The subgrantee stated that several campsites were lost due to erosion as a result of the event, and an immediate threat existed to the road through the campground as well other campsites. Further, the subgrantee indicated that a Category G DSR (Parks, Recreational, and other), rather than the Category D (Water Control Facilities) indicated on the DSR, should be used because a park facility was involved. The subgrantee also stated that repairs should include placement of riprap on the eroded slope to protect against further losses. The subgrantee stated that there is an immediate threat of additional damage to campsites and the road from the effects of future flooding.

On December 26, 1995, the State transmitted its concurrence with the appeal, contending that, though the eroded portion of the creek was not an improved property, restoring the eroded portion with rip rap will prevent slope failure and loss of additional camp sites and roads. The State concurred with the subgrantee's request to use Category G for the DSR. Further, the State indicated that since the site was an unimproved facility prior to the disaster, and, as such is not a public facility, the proposed repairs should be funded as 406 Hazard Mitigation. The State recommended that a costenefit analysis be performed to determine if funding is appropriate.

In an April 25, 1996 letter, Region IX denied the first appeal. This determination was based on the lack of documentation to demonstrate that a 5-year flood event would pose an immediate threat to improved public property. Region IX also stated that changing the Category classification from D to G would not change the eligibility determination.

Second Appeal
With a December 13, 1996 letter, the State transmitted the subgrantee's October 3, 1996, second appeal. The subgrantee stated that, in December 1995, it had repaired the eroded slope by placing rip-rap along the slope to prevent further erosion. The total cost of these efforts was $32,075. The subgrantee maintained that a 5-year flood event, with a flow of 7,130 cubic feet per second, would cause the creek to flow with a depth of approximately 6 feet along the repaired slope. The subgrantee noted that this would have caused additional erosion to the exposed bank. While acknowledging that the damaged portion of the creek had been unimproved prior to the event, photographs were provided which demonstrated the proximity of the erosion control improvements in the creek to the subject portion of Bell Creek.

The State supported the subgrantee's second appeal in that the creek is an improved and maintained natural feature (this reversed the State's position in the first appeal letter) and, more so, that an immediate threat exists to the campground from a flood that could occur in the next five years. The State maintained that the costs should be funded as a Category B (Emergency Protective Measures) per 44 CFR 206.225.

DISCUSSION
The Region's February 20, 1997, memorandum transmitting the second appeal. The Region stated that an analysis was not provided to support the subgrantee's statement that a 5-year flood event would result in a flow depth of 6 feet at the repaired slope. Further, the Region stated that it does not appear that a 6-foot flow depth would result in an immediate threat to improved property.

The DSR was written for repair of embankment with unclassified fill. By the subgrantee's own admission, the affected portion of the creek was unimproved. A natural feature that is not improved and maintained is not considered an eligible facility, pursuant to 44 CFR 206.201(c).

To be eligible, emergency work must eliminate or lessen immediate threats to life, public health or safety, or significant additional damage to improved public or private property through measures which are cost effective. For a flood-related disaster, eligible emergency work is limited to that which would provide protection from a 5-year flood event on the subject flooding source(s). The 5-year flood is one that has a 20% chance of being equaled or exceeded in any given year. A hydrologic and hydraulic analysis of the watershed must be performed to determine the 5-year flood elevations of the subject flooding source. These elevations should then be compared to the elevation of the improved property that may be affected by an immediate threat. If the flood elevations indeed cause an immediate threat, only work to eliminate that threat would be eligible for funding.

Several attempts to collect information on the immediate threat were made, specifically the elevations of the 5-year flood as compared to the elevations of the improved public property and cross-sections which graphically demonstrate the elevations. Additional information was presented by the subgrantee in faxes dated July 16 and July 17, 1997, including projected flow rates and flow depths from a 5-year flood event for a 30-foot wide and 100-foot wide channel width. The subgrantee did not submit a cross-section or other information that demonstrates how a 5-year storm event would damage improved property. Therefore, the subgrantee did not establish that an immediate threat existed. Accordingly, per 44 CFR 206.225(a)(3)(ii), the work associated with the embankment is not eligible as an emergency measure.

CONCLUSION
A review of the documentation indicates that the subject portion of Bell Creek is a natural feature and there is no immediate threat present. Therefore, the permanent restoration of the subject portion of Bell Creek is not eligible for disaster assistance funding, and this appeal is denied.
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