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Citation: FEMA-1044-DR-CA; Orange County EMA, DSRs 24310 and 94063

Cross Reference: Pre-disaster conditions, Permanent restoration, Flood control works, Levee Policy

Summary: The winter storms of 1995 caused erosion along portions of the East Garden Grove - Wintersburg Channel and Bee Canyon Retarding Basin. Damage survey reports (DSRs) 24310 ($7,995) and 94063 ($1,208) were prepared to repair the facilities to pre-disaster condition. The Orange County Environmental Management Agency submitted letters of non-concurrence for both DSRs, requesting that facilities be repaired to meet formally adopted codes and standards, for $20,008 and $48,676. In the first appeals, the subgrantee restated that repairs should be made to the facilities in accordance with formally adopted codes and standards. Upon review of the appeals, the regional staff determined that these facilities were flood control works (FCWs) and, therefore, were ineligible for FEMA funding. Accordingly, DSRs 83559 and 83810 were prepared to deobligate DSRs 24310 and 94063. The subgrantee submitted second appeals of these determinations. The primary issues of these appeals are that FEMA failed to coordinate Federal disaster assistance and that FEMA has the authority to fund the repair of FCWs under Section 312 of the Stafford Act. The subgrantee also contends that DSR 64401 was prepared by FEMA to provide for the permanent restoration of FCWs damaged during the 1044 and 1046 disasters. Furthermore, the subgrantee states that the scopes of work requested for DSRs 24310 and 94063 are consistent with repairs funded under DSR 64401. Therefore, the subgrantee believes that these DSRs should also be eligible for FEMA funding.

Issues:

1. Are the flood control facilities eligible for FEMA assistance?
2. Did FEMA fail to adequately coordinate Federal disaster assistance, resulting in the subgrantee's loss of assistance from the USACE?
3. Was DSR 64401 prepared to provide for the permanent restoration of damaged FCWs?

Findings:

1. No. The various facilities meet the USACE definition of an FCW and are, therefore, ineligible for FEMA assistance.
2. No. The determination of ineligibility for these FCWs is due to the subgrantee's failure to adhere to USACE design and maintenance standards for flood control works, and/or failure to apply to the PL 84-99 Rehabilitation and Inspection Program.
3. No. DSR 64401 was prepared to expedite funds for emergency repair work.

Rationale: Under the current FEMA Levee Policy, permanent restoration of facilities that fit the USACE definition of an FCW is work that is considered to be within the specific authority of either USACE or the NRCS, and, therefore, not eligible for FEMA assistance. This is true whether or not the USACE or NRCS provides any funding for the project.