East Garden Grove - Wintersburg Channel, Bee Canyon Retarding Basin
Appeal Brief
Appeal Letter
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:
Appeal Brief
| Disaster | FEMA-1044-DR |
| Applicant | Orange County EMA |
| Appeal Type | Second |
| PA ID# | 059-00000 |
| PW ID# | 24310,94063 |
| Date Signed | 1997-11-24T05:00:00 |
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:
- Are the flood control facilities eligible for FEMA assistance?
- Did FEMA fail to adequately coordinate Federal disaster assistance, resulting in the subgrantee's loss of assistance from the USACE?
- Was DSR 64401 prepared to provide for the permanent restoration of damaged FCWs?
- No. The various facilities meet the USACE definition of an FCW and are, therefore, ineligible for FEMA assistance.
- 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.
- No. DSR 64401 was prepared to expedite funds for emergency repair work.
Appeal Letter
November 24, 1997
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, 3rd Floor
Pasadena, California 91103-3678
Dear Mr. Najera:
This letter is in response to your recent letters that transmitted second appeals of damage survey reports (DSRs) 24310 and 94063 on behalf of the Orange County Environmental Management Agency under FEMA-1044-CA. The applicant is appealing the Federal Emergency Management Agency's (FEMA's) determinations to deobligate DSRs 24310 and 94063, which were prepared for the restoration of damaged flood control facilities, through supplemental DSRs 83559 and 83810. Furthermore, the applicant is requesting that FEMA fund the permanent restoration of the flood control facilities in accordance with formally adopted codes and standards.
The winter storms of 1995 caused erosion along reaches of the East Garden Grove - Wintersburg Channel (Wintersburg Channel) and the Bee Canyon Retarding Basin. DSRs 24310 ($7,995) and 94063 ($1,208) were prepared to cover permanent restoration of the respective facilities. The scope of work on DSR 24310 was to repair a damaged section of the Wintersburg Channel lining using 4-inch thick concrete. The applicant submitted a letter of non-concurrence dated May 12, 1995, in which they stated that repair work was completed by contract for $20,005 using 8-inch thick concrete to comply with current county codes and standards. The scope of work on DSR 94063 was to repair the eroded slope of the Bee Canyon Retarding Basin using unclassified fill. The applicant submitted a hazard mitigation proposal (HMP), requesting the use of riprap in place of the unclassified fill. The HMP was determined not to be cost-effective and, therefore, was denied. The applicant submitted a letter of non-concurrence dated October 17, 1995, in which they requested that the use of riprap be accounted for in the DSR for a total of $48,676, to comply with county codes and standards, and not be considered an HMP.
You forwarded the applicant's first appeal of DSR 24310 with a transmittal letter dated January 25, 1996. The applicant restated their position that the use of 8-inch thick concrete to repair the channel lining should be eligible in accordance with formally adopted codes and standards. Therefore, they believed the DSR should be approved for $20,008. You also forwarded the applicant's first appeal of DSR 94063 with a letter of transmittal dated June 25, 1996. The applicant again requested that $48,676 be eligible to repair the basin in accordance with their codes and standards.
During review of these appeals, the regional staff determined that the facilities in question meet the U.S. Army Corps of Engineers' (USACE's) definition of a flood control work (FCW) and are, therefore, ineligible for FEMA funding. Accordingly, DSRs 83559 and 83810 were prepared to deobligate DSRs 24310 and 94063 respectively. The Regional Director notified the applicant of these determinations in letters dated December 20, 1996, and March 10, 1997.
The applicant submitted second appeals of DSRs 24310 and 94063 on March 21, 1997, and June 11, 1997. The applicant does not contest that the facilities meet the definition of an FCW. However, your transmittal letters and the applicant's appeals cite several reasons why FEMA should fund the requested repairs. First, you state that FEMA previously approved DSR 64401, whose scope of work included permanent repair of FCWs. Second, you state that FEMA failed in its duty to coordinate the disaster assistance of other Federal agencies, resulting in the applicant's loss of any Federal assistance. Lastly, you state that Section 312 of the Stafford Act allows FEMA to provide Federal assistance when other Federal agencies' funds are not available at the time of application. Before addressing your specific issues, I will comment on the general eligibility of flood control works.
Eligibility for 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 to 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, FCWs are better maintained and the public is better protected.
The Federal approach to repairing FCWs is articulated in the Federal Levee Policy which FEMA adhered to following the 1995 winter floods. The Federal Levee Policy has been in effect for some time. The policy was clarified and reissued in 1993 and 1996. In 1996, FEMA renamed the levee policy "The Policy for Rehabilitation Assistance for Levees and Other Flood Control Works." As the applicant has indicated that they are not familiar with this policy, I have enclosed a copy of the 1996 policy with this letter.
DSR 64401
FEMA approved DSR 64401 soon after the flood was declared a major disaster by the President, to provide the county with funds to operate its Emergency Operation Center and to make eligible emergency repairs to damaged flood control facilities throughout the county. The purpose of approving the advance was to provide expedited funds to the county before specific projects were identified. This allowed the county to perform emergency protective measures to damaged facilities in a timely manner. As the county identified eligible scopes of work for specific projects, FEMA prepared DSRs for the projects and offset the costs against DSR 64401. The eligible work documented in DSR 64401 was emergency work. The approved DSR did not authorize the county to make permanent repairs to flood control facilities. The staff at the Region IX Disaster Closeout Center recently met with Orange County officials to discuss this DSR. We have considered the information Orange County provided at that meeting in our evaluation of this appeal.
Coordination of Federal Disaster Assistance
You assert that FEMA failed to perform its duty and obligation under the authority of Section 402(2)(3) of the Stafford Act to coordinate all disaster relief assistance provided by Federal agencies. You further cite Title 44 of the Code of Federal Regulations, Section 206.42. You state that this regulation gives FEMA the responsibility to coordinate all Federal disaster assistance, including taking appropriate action to make certain that all of the Federal agencies carry out their appropriate disaster assistance roles uner County of the requirements of the Federal Levee Policy nor direct them to request assistance from the USACE or the National Resources Conservation Service (NRCS) until late spring of 1997. At that point, USACE had stopped accepting applications for disaster assistance. For these reasons, you conclude that FEMA's failure to properly coordinate all Federal disaster assistance resulted in the loss of Federal assistance to the Orange County.
We believe that we fulfilled our obligation to coordinate all Federal disaster assistance following the 1044 and 1046 disasters. The USACE was actively implementing its programs immediately after the disasters. We determined that the channels that are under appeal meet the USACE definition of an FCW and are potentially eligible for the USACE's PL 84-99 Rehabilitation and Inspection Program. Therefore, based on the Federal Levee Policy, these facilities were found to be ineligible for FEMA funding.
Further, it is noted that to be considered for eligibility for assistance to repair a disaster damaged facility, the applicant must be an active participant in this USACE program at the time of the disaster event. As indicated previously, FEMA may not provide permanent restoration assistance to FCWs, even if the agency with specific authority does not provide funding. Therefore, FCWs which are not in active status in the PL 84-99 Program at the time of the disaster, may not be eligible for any Federal assistance. As such, the applicant's eligibility for Federal disaster assistance for FCWs is dependent on their participation in the USACE Program prior to the actual disaster event. FEMA's effort in coordinating disaster assistance is not a factor in the determination of eligibility.
Section 312 of the Stafford Act
You argue that section 312(b)(1) of the Stafford Act gives FEMA authority to provide assistance when other Federal funds are not available at the time of application to FEMA. In that provision, the recipient must agree to repay all FEMA assistance when the other Federal assistance is provided. Our General Counsel has opined that the above section of the law applies to assistance to individuals, not public entities. The situation in this case is not one of duplication of benefits but rather that FEMA regulations and policy do not allow FEMA assistance for permanent restoration of an FCW.
Conclusion
I have reviewed the appeals and have determined that the channels included in this appeal meet the USACE definition of FCWs. Pursuant to the Flood Control Works Policy, these channels are not eligible for FEMA funding. Based on this determination, the issue of repair work performed in compliance with codes and standards is not relevant. Therefore, I am denying the appeals.
Please inform Orange County of my determination. The applicant may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Ray Williams
Acting Regional Director
FEMA Region IX
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, 3rd Floor
Pasadena, California 91103-3678
Dear Mr. Najera:
This letter is in response to your recent letters that transmitted second appeals of damage survey reports (DSRs) 24310 and 94063 on behalf of the Orange County Environmental Management Agency under FEMA-1044-CA. The applicant is appealing the Federal Emergency Management Agency's (FEMA's) determinations to deobligate DSRs 24310 and 94063, which were prepared for the restoration of damaged flood control facilities, through supplemental DSRs 83559 and 83810. Furthermore, the applicant is requesting that FEMA fund the permanent restoration of the flood control facilities in accordance with formally adopted codes and standards.
The winter storms of 1995 caused erosion along reaches of the East Garden Grove - Wintersburg Channel (Wintersburg Channel) and the Bee Canyon Retarding Basin. DSRs 24310 ($7,995) and 94063 ($1,208) were prepared to cover permanent restoration of the respective facilities. The scope of work on DSR 24310 was to repair a damaged section of the Wintersburg Channel lining using 4-inch thick concrete. The applicant submitted a letter of non-concurrence dated May 12, 1995, in which they stated that repair work was completed by contract for $20,005 using 8-inch thick concrete to comply with current county codes and standards. The scope of work on DSR 94063 was to repair the eroded slope of the Bee Canyon Retarding Basin using unclassified fill. The applicant submitted a hazard mitigation proposal (HMP), requesting the use of riprap in place of the unclassified fill. The HMP was determined not to be cost-effective and, therefore, was denied. The applicant submitted a letter of non-concurrence dated October 17, 1995, in which they requested that the use of riprap be accounted for in the DSR for a total of $48,676, to comply with county codes and standards, and not be considered an HMP.
You forwarded the applicant's first appeal of DSR 24310 with a transmittal letter dated January 25, 1996. The applicant restated their position that the use of 8-inch thick concrete to repair the channel lining should be eligible in accordance with formally adopted codes and standards. Therefore, they believed the DSR should be approved for $20,008. You also forwarded the applicant's first appeal of DSR 94063 with a letter of transmittal dated June 25, 1996. The applicant again requested that $48,676 be eligible to repair the basin in accordance with their codes and standards.
During review of these appeals, the regional staff determined that the facilities in question meet the U.S. Army Corps of Engineers' (USACE's) definition of a flood control work (FCW) and are, therefore, ineligible for FEMA funding. Accordingly, DSRs 83559 and 83810 were prepared to deobligate DSRs 24310 and 94063 respectively. The Regional Director notified the applicant of these determinations in letters dated December 20, 1996, and March 10, 1997.
The applicant submitted second appeals of DSRs 24310 and 94063 on March 21, 1997, and June 11, 1997. The applicant does not contest that the facilities meet the definition of an FCW. However, your transmittal letters and the applicant's appeals cite several reasons why FEMA should fund the requested repairs. First, you state that FEMA previously approved DSR 64401, whose scope of work included permanent repair of FCWs. Second, you state that FEMA failed in its duty to coordinate the disaster assistance of other Federal agencies, resulting in the applicant's loss of any Federal assistance. Lastly, you state that Section 312 of the Stafford Act allows FEMA to provide Federal assistance when other Federal agencies' funds are not available at the time of application. Before addressing your specific issues, I will comment on the general eligibility of flood control works.
Eligibility for 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 to 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, FCWs are better maintained and the public is better protected.
The Federal approach to repairing FCWs is articulated in the Federal Levee Policy which FEMA adhered to following the 1995 winter floods. The Federal Levee Policy has been in effect for some time. The policy was clarified and reissued in 1993 and 1996. In 1996, FEMA renamed the levee policy "The Policy for Rehabilitation Assistance for Levees and Other Flood Control Works." As the applicant has indicated that they are not familiar with this policy, I have enclosed a copy of the 1996 policy with this letter.
DSR 64401
FEMA approved DSR 64401 soon after the flood was declared a major disaster by the President, to provide the county with funds to operate its Emergency Operation Center and to make eligible emergency repairs to damaged flood control facilities throughout the county. The purpose of approving the advance was to provide expedited funds to the county before specific projects were identified. This allowed the county to perform emergency protective measures to damaged facilities in a timely manner. As the county identified eligible scopes of work for specific projects, FEMA prepared DSRs for the projects and offset the costs against DSR 64401. The eligible work documented in DSR 64401 was emergency work. The approved DSR did not authorize the county to make permanent repairs to flood control facilities. The staff at the Region IX Disaster Closeout Center recently met with Orange County officials to discuss this DSR. We have considered the information Orange County provided at that meeting in our evaluation of this appeal.
Coordination of Federal Disaster Assistance
You assert that FEMA failed to perform its duty and obligation under the authority of Section 402(2)(3) of the Stafford Act to coordinate all disaster relief assistance provided by Federal agencies. You further cite Title 44 of the Code of Federal Regulations, Section 206.42. You state that this regulation gives FEMA the responsibility to coordinate all Federal disaster assistance, including taking appropriate action to make certain that all of the Federal agencies carry out their appropriate disaster assistance roles uner County of the requirements of the Federal Levee Policy nor direct them to request assistance from the USACE or the National Resources Conservation Service (NRCS) until late spring of 1997. At that point, USACE had stopped accepting applications for disaster assistance. For these reasons, you conclude that FEMA's failure to properly coordinate all Federal disaster assistance resulted in the loss of Federal assistance to the Orange County.
We believe that we fulfilled our obligation to coordinate all Federal disaster assistance following the 1044 and 1046 disasters. The USACE was actively implementing its programs immediately after the disasters. We determined that the channels that are under appeal meet the USACE definition of an FCW and are potentially eligible for the USACE's PL 84-99 Rehabilitation and Inspection Program. Therefore, based on the Federal Levee Policy, these facilities were found to be ineligible for FEMA funding.
Further, it is noted that to be considered for eligibility for assistance to repair a disaster damaged facility, the applicant must be an active participant in this USACE program at the time of the disaster event. As indicated previously, FEMA may not provide permanent restoration assistance to FCWs, even if the agency with specific authority does not provide funding. Therefore, FCWs which are not in active status in the PL 84-99 Program at the time of the disaster, may not be eligible for any Federal assistance. As such, the applicant's eligibility for Federal disaster assistance for FCWs is dependent on their participation in the USACE Program prior to the actual disaster event. FEMA's effort in coordinating disaster assistance is not a factor in the determination of eligibility.
Section 312 of the Stafford Act
You argue that section 312(b)(1) of the Stafford Act gives FEMA authority to provide assistance when other Federal funds are not available at the time of application to FEMA. In that provision, the recipient must agree to repay all FEMA assistance when the other Federal assistance is provided. Our General Counsel has opined that the above section of the law applies to assistance to individuals, not public entities. The situation in this case is not one of duplication of benefits but rather that FEMA regulations and policy do not allow FEMA assistance for permanent restoration of an FCW.
Conclusion
I have reviewed the appeals and have determined that the channels included in this appeal meet the USACE definition of FCWs. Pursuant to the Flood Control Works Policy, these channels are not eligible for FEMA funding. Based on this determination, the issue of repair work performed in compliance with codes and standards is not relevant. Therefore, I am denying the appeals.
Please inform Orange County of my determination. The applicant may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Ray Williams
Acting Regional Director
FEMA Region IX
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