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Second Appeal Summary
PA ID# 073-53322; City of Oceanside
DSR ID# 97979; Pilgrim Creek Levee Repairs
Citation: Appeal Brief; Second Appeal; City of Oceanside; FEMA-1044-DR-CA; PA #073-53322
Cross-Reference: DSR 97979; Permanent Repairs; Levee Repair
Summary: Following the winter storms of January 1995, in the City of Oceanside (City), FEMA prepared DSR 97979 to repair seven slipouts on the levees along Pilgrim Creek for $18,349. Upon review, FEMA reduced the DSR to $0 because the damaged facility is a flood control work per U.S. Army Corps of Engineer's (USACE) definition. On October 28, 1996, the State submitted the subgrantee's first appeal. The basis of the appeal was that the USACE indicated in a May 1, 1996, letter that Pilgrim Creek has "never requested to participate in the USACE Rehabilitation Program, therefore, the USACE does not have rehabilitation authority" for the Pilgrim Creek Levee. Based on this letter, the State supported the City's contention that the City has the legal responsibility for repairs to the levee, as required by 44 CFR 206.223 (a)(3). The Regional Director denied the appeal because Pilgrim Creek Levee meets the USACE definition of a "flood control work" and FEMA does not normally provide disaster assistance funding for permanent restoration of a damaged facility that is within the specific authority of another Federal agency, whether or not funding is available from that agency. The State submitted the second appeal on May 5, 1997. The documentation included: 1) the May 1, 1996, letter from the USACE stating that Pilgrim Creek is not under their jurisdiction, 2) a copy of a FEMA project application summary, which states that Pilgrim Creek Levee does not meet the USACE definition of a flood control work, and 3) a statement from the State that FEMA's failure to coordinate Federal disaster assistance among Federal agencies, pursuant to 44 CFR 206.42, resulted in a loss of Federal disaster assistance.
Issue: Is the Pilgrim Creek Levee a flood control work and, therefore, under the authority of the USACE?
Finding: Yes. Upon further checking with the USACE, it was determined that Pilgrim Creek Levee does meet the definition of a flood control work and is the under the authority of the USACE, and thus not eligible for FEMA funding.
Rationale: According to 44 CFR 206.226 (a), FEMA funding will not be made available when another Federal agency has specific authority to restore facilities. The facility meets the definition of a flood control work and is eligible for the USACE program. However, the USACE does not have the authority to repair the levee because the subgrantee has never requested to participate in the USACE Rehabilitation Program.