Engineering and Road/Waterline Repairs

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1044-DR
Applicantof San Buenaventura
Appeal TypeSecond
PA ID#111-65042
PW ID#92751,92747
Date Signed1998-04-01T05:00:00
Citation: Appeal Brief; Second Appeal; City of San Buenaventura; FEMA-1044-DR-CA

Cross-Reference: DSRs 92751 and 92747; Engineering Costs; Waterline Repairs; Category F

Summary: Following the winter storms of 1995, in the City of San Buenaventura (City), FEMA prepared DSR 92747 for $43,815 to repair an access road, a diversion channel, a groundwater well transmission line, and $3,245 for engineering services. No damage to the well head was identified in the DSR. Upon request of the applicant, DSR 92751 was prepared for $7,918 to provide engineering and design services to define costs and methods of repair of the pipeline and access road. During review, this DSR was reduced to $0 because there was no apparent need for these additional engineering services. Subsequently, the City requested $13,898 for the actual costs of the preliminary design report which recommended well relocation, rather than repair. Based on the report, the City requested an additional $437,430 (DSR 92747) for well relocation. The basis of this request was that well relocation was cost effective and necessary to meet FEMA floodplain requirements. The Regional Director treated both submissions as first appeals. The appeal of DSR 92751 was denied because engineering services for repairs were provided in DSR 92747, and the additional engineering services were not required to restore the facility to its pre-disaster condition. The Regional Director determined that the report identified alternatives which constituted significant improvements over the pre-disaster condition. The appeal of DSR 92747 was denied because well relocation was not cost effective, relative to repair of the well. The State forwarded a second appeal for DSR 92751 requesting a total of $13,898 for the engineering report prepared in good faith, based on a directive from FEMA, and an additional $393,615 for relocation of the well. The City contends that the cost to relocate the well is $437,430, significantly less than the $589,000 estimate of the report alternative to restore the site to its pre-disaster condition. The City also contends that well relocation is necessary to meet floodplain regulations.

Issues:
  1. Does the report demonstrate that well relocation is necessary because repair of the site to its pre-disaster condition will raise the 100-year floodplain elevation, in violation of regulations?
  2. Were the additional engineering services of DSR 92751 necessary, by direction from FEMA, for repair of the road and well pipeline?
Findings:
  1. No. None of the alternatives of the report demonstrates that returning the site to its pre-disaster condition will raise the 100-year floodplain elevation.
  2. No. DSR 92747 provided engineering for repairs. FEMA did not direct the applicant to perform the additional $13,898 of engineering to identify repair alternatives to avoid future damages to the well.
Rationale:
  1. Pursuant to 44 CFR 206.203, eligible work must be required as the result of the major disaster event.
  2. Pursuant to 44 CFR 206.226, eligible work is that work necessary to restore eligible facilities on the basis of the design as they existed prior to the disaster.

Appeal Letter

April 1, 1998

Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, Third Floor
Pasadena, California 91103

Dear Mr. Najera:

This is in response to your letters dated May 24, 1997 and May 26, 1997, to the Federal Emergency Management Agency (FEMA). With these letters, you forwarded second appeals of damage survey reports (DSRs) 92747 and 92751 under FEMA-1044-DR-CA, on behalf of the City of San Buenaventura (City). The City is requesting reimbursement from FEMA for an additional $393,615 for well relocation costs, and $13,898 for engineering and design costs.

Following the winter storms of 1995, in the City of San Buenaventura (City), FEMA prepared DSR 92747 for $43,815 to repair an access road and diversion channel, to repair a groundwater well transmission line, and $3,245 for engineering services. No damage to the well head was identified in the DSR. Upon request of the applicant, DSR 92751 was prepared for $7,918 to provide engineering and design services to define costs and methods of repair of the pipeline and access road. During review, this DSR was reduced to $0 because there was no apparent need for the additional engineering services. Subsequently, the City requested $13,898 for the actual costs of the engineering report. Based on the preliminary design report, the City also requested an additional $437,430 (DSR 92747) for well relocation. The basis of this request was that repair of the well was not cost effective and that well relocation was necessary to meet FEMA floodplain requirements. The Regional Director treated both submissions as first appeals. The appeal of DSR 92751 was denied because engineering services for repairs were provided in DSR 92747, and the additional engineering services were not required to restore the facility to its pre-disaster condition. The Regional Director determined that the report identified alternatives which constituted significant improvements over the pre-disaster condition. The appeal of DSR 92747 was denied because the well relocation was not cost effective, relative to repair of the well.

The State forwarded the second appeal for DSR 92751 on May 26, 1997, again requesting a total of $13,898 for the engineering services and report which were prepared in good faith, based on a directive from FEMA. On May 24, 1997, the State forwarded an appeal for DSR 92747 (regarded as a second appeal) requesting an additional $393,615 for relocation of the well. The City contends well relocation is significantly less than $589,000, the cost of the report alternative to restore the site to its pre-disaster condition. The City also contends that the well relocation is necessary to meet FEMA and Ventura County floodplain regulations.

Regarding the appeal of DSR 92751 for $13,898 for engineering services, the applicant provided the preliminary design report in support of the appeal. The report provides information, including HEC-2 runs, to demonstrate the impact of the various alternatives on the 100-year flood plain elevation and identifies various alternatives of repair and protection to prevent future damage to the well. The applicant states in the second appeal submission, ". the City expanded the scope of work to look for alternatives that could meet FEMA regulations." The expanded scope of the work of the report included developing alternative options to provide protection for the well. Further, the alternative of the report which the applicant contends most closely resembles the pre-disaster condition, includes construction of an earthen levee, which was not in the floodplain prior to the disaster event. No documentation was provided to demonstrate that FEMA directed the applicant to perform such additional engineering services, therefore, the additional engineering services were not necessary to return the site to its pre-disaster condition, and are not eligible for funding.

Regarding the appeal of DSR 92747 for additional funding for relocation of the well, the City contends that repair of the site to its pre-disaster condition is not permissible under FEMA and Ventura County floodplain regulations and that the cost of well relocation is more cost effective than the cost of the alternative to repair the site to its pre-disaster condition. None of the alternatives of the report demonstrates a repair alternative that simply returns the site to its pre-disaster condition. Returning the site to its original condition should have little or no impact to the 100-year flood plain elevation. As all of the alternatives contain improvements, the report does not establish an estimate for an alternative to return the site to its pre-disaster condition, which would demonstrate that relocation of the well is more cost effective than repair of the site. The $589,000 alternative contains over 1,260 linear feet of riprap earthen levee, a significant improvement to the pre-disaster condition. It has not been demonstrated that the well relocation is the most cost effective alternative or that repair of the site to the pre-disaster condition would raise the 100-year flood plain elevation, in violation of floodplain regulations. Therefore, the additional funding for well relocation is not eligible.

In addition, any work performed outside of the original scope of work constitutes an improved project, which the applicant would be performing without allowing FEMA the opportunity to comply with the National Environmental Policy Act (NEPA). In such cases, there may be no way for FEMA to retroactively issue NEPA clearance. Current policy would require FEMA to de-obligate all funding, including funding associated with the original scope of work. We would recommend that the applicant not proceed with any construction without coordinating with FEMA.

Pursuant to Title 44 of the Code of the Federal Regulations, section 206.206, sufficient documentation must be provided to support either contention that returning the site to its pre-disaster is not in keeping with FEMA floodplain regulations or that the additional engineering services and report were necessary to return the site to its pre-disaster condition. We have carefully reviewed the information submitted with the second appeal and have determined that the Regional Director's decision is consistent with program statutes and regulations. Therefore, I am denying the second appeal.

Please inform the subgrantee 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

cc: Acting Regional Director
FEMA Region IX
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