Repairs to Salt Creek Levee

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1044-DR
ApplicantTehama County Flood Control & Water Conservation District
Appeal TypeSecond
PA ID#103-91003
PW ID#15228
Date Signed1997-10-29T05:00:00
Citation: FEMA-1044-DR-CA; Tehama County Flood Control & Water Conservation District; DSR 15228

Cross-Reference: Flood control work, Other Federal agencies

Summary: Flooding in January 1995 caused a 350-foot section of the Salt Creek levee to erode. The repair of the levee entailed replacing aggregate base, re-shaping the embankment, and placing riprap, for a cost of $17,211 as documented by DSR 15228. Because the Salt Creek levee was determined to be a flood control work (FCW) and under the specific authority of the Natural Resources Conservation Service (NRCS), the work was not eligible for FEMA disaster assistance. The first appeal was denied on the same basis. In support of the second appeal, the subgrantee noted an NRCS letter that informed the subgrantee that the work did not meet the requirements of their Emergency Watershed Protection program and was not eligible for funding from that agency. The subgrantee stated that because the repairs of damage sustained during the January 1993 flooding disaster were eligible that the current repairs should also be eligible. The second appeal also noted that FEMA has the authority to fund FCWs per the Stafford Act and that FEMA did not properly coordinate Federal disaster assistance. The subgrantee does not contest that the Salt Creek levee is an FCW.

Issues:
  1. Is the flood control channel eligible for FEMA assistance?
  2. Did FEMA fail to adequately coordinate Federal disaster assistance, resulting in the subgrantee's loss of assistance from NRCS?
Findings:
  1. No, the channel meets the USACE definition of an FCW and is, therefore, ineligible for FEMA assistance.
  2. No, the determination of ineligibility for this channel is not due to lack of coordination of Federal disaster assistance on FEMA's part, but rather fur to the subgrantee's failure to adhere to the NRCS's design and maintenance standard for flood control works, and/or the failure to apply to the Emergency Watershed Protection program.
Rationale: Under the current FEMA Levee Policy, permanent restoration of facilities that fit the USACE definition of a "flood control work" is work that is considered to be within the specific authority of either the USACE or the NRCS, and, therefore, not eligible for FEMA assistance. This is true whether or not USACE or NRCS provides any funding for the project.

Appeal Letter

October 29, 1997

Ms. Nancy Ward
Governor's Authorized Representative
Governor's Office of Emergency Services
P.O. Box 23910
Sacramento, California 95823

Dear Ms. Ward:

This letter is in response to your March 10, 1997, submittal of the Tehama County Flood Control and Water Conservation District's second appeal of damage survey report 51228 under FEMA-1044-DR-CA. The applicant is requesting permanent restoration of the damaged portions of the Salt Creek levee, which meets the U.S. Army Corps of Engineers' definition of a flood control work.

Based on my review of the documentation submitted in support of the appeal, I have found no basis to overturn our previous determination that, as a flood control facility, the levee is not eligible for permanent restoration assistance. Further, I have found that there is no validity to the subgrantee's assertion that a lack of coordination by FEMA resulted in the determination of ineligibility for Federal disaster assistance for the applicant. Please refer to the enclosed appeal analysis for more detail.

Please inform the applicant 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

Appeal Analysis

BACKGROUND
During the January flooding disaster, approximately 350 feet of the Salt Creek Levee south of Highway 99 E was eroded. Following an inspection, DSR 15228 was prepared for $17,211 to fund the restoration of the levee by replacing aggregate base, re-shaping the embankments and placing rip rap. This work was performed under the same contract as the repairs that resulted from the January 1993 disaster (FEMA-0979-DR-CA), which were ongoing. During review, which included the Levee Task Force evaluation, the levee was identified to be a flood control work (FCW) and under the specific authority of the Natural Resources Conservation Service (NRCS). Therefore, the work was not eligible for FEMA disaster assistance.

First Appeal
The first appeal was submitted by the subgrantee with a September 11, 1995, letter to the State of California Governor's Office of Emergency Services (OES). The subgrantee contended that this same facility was damaged in 1993 and those repairs were eligible for Federal disaster assistance. Additionally, the repair of the 1995 damage was done in an efficient, cost effective manner and with OES coordination. Further, the subgrantee did not agree with the determination that the levee was under the authority of NRCS. OES forwarded this appeal with an October 19, 1995, letter, supporting the subgrantee's position. The Regional Director responded with a September 23, 1996, letter stating that FEMA does not provide disaster assistance for the permanent restoration of a facility if it is under the specific authority of another Federal agency, in accordance with 44 CFR 206.226(a). Additionally, the response noted that the facility was an FCW and, as such, was not eligible for FEMA disaster assistance. Consequently, the first appeal was denied.

Second Appeal
The subgrantee's second appeal dated November 14, 1996, was transmitted to the Regional Director with a March 10, 1997, letter from OES concurring with the appeal. OES stated that FEMA had authority under Section 403 of the Stafford Act to fund the levee repairs. The subgrantee noted that FEMA funded the repair of damages incurred during the 1993 disaster, and based on this action believed the 1995 repair would also be eligible. To support the appeal, the subgrantee referenced a letter received from NRCS, which stated that participation in the NRCS Emergency Watershed Protection (EWP) program requires project approval prior to bidding, and since bidding was complete before requesting NRCS assistance the project was not eligible for this program. The subgrantee also noted that FEMA should fund the levee repairs because NRCS denied funding. Further, the subgrantee stated that the levee provides protection to critical facilities, confirming that the structure is an FCW. Finally, the subgrantee stated that they had no knowledge of FEMA's levee policy at the time of the disaster event. Accordingly, they requested that DSR 15228 be eligible for FEMA disaster assistance.

DISCUSSION
Eligibility of Flood Control Works
Congress authorized FEMA, the U.S. Army Corps of Engineers (USACE), and NRCS to fund repairs to flood control works. When different Federal agencies are authorized to perform the same function, these agencies must determine the best way to implement public policy that is consistent with the congressional intent. In 1986, the USACE and NRCS signed a Memorandum of Agreement in which the two agencies determined that NRCS would be responsible for repairs to FCWs with contributing drainage areas of less than 400 square miles. Alternatively, the USACE would be responsible for repairs to FCWs with contributing drainage areas of greater than 400 square miles. Both USACE and NRCS have specific programs that encourage owners of flood control works to build/upgrade their facilities to specific standards and to maintain them on a regular basis to ensure that they perform as designed. In the present case, if the owners meet NRCS requirements and participated in the EWP program, NRCS will fund repairs to those facilities when they are damaged during an unusual event, for example a flood that is declared a Presidential disaster.

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 toward a common goal-assisting victims and eligible applicants in recovering from the devastating effects of disasters as quickly as possible. NRCS can provide assistance to owners of flood control works who commit to certain actions to ensure the integrity of their facilities. However, it is not good public policy for FEMA to fund the repair of flood control works when the owners have not made similar commitments to protect the integrity of their facilities by meeting NRCS program requirements. If FEMA were to fund permanent repairs of flood control works that are not participating in either the USACE or NRCS programs this would possibly remove the incentive for those owners to join a program. With this incentive, more flood control works are better maintained and the public is better protected.

Coordination Federal Disaster Assistance
OES and the subgrantee asserted that FEMA failed to inform them of the Federal Levee Policy and of FEMA's position regarding funding for the permanent restoration of flood control works. The subgrantee stated that the summer of 1995 was the first time they were aware that the policy could be used as the basis for denying funding, particularly because FEMA had previously funded similar projects. And as a result, the subgrantee has unreimbursed costs associated with the work performed.

FEMA disagrees that proper coordination of Federal assistance was not made. 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 this levee meets the USACE definition of a flood control work, funding of its repair would potentially be available through the EWP program, only if the program's requirements were met. However, if the grantee or the subgrantee did not adhere to NRCS criteria, this does not imply that FEMA would fund the permanent restoration of the levee. Furthermore, discussion of FEMA's policy and its implications on funding permanent restoration of flood control works began at the onset of the 1044 and 1046 disasters, and involved FEMA, USACE, NRCS, and OES. Additionally, it is the responsibility of OES, per 44 CFR 206.202 (b), to inform the subgrantee of FEMA's policies and operating procedures. Thus, OES had prior knowledge of FEMA's Levee Policy and that flood control works are not eligible for FEMA permanent restoration disaster assistance.

The subgrantee noted a letter received from NRCS, explaining that NRCS must approve projects prior to bidding for the facility to be eligible for the EWP program. By completing project bidding before requesting NRCS assistance, the subgrantee disqualified the facility from EWP eligibility. Therefore, the determination of ineligibility for this channel is not due to a lack of coordination of Federal disaster assistance on FEMA's part, but rather the subgrantee's failure to adhere to the requirements of the EWP program.

CONCLUSION
The subject portion of Salt Creek, for which permanent restoration funding was requested, meets the USACE's definition of a flood control work and is therefore not eligible for FEMA public assistance funding. Further, is it concluded that the determination of ineligibility for this facility is not due to the lack of coordinationere's failure to adhere to the NRCS requirements for flood control works. Accordingly, the appeal is denied.
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