Ruth Airport Levee

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1044-DR
ApplicantTrinity County DOT
Appeal TypeSecond
PA ID#105-91021
PW ID#99007
Date Signed1997-07-15T04:00:00
Citation: FEMA-1044-DR-CA; Trinity County DOT; DSR 99007

Cross-Reference: Flood control works, permanent restoration, other federal agencies

Summary: The Trinity County Department of Transportation is requesting funding for permanent repair of the Ruth Airport Levee which suffered damage during the early 1995 winter storms. Flooding of the Mad River reportedly resulted in erosion of a one-third mile section of the levee. The function of the levee is to protect the airport facilities from flood waters of the Mad River. FEMA's review of the structure has concluded that the levee meets the USACE's definition of a flood control work. In accordance with the FEMA Levee Policy, this levee is found to be under the specific authority of other federal agencies, and ineligible for FEMA permanent restoration funding. As a first appeal, the applicant had provided documentation which indicates that the levee is not in active status of the USACE rehabilitation program, but did not demonstrate that the levee is not a flood control work. The first appeal was denied. No further documentation has been provided with the second appeal which would demonstrate that the levee is not a flood control work.

Issues: Does the levee meet the definition of a flood control work?

Findings: Review of the project by the levee task force assigned to review water control facilities during the 1044 disaster, and an independent review by FEMA in response to this appeal, have concluded that the levee does meet the definition of a flood control work. The applicant has provided no documentation to support that the levee is not a flood control work. Rather, the second appeal letter states that the levee protects the Airport infrastructure against flood waters. Therefore, there is no basis for FEMA to overturn the determination of ineligibility.

Rationale: FEMA may not provide disaster assistance funding for permanent restoration of a damaged facility that is within the specific authority of another Federal agency. 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 USACE or the NRCS. Accordingly, no FEMA funding is available for permanent restoration of flood control works. 44 CFR206.226(a)

Appeal Letter

July 15, 1997

Ms. Nancy Ward
Governor's Authorized Representative
Governor's Office of Emergency Services
Disaster Assistance Branch
2800 Meadowview Road
Sacramento, CA 95832

Dear Ms. Ward:

Please find attached my revised response concerning the second appeal of DSR 99007 submitted by the Trinity County Department of Transportation. We previously transmitted this response to you on June 12, 1997 but have noted that an operative word was missing from the last paragraph of the analysis conclusion. Attached is the corrected version of the analysis with the word "not" added in the eighth line of the conclusion. Note that the determination of the appeal has not changed.

Please forward this revised analysis to the applicant.

Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

Enclosure

Appeal Analysis

BACKGROUND
Due to the severe winter storms and flooding that occurred in January and February of 1995, the President declared the State of California a major disaster area. The Trinity County Department of Transportation (DOT) is an eligible applicant for Public Assistance Funding. The Mad River, located near the Ruth Airport, flooded and reportedly eroded a portion of the Ruth Airport Levee. This levee had been constructed to protect the airport from flood waters.

On February 28, 1995, representatives from FEMA, the California Office of Emergency Services (OES) and the Trinity County DOT (applicant) visited the site to inspect the damages. Erosion of the levee was documented along a one-third mile section of the levee (total length of levee is approximately 1.2 miles). The inspection team prepared DSR 99007 in the amount of $276,168, providing a scope of work to restore the levee to it's predisaster condition. During eligibility review, the "levee task force" concluded that the primary function of the levee was to provide flood control, and as such, is not eligible for FEMA permanent restoration assistance.

First appeal
On December 21, 1995, OES submitted the applicant's first appeal of FEMA's decision. The applicant provided a document from the United States Army Corps of Engineers (USACE) which indicates that the levee does not qualify under the Corps' Public Law (PL) 84-99 program because it is not a federal levee and is not in "active status" in their non-federal flood control catalog. OES asserts that the levee is therefore not a flood control levee. FEMA denied the appeal in a letter dated March 25, 1996, on the basis that the levee meets the USACE definition of a flood control work (FCW). Therefore, under the current FEMA Levee Policy, FEMA may not provide funding for a facility which is under the specific authority of another Federal agency. This restriction applies even if the agency with statutory authority does not provide restoration funding.

Second Appeal
The applicant filed a second appeal through OES on November 27, 1996, appealing FEMA's determination that the levee is within the jurisdiction of the USACE. The basis of the appeal is that although the applicant states that the levee protects their Airport infrastructure against flood water, they maintain that the levee is not in the USACE jurisdiction. Further, the applicant referenced a Category B DSR prepared for emergency repair of this levee during FEMA-758-DR, stating that FEMA has participated in repairs for this levee in the past. OES has further indicated that a USACE permit was not required at the time of the construction of this levee, nor is one required for it's repair, thus supporting that the levee is not within the jurisdiction of the USACE.

DISCUSSION
The primary issue of appeal is regarding the eligibility of the levee for permanent restoration assistance. FEMA maintains that the function of the levee is for flood control and that the levee meets the USACE definition of a flood control work (FCW). Permanent restoration of such flood control works is not eligible for FEMA funding.

In accordance with 44 CFR 206.226(a), 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. 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 USACE or the Natural Resource Conservation Service (NRCS). Accordingly, no FEMA funding is available for permanent restoration of flood control works. This is true whether or not USACE or NRCS provides any funding for the project. If funding is not available for permanent restoration of a flood control work under any USACE or NRCS program, there may be no Federal funding available from any Federal source for the restoration of the flood control work.

The USACE defines a flood control work as a "structure designed and constructed to have appreciable and dependable effects in preventing damage by irregular and unusual rises in water level." In review of DSRs for disaster number 1044, a Levee Task Force composed of FEMA, USACE and NRCS representatives evaluated DSRs involving water control facilities to determine if they were flood control works. We have also conducted an independent review of the documentation in response to the second appeal. Based on these reviews, we have determined that the damaged facility was designed to prevent damage to the Ruth Airport from higher than normal flows within the Mad River. Accordingly, we find that the damaged facility meets the USACE definition of a flood control work and is, therefore, ineligible for FEMA funding.

Pursuant to 44 CFR 206.206(a), appeals must be accompanied by documentation justifying the applicant's position on the issue being appealed. The Subgrantee has provided documentation that the levee is not in active status for funding within the USACE rehabilitation program. However, as indicated above, FEMA may not provide funding for facilities which meet the definition of a flood control work, regardless of whether the agency with specific authority provides funding or not. The basis for FEMA's denial of funding is more specifically attributed to the determination that the facility meets the definition of a flood control work. Regarding this issue, the Subgrantee has provided no documentation to demonstrate that the facility is not a flood control work. Rather, the applicant has specifically stated that the "levee protects our Airport infrastructure against flood waters". We therefore find that our initial determination was correct and the appeal should be denied.

To support their position that this levee should be eligible for FEMA funding, the applicant referenced a Category B DSR prepared for emergency repair of this levee during FEMA-758-DR. It should be understood that the referenced policy does not necessarily restrict FEMA from providing emergency repair of flood control works. Therefore, FEMA's funding for emergency repair of this levee in previous disasters does not support that the levee should be eligible for the requested scope of permanent restoration.

CONCLUSION
The applicant is appealing FEMA's determination that the Ruth Airport levee is a flood control work which is under the authority of another federal agency for restoration. In general terms, per the current FEMA Levee Policy, FEMA may not provide funding for facilities which meet the USACE's definition of flood control facilities. FEMA's review of the project indicates that the facility does meet this definition, and therefore is ineligible for FEMA funding. The applicant has provided documentation indicating that the facility is not in the active status for the USACE rehabilitation funding program, however, this does not relieve FEMA of the terms of the Levee Policy. More importantly, the applicant has not provided documentation to demonstrate that the facility is not a flood control work. Therefore, FEMA maintains that the levee is not eligible for Public Assistance funding, and the appeal is denied.
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