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Second Appeal Analysis
PA ID# 055-50258; City of Napa
DSR ID# 21702; Repairs to Kennedy Park Levee
A result of winter storms in March of 1995 that increased discharges in the Napa River in the City of Napa was high and turbulent flow that caused erosion along the Kennedy Park Levee. The Kennedy Park Levee lies directly along the Napa River and provides flood protection for Kennedy Park, the Napa Municipal Golf Course, and Napa Valley College. The levee embankment and riprap slope protection was washed out at 29 separate sites along the western, riverward side of the levee, totaling approximately 1815 linear feet. At Site 11 of 29, the floodwaters overtopped the levee and caused erosion on the eastern, landward side of the levee.
Damage Survey Report (DSR) 21702 was written for $718,389 on April 4, 1995, for the permanent restoration of the Kennedy Park Levee. The DSR covered the costs to dump 566 cubic yards (cy) of unclassified fill to restore the levee's predisaster slope and to place 1,911 cy of riprap over 1,419 square yards (sy) of fabric for slope protection in the riverward areas of erosion. The DSR also covered the costs of excavating, dumping 1,344 cy of riprap, and grading to protect the toe of the levee and regrading of 511 sy of the levee where overtopping caused erosion along the landward side of the levee.
Upon review of the DSR by the levee task force, it was determined that because the Kennedy Park Levee was considered a flood control levee, the authority to provide for the permanent restoration of the levee fell to the U.S. Army Corps of Engineers (USACE). In accordance with the FEMA Levee Policy, the permanent repair of the flood control levee was found not eligible for FEMA assistance.
With a February 8, 1996, letter, the State of California Governor's Office of Emergency Services (State) transmitted the subgrantee's December 6, 1995, letter appealing denial of funding of DSR 21702. In its appeal letter, the city explained that the Kennedy Park Levee was not part of the USACE levee system and never had been. With the appeal, the city enclosed a December 1, 1995, letter from the USACE, Sacramento District, that the city received in response to its request for assistance in repairing the Kennedy Park Levee. In its letter the USACE explained that the levee, which is operated and maintained by the City of Napa, did not qualify for assistance from the USACE because it was not a Federal flood control project and because it was not active in the USACE non-Federal levee rehabilitation program.
In its February 8, 1996, letter, the State explained it understood that FEMA assistance would not be provided if the levee sponsor fails to apply for active status in the USACE non-Federal levee rehabilitation program. However, the State believed the damaged levee was endangering public safety and property and emergency repairs should be funded as allowed by the 1993 Federal levee policy.
The Regional Director denied the appeal in an April 25, 1996, letter. The letter explained that permanent repair of a flood control levee falls under the jurisdiction of the USACE, and failure of the subgrantee to participate in the USACE program did not make the facility eligible for FEMA assistance. The denial also examined eligibility of the funding of levee repair, noting that the scope of work from the DSR was for permanent work, which was excessive for consideration as emergency work. Because documentation had not been provided demonstrating that the condition of the levee posed an immediate threat to life, public health, or safety or improved property, the levee was found not eligible for restoration as emergency work
With a November 18, 1996, letter, the State transmitted the subgrantee's July 31, 1996, letter appealing denial of funding of DSR 21702. The subgrantee requests that repair of the damaged levee be approved either as permanent work under Category D, or emergency work under Category B. To justify funding the work as permanent work, the city explains that because maintenance of the damaged levee rests with the City of Napa, the request for FEMA funding is unrelated to USACE program participation. The letter states, "Whether the City has or has not participated in the USCE program is not relevant. The City is under no obligation to do so." The city also refers to a November 2, 1995, letter from FEMA which explained that the applicant could request funding from FEMA if the USACE denied responsibility for the levee repair.
In reference to requesting funding for repairs as emergency work, the city explains that although the levee was not completely breached, up to 3 feet of the top of the levee at Site 11 was breached. The letter states, "That area is still in the condition it was then, and if we experience the river levels this coming winter that we did in March of 1995, we can expect the levee to be overtopped again and the scour effect across the top could cause the total levee to fail." The city also explained that due to the loss of riprap along the levee, even normal winter flow could be expected to further erode the levee, which in addition to the observation concerning Site 11, would threaten the levee's ability to protect the adjacent public property of Napa Valley College and Kennedy Park.
The State "maintains that emergency protective measures, if performed, should be eligible for assistance". The State also requests that if the Associate Director upholds the Regional Director's determination, that FEMA address the city's position that it is under no obligation to apply for the USACE non-Federal levee rehabilitation program. No additional information was submitted with the second appeal.
The USACE Public Law 84-99 program provides for Federal repair assistance for non-Federal flood control levees that are active participants in its levee rehabilitation program at the time of a disaster. In accordance with 44 CFR 206.226, FEMA may not provide permanent restoration assistance for a facility another Federal agency has the authority to restore. Because permanent restoration of flood control levees is under the authority of the USACE, FEMA will not fund any permanent restoration of flood control levees.
The USACE's December 1, 1995, letter explained that because the levee is not active in the non-Federal levee rehabilitation program, "the Corps is not authorized to repair your damaged levee." Because the Kennedy Park Levee was not active at the time of the disaster, the USACE was not authorized to repair that particular damage, yet permanent restoration of all flood control levees, including the Kennedy Park Levee falls under the USACE jurisdiction. Because permanent restoration of flood control levees is under the authority of the USACE, permanent restoration of the Kennedy Park Levee is not eligible for FEMA funding. The statement that the applicant could request funding from FEMA if the USACE denied responsibility for the levee repair from the November 2, 1995, letter explains that if the USACE defined the Kennedy Park Levee as out of its authority, if the levee were not considered a flood control levee for instance, then FEMA funding may be available. The USACE's December 1, 1995, letter does not deny that the Kennedy Park Levee is within its authority, but rather explains repair of the 1995 damages are not within its authority due to the levee's inactive status in the program.
The city's statement that whether it has or has not participated in the USACE program is not relevant to FEMA funding is true since FEMA will not fund any permanent restoration of a flood control levee whether it is participating in the USACE's program or not, as this activity is within the USACE's authority. Also true is the city's statement the it is under no obligation to apply for the USACE non-Federal levee rehabilital estoration of flood control levees instead of funding the activity itself, those levees must have obtained active status in the USACE's non-Federal levee rehabilitation program prior to damage, or meet the criteria of an exception to the USACE's rules.
The definition of emergency protective measures must be examined to address whether repairs to the levee can be funded as emergency work. Emergency protective measures eliminate or reduce an immediate threat of significant damage to improved public or private property. This work can only be funded when the benefits achieved by the measure are shown to be greater than the cost. Eligible emergency repairs made to damaged protective facilities are limited to protection from a five-year event or the predisaster level if it provided less protection than from a five-year event. The five-year event in the case of the Kennedy Park Levee would be a flood along the Napa River with a recurrence interval of five years, or a 20% annual chance of occurring.
According to the July 31, 1996, letter, the city believes that because the levee has not been repaired, if flooding of the same magnitude as the March 1995 flooding occurred, public property would be threatened. Emergency protective measures are not intended to protect from a subsequent disastrous event, only from an event with a five year recurrence interval. A five-year event may or may not cause additional damage. Because documentation has not been provided demonstrating that the condition of the levee poses an immediate threat from a five-year event to improved property, the repair of the levee as emergency work is not eligible for funding.
The permanent restoration of the Kennedy Park Levee is not eligible for funding in accordance with 44 CFR 206.226 and the FEMA levee policy, as this assistance is within the authority of another Federal agency, the USACE. The repair of the levee also does not qualify for funding as emergency work as emergency protective measures under 44 CFR 206.225(a), as it has not been shown that the condition of the levee poses an immediate threat from a five-year event to improved property. Therefore, the appeal should be denied and DSR 21702 should remain classified as ineligible for public assistance funds.