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Second Appeal Analysis
PA ID# 013-91053; Bethel Island Municipal Improvement District
DSR ID# 28148,28149; N/A
In March 1995, storms in the State of California generated wave action and winds that damaged a levee under the jurisdiction of the Bethel Island Municipal Improvement District (BIMID). The levee damage occurred at three sites on Bethel Island. Two of these are the subject of this appeal.
At the damage sites, the storm washed out fines in the earthen embankment causing the levee to slip down in a dishing effect. The damaged levee was no longer at the predisaster slope of 2 to 1, and in many cases the resulting slope was dish shaped with a very steep portion at the top. Repairs to the levee consisted of placing rock fill to restore the slopes to the predisaster condition. The repairs were made along 3,750 lineal feet of the levee at one site, and 350 lineal feet at the other.
The damage survey reports (DSRs), with inspection dates of July 28, 1995, requested $72,333 and $6,758 for repairs at the two sites. On October 3, 1995, DSR 28148 was approved for $0. On September 19, 1995, DSR 28149 was approved for $0. The work was declared ineligible by FEMA because the levee had been identified to be within the authority of the U.S. Army Corps of Engineers (USACE).
BIMID submitted a first appeal to the State of California Governor's Office of Emergency Services (OES) by letter of February 26, 1996. In their letter, BIMID states that even though they obtain permits from the USACE to work on the levees, BIMID does not receive any funding from the USACE, and therefore are not participants in the Emergency Watershed Protection program. Because the levee is not part of the USACE program, BIMID is eligible for FEMA funding.
The FEMA Regional Director's letters of October 4 and 11, 1996, denied the first appeal. The Director acknowledged that the levee is not considered a flood control work. However, BIMID is subject to Amendment #5 of the DR-758 FEMA/State of California agreement (Amendment/Agreement), under which non-flood control levees in the Sacramento-San Joaquin Delta reclamation districts are only considered eligible for future FEMA assistance if the requirements outlined in the agreement have been met. The Director stated that a review of the applicant's past Federal disaster assistance files documented that they have not fulfilled the hazard mitigation proposal (HMP) requirements. Therefore, the applicant was not eligible for FEMA disaster assistance.
BIMID submitted a second appeal to OES by letter of December 30, 1996. In this appeal, they claim to have made a diligent effort to substantially comply with the HMP requirement. They cite the work they have done to date, and note that the State Department of Water Resources (DWR) is investigating their work to date for substantial compliance with the HMP requirements.
The question is whether BIMID has met the requirements for HMP under the Amendment/Agreement. A summary of the evidence is as follows:
- The BIMID letter of September 5, 1991, to OES requested a time extension for meeting the requirements of the Amendment/Agreement. They explain that there were still 17 sites at Bethel Island which did not have levee cross sections that met FEMA's short-term HMP geometry standards. They summarize the work they have performed in the preceding five years in an effort to comply with both the short-term and long-term HMP requirements.
As stated in the Amendment/Agreement, the deadline for completing short-term HMP improvements or for submission of a request for a time extension was September 10, 1991. BIMID's letter met this FEMA requirement.
- FEMA has kept a chronological record (the Chronology) of important meeting minutes relevant to this appeal. The following is an excerpt from this chronology. "November 15, 1995, a meeting was held with FEMA, OES, and DWR to discuss criteria for disaster funding for reclamation districts [BIMID is one of these] damaged during FEMA-1044-DR-CA. It was agreed that if a district's levees were up to the HMP required elevation, crown width, cross sections and slopes, with no substantial encroachments, but did not have all weather roads, FEMA would consider them in substantial compliance and would fund them for 1044/1046. It was agreed that DWR would review their records and provide a report that would include what each district has done since 1991 to comply with the HMP, how close they are to compliance with the HMP and when they expect to be in compliance with the HMP as required by Amendment #5. In addition, it was agreed that OES would formally transmit any time extension requests for compliance with Amendment #5 that they had received from districts, along with geotech reports or other evidence to support the time extension requests."
- From the Chronology, "May 17, 1996: A meeting was held with DWR to review the status of eleven districts [BIMID is one] that were determined ineligible because of non-compliance with Amendment #5. A review of the maintenance records of these eleven districts determined that their status had not changed since the last joint inspection of their levees was completed in November of 1991."
- The DWR letter of October 1, 1996, to OES states "We are investigating.eight reclamation districts [BIMID is one] that may have been substantially in compliance with HMP requirements prior to the 1995 floods. We will transmit our findings to you as soon as possible."
- The BIMID letter of October 2, 1996, to FEMA again summarizes the on-going work they are performing in an effort to comply with both the short-term and long-term HMP requirements. They state that with the financial assistance of DWR, they are reducing the number of encroaching structures, and that they will continue to do so as funds become available.
- From the Chronology, "January 1997: A meeting was held with FEMA, OES, DWR, USACE and NRCS to discuss the districts and eligibility for FEMA-1155-DR-CA. At this meeting, it was agreed that the districts would be reviewed on a district-by-district basis, and eligibility would be determined on a case-by-case basis just as in 1044/46. It was further agreed that OES would follow up with DWR to complete a review of work status, level of compliance with amendment #5 and an estimated date of compliance for each district and provide a report to FEMA as required by Amendment #5. This report would be the basis of a Memorandum of Agreement on future eligibility for districts in the Sacramento/San Joaquin Delta."
- The OES letter of April 10, 1997, to DWR notes that FEMA has denied funding to BIMID because a review of their past federal disaster assistance files shows they have not fulfilled the HMP requirements, but that DWR staff has indicated that BIMID may `substantially' comply with the HMP. OES stresses the urgency of the situation because of the time limitations for submitting appeals, and requests DWR's immediate attention to the matter.
- The OES letter of June 13, 1997, transmitted the applicant's second appeal to FEMA, stating that Mr. Dave Lawson of DWR believes that BIMID should be considered in `substantial' compliance with the HMP. OES states that they have received a draft version of a letter from DWR stating this, and are awaiting official documentation from DWR.
On May 17, 1996, approximately one year after the disaster, FEMA and DWR reviewed the status of eleven districts (BIMID was one). Based on a review of the maintenance records of these districts, the staffs determined that BIMID's status had not changed since the last joint inspection was completed in November 1991. Therefore, regardless of whether or not DWR determines if BIMID is now in substantial compliance with the H