Flood Control Channels

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1046-DR
ApplicantSan Juan Capistrano
Appeal TypeSecond
PA ID#059-68028
PW ID#89546
Date Signed1997-09-24T04:00:00
Citation: FEMA-1046-DR-CA; San Juan Capistrano, San Juan Creek

Cross-Reference: Flood Control Works, Permanent Restoration, Other Federal Agencies, Coordination of Federal Disaster Assistance

Summary: The City of San Juan Capistrano is requesting funding of $326,000 for permanent repairs to San Juan Creek. The creek is a flood control channel, which suffered bank erosion during the 1995 winter storms. The channel meets the USACE definition of a flood control work (FCW). Therefore, in accordance with the FEMA Levee Policy, the channel was under the specific authority of another federal agency, and ineligible for FEMA funding. The basis of the applicant's second appeal is that FEMA failed to perform its obligation to coordinate federal disaster assistance, resulting in the loss of federal assistance to the applicant, and that in the absence of funding from other federal agencies, FEMA should fund the repairs. The applicant does not contest that the channel 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 applicant's loss of assistance from the USACE?
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 the channel is not due to a lack of coordination of Federal disaster assistance on FEMA's part. Rather, it is due to the fact that the USACE has responsibility for repairing the facilities.
Rationale: Under the current FEMA Levee Policy, permanent restoration of facilities meeting the USACE definition of a "flood control work" is considered to be within the specific authority of either the USACE or the NRCS. Therefore, this work is not eligible for FEMA assistance. This is true whether or not USACE or NRCS provides any funding for the project.

Appeal Letter

September 24, 1997

Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
150 East Colorado Boulevard, Suite 303
Pasadena, California 91103

Dear Mr. Najera:

This letter is in response to your submittal of the City of San Juan Capistrano's second appeal of damage survey report 89546, which requested disaster assistance funding for permanent restoration of San Juan Creek, a flood control channel.

Based on my review of all the documentation submitted in support of the appeal, I have found no basis to overturn our previous determination that, as a flood control work, the channel is not eligible for FEMA funding. Further, I have determined that there is no basis for the applicant's assertion that a lack of coordination by FEMA resulted in the determination of ineligibility for Federal disaster assistance for the applicant. Therefore, I am denying the appeal for the reasons contained in the enclosed appeal analysis.

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
Due to the severe winter storms and flooding that occurred in the winter of 1995, scouring occurred along a portion of San Juan Creek. The City of San Juan Capistrano requested FEMA funding for permanent restoration of the channel. Consequently, damage survey report (DSR) 89546 was prepared for $326,000 to cover repairs to two acres of damaged creek bank.

During eligibility review, the Federal Interagency Levee Task Force concluded that the channel conforms to the U.S. Army Corps of Engineers' (USACE's) definition of a flood control work (FCW), such that restoration funding for the channel would be under the specific authority of the USACE. Accordingly, FEMA denied funding.

First appeal
The applicant submitted their first appeal in a letter dated November 12, 1995. The applicant did not contest that the channel is an FCW, but asserted that the repairs were not eligible for USACE PL 84-99 program funding because the program has no provision for funding of completed repairs. Accordingly, as funding would not be provided by the USACE, it was the applicant's assertion that FEMA could provide such funding. Also, the applicant stated that the eroded state of the channel embankment presented an immediate threat to nearby property and a major sewer connection. The applicant requested FEMA determine the repairs to be eligible.

The Regional Director responded to the first appeal stating that in accordance with the Federal interagency agreement between FEMA, the USACE and the National Resource Conservation Service (NRCS), FEMA will not fund permanent restoration of water control facilities that are within the USACE definition of an FCW. This is true even if the agency with specific authority does not provide funding. The appeal was denied.

Second Appeal
The OES forwarded the applicant's second appeal in a letter dated April 12, 1997. The applicant contended that FEMA failed to perform its obligation to coordinate Federal disaster assistance. The basis for this contention was that FEMA failed to route DSRs to the USACE prior to the deadline for acceptance by the USACE, nor did FEMA arrange for the USACE to extend their window of eligibility. They also contended that FEMA does have authority to fund permanent repairs of FCWs. The applicant did not contest that the channel meets the USACE's definition of an FCW.

DISCUSSION
Eligibility for Flood Control Works
Congress authorized both FEMA and USACE to fund repairs to FCWs. When two Federal agencies are authorized to perform the same function, the agencies must determine the best way to implement public policy consistent with congressional intent. In this case, the USACE has a specific program that encourages owners of FCWs to build/upgrade their facilities to specific standards and maintain them on a regular basis. If the owners meet USACE's requirements and join its program, USACE will fund repairs to those facilities when they are damaged during an unusual event, i.e., a flood that is declared a major 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 work together towards a common goal - assisting victims and eligible applicants in recovering from the devastating effects of disasters as quickly as possible. USACE provides assistance to owners of flood control works who have committed to actions that ensure the integrity of their facilities. If FEMA were to fund permanent repairs of damaged FCWs that are not participating in the USACE program, there would be little incentive for owners to join the USACE program. The incentive to join the USACE program results in better-maintained FCWs and, consequently, betters protection for the public.

FEMA's Responsibility to Coordinate Federal Disaster Assistance
The applicant and OES assert that FEMA failed to perform its duty and obligation under the authority of Section 402(2)(3) of the Stafford Act to coordinate all disaster relief assistance provided by Federal agencies. OES further cites Title 44 of the Code of Federal Regulations (CFR) 206.42, stating that this regulation gives FEMA the responsibility to coordinate all federal disaster assistance. This responsibility includes taking appropriate action to make certain that all federal agencies carry out their appropriate disaster assistance roles under their own legislative authorities and operational policies. OES asserts that FEMA did not notify the applicant of the requirements of the Federal Levee Policy. They also contend that FEMA failed to direct them to request assistance from the USACE or the NRCS until more than sixteen months after the initial storm event, at which point the USACE had ceased accepting applications for disaster assistance. On this basis, the applicant asserts that FEMA's failure to properly coordinate all Federal disaster assistance resulted in the loss of federal assistance.

FEMA disagrees that proper coordination of Federal disaster assistance was not performed. During disasters 1044 and 1046, a Levee Task Force composed of FEMA, USACE, and NRCS representatives evaluated numerous DSRs involving water control facilities to determine if they met the USACE definition of an FCW. Facilities that met the USACE definition were determined ineligible for FEMA funding.

Because this channel meets the USACE definition of a flood control work, funding of its repair is potentially available through the PL 84-99 Rehabilitation and Inspection Program, but only if the facility was enrolled in the USACE program prior to the disaster. The USACE had informed potential applicants of eligibility requirements for their program as early as 1986 and discussion of its implications on funding permanent restoration of FCWs began at the onset of the 1044 and 1046 disasters.

FEMA's Authority to Fund Permanent Restoration of Flood Control Works
The applicant asserts that although the damaged channels may have been eligible under the USACE PL 84-99 program, funding could not be obtained because the USACE has no provision for reimbursement of completed work. The applicant has thus concluded that because no funding from another federal agency is available, FEMA may fund these repairs.

OES argues that section 312(b)(1) of the Stafford Act gives FEMA authority to fund other agencies programs. However, FEMA is not authorized to fund other agencies' programs when those agencies do not have funds. Congress alone has authority to appropriate Federal funds. Further, our General Counsel has ruled that the section of the law cited above applies to assistance to individuals, not public entities.

CONCLUSION
The channels included in this appeal meet the USACE definition of an FCW. Pursuant to the Federal Levee Policy, the channel is not eligible for FEMA funding. Therefore, the appeal is denied.
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