Wastewater Percolation Ponds

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1155-DR
ApplicantCity of Yuba City
Appeal TypeSecond
PA ID#101-86972
PW ID#29474
Date Signed2001-03-15T05:00:00
Citation: FEMA-1155-DR-CA; City of Yuba City; DSR 29474

Cross
Reference: Hazard Mitigation, NEPA, wastewater percolation ponds

Summary: During the first weeks of 1997, floodwater overtopped the berm on the north side of the City of Yuba City's (City's) percolation ponds located along the Feather River, eroded pond levees and bottoms and damaged concrete spillways and pipes. FEMA prepared Damage Survey Reports (DSRs) 29474, 77098 and 05789 for $1,312,019, to repair flood damages and restore the facility to its pre-disaster condition. The City suggested several hazard mitigation proposals (HMPs); FEMA found each to be economically infeasible. In February 1998, the City proposed attenuating the slope of the north berm from 3:1 to 10:1 and adding rock slope protection. On April 27, 1998, the California Regional Water Quality Control Board approved the City's request for a time extension to their discharge permit. On June 3, 1998, the City submitted a request for a change in scope of work to include the HMP. On August 27, 1998, FEMA found that the proposal passed the benefit cost ratio requirement and prepared DSR 05789 for $246,000. To comply with the Programmatic Biological Opinion and other environmental considerations, the City hired an environmental consultant. The City requested the California Department of Water Resources (CDWR) grant permission to place rock slope protection along the north berm. Construction of the project commenced shortly after CDWR granted permission of the rock slope protection on September 1, 1998, and without allowing FEMA the opportunity to conduct an environmental review of the project. Upon discovering that the HMP was completed without an environmental review, on February 19, 1999, FEMA denied the request for the change in scope of work. The Regional Director supported this determination in the response to the first appeal and deobligated all previous funding for the project. In the second appeal the City requests reimbursement of $1,555,559 for restoration of the facility and the HMP.

Issues: Is the applicant eligible to receive any funding for the project, even though FEMA did not complete the environmental review prior to construction of the project?

Findings: Yes, the applicant is eligible to receive $1,312,019 of the $1,555,559 requested.

Rationale: 44 CFR Parts 9 & 10



Appeal Letter

March 15, 2001

Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
PO Box 419023
Rancho Cordova, California 95741-9023

Re: Second Appeal - City of Yuba City, PA-ID # 101-86972, FEMA-1155-DR-CA, Wastewater Percolation Ponds, DSR 29474

Dear Mr. Christian:

This is in response to your April 6, 2000, transmittal of the City of Yuba City's (City's) above referenced second appeal. The Federal Emergency Management Agency (FEMA) prepared Damage Survey Reports (DSRs) 29474, 77098, and 05789 to repair flood damages to the City's wastewater percolation ponds. The DSRs were obligated for a total of $1,312,019. FEMA subsequently prepared supplemental DSRs 75156, 75157 and 75178 to deobligate all previously obligated funding on this project because the City completed the project before FEMA could perform an environmental review. The City submitted a second appeal requesting reobligation of the original $1,312,019, as well as $243,540 for a hazard mitigation project.

As explained in the enclosed analysis, I have determined that the City is eligible for $1,312,019 because it complied with Endangered Species Act and met most of the requirements of Title 44 Code of Federal Regulations (CFR)  9.6 through its own process. However, I am denying the $243,540 hazard mitigation proposal because the applicant commenced construction before FEMA could complete the required environmental review. Therefore, the appeal is partially approved. By copy of this letter, I am requesting that the Regional Director prepare a DSR for $1,312,019 to obligate costs associated with the pond restoration project.

Please inform the City of this determination. My decision constitutes the final decision on this matter as set forth in 44 CFR  206.206.

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

Enclosure

cc: Karen E. ArmesActing Regional DirectorFEMA Region IX


Appeal Analysis

BACKGROUND

Due to severe winter storms, extremely high flows overtopped the berm on the north side of the City of Yuba City's (City's) percolation ponds adjacent to the Feather River during the first weeks of 1997. The powerful current scoured the pond levees, eroded pond bottoms, washed out concrete spillways and pipes, and deposited silt in distribution boxes and sediment on the pond beds. On April 15, 1997, a survey team of Federal, State, and local representatives investigated the site. FEMA approved Damage Survey Report (DSR) 29474 for $780,653 and supplemental DSRs 77098 and 05789 for $525,366 and $6,000, respectively. As the scope of work proposed restoration of the facility to its pre-disaster condition, the DSRs were statutorily excluded from National Environmental Policy Act (NEPA) review. In the reconnaissance report for floodplain management, the FEMA inspector noted that the facility is located in the floodway and recommended it be relocated outside the base floodplain. Accordingly, the City submitted two hazard mitigation proposals (HMPs). The first would relocate the ponds outside the floodplain at a cost of $9.1 million, while the second was a $4.6 million project to abandon the existing percolation ponds and replace their function with a new filtration system at the sewer plant. FEMA determined that the projects were not cost effective.

The percolation ponds are employed as tertiary treatment in the wastewater treatment process and are designed to detain secondary effluent. The City has a permit from the California Regional Water Quality Control Board (Board) to discharge the secondary effluent into the Feather River between November 1 and May 15, annually. Due to rain delays during the 1997 construction season, California's Office of Emergency Services (OES) granted the City a time extension to commence construction in 1998. To facilitate repair of the ponds, the City requested the Board's permission to discharge into the river from May 15 to October 31, 1998. On April 27, 1998, the Board approved the revised waste discharge requirements.

As the facility was previously damaged in the FEMA-758-DR and FEMA-1046-DR events, the applicant's consultant, MHM Engineers, prepared a Preliminary Damage Assessment Summary Report on February 10, 1998, to consider various hazard mitigation options. The feasibility of four alternatives were considered; these included:

1. Reconstructing the ponds to pre-flood condition. ($2,300,000)
2. Land leveling pond bottoms, installing HPDE piping, placing rock slope protection on and changing the slope of the north face of the northern levee of Pond # 1. ($1,940,000)
3. Land leveling of Alternative 2 but with ductile iron pipe instead of HDPE. ($2,000,000)
4. Combining Alternative 2 earthwork and Alternative 1 with salvaged piping. ($1,800,000)

FEMA, OES, and City representatives met on May 7, 1998, to discuss each mitigation option and based on the consultant's recommendation of Alternative #2, decided on a combination of Alternative #2 and #3. The ponds were to be reconstructed using land leveling and a balanced fill and cut project, except for imported clay material for berm construction. Rock slope protection was included to cover the slope of the north face of the northern levee of Pond 1, which was to be changed from a 3:1 to 10:1 slope.

In a May 28, 1998, letter to the City, OES stated that FEMA had issued a Categorical Exclusion (CATEX) from NEPA review for DSR 29474. The letter also informed the applicant of the required compliance with all other federal environmental laws, specifically citing the Endangered Species Act (ESA). For counties designated by FEMA-1155-DR, the U.S. Fish & Wildlife Service, in coordination with FEMA, and under the authority of the ESA, issued a Programmatic Biological Opinion (PBO) requiring subgrantees to avoid or minimize impacts on the habitat of all federally listed endangered species. In accordance with the PBO requirement that a "qualified biologist" monitor the project, the City hired Sycamore Environmental Consultants Inc. (Sycamore). Sycamore prepared a biological survey and the City complied with the recommendation to preserve Blue Elderberry Shrubs, the habitat for the endangered Valley Elderberry Longhorn Beetle, on the northern slope of Pond 1.

Due to additional rain delays and mitigation issues, OES agreed to extend the deadline for completion of the work described on DSR 29474 to November 30, 1998. The City awarded the construction project to the lowest bidder on June 2, 1998. On June 3, 1998, the City submitted a request for a change in scope of work on DSR 29474. The changes included contractor mobilization and demobilization, clearing and grubbing, stripping debris, ripping and cross ripping for percolation, three monitoring wells, and placement of $240,000 of rock slope protection. FEMA prepared supplemental DSR 05789 for $246,000 but approved only $6,000 for two monitoring wells, as the rock slope protection was suspended pending environmental review.

The City issued Field Instruction No. 3, on July 9, 1998, which instructed the construction contractor, Dragline Inc. to place a hold on the installation of rock slope protection until it was determined to be environmentally safe. On July 17, 1998, the City requested The Reclamation Board (TRB) amend Reclamation Board Permit 7151 to allow rock slope protection on the face of the north levee and iterated that "[t]he contractor at this time has been notified not to perform the rock slope protection portion of the work pending the approval of both FEMA and the Reclamation Board."

On August 27, 1998, FEMA determined that the HMP passed the benefit to cost ratio requirement. The DSR was sent for environmental review to determine the required level of NEPA review. Meanwhile, on September 1, 1998, TRB approved the request for an amendment of Permit No. 7151 to include the mitigation measures. The City retracted Field Instruction No. 3 and the rock slope protection was placed shortly thereafter. By October 30, 1998, Dragline Inc. had substantially completed the pond reconstruction.

FEMA commenced the environmental review of the HMP on October 7, 1998. On November 10, 1998, FEMA contacted the City to request information necessary to perform the review and discovered that reconstruction of the ponds was completed prior to obtaining FEMA's approval. Consequently, on February 19, 1999, FEMA denied the request for the change in scope of work to DSR 29474.

First Appeal
By a March 30, 1999, letter the City submitted a first appeal requesting reconsideration of the change in scope of work to DSR 29474. The City asserted that the consensus at the May 7, 1998, meeting to discuss mitigation options was that the rock slope protection was to be approved within the original scope of work. Furthermore, they claimed that there was no mention of environmental requirements at the meeting. When OES sent the May 28, 1998, letter indicating that FEMA had issued a CATEX from NEPA for DSR 29474, the City assumed that the clearance applied to the change in slope of the north face and rock slope protection described on supplemental DSR 05789. In addition to the CATEX, the City maintains that on August 14, 1998, a FEMA employee had verbally confirmed that all environmental requirements had been met and that FEMA would soon provide written confirmation; however, the City never received written confirmation. OES supported and transmitted the City's appeal to FEMA on May 3, 1999, stating that personnel changes at FEMA exacerbated the lack of continuity in communication relating to NEPA requirements.

The Regional Director denied the first appeal on November 24, 1999, conceding that a lack of continuity may produce disruptions in communication; however, tonmental requirements prior to commencement of construction. The response noted that in addition to NEPA review, under the authority of Executive Order 11988, the project required compliance with Title 44 Code of Federal Regulations (CFR)  9.6(b) (Floodplain Management and Protection of Wetlands), whereby FEMA must complete the 8-step decision making process. FEMA deobligated $1,312,019 with DSRs 75156, 75157, and 75178 because the City had accomplished work beyond the approved scope of work prior to FEMA's completing an environmental review.

Second Appeal
On February 10, 2000, the City submitted a second appeal of DSRs 29474 and 05789, requesting reimbursement of $1,555,559 for restoration of the facility and the HMP. In the letter, the City asserted that FEMA was aware of the mitigation proposal four months before construction commenced and had never stated that the construction needed to be delayed for environmental review. Moreover, the City reiterated the belief that environmental review was not required because "FEMA stated in a May 28, 1998, letter that a Categorical Exclusion had been issued for the project." The City insisted, "FEMA had ample opportunity, as the lead agency, to perform additional environmental review, seek additional information, or at the minimum, instruct Yuba City not to proceed."

OES supported the City's request and forwarded it as a first appeal of the de-obligation of funds from DSRs 29474 and 77098, and as a second appeal of the denial of the request for a change in scope of work. OES stated that although it was FEMA's responsibility to determine and conduct the appropriate level of environmental review, the City and its environmental consultant conducted all required environmental reviews, citing compliance with the PBO by preserving the Valley Elderberry Longhorn Beetle habitat, obtainment of an amendment to Reclamation Permit 7151, and approval of extended discharge of secondary effluent into the river by the Board. The letter further documented how OES believes the City fulfilled each requirement of the 8-step process. OES concluded that "the City acted in good faith and took responsibility for complying with various environmental regulations" and should not be penalized for FEMA's negligence in expeditiously implementing its environmental obligations.

DISCUSSION

OES forwarded the City's appeal as a second appeal of the denial for a change in scope of work. It also requested that FEMA consider the appeal as a first appeal of the deobligating DSRs 75156, 75157, and 75178. In accordance with 44 CFR  206.206, FEMA recognizes this appeal as a single second appeal of the funding of the project addressed by DSRs 29474, 77098, 05789, 75156, 75157, and 75178, because the deobligating DSRs were prepared as a result of the Regional Director's determination presented in the first appeal response to the request for funding of the HMP.

The applicant was denied funding for the project on first appeal because the applicant completed the project before FEMA had an opportunity to complete a NEPA review pursuant to 44 CFR Part 10, including a floodplain management review pursuant to 44 CFR Part 9. The issue under consideration is whether the applicant is eligible for any funding for the repair of the percolation ponds.

44 CFR Part 10 requires FEMA to act with care to assure that all practical means and measures are taken to avoid or minimize any adverse environmental consequences of projects it funds. 44 CFR Part 9 provides guidance for implementing Executive Order 11988, Floodplain Management. It states, in part, that FEMA shall take action to avoid long- and short-term adverse impacts associated with the occupancy and modification of the floodplain. More specifically, 44 CFR  9.6 outlines an 8-step decision-making process FEMA should follow prior to funding any projects located in floodplains.

Yuba City's percolation ponds are located along the left bank of the Feather River. The six ponds were built in 1971 and measure approximately 1,025 feet wide and 6,000 feet long. There are levees on both sides of the Feather River in the vicinity of the ponds. The Feather River is shown as Zone A on the Yuba City's Flood Insurance Rate Map. The flood severely eroded about one half (approx. 500 feet) of the north berm (upstream) of pond number one. The original scope of work consisted of rebuilding the berm with native material. The applicant subsequently decided to flatten the slope of the north berm from 3:1 to 10:1 and armor it with rock as a mitigation measure. The change in slope extended the toe of the berm outward approximately 42 feet and increased the volume of the fill for the facility (all six ponds) by less than 4 percent.

The original scope of work for the repair project qualified for a statutory exclusion from the National Environmental Policy Act because it contemplated rebuilding the structure to essentially its pre-disaster design. Although the project was statutorily excluded from NEPA review, FEMA and the applicant had to comply with the Endangered Species Act. Specifically, the habitat of the endangered Valley Elderberry Longhorn Beetle existed in the project area. The applicant met the terms of the Programmatic Biological Opinion issued by FEMA and the U.S. Fish & Wildlife Service by hiring a consultant to mitigate the impact of the project on the Beetle's habitat. The applicant eventually decided to change the project design and notified FEMA of its intent prior to beginning construction. The applicant subsequently completed construction of the project before FEMA completed the necessary environmental reviews for the revised scope of work.

The pertinent environmental considerations for this project were endangered species and floodplain management. The applicant complied with the ESA by following guidance contained in the Programmatic Biological Opinion. The applicant has submitted documentation showing that it met most of the requirements of the 8-step decision making process outlined in 44 CFR Part 9 prior to proceeding with the project. In addition, there is nothing in the record indicating that the completed project had an adverse impact on the environment. Program guidance encourages documenting environmental compliance prior to construction. In view of the fact that the public has not identified any adverse environmental impacts resulting from the project, it is not prudent to deny total funding for the project.

It is noted that this facility is located along the banks of a river that has levees on both sides. This facility is subject to repetitive damage. This will be the third time disaster funds have been used to repair this facility. It is not good public policy to continue to use federal funds to repair repetitively damaged structures. Congress recently amended the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C.  5121 et seq. directing FEMA to reduce the amount of federal assistance for the repair of repetitively damaged facilities. FEMA will prepare regulations to implement this provision of the law. Federal disaster assistance for the percolation ponds may be significantly reduced in the future.

CONCLUSION

The applicant is eligible to receive funding for the original scope of work. Funding in the amount of $1,312,019 is approved for this work. Because compliance with the floodplain management requirements was not done by FEMA or endorsed by FEMA before construction began, the applicant is not eligible for the cost of the hazard mitigation project. Therefore, the applicant's request for $243,540 for hazard mitigation funding is denied. FEMA continues to be committed to complying with all environmental requirements.

Last updated