Slope Stabilization

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1505-DR
ApplicantSan Luis Obispo County
Appeal TypeSecond
PA ID#079-99079-00
PW ID#PW 197
Date Signed2007-01-24T05:00:00
Citation: FEMA-1505-DR-CA, San Luis Obispo County, PW 197, Slope Stabilization

Cross-reference: Pre-disaster condition, erosion control, environmental mitigation

Summary: As a result of the December 22, 2003, San Simeon earthquake, San Luis Obispo County (Applicant) incurred costs for the permanent repair of Santa Rosa Creek Road. Three sections of the roadway were damaged by the earthquake. FEMA prepared a draft Project Worksheet (PW) 135-A on April 22, 2004 for $214,452.81 for repair of the roadway and stabilization of existing riprap, and a final PW 197 was obligated on June 24, 2004 for $219,281.24, adding $4,820.25 for erosion control. FEMA denied $336,680.80 for the installation of new riprap for slope stabilization, the installation of additional culverts, creek restoration, and environmental maintenance. In its first appeal dated September 14, 2004, the Applicant stated placing new riprap to stabilize the site of the access road, erosion control measures, and habitat restoration were “necessary to restore the road to its pre-disaster condition” and required by environmental permits. On August 24, 2005, FEMA denied the installation of the new riprap, citing FEMA Policy 9524.2, Landslide Policy, and stating that the slope was unstable prior to the disaster. FEMA denied the Applicant’s request for funding for erosion control because funding had been provided under PW 197 and no additional documentation was submitted in support of the request. FEMA denied the habitat restoration citing FEMA Policy 9524.5, Tree Policy. The Applicant filed a second appeal with FEMA on November 10, 2005, requesting $254,600 in funding for riprap installation, erosion control measures, and habitat restoration.

Issues: (1) Was the slope instability exclusively caused by the earthquake?
(2) Did the Applicant provide documentation sufficient to support its claim for additional funding for erosion control?
(3) Was the habitat restoration required by environmental permitting?

Findings: (1) No. The slope was unstable prior to the earthquake.
(2) No. The Applicant did not provide sufficient documentation to support its claim that the habitat restoration work performed was required by permit.
(3)

Rationale: FEMA Policy 9524.2, 44 CFR §206.206

Appeal Letter

January 24, 2007

Mr. Paul Jacks
Governor’s Authorized Representative
Governor’s Office of Emergency Services
3650 Schriever Avenue
Mather, California 95741-95655

Re: Second Appeal – San Luis Obispo County; PA ID# 079-99079-00
Slope Stabilization; FEMA-1505-DR-CA, Project Worksheet 197

Dear Mr. Jacks:

This letter is in response to your letter dated January 10, 2006, transmitting the second appeal of the County of San Luis Obispo (Applicant), dated November 10, 2005. The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) determination to deny costs associated with riprap installation, erosion control measures, and habitat restoration performed in conjunction with the repair of Santa Rosa Creek Road, Mile Marker 4.8.

For reasons explained in the enclosed analysis, I have determined that the claim of $254,600 for additional riprap, hydroseeding and jute netting, and habitat restoration is ineligible for funding. Therefore, I am denying this appeal.

Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.

Sincerely,
/s/
John R. D’Araujo, Jr.
Director of Recovery

Enclosure

cc: Nancy Ward
Regional Director
FEMA Region IX

Appeal Analysis

BACKGROUND

As a result of the December 22, 2003, San Simeon earthquake, San Luis Obispo County (Applicant) incurred costs for the permanent repair of Santa Rosa Creek Road at mile marker 4.8. Three sections of the roadway were damaged by the earthquake, with pavement settlement and cracking, berm cracking, slope failure, formation of a new water source on the north side of the road, and disturbance to riprap.

The Applicant requested assistance from the U.S. Department of Homeland Security’s Federal Emergency Management Agency (FEMA) for the repair of the road. FEMA prepared a draft Project Worksheet (PW) 135-A on April 22, 2004 for $214,452.81. The scope of work included the stabilization of existing riprap, construction of an access road necessary to make repairs to the riprap, temporary detour of Santa Rosa Creek Road, removal and replacement of roadway base material and bearing surface, installation of an under-drain system, installation of culverts and slope drains to remove groundwater, benching measures and adding topsoil to restore the slope where the access road was cut, and associated costs of permitting, engineering and design, inspection, supervision, and final cleanup.

Subsequently, FEMA obligated a final PW (PW 197) on June 24, 2004, for $219,281.24, adding $4,820.25 for erosion control (placement of topsoil and jute matting) for slope work along the access road. FEMA denied funding for the installation of new riprap, additional culverts, creek restoration, and environmental maintenance. The estimated cost associated with the ineligible work items was $336,680.80.

First Appeal

In a letter dated September 14, 2004, the Applicant appealed FEMA’s denial of $334,640.80 for placing new riprap to stabilize the site of the access road, erosion control measures, and habitat restoration. The Applicant claimed the work was necessary to restore the road to pre-disaster condition, and the erosion control, habitat restoration, and “to some extent” slope stabilization are eligible in order to comply with the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), the Clean Water Act (CWA), and other Federal, State, and local laws in accordance with Title 44 of the Code of Federal Regulations (44 CFR) Part 10.

The Governor’s Office of Emergency Services (OES) transmitted the Applicant’s appeal by letter dated November 9, 2004. OES stated that the amount in contention is $336,681; however, the Applicant stated in its letter that it was not pursuing reimbursement for $2,040 for a culvert repair that FEMA had determined to be ineligible.

In a letter dated August 24, 2005, FEMA denied the first appeal. FEMA cited the FEMA Response and Recovery Directorate Policy 9524.2 Landslide Policy Relating to Public Facilities (Landslide Policy) and determined that the new riprap is not eligible for funding because the unstable slope is not necessary to support the facility, i.e., Santa Rosa Creek Road. The slope is also not eligible as an improved or maintained natural feature since it was neither improved nor maintained by the Applicant prior to the earthquake. In addition, slope stabilization is only eligible if the instability is caused exclusively by the disaster. The Applicant, however, has acknowledged in its appeal that the slope was failing prior to the earthquake.

FEMA’s response states that benching was included in the scope of work to address the area where the access road was cut into the slope, and that “installation of riprap [in sections of the road embankment where no riprap was placed before the earthquake], however, would have exceeded what was necessary to restore the slope.”

Regarding erosion control and habitat restoration, FEMA noted that PW 197 included $4,820.25 for materials and equipment to replace 3,000 square feet (sf) of topsoil that was removed when the access road was cut and to cover the area with matting. It notes that no additional documentation was provided on appeal to substantiate eligibility for additional erosion control measures; furthermore, it states the plantings done on the slope as a mitigation measure are not eligible pursuant to FEMA’s Response and Recovery Policy 9524.5, Trees, Shrubs and Other Plantings Associated with Facilities (Tree Policy).

Second Appeal

On November 10, 2005, the Applicant submitted a second appeal of PW 197 requesting $254,600 in estimated costs: $196,600 for the placement of riprap at the site of the temporary access road, $18,000 for erosion control, and $40,000 for habitat restoration, as described below:

Riprap at Temporary Access Road: $196,600

The Applicant asserts that the additional riprap was necessary to stabilize the slope of the permanent road, stating “The slope was destabilized by a combination of increased groundwater flow associated with the earthquake, and the construction of the access road required to make the repairs to existing riprap protecting the facility.” The Applicant states the work is consistent with the Landslide Policy. In addition, the Applicant claims the riprap was required to prevent erosion of sediment from the slope of the creek by Regional General Permit No. 63, issued by the US Army Corps of Engineers (USACE), October 31, 2003.

Erosion Control Measures (Hydroseeding and Jute Netting): $18,000

The appeal states, “[c]onventional erosion control measures including hydroseeding and jute netting were applied to all disturbed soil surfaces on the project to stabilize the slopes and minimize sediment run-off. This work was required by the terms of the USACE permit.”

Habitat Restoration: $40,000

The appeal states “[n]ative plants on the slope were replaced as part of the habitat restoration work required by the USACE permit to return the area to pre-construction conditions, not for cosmetic or aesthetic reasons.”

DISCUSSION

Riprap at Temporary Access Road:

FEMA’s regulation at 44 CFR §206.223(a)(1) requires that to be eligible for funding, work must be required as a result of the disaster. For slope failures, this is further clarified by the Landslide Policy, which states that if the site is found to be unstable due to an identified, pre-existing condition, the Applicant is responsible for stabilizing the site.

The Applicant references Regional General Permit No. 63, issued by the USACE, October 31, 2003 (Corps Permit). This permit was issued before the declared event, following the winter storms of 2002-2003. The storms caused high water flows and resulting erosion at the toe of the slope of the north bank of Santa Rosa Creek. At that time, the Applicant began developing plans to stabilize an approximately 400-foot long section of the creek bank. After evaluating the Corps Permit requirements and developing project alternatives, the Applicant selected the “avoidance alternative,” and relocated the section of the road adjoining the unstable bank by moving it approximately 60 feet north.

While the Applicant states in its appeal that the slope was stable prior to the disaster, no documentation was provided to support that position. No work was performed after the winter storms of 2002-2003 to stabilize the slope. The “avoidance alternative” left the bank in its unstable condition. Accordingly, in accordance with the Landslide Policy, the Applicant is responsible for stabilizing the site.

The temporary access road, constructed to allow the restabilization of the existing riprap in the western segment, extended for 300 feet along the face of the southern slope of the roadway (the northern bank of Santa Rosa Creek), beginning in the eastern segment. The roadway extended through the entire oclization of the slope caused by the construction of the access road.

The Applicant argues that the additional riprap was also required under Item 12 of the terms of the 2003 Corps Permit, which covers work performed through October 31, 2008. Item 12 addressed erosion and siltation controls and states that all exposed soil and other fills must be stabilized. This type of “stabilization” is to prevent any soil exposed through excavation or placement of fill from washing into the adjacent creek. Item 12 does not require the use of rip-rap, which would appear to be excessive for this purpose. The Applicant has not provided any documentation to support its argument that the placement of riprap was required by permit. Thus, the placement of riprap in the central and eastern segments of the project area is not eligible for funding.

Erosion Control Measures (Hydroseeding and Jute Netting)

PW 197 included $4,280 to replace topsoil removed when the temporary access road was cut, and to cover the area with matting over an area of 3,000 sf in the central and eastern segments of the roadway. The Applicant states that FEMA approved funding for 2,000 sf of matting and requests $18,000 for hydroseeding and placement of jute netting “at the balance of the site.” The request is for 1,200 sf of erosion control. It is not clear if the reference to 2,000 sf of matting approved by FEMA is a typographical error or a misunderstanding. Other than stating that “[c]onventional erosion control measures including hydroseeding and jute netting were applied to all disturbed soil surfaces on the project to stabilize the slopes and minimize sediment run-off,” no clear description of the requested scope of work is provided. Despite a discussion in FEMA’s first appeal response regarding the lack of documentation to support the Applicant’s request for additional funding for erosion control measures and its relationship to the 3,000 sf of erosion control measures that were approved under the PW, the Applicant provided no additional documentation with its second appeal to enable a review of the eligibility of the requested scope of work. In accordance with 44 CFR §206.206, an appeal must contain documented justification supporting the subgrantee’s position. The Applicant did not submit documentation describing the actual scope of work for which it is requesting funding. Accordingly, no additional erosion control measures can be approved for funding.

It should be noted that the Applicant’s request is based on an estimated cost of $15.00/sf for the 1,200 sf of hydroseeding and jute netting. Backup documentation lists R.S. Means Cost Code 02905 725 0010 as the basis for the cost estimate. However, this cost code is contained in the R.S. Means publication Building Construction Cost Data under the section “Planting: moving shrubs on site, 12” ball,” and gives a total per plant price (including overhead and profit) of $38.50. The estimate developed by FEMA based on R.S. Means was $1.60/sf, which is markedly lower than the $15.00/sf claimed by the Applicant for similar work.

Habitat Restoration: $40,000

FEMA’s Tree Policy states, “Trees, shrubs, and other plantings, except grass and sod, will no longer be eligible under Section 406 of Public Law 93-288... This policy applies equally to recreational and non-recreational areas and facilities. It applies to any measure taken with respect to trees, shrubs, and other plantings, except grass and sod—including but not limited to replacement, non-emergency removal for purposes of replacement, and remedial actions taken to abate disaster damage. Grass and sod will be eligible only when it is necessary to stabilize slopes and to minimize sediment runoff.”

The Applicant asserts that the habitat restoration measures were mandated by the terms of the 2003 Corps Permit, Item 2e, Mitigation. However, no information is provided in the original PW, the backup documentation, or the appeal that describes the actual scope of work performed or to substantiate the claimed cost for this work. The documentation submitted with the appeal does not contain the necessary documentation to evaluate the actual work performed against the permit requirements and FEMA’s Tree Policy. Therefore, in accordance with 44 CFR §206.206, the habitat restoration is not eligible for funding.

CONCLUSION

For the reasons discussed above, the Applicant’s appeal for $254,600 in costs associated with PW 197 is denied.
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