North Simi Drain and Tapo Canyon Channel

Appeal Brief Appeal Letter

Appeal Brief

Disaster1577
ApplicantVentura County Watershed Protection District
Appeal TypeSecond
PA ID#111-UL4GF-00
PW ID#1260 and 1592
Date Signed2007-12-21T05:00:00
Citation: FEMA-1577-DR-CA; Ventura County Watershed Protection Dis-

Summary: As a result of the January 2005 Winter Storms, the Ventura County Watershed Protection District (Applicant) requested funding for debris removal from North Simi Drain and Tapo Canyon Channel. The United States Army Corps of Engineers (USACE) determined that the facilities met the definition of a Flood Control Work (FCW) and that the debris did not pose an immediate threat to life, public health and safety, or improved property. Therefore, FEMA obligated Project Worksheets (PWs) 1260 and 1592, respectively, for zero dollars ($0).

The Applicant submitted its first appeal on October 31, 2005, stating that the costs were eligible as the facility was not active in the USACE Rehabilitation and Inspection Program (RIP), and as such, was not under the specific authority of the USACE. This allows FEMA to waive its respective administrative conditions on reimbursement of facilities under the authority of another Federal agency. The Applicant stated it had sole responsibility for maintenance; thus, the debris removal should be eligible for reimbursement under the FEMA Public Assistance Program. On December 8, 2006, FEMA denied the Applicant’s first appeal stating the facility met the USACE definition of an FCW. In accordance with 44 CFR 206.224(a), debris removal is eligible if there is an immediate threat to life, public health and safety, or improved property.

On March 12, 2007, the Applicant submitted its second appeal to FEMA reiterating its position presented in the first appeal.

Issues: Is debris removal that does not pose an immediate threat to life, public health and safety, or improved property from a facility that meets the USACE definition of an FCW eligible under the Public Assistance Program?

Findings: No.

Rationale: Stafford Act, Section 403 (a)(3); 44 CFR §206.221(c); 44 CFR §206.224(a); FEMA R&R Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works

Appeal Letter

December21, 2007

Mr. Paul Jacks
Governor’s Authorized Representative
Governor’s Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655

Re: Second Appeal-Ventura County Watershed Protection District, PA ID 111-UL4GF-00
North Simi Drain and Tapo Canyon Channel, FEMA-1577-DR-CA,
Project Worksheets 1260 and 1592

Dear Mr. Jacks:

This letter is in response to the referenced second appeal submitted by the Ventura County Watershed Protection District (Applicant) to your office on March 7, 2007, and transmitted by your letter dated May 10, 2007. The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding for debris removal from the North Simi Drain and Tapo Canyon Channel.

The storms and heavy rains of December 27, 2004, through January 11, 2005, caused excessive storm water runoff and debris flows into the North Simi Drain and Tapo Canyon Channel. Debris and sediment were deposited in approximately 1,000 feet of the North Simi Drain and 2,600 feet of the Tapo Canyon Channel. The Applicant requested reimbursement in the amount of $13,099 for the North Simi Drain and $22,262 for Tapo Canyon Channel from FEMA for the removal of debris and sediment. FEMA denied the requests because the facilities met the United States Army Corps of Engineers (USACE) definitional criteria of Flood Control Work (FCW) and the debris did not pose an immediate threat to life, public health and safety, or improved property.

The Applicant submitted the first appeal to the Office of Emergency Services (OES) on October 31, 2005. OES forwarded the appeal to FEMA on December 27, 2005. The Applicant claimed that the costs were eligible as the facilities were not active in the USACE Rehabilitation and Inspection Program (RIP), and as such, were not under the specific authority of the USACE. Therefore, FEMA could waive its respective administrative conditions on the reimbursement of facilities under the authority of another Federal agency. Furthermore, the Applicant stated that the facilities were for erosion control, not flood control, and as such, they should not be considered FCWs. The Applicant stated that because it had sole responsibility for maintenance, the debris removal should be eligible for reimbursement under the Public Assistance program.

The Deputy Regional Director denied the appeal on December 8, 2006, because the facilities met the definition of an FCW: “structures designed and constructed to have appreciable and dependable effects in preventing damage by irregular and unusual rises in water level.” In accordance with FEMA Response and Recovery (R&R) Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works, disaster assistance authority for FCWs resides with another Federal agency and Public Assistance reimbursement for FCWs is limited to emergency work necessary to reduce an immediate threat to life, public health and safety, or improved property. The Applicant submitted a second appeal on March 7, 2007.

We have reviewed all information submitted with the appeal and have determined that the Deputy Regional Director’s decision in the first appeal is consistent with Public Assistance Program regulations and policies. Therefore, the Applicant’s second appeal is denied.

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

Sincerely,
/s/

Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate

cc: Nancy Ward
Regional Administrator
FEMA Region IX
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