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Second Appeal Brief
PA ID# 111-24092-00; City of Fillmore
PW ID# 1596; Riverwalk Park Repair
FEMA-1577-DR-CA; City of FillmoreCross-reference: Eligible work; Flood Control WorksSummary:
As a result of heavy rainfall during the January 2005 Winter Storms, Project Worksheet (PW) 1596 was prepared in May 2005 for repairs to Riverwalk Park (Park) in the estimated amount of $288,700. FEMA obligated PW 1596 for $0 because it determined that the facility was a Flood Control Work (FCW) under the authority of the U.S. Corps of Engineers (USACE). The City of Fillmore (the Applicant) owns and operates the Park. The Park is situated on the crown of a soil covered concrete levee along the Santa Clara River.
The Applicant submitted its first appeal to the California Governors Office of Emergency Services (OES) on January 25, 2006, and OES forwarded it to FEMA on March 7, 2006. In the appeal, the Applicant requested that FEMA determine that the Park was eligible for permanent repair under the Public Assistance Program because the Park was not relevant to the integrity of the levee and, therefore, did not meet the USACE definition of a FCW. In a letter dated January 30, 3007, the Deputy Regional Director denied the Applicants first appeal. The Deputy Regional Director agreed that the Park was not an integral part of the levee control work and, therefore the Park should not be considered a FCW. The Deputy Regional Director stated that the proposed repairs were not consistent with the goals of Executive Order (EO) 11988, which requires FEMA to avoid floodplains when possible and reduce the risk of flood loss.
The Applicant submitted a second appeal to OES on April 27, 2007, and OES forwarded it to FEMA on June 29, 2007. The Applicant contends that the proposed groins and fill will create water eddy areas to preserve and enhance the impacted floodplain in accordance with the requirements of EO 11988. The Applicant provided additional documentation supporting active maintenance of the riparian habitat. Issues:
1. Are permanent repairs to the soil embankment eligible for Public Assistance funding?
2. Is the construction of groins eligible?Findings:
44 CFR §9.9 and §206.226.