Debris Removal

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1577-DR
ApplicantCity of LaVerne
Appeal TypeSecond
PA ID#037-40830-00
PW ID#2750
Date Signed2007-12-21T05:00:00
Citation: FEMA-1577-DR-CA; City of La Verne; Debris Removal

Cross Debris Removal; Flood Control Works
Reference:

Summary: Following heavy rains from December 27, 2004 through January 11, 2005,
the City of La Verne (Applicant) submitted a request for funding for the removal of debris from storm-drain structures throughout the city. FEMA prepared Project Worksheet (PW) 2750 and disallowed the Applicant’s request for $70,000 to remove debris from Marshall Creek Channel. In its initial assessment, the U.S. Army Corps of Engineers (USACE) determined that the channel meets the USACE definition of a Flood Control Work (FCW). FEMA also concluded that the channel had sufficient capacity to convey a 5-year flood event. Thus, debris removal from the channel was deemed ineligible as emergency work. In a letter dated November 9, 2005, the Applicant appealed FEMA’s decision, stating that debris removal was necessary to prevent a possible threat to public health that could be created by stagnant water, which provides a breeding ground for mosquitoes that may carry the West Nile Virus.

On January 30, 2007, FEMA denied the Applicant’s first appeal, stating that a potential threat is not an imminent threat and reaffirming that Marshall Creek Channel is an FCW. The Applicant filed a second appeal on April 16, 2007, challenging FEMA’s designation of the channel as an FCW and has solicited a second opinion from USACE’s Los Angeles District.
On October 9, 2007, USACE informed FEMA that Marshall Creek Channel is not an FCW.

Issues: (1) Is the Applicant’s facility a Flood Control Work?

Findings: (1) No.

Rationale: 44 CFR §206.223

Appeal Letter

December 21, 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 - City of La Verne, PA ID 037-40830-000, Debris Removal
FEMA-1577-DR-CA, Project Worksheet 2750

Dear Mr. Jacks:

This is in response to your letter dated June 20, 2007, transmitting the second appeal of the City of La Verne (Applicant), dated April 16, 2007. The appeal disputes the determination of the Department of Homeland Security’s Federal Emergency Management Agency (FEMA) to deny assistance for the removal of debris from Marshall Creek Channel.

For reasons explained in the enclosed analysis, I have determined that the cost to remove debris from the channel is eligible for FEMA assistance. Therefore, I am granting the Applicant’s appeal. By copy of this letter, I request that the Regional Administrator take appropriate action to implement this determination.

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

Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate

Enclosure

cc: Nancy Ward
Regional Administrator
FEMA, Region IX

Appeal Analysis

ACKGROUND

The heavy rains of December 27, 2004 through January 11, 2005, resulted in excessive storm water runoff and debris deposited into Marshall Creek Channel (Channel) in San Bernardino County. Approximately 3,000 linear feet of the 30-foot wide concrete-lined facility, from Birdie Drive to Heritage Park, was clogged with sediment that averaged 8 feet deep, filled an adjoining culvert under a street, and completely buried a paved ditch at the center of the creek. The City of La Verne (Applicant) requested Public Assistance reimbursement from the Department of Homeland Security’s Federal Emergency Management Agency (FEMA) for incurred costs for the removal of 12,000 cubic yards (CY) of sediment from the Channel following the disaster.

In May 2005, FEMA prepared Project Worksheet (PW) 2750 to address debris removal from storm-drain structures at various locations throughout the city. A State rehabilitation grant permitted the Applicant to remove debris from the side of the Channel and adjoining culverts to the Channel embankments. This action reestablished water flow in the channel and provided adequate capacity to accommodate a 5-year flood event. The U.S. Army Corps of Engineers (USACE) advised FEMA that the Channel meets the USACE definition of a Flood Control Work (FCW). FEMA also concluded that the Channel possessed sufficient capacity to convey a 5-year flood event. In accordance with Response and Recovery (R&R) Policy 9524.3, “Policy for Rehabilitation Assistance for Levees and Other Flood Control Works,” FEMA determined that the debris removal from the Channel is ineligible for Public Assistance reimbursement. Consequently, FEMA excluded the $70,000 cost for debris removal from the Channel in
PW 2750.

First Appeal

On November 9, 2005, the Applicant appealed FEMA’s decision to disallow costs associated with debris removal from the Channel to the California Governor’s Office of Emergency Services (OES). The Applicant asserted that the debris inside and alongside the Channel posed a potential threat to public health. The Applicant stated that remaining debris could clog culverts and promote the development of stagnant water pools, which would be an ideal breeding ground for mosquitoes that could spread West Nile Virus. The Applicant’s appeal included San Gabriel Mosquito and Vector Control District reports on mosquito population levels in the subject section of the channel from 1999 through 2005. OES forwarded the Applicant’s appeal to FEMA on February 7, 2006.

On January 30, 2007, the Deputy Regional Director denied the Applicant’s first appeal on the grounds that the Channel is an FCW and the accumulated debris did not pose an immediate threat to public health and safety.

Second Appeal

The Applicant submitted a second appeal of FEMA’s denial of $70,000 on April 16, 2007. The Applicant challenged FEMA’s designation of the Channel as an FCW and solicited a second opinion from USACE’s Los Angeles District.

DISCUSSION

The Applicant has challenged the joint determination of FEMA and USACE that the Channel is an FCW. The Applicant submitted a copy of its solicitation of USACE’s Los Angeles District to reassess the structure. The Applicant did not receive a response from USACE contradicting its initial assessment prior to submitting the second appeal. However, on October 9, 2007, USACE informed FEMA that the Channel does not meet USACE’s “minimum engineering standard to be considered a Flood Control Work.” The intended purpose of the Channel is drainage, not flood control. Thus, the Channel meets the general eligibility conditions of 44 CFR §206.223.

CONCLUSION

For the reasons discussed above, the Applicant’s appeal for funding of costs associated with the removal of debris from Marshall Creek Channel is approved.
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