Calleguas Creek channel
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1577-DR-CA, Ventura County Watershed Protection District
Cross-reference: Flood Control Works, Debris Removal
Summary: As a result of heavy rainfall during the January 2005 Winter Storms, the Ventura County Watershed Protection District (Applicant) requested funding to remove debris from the Calleguas Creek Channel in Ventura County. FEMA and the United States Army Corps of Engineers (USACE) determined the facility 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. FEMA did not approve funding for PW 2572.
The Applicant submitted the first appeal on November 3, 2005. The Applicant stated that the section of the facility the PW describes was not enrolled in the USACE Rehabilitation and Inspection Program (RIP) at the time of the disaster. The Deputy Regional Director denied the appeal stating that the facility met the USACE definition for an FCW and Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works, limits disaster assistance authority for FCWs to work necessary to reduce an immediate threat to life, public health and safety, or improved property.
On May 1, 2007, the Applicant filed a second appeal with FEMA providing additional documentation to support its assertion that the facility does not meet the USACE definition of an FCW. FEMA reviewed the documentation provided and determined it does not refute USACEs determination that Calleguas Creek is a natural channel with flood control levees on either side and therefore is an FCW.
Issues: 1. Does the Calleguas Creek Channel meet the USACE definition of a FCW?
2. Can FEMA fund debris removal absent documentation of that amount of debris
in the cannel would result in an immediate threat to improved property?
Findings: 1. Yes. FEMA determined the facility met the definition of an FCW.
2. No. The Applicant did not provide documentation of the existence of an immediate threat.
Rationale: Stafford Act Section 403(a)(3); 44 CFR §§206.221(c), 206.225(a)(3), and 206.226; FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works
The storms and heavy rainfall of December 27, 2004, through January 11, 2005, caused excessive storm water runoff into Calleguas Creek Channel. Debris and sediment were deposited along 8,000 feet of the 200-foot wide channel. Additional surveys increased the impacted area to approximately 5.52 miles. The Ventura County Watershed Protection District (Applicant) requested that FEMA reimburse it for $3,286,973 to remove an estimated 822,671 cubic yards (CY) of debris and sediment.
FEMA and the United States Army Corps of Engineers (USACE) determined that the Calleguas Creek Channel met the definition of a flood control work (FCW). In the first appeal the Applicant stated that the section of the facility the PW describes was not enrolled in the USACE Rehabilitation and Inspection Program (RIP) at the time of the disaster. Pursuant to FEMAs Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works, disaster assistance for FCWs resides with another Federal agency and Public Assistance may only reimburse FCWs for emergency work necessary to reduce an immediate threat to life, public health and safety, or improved property.
FEMA prepared PW 2572, for the removal of the accumulated debris and sediment and did not approve any funding for the PW.
First Appeal
The Applicant submitted the first appeal to the California Governors Office of Emergency Services (OES) on November 3, 2005. OES forwarded the appeal to FEMA on December 29, 2005. The Applicant stated that the facility operates as both an FCW and an in-channel debris basin. Therefore, the debris removal should be eligible for reimbursement under the FEMA Public Assistance Program.
OES supported the Applicant and contended that FEMAs failure to coordinate federal disaster assistance for FCWs has resulted in a loss of federal funding, a delay in implementing essential repairs to protect public health and safety, and caused adverse impacts to local jurisdictions. OES argued that the specific authority described in 44 CFR §206.226(a) is established through a formal process and/or a mutual aid agreement between parties rather than through the design and function of a facility and that FEMA funding should offset any resulting shortfalls in the availability of federal assistance for disaster related damage to FCWs. Furthermore, OES argued that FEMA and USACE may waive their respective administrative conditions in the interest of allowing FEMA to fund repairs of damaged FCWs.
The Deputy Regional Director denied the appeal stating that the facility met the USACE definition for an FCW and Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works, limits disaster assistance authority for FCWs to work necessary to reduce an immediate threat to life, public health and safety or improved property.
Second Appeal
The Applicant submitted its second appeal to OES on May 1, 2007. OES forwarded the appeal to FEMA on June 7, 2007. In addition to reiterating the position it presented in the first appeal, the Applicant states that the section of the channel referred to in the PW as being enrolled in the USACE RIP is not correct and that the statement is only true of a section of the channel 2.75 miles upstream. The Applicant claims that the debris removal was necessary to protect from potential flooding of Highway 1, numerous residences, agricultural facilities, and a Southern California Edison substation. The Applicant disputes the determination by FEMA and USACE that the facility is an FCW and states that the facility is an in-channel debris basin. Therefore, removal of the disaster related debris should be eligible for reimbursement by the FEMA Public Assistance Program.
DISCUSSION
PW 2572 describes the debris removal the Applicant deemed necessary to reduce an immediate threat to life, public health and safety and improved property in the vicinity of the facility. FEMA and USACE determined that the facility met the definition of an FCW. In accordance with FEMA R&R Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works, only emergency debris removal and emergency repairs are eligible for FEMA Public Assistance.
In the second appeal, the Applicant states that debris removal was completed on December 11, 2006, for $3,286,973 to protect Highway 1, numerous residences, agricultural facilities, and a Southern California Edison substation from an immediate threat of flooding. Pursuant to 44 CFR §206.221(c), an immediate threat means the threat of additional damage or destruction from an event which can reasonably be expected to occur within five years. The Applicant disagrees that the facility meets the definition of an FCW and asserts that the channel is an in-channel debris basin. In support of that assertion, the applicant provided a joint agreement between the United States Department of Agriculture (USDA) Soil Conservation Service (SCS) dated December 1953 and a Flood Plain Information Circular issued by USACE in 1969. The Applicant also states that it maintains the facility as an in-channel debris basin on a regular basis but failed to provide documentation to support a regular debris clearance schedule. In addition the Applicant stated that the damaged part of the facility was not enrolled in the RIP at the time of the disaster. The only section of the Creek that is enrolled in the USACE RIP is located approximately 2.75 miles upstream from the project site. FEMA determined that the damaged site was ineligible for funding because the channel remained capable of handling a
5-year flood event. FEMA made its decision after taking measurements of the upper reach of the channel on June 18, 2005, the lower reach on August 10, 2005, and reviewing the Applicants debris contractor estimate on August 12, 2005. Furthermore, on October 1, 2005, USACE determined that Calleguas Creek Channel is a natural channel with levees on either side that meets the definition of an FCW. The Applicant did not provide sufficient information to dispute the USACE determination of the channel as an FCW, nor did it demonstrate that the debris removal was necessary for the channel to convey a 5-year flooding event or that a 5-year flood would cause any damage if the debris was not removed.
OES disagrees with the determination of the facility as an FCW. OES states that the channel is a permanent structure designed for erosion control, channel stabilization, floodwater retardant and sediment control for downstream water quality and correct turbidity. USACE describes the facility as a natural channel with flood control levees on either side and as such has determined the channel meets the definition of an FCW. FEMA does not consider whether an FCW is enrolled in the RIP when it determines whether a facility is eligible for funding. Pursuant to FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works disaster assistance for FCWs resides with another Federal agency and FEMAs Public Assistance Program may only reimburse FCWs for emergency work necessary to reduce an immediate threat to life, public health and safety, or improved property.
CONCLUSION
The Applicant is requesting FEMA reimburse it $3,286,973 to remove debris from the channel. No documentation was provided to support its argument that the work constituted emergency work necessary to eliminate an immediate threat to life, public health and safety, or improved property for a 5-year flood event. The Applicant did not provide documents detailing the repairs needed to protect against a five-year flood.
The Aphameets the definition of an FCW. The additional documentation the Applicant provided in the second appeal was insufficient to support a change in the USACE designation of the channel as an FCW. The Applicants second appeal is denied.
Appeal Brief
| Disaster | FEMA-1577-DR |
| Applicant | Ventura County Watershed Protection District |
| Appeal Type | Second |
| PA ID# | 111-UL4GF-00 |
| PW ID# | Project Worksheet 2572 |
| Date Signed | 2008-04-09T04:00:00 |
The Applicant submitted the first appeal on November 3, 2005. The Applicant stated that the section of the facility the PW describes was not enrolled in the USACE Rehabilitation and Inspection Program (RIP) at the time of the disaster. The Deputy Regional Director denied the appeal stating that the facility met the USACE definition for an FCW and Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works, limits disaster assistance authority for FCWs to work necessary to reduce an immediate threat to life, public health and safety, or improved property.
On May 1, 2007, the Applicant filed a second appeal with FEMA providing additional documentation to support its assertion that the facility does not meet the USACE definition of an FCW. FEMA reviewed the documentation provided and determined it does not refute USACEs determination that Calleguas Creek is a natural channel with flood control levees on either side and therefore is an FCW.
2. Can FEMA fund debris removal absent documentation of that amount of debris
in the cannel would result in an immediate threat to improved property?
2. No. The Applicant did not provide documentation of the existence of an immediate threat.
Appeal Letter
April 9, 2008
Paul Jacks
Governors Authorized Representative
Governors Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655
Re: Second AppealVentura County Watershed Protection District, PA ID 111-UL4GF-00 Calleguas Creek Channel, FEMA-1577-DR-CA, Project Worksheet 2572
Dear Mr. Jacks:
This letter is in response to your letter dated June 7, 2007, which transmitted the referenced second appeal of the Ventura County Watershed Protection District (Applicant). The Applicant is appealing the Federal Emergency Management Agencys (FEMA) decision that the Calleguas Creek Channel is a flood control work (FCW), and the accumulated debris did not pose an immediate threat to life, public health and safety, or improved property.
As explained in the enclosed analysis, the Applicant provided additional documentation to support its assertion that the facility does not meet the United States Army Corps of Engineers (USACE) definition of an FCW and that the accumulated debris in the channel is eligible for reimbursement by the FEMA Public Assistance Program. FEMA reviewed the documentation and concluded with USACE that the facility does meet the definition of an FCW, and that there was insufficient documentation to establish that the amount of debris resulted in an immediate threat to improved property. Therefore I am denying the second appeal.
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
Paul Jacks
Governors Authorized Representative
Governors Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655
Re: Second AppealVentura County Watershed Protection District, PA ID 111-UL4GF-00 Calleguas Creek Channel, FEMA-1577-DR-CA, Project Worksheet 2572
Dear Mr. Jacks:
This letter is in response to your letter dated June 7, 2007, which transmitted the referenced second appeal of the Ventura County Watershed Protection District (Applicant). The Applicant is appealing the Federal Emergency Management Agencys (FEMA) decision that the Calleguas Creek Channel is a flood control work (FCW), and the accumulated debris did not pose an immediate threat to life, public health and safety, or improved property.
As explained in the enclosed analysis, the Applicant provided additional documentation to support its assertion that the facility does not meet the United States Army Corps of Engineers (USACE) definition of an FCW and that the accumulated debris in the channel is eligible for reimbursement by the FEMA Public Assistance Program. FEMA reviewed the documentation and concluded with USACE that the facility does meet the definition of an FCW, and that there was insufficient documentation to establish that the amount of debris resulted in an immediate threat to improved property. Therefore I am denying the second appeal.
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
BACKGROUNDThe storms and heavy rainfall of December 27, 2004, through January 11, 2005, caused excessive storm water runoff into Calleguas Creek Channel. Debris and sediment were deposited along 8,000 feet of the 200-foot wide channel. Additional surveys increased the impacted area to approximately 5.52 miles. The Ventura County Watershed Protection District (Applicant) requested that FEMA reimburse it for $3,286,973 to remove an estimated 822,671 cubic yards (CY) of debris and sediment.
FEMA and the United States Army Corps of Engineers (USACE) determined that the Calleguas Creek Channel met the definition of a flood control work (FCW). In the first appeal the Applicant stated that the section of the facility the PW describes was not enrolled in the USACE Rehabilitation and Inspection Program (RIP) at the time of the disaster. Pursuant to FEMAs Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works, disaster assistance for FCWs resides with another Federal agency and Public Assistance may only reimburse FCWs for emergency work necessary to reduce an immediate threat to life, public health and safety, or improved property.
FEMA prepared PW 2572, for the removal of the accumulated debris and sediment and did not approve any funding for the PW.
First Appeal
The Applicant submitted the first appeal to the California Governors Office of Emergency Services (OES) on November 3, 2005. OES forwarded the appeal to FEMA on December 29, 2005. The Applicant stated that the facility operates as both an FCW and an in-channel debris basin. Therefore, the debris removal should be eligible for reimbursement under the FEMA Public Assistance Program.
OES supported the Applicant and contended that FEMAs failure to coordinate federal disaster assistance for FCWs has resulted in a loss of federal funding, a delay in implementing essential repairs to protect public health and safety, and caused adverse impacts to local jurisdictions. OES argued that the specific authority described in 44 CFR §206.226(a) is established through a formal process and/or a mutual aid agreement between parties rather than through the design and function of a facility and that FEMA funding should offset any resulting shortfalls in the availability of federal assistance for disaster related damage to FCWs. Furthermore, OES argued that FEMA and USACE may waive their respective administrative conditions in the interest of allowing FEMA to fund repairs of damaged FCWs.
The Deputy Regional Director denied the appeal stating that the facility met the USACE definition for an FCW and Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works, limits disaster assistance authority for FCWs to work necessary to reduce an immediate threat to life, public health and safety or improved property.
Second Appeal
The Applicant submitted its second appeal to OES on May 1, 2007. OES forwarded the appeal to FEMA on June 7, 2007. In addition to reiterating the position it presented in the first appeal, the Applicant states that the section of the channel referred to in the PW as being enrolled in the USACE RIP is not correct and that the statement is only true of a section of the channel 2.75 miles upstream. The Applicant claims that the debris removal was necessary to protect from potential flooding of Highway 1, numerous residences, agricultural facilities, and a Southern California Edison substation. The Applicant disputes the determination by FEMA and USACE that the facility is an FCW and states that the facility is an in-channel debris basin. Therefore, removal of the disaster related debris should be eligible for reimbursement by the FEMA Public Assistance Program.
DISCUSSION
PW 2572 describes the debris removal the Applicant deemed necessary to reduce an immediate threat to life, public health and safety and improved property in the vicinity of the facility. FEMA and USACE determined that the facility met the definition of an FCW. In accordance with FEMA R&R Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works, only emergency debris removal and emergency repairs are eligible for FEMA Public Assistance.
In the second appeal, the Applicant states that debris removal was completed on December 11, 2006, for $3,286,973 to protect Highway 1, numerous residences, agricultural facilities, and a Southern California Edison substation from an immediate threat of flooding. Pursuant to 44 CFR §206.221(c), an immediate threat means the threat of additional damage or destruction from an event which can reasonably be expected to occur within five years. The Applicant disagrees that the facility meets the definition of an FCW and asserts that the channel is an in-channel debris basin. In support of that assertion, the applicant provided a joint agreement between the United States Department of Agriculture (USDA) Soil Conservation Service (SCS) dated December 1953 and a Flood Plain Information Circular issued by USACE in 1969. The Applicant also states that it maintains the facility as an in-channel debris basin on a regular basis but failed to provide documentation to support a regular debris clearance schedule. In addition the Applicant stated that the damaged part of the facility was not enrolled in the RIP at the time of the disaster. The only section of the Creek that is enrolled in the USACE RIP is located approximately 2.75 miles upstream from the project site. FEMA determined that the damaged site was ineligible for funding because the channel remained capable of handling a
5-year flood event. FEMA made its decision after taking measurements of the upper reach of the channel on June 18, 2005, the lower reach on August 10, 2005, and reviewing the Applicants debris contractor estimate on August 12, 2005. Furthermore, on October 1, 2005, USACE determined that Calleguas Creek Channel is a natural channel with levees on either side that meets the definition of an FCW. The Applicant did not provide sufficient information to dispute the USACE determination of the channel as an FCW, nor did it demonstrate that the debris removal was necessary for the channel to convey a 5-year flooding event or that a 5-year flood would cause any damage if the debris was not removed.
OES disagrees with the determination of the facility as an FCW. OES states that the channel is a permanent structure designed for erosion control, channel stabilization, floodwater retardant and sediment control for downstream water quality and correct turbidity. USACE describes the facility as a natural channel with flood control levees on either side and as such has determined the channel meets the definition of an FCW. FEMA does not consider whether an FCW is enrolled in the RIP when it determines whether a facility is eligible for funding. Pursuant to FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works disaster assistance for FCWs resides with another Federal agency and FEMAs Public Assistance Program may only reimburse FCWs for emergency work necessary to reduce an immediate threat to life, public health and safety, or improved property.
CONCLUSION
The Applicant is requesting FEMA reimburse it $3,286,973 to remove debris from the channel. No documentation was provided to support its argument that the work constituted emergency work necessary to eliminate an immediate threat to life, public health and safety, or improved property for a 5-year flood event. The Applicant did not provide documents detailing the repairs needed to protect against a five-year flood.
The Aphameets the definition of an FCW. The additional documentation the Applicant provided in the second appeal was insufficient to support a change in the USACE designation of the channel as an FCW. The Applicants second appeal is denied.
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