Berenda Slough Levees

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1646-DR
ApplicantChowchilla Water District
Appeal TypeSecond
PA ID#039-1DFA8-00
PW ID#Project Worksheet 847
Date Signed2008-06-24T04:00:00
Citation: FEMA-1646-DR-CA, Chowchilla Water District, PW 847

Cross-reference: Emergency Protective Measures, Eligibility

Summary: Flooding from March 29, 2006, through April 16, 2006, caused eight breaches along the Ash Slough and Berenda Slough levees. The Applicant filled the breaches with sand, dirt, and concrete riprap to protect improved property. The Applicant requested reimbursement from FEMA for these emergency protective measures. However, the Applicant could not establish the pre-disaster condition of the levee. Subsequently, FEMA did not fund PW 847.

The Applicant submitted its first appeal on February 7, 2007. The Applicant stated that it neither owns nor maintains the levees and could not provide maintenance records to establish their pre-disaster condition. On May 14, 2007, the Deputy Regional Administrator denied the appeal because the Applicant did not establish legal responsibility for the majority of the work performed.
The Applicant submitted its second appeal on July 14, 2007, and provided supplemental information on August 1, 2007. The Applicant included a copy of an agreement with the Madera County Flood Control and Water Conservation Agency which states that the Applicant is responsible for minor emergency repairs during a flood event. The agreement also states that the Applicant is responsible for routine maintenance and repair.
Issues: Is the Applicant responsible for the majority of the work performed?
Findings: Yes

Rationale: 44 CFR §§206.222, 206.223 (a)(3), and 206.226(a)(1).

Appeal Letter

June 24, 2008

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

Re: Second Appeal–Chowchilla Water District, PA ID 039-1DFA8-00, Ash Slough and
Berenda Slough Levees, FEMA 1646-DR-CA, Project Worksheet (PW) 847

Dear Mr. Jacks:

This letter is in response to the referenced second appeal by the Chowchilla Water District (Applicant) submitted on July 14, 2007. The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $491,413 in funding for emergency repairs to the Ash Slough and Berenda Slough levees.

Flooding from March 29, 2006, through April 16, 2006, damaged weir boards of headworks designed to shunt floodwaters into both sloughs. As a result, floodwaters caused eight breaches along both sloughs, and threatened additional flow control structures. The Applicant filled the breaches with sand, dirt, and concrete riprap to protect Highway 152, several county roads, the Dairyland Elementary School and 30 private homes. The Applicant supplemented its force account labor with contract labor, and with assistance from Madera County, the City of Madera, and the Madera Irrigation District. The Applicant requested reimbursement from FEMA for these emergency protective measures. However, the Applicant could not establish the pre-disaster condition of the levees. Subsequently, FEMA denied the Applicant’s request and provided no funding for PW 847.

The Applicant submitted its first appeal on February 7, 2007. The Applicant stated that it neither owns nor maintains the levees of the Ash and Berenda sloughs. Accordingly, the Applicant could not provide maintenance records to establish the pre-disaster condition of the facility. However, the Applicant argued that it acted to eliminate an immediate threat to public safety and improved property. The Applicant stated that it owns 21 miles of canals that were in imminent danger from the floodwaters of the breached levees. On May 14, 2007, the Deputy Regional Administrator denied the appeal because the Applicant did not have legal responsibility for the majority of the work performed. Moreover, the Applicant did not provide documentation to support any costs claimed for any work for which it had legal responsibility.

The Applicant submitted its second appeal on July 14, 2007, supplementing it with additional information on August 1, 2007. The Applicant claimed that the work it performed is consistent with the definition of emergency protective measures. In addition, the Applicant reiterated the threat that the breached levees posed to county-owned property and submitted photographs to demonstrate the loss. The Applicant also submitted a copy of an agreement with the Madera County Flood Control and Water Conservation Agency, entered into on December 6, 1977. The agreement supports the Applicant’s claim that it is responsible for minor emergency repairs during a flood event. The Applicant delineated these costs in its second appeal and clearly demonstrated that the requested funding is for emergency repairs.
I have reviewed all information submitted and have determined that the Applicant did have responsibility for emergency repairs along to the breached levees. Therefore, I am granting the second 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. This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.

Sincerely,
/s/
Carlos J. CastilloAssistant Administrator
Disaster Assistance Directorate

cc: Nancy Ward
Regional Director
FEMA Region IX
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