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Second Appeal Analysis
PA ID# 111-UL4GF-00; Ventura County Watershed Protection District
PW ID# Project Worksheet 2587; Medea Creek Channel
The storms and heavy rains of December 27, 2004, through January 11, 2005,
caused excessive storm water runoff into Medea Creek Channel. Debris and sediment were deposited in a 120-foot section of a 30-foot wide channel with an average depth of 1.5 feet, and in a 100-foot section of a 20-foot wide section of channel with an average depth of 1 foot. Ventura County Watershed Protection District (Applicant) requested reimbursement of $6,300 from FEMA for the removal of this debris and sediment. This work was completed on April 20, 2005.
FEMA and the United States Army Corps of Engineers (USACE) determined that Medea Creek Channel met the definition of a Flood Control Work (FCW). FEMA also determined that the debris did not pose a threat to life, public health and safety, or improved property. Pursuant to FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works,
the authority to repair 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. Consequently, FEMA prepared PW 2857 for zero dollars. First Appeal
The Applicant submitted its first appeal on November 16, 2005, to the California Governors Office of Emergency Services (OES). OES forwarded the appeal to FEMA on January 9, 2006. The Applicant stated that the facilities were not active in the USACE Rehabilitation and Inspection Program (RIP), and were not under the specific authority of the USACE. The Applicant stated that it bears sole responsibility for maintenance and the FEMA Public Assistance Program should reimburse $6,300 for the removal of debris from the channel.
OES supported the Applicants appeal and argued that the specific authority, as 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 asserted 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 Applicants appeal on December 8, 2006, because the facility met the definition of an FCW. In accordance with FEMA Response and Recovery Policy
9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works,
the authority to repair FCWs resides with another Federal agency and Public Assistance is limited to the work necessary to reduce an immediate threat to life, public health and safety, or improved property. Second Appeal
The Applicant submitted the second appeal to OES on March 7, 2007. OES forwarded the appeal to FEMA on May 10, 2007. In addition to reiterating the arguments presented in the first appeal, the Applicant claims that the debris removal was necessary because additional debris accumulations could have caused flood waters to overflow the banks. This would have resulted in extensive damage to the several thousands of homes in the Thousand Oaks, CA area that are serviced by this channel. The Applicant also states that FEMA funded debris removal from the channel in 1998 for FEMA-1203-DR-CA. Therefore, the debris removal should be eligible for reimbursement for this disaster.
The second appeal includes a copy of the Applicants second appeal letter to OES, a copy of the OES letter to FEMA supporting the Applicant, a copy of the PW, a copy of FEMA' first appeal response to OES, a copy of Damage Survey Report (DSR) 20793 from FEMA-1203-DR-CA, and an undated letter from USACE referencing DSR 20793.DISCUSSION
PW 2857 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 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.
The Applicant states in the second appeal that the repairs were completed to protect several hundred homes in the area of Thousand Oaks, California from the 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 5 years. The second appeal did not provide any documentation to demonstrate that the debris removal was necessary for the channel to convey a 5-year flood event, or that a 5-year flood would result in any damage if the debris were not removed.
In PW 2857, FEMA and USACE cooperatively determined that the facility met the definition of an FCW. The Applicants second appeal did not provide documentation from USACE to contradict the determination.CONCLUSION
After reviewing the documentation provided by the Applicant, FEMA agrees with the USACE determination that the facility meets the definition of an FCW. The Applicant did not provide documentation that established the work was necessary for the channel to convey a 5-year flood event. Work that provides a greater level of protection is not eligible. Therefore, the appeal is denied.