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Second Appeal Analysis
PA ID# 111-UL4GF-00; Ventura County Watershed Protection District
PW ID# Project Worksheet 1356; 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. Flood waters eroded areas of earthen fill material adjacent to grouted riprap along 0.4 mile of Medea Creek upstream and downstream of Conifer Street, jeopardizing the structural integrity of the grouted riprap. Approximately 305 cubic yards (CY) of material were eroded from around the grouted riprap. Ventura County Watershed Protection District (Applicant) requested reimbursement of $14,082 from FEMA for repairs to the grouted riprap. The work was completed on March 21, 2005.
FEMA and the U.S. Army Corps of Engineers (USACE) determined that Medea Creek Channel met the definition of a flood control work (FCW). FEMA also determined that this segment of the channel was not active in the USACE Rehabilitation and Inspection Program (RIP) at the time of the disaster. Pursuant to FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works,
disaster assistance for permanent repairs to FCWs resides with USACE, 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 did not provide funding for PW 1356. First Appeal
The Applicant submitted its first appeal on October 28, 2005, to the California Governors Office of Emergency Services (OES). OES forwarded the appeal to FEMA on December 27, 2005. The Applicant stated that the facility was not active in the USACE RIP, and was not under the specific authority of the USACE. The Applicant asserts that it bears sole responsibility for maintenance and the FEMA Public Assistance Program should provide reimbursement in the amount of $14,082 for the repairs to the grouted riprap.
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 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 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,
permanent repair of FCWs resides with USACE. In addition, the Deputy Regional Director also stated that Section 301 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, P.L. 93-288, as amended, does not give FEMA the authority to waive program eligibility requirements.Second Appeal
The Applicant submitted its second appeal to OES on March 7, 2007, and OES forwarded it to FEMA on May 10, 2007. In addition to reiterating the arguments presented in its first appeal, the Applicant is requesting a change in the category of work.
The Applicant and OES state that PW 1356 should be changed from category D (permanent work) to category B (emergency protective measures) on the basis that completion of the work was essential to protect several hundred homes in the Thousand Oaks, CA, area serviced by the channel. The Applicant states that the work was completed within the 6-month regulatory time frame for emergency work. The Applicant also states that FEMA funded repairs to the channel in 1998 for FEMA-1203-DR-CA. Therefore, the repairs to the grouted riprap 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 FEMAs first appeal response to OES, a copy of Damage Survey Report (DSR) 20793 from FEMA-1203-DR-CA, and an undated letter from USACE.DISCUSSION
PW 1356 describes the work completed by the Applicant to repair the damage to the grouted riprap. FEMA and USACE determined that 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,
only emergency debris removal and emergency repairs could be eligible for FEMA Public Assistance.
The Applicant states in the second appeal that the repairs were completed as an emergency protective measure to safeguard several hundred homes in the area of Thousand Oaks, CA, the area serviced by the channel. 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 does not provide any documentation to demonstrate that the repair work 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 riprap was not repaired.
The scope of work in PW 1356 describes the work as labor and equipment to repair the eroded areas around the grouted riprap to restore to pre-disaster capacity. The work would, therefore, be considered as category D (permanent work) and not as category B (emergency protective measures). In accordance with FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works,
permanent repair to FCWs resides with USACE, 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.
In PW 1356, 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 review of the documentation provided by the Applicant, FEMA agrees with the USACE determination that the facility meets the definition of an FCW and that the work completed was permanent work. Therefore, the Applicants second appeal is denied.