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Second Appeal Analysis
PA ID# 111-99111-00; Ventura County
DSR ID# Project Worksheet 3139; Improved Project
Back-to-back storms resulted in two disaster declarations: FEMA-1577-DR-CA with an incident period of December 27, 2004, through January 11, 2005, and FEMA-1585-DR-CA with an incident period of February 16, 2005, through February 23, 2005. These storms produced heavy rain that caused flooding along Santa Paula Creek in Ventura County. The creek flooded the lower portion of Steckel Park and washed away sections of the creek embankment. Ventura County (Applicant) requested Public Assistance funding from the Department of Homeland Security’s Federal Emergency Management Agency (FEMA) to restore the improved and maintained parkland and park facilities.
FEMA approved PW 3139 on December 15, 2005, under FEMA-1577-DR-CA, for $324,800 to replace 16,240 cubic yards (CY) of compacted unclassified fill along the creek bank to restore parkland near campgrounds and the amphitheater. FEMA approved PW 803 on February 23, 2006, under FEMA-1585-DR-CA, for $149,600 to replace 7,480 CY of fill along a dirt access road between the campgrounds and the aviary. Both PWs document a total of 42,200 CY of eroded embankment within the park, but the eligible scopes of work for placement of fill were limited to areas defined as improved and maintained property. Both PWs also indicated that the Applicant would not complete the scope as detailed and would request alternate project status.
The Applicant completed an erosion repair and control project in 2005. The work included placement of 8,444 CY of fill along the channel bank adjacent to the campgrounds and construction of six rock groins along a river bend near the aviary using 2,712 CY of rip rap and 6,722 CY of fill. The Applicant estimated the total project cost at $635,914, with $168,889 for fill at the campgrounds and $467,025 for the rock groins.
The Applicant submitted its first appeal of PW 3139 to the California Office of Emergency Services (OES) on June 2, 2006. In its appeal, the Applicant identified erosion of 36,400 CY of improved and maintained parkland and requested funding for the additional 12,680 CY of fill not captured on PW 3139 or PW 803. The Applicant suggested that FEMA did not consider the erosion of property near the aviary in either PW. The Applicant provided a drawing from its records to show terracing of the creek channel near the aviary in 1969. The Applicant claimed that it improved this portion of the creek by engineered terracing; therefore, erosion in this area should be included in the eligible scope. The Applicant also requested that FEMA combine funds for PW 803 with PW 3139 and requested removal of the alternate project designation.
OES forwarded the first appeal to FEMA on July 26, 2006. In its transmittal letter, OES supported the Applicant’s claim for an additional 12,680 CY of fill. OES contended that FEMA should classify PW 3139 as an improved project and apply funding toward the construction of rock groins and placement of fill. OES did not support the Applicant’s request to combine
PW 803 with PW 3139 and remove the alternate project designation. OES asserted that because the road is a separate facility and the Applicant will not repair it, funds could only be applied toward an alternate project.
On September 27, 2007, the Deputy Regional Administrator denied the Applicant’s appeal for funding of additional erosion because the proposed scope of work was not appropriate for damages to the site and the Applicant did not identify the damages within 60 days of the kickoff meeting. The Deputy Regional Administrator also stated that because the Applicant did not restore the pre-disaster function and capacity of the campgrounds, FEMA could not classify PW 3139 as an improved project for funding the construction of rock groins. FEMA indicated that it could not apply the funds approved on PW 803 and PW 3139 as an alternate project toward the construction of rock groins because the Applicant completed the work prior to FEMA approval. FEMA also stated that it will disapprove future alternate projects because the 12-month time limit for alternate project requests had expired. Furthermore, FEMA determined that the scope presented on PW 3139 was not a reasonable repair at a reasonable cost and subsequently de-obligated the PW in full.
The Applicant submitted its second appeal to OES on December 12, 2007. OES forwarded the appeal to FEMA on February 11, 2008. The Applicant objects to the de-obligation of PW 3139 and reiterates that erosion of improved and maintained parkland should include 12,680 CY of fill near the aviary. The Applicant adds that it identified the damage of improved property near the aviary within 60 days and FEMA documented the damage in PW 2545. The Applicant points out that PW 2545 Attachment 2 states, “erosion washed away land near the aviary and undermined a 40 ft section of 3 ft by 4 inch concrete walkway (access for the aviary) which caused the walkway to tilt toward the creek bed.”
The Applicant explains that the completed scope of work did not restore the facility based on its pre-disaster design due to regulatory requirements. The Applicant contends that placement of the quantity of fill proposed in the PW would be in conflict with U.S. Army Corps of Engineers (USACE) Regional General Permit No. 63. The Applicant states that it consulted with USACE and the U.S. Fish and Wildlife Service to determine the preferred method of erosion repair and control within Steckel Park.
OES supported the Applicant’s position. OES contended that the Applicant’s completed project, construction of rock groins and placement of fill, was the most cost-effective method of repair and FEMA should consider it as an improved project or an alternate project. OES stated that FEMA should reimburse the Applicant for actual costs incurred.
To be eligible as a facility, a natural feature must be improved and maintained. The improvement of a natural feature should be based on a documented design that changes and improves the natural characteristics of the feature. The constructed improvement must result in a measurable difference in performance over the unimproved natural feature. The responsible entity must maintain the improvement of the improved natural feature for it to be considered a facility. The maintenance of this improvement must occur on a regular schedule and to standards ensuring that the improvement performs as designed.
The Applicant demonstrated that Steckel Park contains improved and maintained property. However, in accordance with FEMA policy, FEMA must evaluate the natural features within the park to determine eligibility for restoration. PW 3139 addressed erosion along the creek embankment and inaccurately designated land near the campgrounds as improved property. Clearing an area of parkland and placement of campground equipment does not constitute a measurable difference in performance over the unimproved natural feature. Therefore, erosion in this area does not represent eligible damage and deobligation of PW 3139 was appropriate.
The Applicant did not demonstrate that the 1969 terracing was a constructed improvement, or that it maintained the improvement on a regular schedule and to standards to ensure that the terraces performed as designed. Historical records show a major flooding event in the vicinity of Santa Paula Creek in 1969. The 1969 flood was one of the largest floods on record and caused large amounts of bank erosion. In its appeal, the Applicant identified terracing as an engineered modification of the channel and not a reflection of natural terracing resulting from the 1969 flood event. However, the Applicant did not demonstrate that it maintained the terracing on a regular schedule n l since the 1969 configuration suggests that channel alignment was not controlled in the vicinity of Steckel Park since the 1969 flood event.
In its appeal, the Applicant claims that FEMA should provide funding for an additional 12,680 CY of fill near the aviary. The Applicant claims that it identified the damage within 60 days of the kickoff meeting and FEMA documented it in PW 2545. However, PW 2545 only refers to damage of a concrete sidewalk resulting from erosion. The scope of work includes replacement of the damaged section of sidewalk. PW 2545 does not document erosion of improved and maintained parkland in the vicinity of the aviary. PW 3139 and PW 803 document extensive erosion of land not improved or maintained, which includes erosion near the aviary.
The placement of rock groins is a prudent measure to control further westward erosion of the embankment. However, this work does not repair disaster-related damage by restoring the function and capacity of improved and maintained property. Accordingly, construction of rock groins is not eligible as a restoration measure. Also, the rock groins do not directly mitigate disaster-damaged elements. The rock groins may reduce further erosion of the embankment, but the work does not prevent future similar damage to improved property restored under this event. Therefore, construction of rock groins is not eligible as restoration or Section 406 mitigation.
The 16,240 CY of fill detailed on PW 3139, and the 12,680 CY of additional fill requested in the appeal do not restore improved and maintained property and are not eligible for restoration. The construction of rock groins and placement of fill are not eligible because this work does not restore or mitigate eligible damage. Therefore, the appeal is denied.