Appeal Brief | Appeal Letter | Back
Second Appeal Letter
PA ID# 097-99097-00; County of Sonoma
PW ID# 2893; Slope Failure
July 10, 2009
Governors Authorized Representative
California Emergency Management Agency
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655
Re: Second AppealCounty of Sonoma, PA ID097-99097-00, Slope Failure,
FEMA-1628-DR-CA, Project Worksheet 2893
Dear Mr. McCarton:
This letter is in response to a letter from your office dated July 8, 2008, which transmitted the referenced second appeal on behalf of Sonoma County (Applicant). The Applicant is appealing the Department of Homelands Securitys Federal Emergency Management Agencys (FEMA) decision to deny additional funds to repair an eroded embankment along the West County Trail.
Severe storms from December 17, 2005, through January 3, 2006, eroded an embankment along the shoulders of the West County Trail. FEMA prepared Project Worksheet (PW) 2893 to fund repairs at four different sites along West County Trail. At site #3, a section of an embankment upslope of the trail eroded. The scope of work for site #3 included hydro-seeding of the eroded area and placing rip-rap at the toe of the slope to protect and prevent additional embankment failure and debris deposition onto the paved trail. Subsequent to the obligation of the PW, the Applicant hired Giblin Associates to assess the slope. Giblin Associates prepared a report on November 10, 2006, expressing the opinion that the slide, if left unrepaired, could reactivate and enlarge during future rainy seasons. The Giblin Associates report recommended several options including the excavation of a level bench and placement of a rock rip-rap buttress to support the landslide scarp. Based on the Giblin Associates report, the Applicant submitted a request to change the scope of work to the California Governors Office of Emergency Services (OES) on May 14, 2007. OES forwarded the request to FEMA on August 20, 2007.
On September 28, 2007, pursuant to Response and Recovery Policy 9524.2, Landslide and Slope Failures,
FEMA denied the Applicants request to change the scope of work because restoration or repair of landslides and slope failures is not eligible for permanent work assistance.
The Applicant submitted its first appeal to Californias OES on November 14, 2007, citing the Giblin Associates report. OES forwarded the appeal to FEMA on December 27, 2007, citing Title 44 CFR §206.206, Appeals,
and §206.223(a), General work eligibility
. On April 1, 2008, the Deputy Regional Administrator denied the Applicants first appeal because the embankment does not meet the definition of an eligible facility as defined in 44 CFR, §206.201(c), Facility
. A facility is any publicly or privately owned building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature. The Deputy Regional Administrator also stated that, because landslides and slope failures are only eligible for emergency repairs, the requirement to complete emergency work within six months plus any approved State extensions had expired.
The Applicant submitted its second appeal to OES on May 14, 2008, and OES forwarded the appeal to FEMA on July 8, 2008. The Applicant states the site was originally a railway and was improved by the rail company; therefore, the site is considered an improved facility and eligible for permanent restoration work. The Applicant also stated that the PW was written as a Category G permanent work project and the restoration of the embankment is exempt from the requirement to complete the work within the six-month timeframe for Category B emergency work projects.
The embankment upslope of the trail is not part of the integral ground for the trail. It is a an unimproved natural feature which is ineligible for permanent repair. I have reviewed all information that the Applicant submitted and have determined that the approved scope of work as written in PW 2893 is sufficient to reduce or eliminate the immediate threat that may have existed at the time. There is no basis to revise the scope of work to incorporate permanent repairs to the eroded embankment. Accordingly, I am denying this appeal.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
Elizabeth A. Zimmerman Assistant Administrator Disaster Assistance Directorate
cc: Nancy Ward
FEMA Region IX