Emergency Protective Measures

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1646-DR
ApplicantSan Mateo County
Appeal TypeSecond
PA ID#081-99081-00
PW ID#607
Date Signed2010-05-20T04:00:00

Citation:         FEMA-1646-DR-CA; San Mateo County, Emergency Protective Measures–Landslide, Project Worksheet (PW) 607


Cross-
Reference:
      Essential Assistance; Emergency Work; Immediate Threat; Landslides

Summary:      The heavy rainfall during the storms of April 2006 reactivated a landslide that had experienced significant movements in 1998 and 2005.  The active landslide is located within the area of a larger ancient landslide.  FEMA prepared PW 607 in August 2006 for emergency protective measures in the form of surface water drainage and a tied-back soldier pile wall to protect Upper Scenic Drive at the easternmost edge of the active landslide.  During final review, FEMA concluded that an immediate threat did not exist, and a geotechnical study needed to be performed prior to funding any emergency protective measures.  Consequently, the PW amount was reduced to zero dollars.  In response to the first appeal, FEMA revisited the site; however, FEMA’s position remained unchanged, and the appeal was denied.  San Mateo County disputes FEMA’s decision and is requesting funding in the amount of $2,893,686 for emergency protective measures to maintain the stability of a section of Upper Scenic Drive and protect residential properties above the active landslide.

Issue:              1. Is the cost to stabilize a historic landslide eligible as an emergency protective measure?

Finding:          1. No.  However, $24,936 that the Applicant spent on improving the drainage at the landslide is eligible.

Rationale:       Section 403 of the Stafford Act; 44 CFR §206.225; 44 CFR §206.221(c); Response and Recovery Policy 9524.2, Landslide Policy Relating to Public Facilities.

Appeal Letter

May 20, 2010

 

 

 

Francis McCarton

Governor’s Authorized Representative

Governor’s Office of Emergency Services

Response and Recovery Division

3650 Schriever Avenue

Mather, CA  95655

 

Re:  Second Appeal–San Mateo County, Upper Scenic Drive, PA ID 081-99081-00

        Emergency Protective Measure, FEMA-1646-DR-CA, Project Worksheet 607

 

Dear Mr. McCarton:

 

This is in response to a letter from your office dated September 9, 2008, which transmitted the referenced second appeal for San Mateo County (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $2,893,686 to stabilize a landslide area following the declared event.

Background

Heavy rainfall during the storms of April 2006 caused additional movement in an ancient landslide in La Honda, San Mateo County that had experienced recent movements during the El Nino rains of 1998 (FEMA-1203-DR-CA) and in 2005.  The 2006 landslide was 200 feet long by 30 feet wide by 30 feet deep.  The easternmost edge of the landslide was within approximately 30 feet of Upper Scenic Drive over a width (parallel to the road) of approximately 30 feet.  FEMA inspected the landslide area and prepared a Landslide Assessment Report in August 2006, in which it recommended a limited geotechnical investigation prior to making a decision on the eligibility of the proposed emergency protective measures.  FEMA prepared Project Worksheet (PW) 607 in August 2006 for $3,576,000 for emergency measures in the form of surface water drainage and a 570-foot long, tied-back soldier pile wall to protect a section of Upper Scenic Drive and residential properties above the east side of the landslide.  During final review of the PW, FEMA concluded that the proposed work constituted a permanent repair of the landslide, which is ineligible because of previous landslides at the site and no facility was damaged.  In addition, FEMA concluded that the proposed scope of work went beyond the intent of Section 403, Essential Assistance, of the Stafford Act.  Consequently, FEMA did not approve any funds for the PW.  San Mateo County (Applicant) disagreed with FEMA’s determination and filed a first appeal with the California Emergency Management Agency (CalEMA).  After receiving the Applicant’s first appeal, FEMA and CalEMA inspected the site again on January 18, 2008.  The Deputy Regional Administrator sustained the original decision on this issue and denied the first appeal on April 28, 2008.  On June 17, 2008, CalEMA agreed to fund the stabilization of the landslide along Upper Scenic Drive, provided the Applicant submitted a second appeal to FEMA.  The Applicant submitted a second appeal to FEMA through CalEMA in a letter dated July 8, 2008, requesting $2,893,686.

Discussion

The landslide occurred in unimproved natural ground that experienced previous landslides.  Unimproved natural ground is not an eligible facility under the Public Assistance Program. Therefore, the cost to stabilize unstable natural ground is not eligible for reimbursement.  Section 403 of the Stafford Act authorizes assistance for cost-effective emergency protective measures to lessen or eliminate an immediate threat of damage to improved property.  The Applicant asserted that the unstable landslide area posed an immediate threat to Upper Scenic Drive, an improved road, and the cost to eliminate the threat should be eligible for assistance from FEMA.  During the evaluation of the first appeal, FEMA’s geotechnical specialist reviewed the geotechnical report that the Applicant submitted and concluded that the drained residual shear strength of the head scarp did not support the conclusion that landslide posed an immediate threat to the road.  The Applicant did not submit any compelling information to refute this conclusion.  Following the 2006 storms, the Applicant modified drainages swales to better manage runoff near the landslide and installed French drains to help dewater the failed slope. 

Conclusion

I have reviewed all information submitted with the appeal and determined that the permanent stabilization of the landslide was not necessary to lessen or eliminate an immediate threat of damage to the road and other improved property.  I have also determined that the drainage improvement the Applicant completed eligible emergency protective measures, and the $24,936 that the Applicant incurred for these activities is eligible for reimbursement. 

Therefore, I partially approve the appeal for $24,936.  By copy of this letter, I request that the Regional Administrator take appropriate action to implement my determination.   

Please inform the Applicant of my determination.  My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206, Appeals.

Sincerely,

/s/

Elizabeth A. Zimmerman

Assistant Administrator

Recovery Directorate

cc:     Nancy Ward

Regional Administrator

FEMA Region IX

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