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Second Appeal Letter
PA ID# 035-05914-00; Lassen Union High School District
PW ID# 2755; Flood Control Work
January 11, 2010
Governor’s Authorized Representative
California Emergency Management Agency
3650 Schriever Avenue
Mather, California 95655
Re: Second Appeal–Lassen Union High School District, PA ID 035-05914-00,
Flood Control Work, FEMA-1628-DR-CA, Project Worksheet (PW) 2755
Dear Mr. McCarton:
This is in response to your letter dated April 20, 2009, which transmitted the referenced second appeal on behalf of the Lassen Union High School District (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding for permanent repairs to its levee along the Susan River.
Heavy rains from December 17, 2005, through January 3, 2006, eroded the embankment of the levee, which has a drainage area of 184 square miles and protects the Lassen Union High School. FEMA prepared PW 2755 for $4,092 to repair 50 linear feet (LF) of the levee eroded by the storms. However, the Applicant contended that 175 LF of the levee had been eroded and requested $9,449 for engineering, permits, soil tests and site visits. On September 21, 2007, FEMA determined that the Applicant’s proposed scope of work exceeded that which was necessary to restore the damaged levee to its pre-disaster condition and was therefore ineligible. FEMA recommended that the Applicant apply for an improved project if it chose to proceed with its proposed scope of work.
The Applicant submitted its first appeal on October 17, 2007. The Applicant stated that the full extent of the damage to the levee was not captured in PW 2755. The Applicant affirmed that the levee is 1650 LF in length and that 175 LF were eroded during the storm. The Applicant also claimed that PW 2755 did not account for costs associated with equipment, placement of fill, or acquiring permits. The Acting Regional Administrator concurred that damage to 175 LF of the levee was the direct result of the storm and the Applicant’s proposed scope of work did not constitute an improved project. However, the levee meets the U.S. Army Corps of Engineers’ definition of a flood control work (FCW) and is eligible to participate in the Natural Resource Conservation Service’s (NRCS) Emergency Watershed Program (EWP). On December 5, 2008, the Acting Regional Administrator denied the Applicant’s appeal because FCWs that are eligible for NRCS’ EWP program are ineligible for permanent repairs.
In its second appeal, submitted on February 13, 2009, the Applicant contended that repairs to the levee are eligible for FEMA Public Assistance funding because the levee is eligible to participate in the NRCS’ EWP program. The Applicant stated that emergency work on FCWs in the EWP program is eligible under the September 11, 1996, Response and Recovery (R&R) Policy 9524.3 Policy for Rehabilitation Assistance for Levees and Other Flood Control Works. However, Title 44 Code of Federal Regulations (CFR) §206.201(b), Emergency Work, defines emergency work as that which must be done immediately to save lives and to protect improved property and public health and safety. The Applicant’s proposed scope of work is intended to restore the levee to its pre-disaster condition, rather than to address an immediate threat. These repairs constitute permanent work as defined in 44 CFR §206.201(g) Permanent Work. In accordance with R&R Policy 9524.3, FCWs that are eligible for NRCS’ EWP program are ineligible for FEMA Public Assistance funding for permanent repairs.
I have reviewed the information submitted with the appeal and have determined that the Acting Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy. Accordingly, I am denying the second 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
Disaster Assistance Directorate
cc: Nancy Ward
FEMA Region IX