Piru Disposal Site

Appeal Brief Appeal Letter

Appeal Brief

Disaster1577-DR-CA
ApplicantVentura County
Appeal TypeSecond
PA ID#111-99111-00
PW ID#3133
Date Signed2013-08-22T00:00:00

Citation:  FEMA-1577-DR-CA, Ventura County, Piru Disposal Site

Cross-Reference:  Environmental Compliance, Improved Project

Summary:  Heavy rains and flooding occurring from December 27, 2004, through January 11, 2005, eroded approximately 1,000 linear feet of the perimeter embankment along the Santa Clara River at the Piru Disposal Site in Ventura County.  FEMA approved $659,553 with PW 3133 to restore 992 linear feet of eroded embankment by cutting the embankment back to a 2:1 slope and hardening the slope with riprap.  Ventura County (Applicant) requested additional work that exceeded the scope of work necessary to restore the embankment, including construction of three rock groins and an extensive amount of excavation and backfill.  However, FEMA informed the Applicant that it should submit a request for an improved project if it decided to proceed with work that exceeded the scope of eligible work documented and approved with PW 3133.  The Applicant began construction in July 2010, and subsequently submitted a request for an improved project on October 28, 2010.  The FEMA Regional Administrator denied the request and de-obligated $659,553, because the National Marine Fisheries Service would not re-initiate consultation on the project because the work was already accomplished.  As a result, FEMA was not able to obtain after-the-fact project clearance.  In its first appeal, the Applicant stated that the project, as constructed, was within the scope of work included in both the USFWS and NMFS concurrences and did not require further consultation.  The FEMA Regional Administrator denied the first appeal on January 5, 2012, stating that the project, as constructed, exceeded the scope of work approved with PW 3133 and did not meet the conditions of the original NMFS concurrence because “construction activities were conducted outside of the dry season and water diversion was necessary.”  The Applicant submitted its second appeal on November 5, 2012, reiterating its position in the first appeal.

Issues:  1. Did the Applicant submit its second appeal within 60 days of notification of FEMA’s denial of the first appeal?

               2.  Did the Applicant request approval for an improved project prior to initiating construction to allow FEMA to perform and environmental review of the revised scope of work?

Findings:  1. No.

                   2. No.

Rationale:   44 CFR §206.206 Appeals; 44 CFR §206.203 Federal Grant Assistance; Environmental Policy Memo #3, Policy for Projects Initiated Without Environmental Review Required by the National Environmental Policy Act (NEPA), dated May 3, 1996; The Public Assistance Guide, FEMA 322, dated June 2007

Appeal Letter

August 22, 2013

Mark S. Ghilarducci
Secretary
California Emergency Management Agency
3650 Schriever Avenue
Mather, California 95655

Re: Second Appeal – Ventura County, PA ID 111-99111-00, Piru Disposal Site, FEMA-1577-DR-CA, Project Worksheet (PW) 3133

Dear Mr. Ghilarducci:

This is in response to a letter from your office dated January 7, 2013, which transmitted the referenced second appeal on behalf of Ventura County (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of its request for an improved project and de-obligation of $659,553.

Background

Approximately 1,000 linear feet of the perimeter embankment along the Santa Clara River at the Piru Disposal Site in Ventura County eroded as a result of heavy rains and flooding occurring from December 27, 2004, through January 11, 2005.  The Applicant requested FEMA funding for the restoration of the embankment.  FEMA prepared PW 3133 in response to the request, but denied funding because the Applicant restored the facility to pre-disaster condition when it completed the emergency work that FEMA had already funded under a separate PW.

On October 30, 2006, the FEMA Region IX Regional Administrator responded to a first appeal of PW 3133, with which the Applicant requesting FEMA funding for the proposed permanent work.  The Regional Administrator determined that restoration of the facility was eligible for funding; however, the cost estimate submitted with the appeal was based on material quantities and unit costs that were unreasonably high.  FEMA partially approved the Applicant’s first appeal, as the Applicant requested additional work that exceeded the scope of work necessary to restore the embankment, including construction of three rock groins and an extensive amount of excavation and backfill.  After reviewing additional information and a revised cost estimate submitted by the Applicant, the FEMA Regional Administrator approved $659,553 to restore 992 linear feet of eroded embankment, on July 9, 2007.  The scope of approved work included cutting the embankment back to a 2:1 slope and placing riprap on the slope. 

Once FEMA completed the necessary environmental and historic reviews of the project and received concurrence from the United States Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS), FEMA obligated Version 1 of PW 3133 on May 8, 2008.  The concurrences by USFWS and NMFS required that the Applicant accomplish the construction during the dry season or when the channel was dry.  Following the obligation of Version 1 of PW 3133 and the approval of the embankment restoration, the Applicant submitted a version request and an appeal of the approved scope of work.  FEMA denied the requests; however, FEMA approved time extensions for completion of the project.  In each of the responses, FEMA directed the Applicant to request an improved project should it wish to pursue a scope of work that deviated from the scope approved in the first appeal and Version 1 of PW 3133.

After accepting a bid from a contractor for the project, the Applicant submitted another time extension and version request to the California Emergency Management Agency (Cal EMA) on March 31, 2010.  The Applicant requested approval of a scope of work that exceeded the scope of work that FEMA approved with PW 3133.  Rather than forward the request to FEMA, Cal EMA advised the Applicant to submit a request for an improved project.  The Applicant began construction in July 2010, and subsequently submitted a request for an improved project to Cal EMA on October 28, 2010.  NMFS advised FEMA that it would not re-initiate consultation on the project because the work was already accomplished.  On March 8, 2011, the FEMA Regional Administrator denied the Applicant’s request and de-obligated $659,553, because FEMA was not able to obtain after-the-fact project clearance.

First Appeal

On June 2, 2011, the Applicant submitted a first appeal of FEMA’s denial of the request for an improved project and the de-obligation of PW 3133.  The Applicant stated that the project, as constructed, was within the scope of work included in both the USFWS and NMFS concurrences and did not require further consultation.  On January 5, 2012, the FEMA Regional Administrator denied the Applicant’s first appeal stating that the project, as constructed, exceeded the scope of work approved under PW 3133 and did not meet the conditions of the original NMFS concurrence, because “construction activities were conducted outside of the dry season and water diversion was necessary.”

Second Appeal

On November 5, 2012, the Applicant submitted a second appeal of FEMA’s denial of the request for an improved project and the de-obligation of PW 3133.  In its appeal, the Applicant states that the actual project was constructed “well within the scope of work included in the 2007/2008 concurrences from USFWS and NMFS and therefore was not an improved project.”  The Applicant explained that while construction began in July 2010, the project was delayed because the contractor uncovered waste during the excavation.  The discovery of the waste caused delays and changes to the scope of work including increased jurisdictional areas of the regulatory agencies.  Although the construction continued through January 2011, after the dry season, the Applicant claims that a rock stockpile acted as a water diversion and prevented the water from entering the project work area.  Further, the Applicant states that it received a revised permit from the California Department of Fish and Game and an after-the-fact permit approval from the United States Army Corps of Engineers (USACE.)

Cal EMA forwarded the Applicant’s second appeal to FEMA on January 7, 2013.  Cal EMA does not support the Applicant’s appeal, because the Applicant completed work beyond the scope of work approved with PW 3133 without NFMS approvals and permits, and did not submit the appeal in accordance with the time limits set forth in Title 44 of the Code of Federal Regulations (44 CFR) §206.206(c).

Discussion

The Applicant states that it received the FEMA Regional Administrator’s letter responding to its first appeal on February 1, 2012.  The Applicant submitted its appeal almost ten months after that date.  Pursuant to 44 CFR §206.206 Appeals, appeals must be filed within 60 days after receipt of a notice of the action that is being appealed.

Further, the Applicant asserts that the actual project was constructed within the scope of work included in the 2007/2008 concurrences from USFWS and NMFS and not an improved project.  While the regulatory authorizations may have been for a project that included excavation to a greater extent than that approved by FEMA in PW 3133, FEMA never approved excavation above what was necessary to cut the embankment to a 2:1 slope and to excavate the key way.  In all of FEMA’s correspondence referred to in the Applicant’s second appeal, FEMA informed the Applicant that it must request approval for an improved project if it intended to complete work outside of the scope that FEMA approved with PW 3133.  PW 3133 Version 1 states “should the Subgrantee wish to proceed with additional excavation, construction of rock groins, or installation of grouted riprap, it must submit a request for an improved project … prior to initiating the work to allow an environmental review.”  The Applicant finalized the project design and put the project out for bid some time prior to March 2010 and began construction in July 2010.  It did not submit a request for an improved project until October 28, 2010.  Further, the Applicant completed the construction outside of the dry season in violation of the USFWS and NMFS concurrences.

The Applicant states in its second appeal that it could not finalize the design of the project until it received authorization from the USACE in December 3, 2008.  Once it received that authorization, it requested amendment of PW 3133.  FEMA denied the request because the appeal was not submitted within 60 days of the July 7, 2007, determination regarding the approved scope of work.  The Applicant’s assertion that it had to wait for USACE authorization to finalize the design of the project would have been an appropriate issue to include in an appeal of that particular determination, but it is not relevant in an appeal of the FEMA Regional Administrator’s determination to deny the improved project and deobligate funding.

Conclusion

I have reviewed the information submitted with the second appeal and have determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance Program regulations and policy.  Accordingly, I am denying the second appeal. 

This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.  Please inform the Applicant of my decision.

Sincerely,

/s/

Deborah Ingram
Assistant Administrator
Recovery Directorate

cc:  Nancy Ward
      Regional Administrator
      FEMA Region IX
 

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