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New Hope Tract

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1155-DR
ApplicantReclamation District #348
Appeal TypeSecond
PA ID#077-91022
PW ID#92888,92894
Date Signed1999-04-09T04:00:00
Citation: FEMA-1155-DR-CA, PA 077-91022, Reclamation District 348, New Hope Tract, DSRs 92888 and 92894

Cross Reference: Hazard Mitigation Project, Amendment #5, Reclamation Districts, San Joaquin Delta

Summary: Severe storms and flooding in California resulted in a major disaster declaration on January 4, 1997. Damage Survey Reports (DSRs) 92888 and 92894, for $231,215 and $9,870 respectively, were prepared to fund permanent and temporary levee repairs, sandbagging and other flood fighting efforts of Reclamation District 348, New Hope Tract. DSR 92888 was denied on April 11, 1997 and DSR 92894 was deobligated on May 20, 1997 because the District did not comply with the Sacramento/San Joaquin Hazard Mitigation Plan (HMP) in accordance with Amendment #5 of the FEMA/State Agreement (FEMA-758-DR-CA), signed April 29, 1987. The District submitted its first appeal on June 23, 1997. FEMA's response, dated July 17, 1998, concluded that the DSRs were ineligible for funding because the District did not meet the September 10, 1991 HMP compliance deadline set forth in Amendment #5. Also, it did not have an approved time extension based on acceptable reasons, and there was no evidence of full compliance prior to DR-1155. The District submitted its second appeal on October 2, 1998, claiming that it has documented evidence of "substantial compliance" prior to DR-1155; it submitted a time extension request prior to the September 10, 1991 deadline; and it has spent millions of dollars in an effort to meet HMP standards.

Issues:
  1. Was the District in compliance with the HMP prior to the deadline of September 10, 1991?
  2. Does the District qualify for a time extension based on acceptable justification outlined by FEMA in Amendment #5?
  3. Did the District meet HMP compliance standards prior to DR-1155?
Findings:
  1. No.
  2. No.
  3. The point is moot based on the requirements of Amendment #5.
Rationale: FEMA/State Agreement, Amendment #5, (A)(1)(a)(b)(e)

Appeal Letter

April 9, 1999

Mr. D.A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
Public Assistance Section, P.O. Box 419023
Rancho Cordova, California 95741-9023

RE: Second Appeal - Reclamation District 348 New Hope Tract, Reclamation District Levee, FEMA-1155-DR-CA, DSRs 92888 and 92894

Dear Mr. Christian:

This is in response to the referenced second appeal. Damage Survey Reports (DSRs) 92888 and 92894 were prepared for $231,215 and $9,870, respectively, to fund permanent and temporary levee repairs, sandbagging and flood fight efforts following severe storms and flooding in California. The District is requesting that it be deemed in compliance with the Hazard Mitigation Plan (HMP) for the Sacramento/San Joaquin Delta in accordance with Amendment #5 of the FEMA/State Agreement (FEMA-758-DR-CA) so it may recover costs for these DSRs.

As explained in the enclosed analysis, the District did not comply with Amendment #5 because it did not meet the compliance deadline of September 10, 1991. Amendment #5 clearly states that districts covered by this amendment must meet this deadline in order to receive funding for future disasters. The amendment also provided very specific circumstances for which a time extension may be granted. The District did not provide evidence that it failed to meet the deadline due to these specific circumstances. For this reason, the appeal request is denied.

Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206, which constitutes the final level of appeal in accordance with 44 CFR 206.206(e).

Sincerely,

/S/

Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

Enclosure

cc: Martha Whetstone
Regional Director
FEMA Region IX

Appeal Analysis

BACKGROUND

Flooding in California resulted in a major disaster declaration on February 25, 1986 (FEMA-758-DR-CA). Amendment #5 was added to the FEMA/State Agreement on April 28, 1987. Amendment #5 outlined requirements that must be fulfilled by reclamation districts located within the Sacramento/San Joaquin Delta in order to receive funding for the 1986 disaster and future disasters.

Amendment #5 (A)(1)(a) required districts to establish a five-year schedule to comply with the standards of the Short-term Levee Rehabilitation Plan of September 15, 1983. This was the FEMA-required Hazard Mitigation Plan (HMP) for the Sacramento/San Joaquin Delta. In accordance with Amendment #5, HMP compliance programs were to begin September 10, 1986, and be complete by September 10, 1991.

Reclamation District (RD) 348, New Hope Tract, submitted a time extension request to the Governor's Office of Emergency Services (OES) on August 29, 1991. The request stated that the District could not meet HMP requirements by the September 10, 1991 deadline. OES submitted the time extension request to FEMA on June 11, 1997.

On January 4, 1997, a major disaster was declared in California as a result of severe storms and flooding (FEMA-1155-DR-CA). Damage Survey Reports (DSRs) 92888 and 92894, for $231,215 and $9,870 respectively, were prepared to fund permanent and temporary levee repairs, sandbagging and other flood fighting efforts of RD 348. In April and May of 1997, FEMA deobligated these DSRs because the District had not complied with the HMP in accordance with Amendment #5. The District submitted its first appeal on June 23, 1997.

In its first appeal, the District claimed that the basis for "substantial compliance" with the HMP had not been clarified. The District said it had rehabilitated 5.5 miles of the levee at a cost of $5.5 million and that areas of the levee affected by DR-1155 met or exceeded HMP standards. The District stated that the Department of Water Resources (DWR), OES and FEMA had failed to meet to discuss compliance after 1990. In addition, the District claimed it was never told that it was not in compliance or that its efforts to meet standards were inadequate.

Before a decision on this appeal was made, representatives from FEMA, OES, and DWR prepared a one-page status report on September 19, 1997. The status report stated that at the time of the 1991 compliance deadline, 2.7 levee miles were below HMP standards and access to the levee road was blocked. According to the report, a 1996 survey showed that 1.9 miles of levee along Beaver Slough and 200 feet at New Home Landing Marina were still below HMP standards. In addition, some access to the levee road at the I-5 remained blocked. OES submitted the status to FEMA in a letter dated September 26, 1997 and recommended that a time extension be granted based on the "good faith effort the district continues to demonstrate."

In response to this letter, FEMA requested more information from the District before making a final decision in regard to the first appeal. This request, in a letter dated October 14, 1997, said that the joint status report failed to show that the District had met HMP compliance standards and asked for specific engineering plans and improvement projects. The District responded in a letter dated November 13, 1997. This letter included maps, engineering designs, a maintenance schedule, and a record of expenses (and projected expenses) from 1989 to 1998. (These expenses only gave a sum total for RD 348 expenditures during two years following the 1991 deadline.) The District stated that it was currently rehabilitating the Beaver Slough reach of the levee and expected that the project should be complete by the end of 1997.

FEMA responded to the first appeal in a letter dated July 17, 1998. The response stated that the District had included comments on the amount of levee dollars spent and documented requests for time extensions. However, the District had not provided specific rehabilitation details and the last DWR report, dated April 28, 1995, showed that the District was only 90 percent in compliance by that time. The appeal was denied because the District did not meet the September 10, 1991 compliance deadline, it had no approved time extension, and there was no indication that it was in full compliance prior to the January 1997 declaration.

SECOND APPEAL REQUEST

The District submitted its second appeal on October 2, 1998. The District claims that FEMA failed to recognize the status report signed on September 19, 1997, and relied on the report filed by DWR on April 28, 1995, to determine that the District was not in compliance with the HMP standards. The District asserts that its compliance efforts from 1989 to present meet a "substantial compliance" standard. In addition, the District notes that its time extension request was submitted prior to the September 10, 1991 deadline. It claims that state and/or federal agencies failed to comply with Amendment #5 requirements and finally, that the District's noncompliance status was caused by "the inaction of the very agencies in charge of administering the disaster assistance programs."

DISCUSSION

The District did not meet the HMP compliance deadline of September 10, 1991 and this point has not been disputed. A letter dated June 4, 1991, from the District to DWR indicates that the District had previously notified DWR of its difficulties in meeting the deadline. A meeting between FEMA, OES, DWR and District representatives took place on July 11, 1990, a year before the June 4, 1991 letter, to discuss the issue. The District's formal time extension request, dated August 29, 1991, said that the District "is unable to meet the implementation plan requirements by the September 10, 1991 deadline." Amendment #5 (C)(2)(e) requires that the State immediately notify FEMA of such a request. The request was forwarded to FEMA on
June 11, 1997, almost six years after the September 10, 1991 deadline.

The merits of the time extension request must be viewed in accordance with the guidelines set forth in Amendment #5. Amendment #5 (A)(1)(b) says that FEMA may grant exceptions to the implementation schedule "if a district is restricted in the placement of material because of sub-soil instability or other geological conditions affecting stability. The implementation plan may also be adjusted if a district sustains significant additional damage as a result of future disasters." The District's request lists a number of factors that caused delays in meeting the HMP compliance deadline. However, none of these factors was an acceptable justification for a time extension, according to Amendment #5.

The District lists as factors causing delays: two federal investigations; different interpretations of procurement requirements; numerous requests for information; problems with the contractor; State Coordinating Officer report that halted reimbursement; changes in the state's environmental requirements; and financial problems. Financial burdens were one of the main factors affecting the District's compliance. In its request the District says that it "has been advised by both FEMA and State representatives that the lack of financial ability generally is not a valid reason for an extension of time." As stated, Amendment #5 provides for exceptions only when sub-soil or geological conditions affect stability.

In previous correspondence a great deal of emphasis has been placed on the compliance efforts of the District in the years between 1991 and 1998. The District argues, and OES and DWR support the argument, that prior to the January 1997 floods (DR-1155), it had substantially complied with HMP standards. However, Amendment #5 categorically denies any f0,A)(1)(e) states:
Failure to comply with the approved schedule, without justification acceptable to FEMA (see b. above) will result in the withdrawal of eligible disaster assistance funding, the issuance of a Bill for Collection for advanced or reimbursed funding provided under major disaster declaration FEMA-758-DR, and a determination by FEMA of ineligibility for future disaster assistance.The purpose of this amendment and the HMP was to establish DSR approval requirements for FEMA-758-DR-CA and "define eligibility criteria for reclamation districts requesting Federal disaster assistance in the event of future declarations under Public Law 93-288 (PL 93-288) or subsequent applicable Federal law." These criteria included meeting the September 10, 1991 compliance deadline. There is nothing in Amendment #5 to indicate that once a district "substantially" complied with the HMP that it could receive funds for future disasters.

CONCLUSIONS

DSRs 92888 and 92894 remain ineligible. Amendment #5 issued a September 10, 1991 deadline for compliance with the HMP of 1983. Reasons that FEMA may grant extensions to this deadline are clearly outlined in Amendment #5 and the District did not present acceptable reasons for being granted a time extension. The appeal is denied on the basis of Amendment #5 to the FEMA/State Agreement (FEMA-758-DR-CA).