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Second Appeal Brief
PA ID# 065-07A18-00; Banning Heights Mutual Water Company
PW ID# Project Worksheet 2823; Flood Control Work
FEMA-1577-DR-CA, Banning Heights Mutual Water Company,
PA ID 065-07A18-00,
Million-Gallon Tank Gabion Berm, PW 2823 Cross-reference:
Flood Control Work, Permanent Work Summary:
As a result of the storms and heavy rains of December 27, 2004 through
January 11, 2005, the Banning Heights Mutual Water Company (Applicant) requested funding for permanent repairs to a 300-foot section of the 800-foot long by 15-foot high gabion berm installed to protect the tank, foundation, and adjacent building and equipment of the Applicants million-gallon water storage tank. The U.S. Army Corps of Engineers (USACE) advised FEMA that the facility met the definition of a Flood Control Work (FCW). Therefore, FEMA de-obligated PW 2823 for $63,619.70, the portion of the PW covering those repairs.
The Applicant submitted its first appeal on January 9, 2006. The Applicant stated that the costs were eligible because the facility is not an FCW but rather an erosion control device, is not active in the USACE Rehabilitation and Inspection Program (RIP), and is not under the specific authority of the USACE. The Applicant stated that because it has sole responsibility for maintenance, the repairs should be eligible for permanent work reimbursement.
FEMA denied the Applicants first appeal on April 18, 2007, stating that the facility met the USACE definition of an FCW. In accordance with FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works,
disaster assistance authority for permanent work on FCW resides with another federal agency.
On July 12, 2007, the Applicant filed a second appeal with FEMA reiterating the position presented in its first appeal.Issues:
Are permanent repairs to a facility that meets the USACE definition of an FCW eligible under the Public Assistance Program?Findings:
Response and Recovery Policy 9524.3 and 44 CFR §206.226(a)(1)Second AppealBanning Heights Mutual Water Company, FEMA-1577-DR-CA