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Emergency Protective Measure for Utility Easement

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1585-DR
ApplicantCity of San Juan Capistrano
Appeal TypeSecond
PA ID#059-68028-00
PW ID#Project Worksheet 711
Date Signed2008-02-12T05:00:00
Citation: FEMA-1585-DR-CA; City of San Juan Capistrano (Applicant)

Cross-reference: Emergency Protective Measures; Landslides; Immediate Threat

Summary: As a result of heavy rainfall during the Winter Storms of February 2005, FEMA prepared Project Worksheet (PW) 711 in August 2005 to stabilize a portion of a slope adjacent to a city utility easement for a storm drain, sanitary sewer, and water pipeline. The observed damage was described as an incipient slope failure exhibited by a small scarp, approximately
1-foot high with a length of 20 to 30 feet at the top of a 75-foot high native slope above Camino Las Ramblas. While there was no actual damage to the utilities themselves, the Applicant is requesting $260,666 as emergency protective measures to prevent possible damage to the utilities in the event that the native slope fails.

Issue: 1) Are the actions the Applicant took to stabilize the utility easement eligible for reimbursement?

Findings: 1) No.
Rationale: 44 CFR §206.225; Response and Recovery Policy 9524.2, Landslide Policy Relating to Public Facilities.

Appeal Letter

February 12, 2008

Mr. Paul Jacks
Governor’s Authorized Representative
Governor’s Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655

Re: Second Appeal – City of San Juan Capistrano, PA ID 059-68028-00,
Emergency Protective Measure for Utility Easement, FEMA-1585-DR-CA,
Project Worksheet 711

Dear Mr. Jacks:

This is in response to your letter dated July 6, 2007, which transmitted the referenced second appeal on behalf of the City of San Juan Capistrano (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny funding for emergency protective measures to protect buried utilities.

As explained in the enclosed analysis, we have determined that the work to protect the buried utilities from future damages is not eligible for reimbursement under the Public Assistance Program. Therefore, I am denying the Applicant’s appeal.

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

Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate

Enclosure

cc: Nancy Ward
Regional Administrator
FEMA Region IX

Appeal Analysis

BACKGROUND:

As a result of heavy rainfall during the Winter Storms of February 2005, FEMA prepared Project Worksheet (PW) 711 in August 2005 to stabilize a slope adjacent to a city utility easement for a storm drain, sanitary sewer and water pipeline. The PW and attached Landslide Response Task Force Site Assessment describe the observed damage as an incipient slope failure exhibited by a small scarp, approximately 1foot high with a length of 20 to 30 feet at the top of a 75-foot high native slope above Camino Las Ramblas. The damage was located outside (down slope) of the easement with no actual damage to the utilities themselves; however, the City of San Juan Capistrano (Applicant) requested funding for emergency protective measures to prevent possible damage to the utilities. On the basis of the information available, FEMA concluded that an immediate threat to the utilities did not exist. Consequently, FEMA obligated the PW for zero dollars ($0.00) on November 21, 2005. The Applicant disagrees with FEMA’s determination in the PW.

The Applicant engaged the services of Lawson & Associates Geotechnical Consulting, Incorporated (LGC) to make an assessment of the slope. The LGC’s report dated July 15, 2005, concluded that “The observed down dropped crack poses a potential hazard to the functionality of the existing utility easement directly upslope from the crack.…In the event that the crack develops into a failure, the utility easement in that area will be vulnerable to subsequent potential failure due to the loss of internal support in the downslope direction.” Based on the information provided by the Applicant, as well as the site inspection by FEMA personnel, FEMA concluded that no persuasive evidence had been presented to demonstrate that an immediate threat to the utilities existed.

First Appeal

The Applicant submitted its first appeal to the California Governor’s Office of Emergency Services (OES) on February 10, 2006. OES forwarded the appeal to FEMA on
April 11, 2006. The Applicant requested reimbursement for protective measures, geotechnical evaluation and permanent repairs to stabilize the slope. The Applicant contends that the permanent repair of the slope is eligible for funding as Category B – Emergency Protective Measures. The Applicant also requested a time extension for completion of the work. As part of the first appeal, the Applicant provided: (1) a revised report prepared by LGC dated
October 7, 2005; (2) an approximate cost estimate prepared by LGC dated February 6, 2006, for the installation of 10 caissons connected by a grade beam; (3) an addendum by LGC dated
April 7, 2005, to its geotechnical evaluation; (4) a copy of LGC’s original proposal for the geotechnical evaluation dated March 25, 2005; and (5) its updated cost estimate for geotechnical services dated November15, 2005. The Applicant’s cost summary was $277,700; however, OES stated that the amount in contention was $320,000.

The primary basis for the appeal appears to have been information provided in the October revision to the LGC report and its April addendum. The October report revised the log of the boring drilled at the top of the slope to reflect a clay-lined joint and rupture surface at a depth of 7 feet. Also, the report considered the slope distress in the form of the down-dropped crack (head scarp) to be the surface manifestation of movement along this surface. The April addendum stated that “Additionally, it is our opinion that the slope failure currently defined by the crack, will completely fail within five years of the appearance of the crack, if not addressed in a timely manner.…” FEMA noted that LCG did not provide an explanation or justification for the October revision to its original report. Consequently, FEMA did not alter its previous determination regarding an immediate threat to the utilities. Therefore, the Deputy Regional Director denied the Applicant’s appeal. Since FEMA determined that the work was ineligible, FEMA also denied the Applicant’s request for a time extension.

Second Appeal

The Applicant submitted its second appeal to OES on May 15, 2007, and OES forwarded it to FEMA on July 6, 2007. The Applicant completed the slope repair work in November 2006 at a cost of $260,666. It requested reimbursement of this amount from FEMA. As in the first appeal, the Applicant contends that the permanent repair of the slope is eligible for funding as an emergency protective measure to prevent future damage to the buried utilities. In response to FEMA’s comments in the first appeal response letter, the Applicant provided a letter prepared by LGC dated May 8, 2007, that included the results of slope stability analyses that had not been included with previous reports. Also included with the second appeal were copies of receipts and a break down of costs associated with the project.

DISCUSSION:

The issue in this appeal is whether actions the Applicant took to stabilize the utility easement located above a native slope that was distressed during the disaster is eligible for funding as an emergency protective measure to protect the buried utilities. The easement and buried utilities were not damaged by the disaster. Five questions must be answered in order to address this
Issues: (1) Did the disaster exclusively cause the distress to the native slope? (2) Was the native slope unstable before the disaster? (3) Was the native slope unstable after the disaster? (4) Did the native slope present an immediate threat to the buried utilities? and (5) Were the measures the Applicant took cost effective?
LGC’s revised report of October 7, 2005, states that: “@7’ Rupture Surface/Base of Recent Creep Zone; thin clay lining along steeply dipping, continuous, planar, pre-existing joint with gypsum, manganese oxide, roots; ends in the top of sand bed.” (emphasis added) LGC states in its May 8, 2007, letter to the Applicant that “…the addition of significant amounts of water to the slope during the emergency period Winter 2005 heavy rainstorm events caused the existing jointing planes in the upper oxidized zone of the bedrock unit to move enough to express the down-dropped crack observed after the event.” Based of these findings, it appears that the disaster did not exclusively cause the distress to the native slope.

The PW describes the distress to the slope as an incipient slope failure exhibited by a small scarp, approximately 1foot high with a length of 20-30 feet at the top of a 75-foot native slope. Neither the FEMA Landslide Team nor LGC observed any toe bulge because of the presence of significant vegetation on the slope. Therefore, the depth of the slip was not known. LGC conducted a stability analysis of the slope and calculated a factor of safety of 1.0 which means that the slope is marginally stable. However, because the depth of the slip is not known, it is reasonable to conclude that the stability of the entire native slope, from top to bottom, prior to and after the disaster was substantially the same. Therefore, the native slope was marginally stable prior to and after the disaster. Since the disaster did not materially affect the stability of the slope, it is reasonable to conclude that there was no disaster-related immediate threat to the utilities.

Response and Recovery Directorate Policy 9424.2, Landslide Policy Relating to Public Facilities, dated August 17, 1999 (Landslide Policy), states in pertinent part, “…emergency protective measures to stabilize slopes and hills that were damaged by a disaster may be eligible only if necessary to eliminate or lessen immediate threats to life, public health, safety, or significant additional damage pt effective. The Applicant did not submit any documentation to show that the measures it took were cost effective. It did not submit any information related to the value of the infrastructure that was protected or submit other options it considered to eliminate the threat. Even if a disaster-related immediate threat existed, the actions that the Applicant took were not consistent with the intent of the Landslide Policy.

CONCLUSION:

The distress to the native slope was not exclusively caused by the disaster and the slope appears to have been marginally stable prior to and after the disaster. Therefore, the project that the Applicant completed to stabilize the utility easement is not eligible under the Public Assistance Program. Accordingly, the appeal is denied.