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Sediment Removal and Creek Bank Restoration of Wilson Creek

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DesastreFEMA-1044-DR
ApplicantSan Bernardino County Flood Control District
Appeal TypeSecond
PA ID#071-91103
PW ID#26563,17721
Date Signed1999-04-27T04:00:00
Citation: FEMA-1044-DR-CA; San Bernardino County FCD; DSR 26563/17721

Cross Reference: Federal Levee Policy, Eligible Facility

Summary: The winter storms of 1995 (FEMA-1044-DR-CA) caused extensive damage to flood control facilities throughout San Bernardino County. DSR 26563 was prepared to fund sediment removal, creek bank restoration and access road repair of Wilson Creek. During eligibility review, the subgrantee's equipment rates were adjusted to reflect FEMA rates. The subgrantee submitted a request for supplemental funding. During the review of the supplemental request, DSR 26563 was found ineligible on the basis that the channel meets the United States Army Corps of Engineers' (USACE's) definition of a flood control work (FCW), such that restoration funding for the channel would be under the specific authority of the USACE. The subgrantee's first appeal stated that the USACE had determined Wilson Creek was not an FCW. However, the USACE letter supplied by the subgrantee specifically cited Wilson Creek as "active" in the PL-84-99 Rehabilitation and Inspection Program. The Regional Director upheld the initial determination of ineligibility. The second appeal requests a reconsideration of eligibility in light of the Director's recent determination regarding FCWs.

The subgrantee did not appeal the determination that FEMA equipment rates would be used in determining eligible force account equipment costs.

Issues: Is permanent restoration of these flood control facilities eligible for FEMA Public Assistance funding?

Findings: Yes. The FEMA Director has determined that flood control facilities damaged during the 1044/1046 disaster events may be considered eligible facilities under the Public Assistance Program; the scope of work in this DSR may also be considered for permanent restoration funding.

Rationale: Based on a review of the circumstances regarding the implementation of the Federal Levee Policy during the 1044/1046 disaster events, a determination has been made that flood control facilities damaged during these events, and which were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program for these disasters only.

Appeal Letter

April 27, 1999

D.A. Christian
Governor's Authorized Representative
Disaster Field Office-Public Assistance Section
74 North Pasadena Avenue
West Annex, 2nd Floor
Pasadena, CA 91103-3678

Dear Mr. Christian:

This is in response to your December 1, 1998, submittal of the San Bernardino County Flood Control District's second appeal of Damage Survey Report (DSR) 26563/17721. This DSR was prepared for permanent restoration of Wilson Creek, which was damaged during the FEMA-1044 disaster event. DSR 26563/17721 was found ineligible on the basis that the facility meets the United States Army Corps of Engineers' (USACE's) definition of a Flood Control Work (FCW), such that restoration funding for Wilson Creek would be under the specific authority of the USACE.

Based on a review of the circumstances regarding the implementation of the Federal Levee Policy during the 1044/1046 disaster events, the FEMA Director has concluded that some flood control facilities damaged during these events, and which were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program. Accordingly, DSR 26563/17721 has been reviewed for eligibility for permanent restoration funding through the Public Assistance Program.

By copy of this letter, I am requesting the Regional Director to prepare a supplemental DSR consistent with scope of work described in the enclosed analysis. Accordingly, the subgrantee's appeal is granted.

Please inform the subgrantee 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.

Sincerely,

/S/

Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

Enclosure

cc: Martha Z. Whetstone
Regional Director
FEMA Region IX

Appeal Analysis

BACKGROUND

Due to the severe winter storms and flooding that occurred during the FEMA-1044 winter storm event, various flood control facilities in San Bernardino County were damaged. The San Bernardino County Flood Control District (subgrantee) requested disaster assistance from the Federal Emergency Management Agency (FEMA) for the repair of these facilities. FEMA inspection teams, consisting of representatives of FEMA, the California Governor's Office of Emergency Services (OES), and the subgrantee, visited Wilson Creek to document damages and prepare Damage Survey Report (DSR) 26563.

Wilson Creek is an improved earthen channel with wire revetment and rail side slopes. The winter storms of 1995 resulted in high velocity flood flows that scoured approximately 19,000 linear feet of the creek bank and adjacent access road. DSR 26563 was prepared to fund sediment removal, creek bank restoration and access road repair. At the time of the inspection, DSR 26563 was 70% complete. Force account labor was used for the repair, and actual costs for work completed were submitted for incorporation in the DSR. During eligibility review, FEMA concluded that the subgrantee's equipment rates were in excess of FEMA rates. As such, the subgrantee's equipment costs were adjusted to reflect FEMA equipment rates and DSR 26563 was funded in the amount of $116,645.

On February 4, 1997, the subgrantee submitted a request for additional funding as repairs to Wilson Creek had been completed. During review of the subgrantee's request for additional funding, it was determined that Wilson Creek meets the United States Army Corps of Engineers' (USACE's) definition of a flood control work (FCW), such that restoration funding for the channel would be under the specific authority of the USACE. Accordingly, FEMA prepared DSR 17721 to deobligate all funding provided by DSR 26563.

First Appeal
The subgrantee submitted a first appeal letter regarding FEMA's determination that Wilson Creek is an FCW. The subgrantee stated that the USACE had determined that Wilson Creek was not an FCW and submitted a March 12, 1998 letter from the USACE to support this claim. However, the March 12, 1998 letter specifically cites Wilson Creek as being active in the PL 84-99 Rehabilitation and Inspection Program. As such, the subgrantee's first appeal was denied.

Second Appeal
The subgrantee's second appeal letter requests that the eligibility of Wilson Creek be reconsidered in light of the FEMA Director's recent determination regarding the eligibility of FCWs damaged during the 1044/1046 disaster events.

DISCUSSION

Consideration for Funding of Flood Control Facilities
In response to numerous appeals from various subgrantees regarding the implementation of the Federal Levee Policy during the 1044/1046 disaster events, we have conducted an extensive review of the circumstances associated with eligibility determinations regarding flood control facilities prior to and during the response to these disasters. Based on this review, it was apparent that there was some confusion as to the eligibility of flood control facilities. Some subgrantees had received funding for such facilities during previous disasters, particularly the 979 disaster event in 1993, supporting these subgrantees' positions that they relied on funding from previous disasters. For many subgrantees who did apply before the disaster to the USACE for enrollment in their PL 84-99 Rehabilitation and Inspection Program, inspections of the facilities by the USACE were often not completed prior to the disaster, making them ineligible for the PL 84-99 Program. Some inspections were not completed within a year of the request, and then not all requested facilities were inspected. Finally, a review of the DSR in this appeal found that FEMA did not notify the subgrantee that the facility was under the funding authority of another Federal agency, and that the subgrantee was not notified of this determination until a request for supplemental funding was filed.

Although the Federal Levee Policy specifically states that permanent restoration of FCWs is not eligible for FEMA funding, some subgrantees may have relied on previous funding from FEMA and expected disaster related funding in subsequent disasters. FEMA's delay in notifying subgrantee's that their facilities were under the authority of the USACE or Natural Resources Conservation Service (NRCS) may have contributed to a subgrantee's failure to receive Federal funding for disaster related damages. Accordingly, FEMA has concluded that flood control facilities damaged during the 1044/1046 disaster that were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program for these disasters. Although some of the circumstances described above do not specifically apply to this subgrantee's request for funding, the decision to consider permanent restoration funding of FCWs applies to all FCWs damaged as a result of the 1044/1046 disaster events.

Eligible Work
In accordance with the discussion presented above, DSR 26563/17721 has been reviewed for eligibility for permanent restoration funding through the Public Assistance Program, consistent with FEMA regulations and policy for restoration of eligible facilities. In general, the actual costs submitted by the subgrantee for this project are reasonable and consistent with the scope of work outlined in DSR 26563/17721. However, as identified in the eligibility review for DSR 26563, the subgrantee's equipment rates are in excess of FEMA rates. Pursuant to Section 206.228 (a)(1)(ii) of Title 44 of the Code of Federal Regulations, if a subgrantee wishes to claim equipment rates in excess of FEMA rates, FEMA approval must be obtained. As noted in our letter dated December 22, 1998, responding to the third appeal of DSRs 25899/17600 and 26554/17598, there is insufficient documentation to support the use of the subgrantee's equipment rates. Therefore, the subgrantee's equipment costs will be adjusted to reflect FEMA equipment rates.

Future Assistance
Although FEMA is providing this exception for funding of flood control channels for the conditions stated above, it should be understood that the Federal Levee Policy will be strictly adhered to for all disasters occurring after the 1044/1046 events. A copy of the 1996 Policy entitled "Policy for Rehabilitation Assistance for Levees and Other Flood Control Works" is enclosed for reference regarding funding for flood control channels damaged after 1996.

In preparation for future disaster events, it is recommended that the subgrantee take appropriate steps to apply to the USACE PL 84-99 Program or to take steps to meet the criteria of the NRCS Emergency Watershed Protection Program. Facilities that meet the USACE's definition of an FCW will not be eligible for FEMA permanent restoration assistance. As indicated in the attached Policy, the USACE defines a flood control work as a "structure designed and constructed to have appreciable and dependable effects in preventing damage by irregular and unusual rises in water level." To determine if a certain facility meets this definition, the USACE will review the design of that facility and, in most cases, perform a site inspection. Facilities that meet the definition of an FCW but are not "active" ("inactive") in the PL 84-99 Program due to lack of inspection request, failure to meet design or maintenance criteria, or other reasons determined by the USACE, will not be eligible under the Public Assistance Program. As a result, a facility that meets the USACE definition but is not in "active" status in the program may not be eligible for any Federal disaster assistance for permanent resnir FEMA assistance. To be considered an eligible facility, the subgrantee must provide appropriate documentation to demonstrate that the facility does not meet the USACE's definition of an FCW. To best support their position, it is recommended that the subgrantee provide a letter from the USACE indicating that they do not consider the facility an FCW. The subgrantee should anticipate that it may be necessary for the USACE to perform an inspection of a site to definitively determine that a facility does not meet their definition of an FCW. This documentation would be significantly important to those facilities that were found ineligible in previous disasters.

CONCLUSION

Flood control facilities that were found ineligible based on the Federal Levee Policy during the 1044/1046 disaster response may be considered eligible facilities under the Public Assistance Program. DSR 26563/17721 has been reviewed for eligibility for permanent restoration funding through the Public Assistance Program, and funding determinations and limits have been addressed. The Regional Director will prepare a supplemental DSR to fund the scope of work for this DSR as described above. The subgrantee's appeal is granted.