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VAN SICKLE ISLAND - Hazard Mitigation Plan Compliance

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DesastreFEMA-1155-DR
ApplicantReclamation District #1607
Appeal TypeSecond
PA ID#095-91045
PW ID#96640,96641,96642
Date Signed1999-06-07T04:00:00
Citation: FEMA-1155-DR-CA, P.A. 095-91045, Reclamation District 1607, Van Sickle Island, DSRs 96640, 96641 and 96642, Hazard Mitigation Plan Compliance

Cross-reference: Amendment #5, Reclamation Districts

Summary: Severe storms and flooding in California resulted in a major disaster declaration on January 4, 1997. Damage Survey Reports (DSRs) 96640, 96641 and 96642, were prepared for a total of $46,788 to fund levee repair, sandbagging and other flood-fighting efforts of Reclamation District 1607, Van Sickle Island. Each DSR was obligated for $0 on November 14, 1997, because the District did not comply with the state's 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 February 6, 1998. FEMA's response dated October 20, 1998, concluded that the District was ineligible for funding because it had not met 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 compliance efforts since 1991. The District submitted its second appeal on December 18, 1998, claiming that subsoil instability prevented it from meeting the September 10, 1991, compliance deadline; and it spent more than $1.3 million in levee maintenance and repair from 1991 to 1998. In its submittal letter, the Governor's Office of Emergency Services (OES) states that the amount in contention is $606,805, though there is no indication as to how it calculated this figure.

Issues:
  1. Did the District comply with the requirements of the HMP prior to the September 10, 1991, deadline?
  2. Did the District qualify for an exemption to the implementation schedule according to Amendment #5?
Findings:
  1. No.
  2. No.
Rationale: FEMA/State Agreement (FEMA-758-DR-CA), Amendment #5, (A)(1)(a)(e)

Appeal Letter

June 7, 1999

D.A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 419023
Rancho Cordova, CA 95741-9023

Re: Second Appeal - Reclamation District 1607, Van Sickles Island, District-wide, FEMA-1155-DR-CA, DSRs 96640, 96641 and 96642

Dear Mr. Christian:

This is response to the referenced appeal submitted by your office on February 12, 1999. As a result of severe storms and flooding in January 1997, Reclamation District 1607, Van Sickles Island, initiated flood-fighting and levee repair projects. Damage Survey Reports (DSRs) 96640, 96641, 96642 totaled $46,788 and were prepared to fund these efforts. On November 18, 1997, FEMA informed the District that it was ineligible for disaster assistance under FEMA-1155-DR because it had not complied with the state's Hazard Mitigation Plan (HMP), according to Amendment #5 of the FEMA/State Agreement (FEMA-758-DR). The District is asking for an exception to the HMP compliance implementation schedule. Your transmittal letter states that the amount in contention is $606,805, though it is unclear how this figure was calculated.

As explained in the enclosed analysis, Amendment #5 clearly states that districts covered by this amendment must complete required mitigation prior to September 10, 1991, in order to receive funding for future disasters. The District did not comply with Amendment #5 because it did not meet the September 10, 1991, compliance deadline. The amendment also provided very specific circumstances for which a time extension may be granted. The District did not inform FEMA that it could not meet the September 10, 1991, and did not receive an approved exception the implementation schedule. For these reasons, I am denying the appeal.

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 Whetsone
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 and Reclamation District 1607, Van Sickles Island, 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.

On January 4, 1997, a major disaster was declared in California as a result of severe storms and flooding. Damage Survey Reports (DSRs) 96640, 96641, 96642 totaled $46,788 and were prepared to fund the flood-fighting and levee repair efforts of the District. FEMA obligated each for $0 on November 14, 1997, because the District had not complied with the HMP in accordance with Amendment #5. DSR 96702 was prepared for debris removal and obligated for $0 on November 14, 1997, because there was no eligible damage.

FEMA informed the Governor's Office of Emergency Services (OES) on November 18, 1997, that the District was not eligible for assistance under FEMA-1155-DR-CA. FEMA stated that the District had not complied with the HMP, according to Amendment #5. Specifically:"The District did not meet the compliance deadline of September 10, 1991, had no approved time extension that provided documentation of soil or geological conditions beyond their control and there is no evidence of compliance efforts since the last inspection report of 1991."The District submitted its first appeal on February 6, 1998. It claimed that deep peat-soil foundation conditions beyond its control prevented it from meeting the September 10, 1991, compliance deadline. In its April 22, 1998, transmittal letter, OES cited the District's compliance efforts from 1991 to 1997 and referenced the amount spent on levee improvements and maintenance during this time. Based on these efforts and its attention to environmental concerns, OES stated that the District "has demonstrated substantial compliance efforts in accordance with HMP requirements."

On October 20, 1998, FEMA denied the appeal because the District did not meet the compliance deadline of September 10, 1991. The District did not have an approved time extension and FEMA found no reason to make an exception to the implementation schedule. The District submitted its second appeal on December 18, 1998.

SECOND APPEAL
The District's second appeal stated that the area was prone to subsoil instability, which created a special condition preventing the District from meeting the September 10, 1991, compliance deadline. It referred to three areas that did not meet HMP requirements as of August 22, 1997. The District described levee repair and maintenance, primarily in the three identified areas, that cost more than $650,000 between 1997 and 1998. It also referred to $690,000 spent between 1991 and 1997. The District stated that compliance with HMP requirements "will continue to vary with time" and asked for an exception to the implementation schedule.

OES transmitted the District's second appeal on February 12, 1999. It stated that $606,805 was in contention, but did not explain how it calculated this figure. The DSRs submitted with the appeal total just $46,788. OES claimed that the District has made substantial upgrades since it submitted its first appeal and that two sections now in "substantial compliance" will meet full compliance standards by the summer of 1999. OES concluded, "the District has demonstrated substantial compliance with the HMP requirements of Amendment #5 through additional repairs and upgrades since the first appeal."

DISCUSSION
The District did not meet the HMP compliance deadline of September 10, 1991, and this point has not been disputed. Amendment #5 (A)(1)(e) states that a district must immediately notify FEMA, through OES, if the aforementioned deadline cannot be met. 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."

There is no evidence to indicate that the District met the requirements of this provision. In its appeals, the District states that subsoil instability has affected its implementation of the HMP. However, it did not notify FEMA of these restrictions prior to the September 10, 1991, compliance deadline. The District and OES repeatedly refer to levee repairs and maintenance between 1991 and 1998 and state that the District has demonstrated "substantial" compliance with HMP requirements.

Amendment #5 categorically denies any future funding to districts that did not meet the September 10, 1991 compliance deadline. Amendment #5 (A)(1)(e) states:Failure to comply with the approved schedule, without ustification 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
The District is not eligible for disaster assistance under FEMA-1155-DR-CA. Amendment #5 issued a September 10, 1991 deadline for compliance with the HMP of 1983. The District did not comply with the HMP, in accordance with Amendment #5, and had no approved exception to the implementation schedule. Therefore, the appeal is denied.