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Stenner Creek Embankment Erosion

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DesastreFEMA-1044-DR
ApplicantCity of San Luis Obispo
Appeal TypeSecond
PA ID#079-68154
PW ID#26180
Date Signed1997-08-29T04:00:00
Citation: FEMA-1044-DR-CA; City of San Luis Obispo; DSR 26180

Cross-Reference: Facility, codes and standards, and flood control work

Summary: As a result of the March 1995 winter storms, approximately 200 feet of embankment along Stenner Creek was scoured in the vicinity of Dana Street and U.S. Highway 101. DSR 26180 was prepared for $58,080 to fund the restoration of the creek, which included unclassified fill, tree removal, and installation of gabion baskets. The work was determined ineligible because the embankment is part of a natural channel. In the first appeal, the Subgrantee requested permanent restoration funding on the basis that the stream was improved and maintained. The Region reviewed the information and determined that the documentation did not show that Stenner Creek is a facility, pursuant to FEMA's definition. A second appeal has been submitted, accompanied by the "Floodplain Management Policy" to demonstrate that the creek is a facility. Correspondence from the Subgrantee states that eligibility should be based on the fact that the city has adopted and implemented standards for the repair of creek and river banks. The OES concurred with this point, but asserted that if the embankment is not considered a facility, the work should be eligible as emergency work, because an historic building was at risk from further erosion damage.

Issues:
  1. Should FEMA fund the restoration of the subject portion of Stenner Creek?
  2. Should FEMA fund the work as an emergency protective measure?
Findings:
  1. No. Stenner Creek is a facility per FEMA definition, as it is improved and maintained, but the channel meets the USACE definition of a flood control work.
  2. No. The Subgrantee has not provided documentation indicating the existence of a threat from further erosion.
Rationale: The facility meets the USACE definition of a flood control work. Per FEMA policy, flood control works are not eligible for permanent restoration funding. Further, in order for the work to be eligible as an emergency protective measure, an immediate threat must be eliminated or lessened. The Subgrantee has not provided documentation supporting the existence of such a threat, therefore, the work is not eligible for FEMA disaster assistance.

Appeal Letter

August 29, 1997

Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, 3rd Floor
Pasadena, CA 91103-3678

Dear Mr. Najera:
This letter is in response to your January 16, 1997, submittal of the City of San Luis Obispo's second appeal of damage survey report (DSR) 26180 under FEMA-1044-DR-CA. This DSR was prepared for erosion along the embankment of Stenner Creek in the vicinity of Highway 101 and Dana Street.
As explained in the attached analysis, review of the documentation submitted shows that the facility meets the USACE definition of a flood control work. Pursuant to FEMA policy, flood control works are not eligible for FEMA disaster assistance of a permanent nature. Further, the documentation did not support the claim that an historic facility was subject to an immediate threat. Therefore, I have denied this appeal.

Please inform the applicant of this determination and their right to submit a third appeal pursuant to 44 CFR 206.206(e).

Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

Enclosure

Appeal Analysis

BACKGROUND
As a result of the winter storms of January and February 1995, approximately 200 feet of stream embankment along Stenner Creek sustained scour damage near 466 Dana Street, east of U.S. Highway 101. The creek is adjacent to the northern boundary of the Dana Street Adobe site, which is the location of an historic structure. Damage survey report (DSR) 26180 was prepared for $58,080 to cover placement of unclassified fill, restoration of the embankment with gabion baskets to protect against future scour, and tree removal. During review, the work was found not eligible because the embankment is an unimproved natural land feature and does not meet the FEMA definition of a facility. Accordingly, funding was denied.

First Appeal
With a February 8, 1996, letter, the State of California's Governor's Office of Emergency Services (OES) transmitted the City of San Luis Obispo's (Subgrantee) first appeal dated December 11, 1995. The Subgrantee explained that codes and standards for repair and maintenance of streams have been formally adopted in their jurisdiction. The Subgrantee stated that these standards require that they maintain their streams in an environmentally and aesthetically sensitive manner. Further, incoming correspondence stated that if the eroded embankment were not fortified, an historic structure would be threatened. The Regional Director denied the first appeal in a letter dated April 3, 1996. This determination was based on the fact that Stenner Creek is a natural, unimproved channel, and not an eligible facility. The response did not address the contention that an immediate threat to an historic structure existed as a result of the erosion.

Second Appeal
With a January 16, 1997, letter, OES transmitted the Subgrantee's October 31, 1996, second appeal. The Subgrantee submitted the "Floodplain Management Policy" (adopted June 1983) and a Memorandum of Understanding from the Deputy County Engineer to the Zone 9 Advisory Committee (April 1979). This policy information was submitted to support the use of gabion baskets to repair the subject portion of Stenner Creek. It was noted by OES that Stenner Creek is maintained in a "quasi-natural" state to comply with environmental regulations, much like other flood control channels throughout the City. OES supported the Subgrantee's position based on 44 CFR 206.221 and 206.226(b), which pertain to the definition of a public facility and the applicable standards for repair.

DISCUSSION
The Subgrantee is requesting FEMA assistance for the work associated with DSR 26180 as an emergency protective measure or permanent restoration. The Subgrantee has contended that the erosion of the embankment posed an immediate threat to a nearby historic structure, however, they have supplied no documentation to substantiate this claim. Further, the Subgrantee has supplied policy that establishes their responsibility for maintaining the channel in order to minimize damage from flooding.

In accordance with the Policy for Rehabilitation Assistance for Levees and Other Flood Control Works (September 11, 1996), permanent restoration of flood control works is not eligible for FEMA assistance. According to this policy and the U.S. Army Corps of Engineers (USACE), a flood control work is a "structure designed and constructed to have appreciable and dependable effects in preventing damages by irregular and unusual rises in water level." This definition provides the basis by which FEMA determines if levees, channels, and hydraulic structures are eligible for funding. The policy submitted by the Subgrantee states that the stream (Stenner Creek) is a flood control channel in a natural state that is maintained to provide adequate flow area for a fifty-year frequency storm and minimize flood damage. Hence, it is a flood control work. Because Stenner Creek is a flood control work, it is not eligible for permanent restoration funding.

In support of the Subgrantee's request for funding as an emergency protective measure, OES contends that an historic facility would be at risk if further erosion occurred to the embankment. However, in order for this risk to be considered an immediate threat, the erosion would have to be a result of a subsequent five-year flood event. The documentation submitted has not established that an immediate threat from further erosion due to a five-year event exists.

CONCLUSION
A review of the documentation submitted by the Subgrantee reveals that the eroded embankment of Stenner Creek is a facility, which meets the USACE definition of a flood control work, as explained above. Therefore, permanent restoration of the embankment is not eligible for FEMA funding. Further, the Subgrantee has not supplied sufficient documentation to indicate that an immediate threat exists. Consequently, the appeal is denied.