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Avenue Turabo

Appeal Brief Appeal Letter

Appeal Brief

DesastreFEMA-1247-DR
ApplicantMunicipality of Caguas
Appeal TypeSecond
PA ID#025-00000
PW ID#06349
Date Signed2001-05-29T04:00:00
Citation: Appeal Brief; Second Appeal; Municipality of Caguas; PA ID #025-00000; FEMA-1247-DR-PR

Cross-reference: PW 06349; Emergency Work; Hazard Mitigation; Landslide

Summary: As a result of Hurricane Georges and heavy rains in September of 1998, an embankment failure occurred adjacent to Avenue Turabo (a road providing access to Turabo Ward) damaging portions of the road's aggregate base and asphalt surface courses, concrete curb and gutter, and guardrail. On January 13, 1999, FEMA prepared Project Worksheet (PW) 06349 for $102,833 to repair Avenue Turabo to its pre-disaster condition. The PW also required the construction of a Section 406 mitigation measure consisting of a concrete retaining wall to hold the natural ground necessary to support the facility in place. The PW was suspended pending the receipt of the architectural and engineering (A&E) report as funded by supplemental PW 13572 and the completion of special considerations review. On February 17, 2000, subsequent to FEMA's receipt of the A&E report, and project certifications and permits fulfilling the requirements of the review, FEMA adjusted PW 06349 to reflect the amount of the actual construction contract award for $83,385. On May 8, 2000, the Municipality forwarded a letter to the Government of Puerto Rico (Commonwealth) appealing FEMA's determination of an eligible scope of work and requesting consideration of a second Section 406 mitigation proposal for a rock-gabion retaining wall for $18,000. The Municipality contended that when FEMA had approved the project, only the embankment failure caused by the hurricane had been considered and unstable terrain had been overlooked. A FEMA/Commonwealth review of the site was conducted on August 8, 2000, and concluded that the rock-gabion retaining wall had been built and was located outside the damaged area contemplated in PW 06349. The Regional Director denied the appeal in a letter dated August 16, 2000. The basis for the denial was that the work is outside the damage area identified in PW 06349 and is not directly related to the road's disaster-damaged elements. The Municipality submitted a second appeal, transmitted but not supported by the Commonwealth in a letter dated February 13, 2001. The appeal states in pertinent part that the rock-gabion retaining wall is an emergency protective measure that mitigates the potential for anticipated and future damages. The primary issue of this appeal is the relationship of the mitigation proposal to the repair of the damaged facility.

Issues: Is the second Section 406 mitigation project request (i.e., the rock-gabion retaining wall) eligible for funding?

Findings: No. The scope of work within the requested Section 406 mitigation proposal does not specifically relate to disaster-damaged elements.

Rationale: Section 406(e) (42 U.S.C.  5172) of the Stafford Act; 44 CFR 206.201(c); 206.201(f); 206.225(a); 206.226(c).

Appeal Letter

May 29, 2001

Melba Acoste, Esq.

Governor's Authorized Representative
Government of Puerto Rico
Post Office Box 9021812
San Juan, Puerto Rico 00902-1812

Re: Second Appeal: Municipality of Caguas, PA ID # 025-00000, Avenue Turabo, FEMA-1247-DR-PR, PW 06349

Dear Ms. Acoste:

This is in response to a letter dated February 13, 2001 from your office, to the Federal Emergency Management Agency (FEMA) regarding the referenced second appeal. The Municipality of Caguas (Municipality) is requesting FEMA Section 406 mitigation reimbursement of $18,000 for a rock-gabion retaining wall that had been constructed adjacent to Avenue Turabo.

As a result of Hurricane Georges and heavy rains in September of 1998, an embankment failure occurred adjacent to Avenue Turabo (a road providing access to Turabo Ward) damaging portions of the road's aggregate base and asphalt surface courses, concrete curb and gutter, and guardrail. On January 13, 1999, FEMA prepared Project Worksheet (PW) 06349 for $102,833 to repair Avenue Turabo to its pre-disaster condition. The PW also required the construction of a Section 406 mitigation measure consisting of a concrete retaining wall to hold the natural ground necessary to support the facility in place. The PW was suspended pending the receipt of an architectural and engineering (A&E) report as funded by supplemental PW 13572 and the completion of special considerations review. On February 17, 2000, subsequent to FEMA's receipt of the A&E report, and project certifications and permits fulfilling the requirements of the review, FEMA adjusted PW 06349 to reflect the amount of the actual construction contract award for $83,385. On May 8, 2000, the Municipality forwarded a letter to the Government of Puerto Rico (Commonwealth) appealing FEMA's determination of an eligible scope of work and requesting consideration of a second Section 406 mitigation proposal for a rock-gabion retaining wall for $18,000. The Municipality contended that when FEMA had approved the project, only the embankment failure caused by the hurricane had been considered and unstable terrain had been overlooked. A FEMA/Commonwealth review of the site was conducted on August 8, 2000, and concluded that the rock-gabion retaining wall had been built and was located outside the damaged area contemplated in PW 06349. The Regional Director denied the appeal in a letter dated August 16, 2000. The basis for the denial was that the work was outside the damage area identified in PW 06349 and was not directly related to the road's disaster-damaged elements.

The Municipality submitted a second appeal, transmitted but not supported by the Commonwealth in a letter dated February 13, 2001. The appeal states in pertinent part that the rock-gabion retaining wall is an emergency protective measure that mitigates the potential for anticipated and future damages. The primary issue of this appeal is the relationship of the mitigation proposal to the repair of the damaged facility. Consideration for funding this scope of work is provided below.

Emergency Work
The Municipality asserts that when they began the permanent work, they noticed that the adjacent terrain seemed unstable. The terrain was threatening the undamaged portion of the road and putting the nearby private residence as well as the FEMA-related project at risk. Due to the urgency of the matter, the Municipality made the decision to construct the rock-gabion retaining wall. The Municipality states that the rock-gabion retaining wall protects the security of the neighboring citizens, the lives of two elderly people residing adjacent to the retaining wall on private property, and an area of the road not considered in the PW.

FEMA assistance regarding natural features is limited to providing debris removal and emergency protective measures (categories A and B) in the event that the condition of the natural feature poses an immediate threat to an eligible public or private facility, such as the adjacent undamaged portions of the road or the private residence. After the embankment failure occurred in 1998, the FEMA/Commonwealth/Municipality review team concluded that the permanent work identified in PW 06349 was sufficient to reduce the immediate threat of additional damage to the facility from the failed embankment conditions. It should be noted, however, that emergency protective measures are limited to only those that reduce the immediate threat to specific property, and do not include stabilization of the overall embankment. The applicant has not demonstrated that an immediate threat existed to the private residence. Accordingly, FEMA is unable to provide assistance for the rock-gabion retaining wall as emergency work.

Hazard Mitigation
The Municipality also asserts that the mitigation efforts to the embankment are directly related to the damaged larger system and should not be viewed as isolated independent parts. Therefore, the gabion wall should be considered directly related to the disaster damages. Pursuant to FEMA's Hazard Mitigation Funding Under Section 406 (Stafford Act) policy #9526.1, dated August 13, 1998, eligible mitigation measures are those that must be related to eligible disaster-related damages. This means that the measures must be taken within the specific repair of those damaged elements. Mitigative efforts on other undamaged components of the system, although they may strengthen the integrity of the overall system as well as the repaired components, are not eligible under the Section 406 mitigation program.

Based on a review of the documentation provided by the Municipality, the completed repairs are permanent in nature and exceed the intent of emergency protective measures. Sufficient measures were provided in the category C PW 06349 to reduce the threat of additional damage from the failed embankment conditions. Additionally, it is concluded that the scope of work within the requested mitigation proposal does not specifically relate to disaster-damaged elements, and, therefore, do not meet eligibility criteria for Section 406 mitigation as defined in the August 13, 1998 policy. There is no basis for funding the rock-gabion retaining wall as either emergency work or an eligible Section 406 mitigation measure. Therefore, I am denying the appeal.

Please inform the applicant of my determination, which constitutes the final decision on this matter pursuant to 44 CFR 206.206.

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

cc: Jose A. Bravo
Disaster Recovery Manager
Caribbean Area Office