Vine Hill School Road Culvert Crossing

Appeal Brief

Citation:

FEMA-1203-DR-CA; City of Scotts Valley, California; Vine Hill School Road Culvert Crossing, DSRs 59016 & 93870
 

Cross-reference:

Disaster-Related Damage; Duplication of Benefits; Environmental Compliance; Landscaping
 

Summary:

Heavy rains and flooding damaged a culvert and associated wing walls and washed away riprap at the crossing of Vine Hill School Road over Carbonera Creek. The Applicant requested assistance to repair the culvert and wing walls, replace the riprap, construct sidewalks on the upstream and downstream sides of the culvert, construct a fish ladder, re-landscape, and compensate two firms for providing duplicate engineering services. FEMA reviewed the initial request and the request of the first appeal and concluded that the sidewalks, concrete culvert lining, landscaping, and duplicate engineering services were not eligible. The Applicant’s argues (1) the necessity of the upstream sidewalk to comply with City code, (2) the culvert lining is an integral part of the fish ladder required to comply with regulations, (3) hydroseeding is an erosion control measure and landscaping restores the site to pre-disaster conditions, and (4) the engineering services provided by one contractor do not duplicate the services provided by the second contractor.
 

Issues:

(1) Does the City code necessitate that the upstream sidewalk be constructed?
(2) Is the concrete culvert lining an integral part of the fish ladder design required by California Department of Fish and Game?
(3) Is hydroseeding eligible to prevent erosion? Are tree plantings eligible to restore the site to its pre-disaster condition?
(4) Did two contractors provide duplicate engineering services?
 

Findings:

(1) No, the upstream side of the culvert was not structurally damaged as a direct result of the disaster, such that the code requirement to construct the sidewalk is not applicable.
(2) Yes, the culvert lining is required as part of the fish ladder design and should be funded.
(3)
(4) Yes, hydroseeding is an effective erosion control method and should be funded. No, trees and shrubs are not eligible under the Public Assistance program.
(5)
(6) The engineering services provided by one contractor did duplicate those provided by another. The cost of the services provided by the first contractor is recoverable by the Applicant for nonperformance. No further funding is eligible.
 

Rationale:

44 CFR §206.223; (2) FEMA 322, Public Assistance Guide pp. 102-104, 107, 110; (3) Recovery Policy 9524.5.

Appeal Letter

Appeal Analysis

BACKGROUND

As a result of the El Nino storms (FEMA-1203), heavy rains and flooding caused erosion beneath the wing walls at the Vine Hill Road culvert crossing. The loss of ground support due to erosion caused the south wing wall on the downstream side of the culvert to separate from the culvert, which resulted in cracks forming at the wall/culvert connection and rebar being exposed. The erosion also resulted in loss of ground support for the north wing wall foundation. The flood waters washed riprap away from both the upstream and downstream outfall locations. The City of Scotts Valley (Applicant) requested the Federal Emergency Management Agency (FEMA) fund repairs associated with the damage to the culvert wing walls and to replace the lost riprap.

On April 7, 1998, FEMA prepared Damage Survey Report (DSR) 59016 for $25,364 for the cost as initially estimated to repair the culvert damage. On November 17, 1999, FEMA prepared DSR 93870 as a supplement to DSR 59016 to further document the scope of work and estimated costs associated with the repairs to the culvert. Eligible work included a limited geotechnical report, engineering analysis and design, environmental processing, demolition of damaged structures, replacement of damaged culvert sections and wing walls, and replacement of riprap at upstream and downstream outfall locations. This DSR was written to cover additional eligible costs. The total amount of DSR 93870 was $177,676. The combined approved total of the DSRs related to the culvert crossing was $203,040.

On August 14, 2000, a hazard mitigation proposal was written in the amount of $25,200 to construct 90 linear feet (LF) of sidewalk and a handrail on the downstream side of the project site. The sidewalk was to be constructed as a health and safety measure for pedestrians in the area and for use by children who attended a nearby school.

At project closeout, the Applicant requested supplemental funding in the amount of $334,659 to cover the total large project costs. During project closeout inspection, FEMA determined that the 90 LF of sidewalk was ineligible for Section 406 hazard mitigation funding. FEMA also determined that the completed work exceeded what was included in the scope of work in DSRs 93870/59016, and therefore considered the addition of sidewalks on the upstream and downstream sides of the culvert and concrete lining inside the culvert an improved project. FEMA determined that hydroseeding and landscaping, and engineering and inspection costs associated with ineligible work were ineligible for funding.

First Appeal

The Applicant submitted a first appeal of FEMA’s determination on September 8, 2003. The appeal was transmitted and partially supported by the State in a letter received by FEMA on November 6, 2003. In response to FEMA’s conclusions regarding project eligibility, the Applicant asserted that (1) the project did not constitute an improved project, as the sidewalks were required by City code and the concrete culvert lining was required as part of the fish ladder design mandated by the California Department of Fish and Game (CDFG), (2) the landscaping was required to reconstruct the riparian habitat in the project vicinity, and (3) the services of the Applicant’s second contract engineering firm, Mesiti-Miller (MM), were required to revise the plans of the Applicant’s first contract engineering firm, Ruggeri-Jensen-Azar & Associates (RJA), due to the latter firm’s unresponsiveness and “incomplete, inaccurate” drawings that “did not address several major design issues.” The State supported supplemental funding for the costs of the sidewalks, culvert lining, and hydroseeding, but did not support funding for tree planting, RJA’s engineering costs, and the math error. The State recommended total project funding in the amount of $519,416.

The Regional Director partially approved the first appeal in a letter dated June 24, 2004. The appeal analysis determined that the Applicant had provided sufficient documentation to support their claim that a sidewalk on the downstream side of the culvert was required by City code. The sidewalk constructed on the upstream side of the culvert was found ineligible because the upstream side of the culvert was not damaged as a direct result of the disaster. Therefore, this second sidewalk also did not qualify for hazard mitigation funding under 44 CFR §206.226(e). The Regional Director determined that engineering associated with the upstream sidewalk was ineligible, as it was completed for ineligible work. The ineligible costs associated with the sidewalk were $38,545 for construction and $10,530 for engineering and inspection. It was further determined that landscaping was an improvement of a natural feature and, therefore, did not meet eligibility requirements. The Regional Director deducted $6,400 from the request. The concrete lining in the culvert was determined to be an improvement of the pre-disaster condition of the culvert, and therefore was ineligible ($4,200 deducted). The engineering services provided by RJA in the amount of $7,660 duplicate those provided by MM and are recoverable by the Applicant for nonperformance, and, therefore, were ineligible. The overstatement of $6,863 due to a math error was also deducted. As a result of the first appeal, FEMA’s Regional Director approved total project funding of $462,941, requiring an adjustment of $259,901 to the original funding amount.

Second Appeal

On September 15, 2004, the Applicant submitted a second appeal of FEMA’s determination to deny funding for construction of the upstream sidewalk, the concrete lining inside the culvert, the landscaping, and RJA’s engineering services. The State transmitted and partially supported the request in a letter dated November 9, 2004. The Applicant asserts that:
(1) The sidewalk on the upstream side of the culvert is required by City code.
(2)
(3) The concrete lining inside the culvert is required as part of the fish ladder design required by the CDFG.
(4)
(5) Landscaping was required to restore the vegetation to its pre-disaster condition and to prevent erosion from the embankments behind the wing walls.
(6)
(7) The engineering services provided by RJA were conceptual with some minor preliminary design, and the services provided by MM built upon those provided by RJA.
The State supports the Applicant’s request for funding for the sidewalk, culvert lining and for the hydroseeding portion of the landscaping. The State does not support the Applicant’s request for funding for trees and other plantings. The State has deferred making a recommendation regarding RJA’s engineering services pending receipt of additional information.

DISCUSSION

The primary issues in the Applicant’s appeal are the eligibility of the sidewalk, concrete lining of the culvert, landscaping, and engineering services provided by RJA. The eligibility of each item is discussed separately below.

Upstream Sidewalk

The Applicant contends that the sidewalk constructed on the upstream side of the culvert was required by City code. Chapter 12.04.030, Part A of the City’s code states, “In order to obtain a building permit, certain improvements shall be constructed in accordance with city standards and may include, but not be limited to, curbs, sidewalks, storm drainage structures, and street improvements.” However, the code does not specifically state, nor do the City’s Standard Drawings indicate, that a sidewalk is required on both sides of the street. The original project drawings indicate a sidewalk only on the downstream side of the culvert, and the Applicant’s initial request for funding for sidewalk construction was for 90 linear feet on the downstream side of the culvert. sunts.

FEMA maintains that the box culvert was not damaged on the upstream side as a direct result of the disaster. The project damage description indicates that structural damage occurred on the downstream side of the project site, and that the damage on the upstream side of the culvert was limited to loss of riprap and soil erosion. This damage description is verified in a report entitled “Natural Environment Study Report, Vine Hill School Road Culvert Repair Project, Scotts Valley, California” completed by Zander Associates for the City of Scotts Valley. The Zander report states, “Only minimal repair work is needed at the upstream end of the culvert…On the upstream end of the culvert, a pipe draining flows from the road outfalls near the top of bank with no riprap or other armoring below the outfall…To prevent further erosion below the pipe, riprap will be placed into the gully that has formed in the bank.” Placement of riprap does not constitute a structural improvement to the culvert, but rather is an erosion control measure. Because the box culvert was not damaged on the upstream side as a direct result of the disaster and therefore did not require structural repairs, the construction of a sidewalk along the upstream side of the culvert is ineligible according to 44 CFR §206.223(a), which states that the work must required as a result of the major disaster event.

Concrete Lining in Culvert

As part of this project, the CDFG required the Applicant to construct a fish ladder, which was approved by FEMA. Carbonera Creek is designated as a critical habitat for Chinook salmon and steelhead salmon, and the fish ladder facilitates the salmons’ migration upstream to spawn. The Applicant claims that the concrete lining inside the culvert is an integral part of the fish ladder design. The concrete lining creates a low flow groove to allow the fish to travel through the culvert upstream. The Applicant determined that constructing a new lining was more practical than grinding a groove within the existing concrete channel lining.

A review of the design drawings provided by the Applicant shows that the new concrete lining slopes down from the sides of the culvert toward the middle, and that a groove forms where the two sloping sides of the lining meet. Fish ladders must be designed for the annual seven-day low flow. The construction of weirs and baffles such as the one built inside the culvert are a method recommended by CDFG’s “Fish Passage at Stream Crossings” manual to meet the low-flow requirements. By law, FEMA is required to comply with the National Environmental Policy Act (NEPA) and the Fish and Wildlife Coordination Act, which require evaluation of the environmental impacts of a project on the environment and fish and wildlife species (FEMA 322, pp 102-104, 110). FEMA must also comply with the Endangered Species Act and comply with requirements of the Fish and Wildlife Service and the National Marine Fisheries Service (NMFS) (FEMA 322, p. 107). Construction of the fish ladder was required by CDFG as part of the permit to repair the culvert to preserve the critical habitat of the Chinook salmon and Steelhead salmon, which are listed by NMFS as Threatened. The concrete lining is an integral part of the overall fish ladder design to meet low flow requirements. Therefore, the concrete lining is an eligible element of the work at a cost of $4,200.

Landscaping

The Applicant completed landscaping on the embankments behind the wing walls and on upstream and downstream sides of the culvert. Landscaping consisted of hydroseeding the embankments and planting trees and shrubs to restore the riparian habitat. Recovery Policy No. 9524.5, “Trees, Shrubs, and Other Plantings Associated with Facilities,” states that trees, shrubs, and other plantings are not eligible for FEMA funding, except for grass and sod. Therefore, trees, shrubs, and other plantings placed to restore the riparian habitat do not meet the eligibility requirements of Recovery Policy 9524.5 and are not eligible for funding.

According to the landscaping recovery policy, grass and sod are eligible for funding if they are “necessary to stabilize slopes and minimize sediment runoff.” Hydroseeding is an effective method of placing grass to stabilize embankment slopes and minimize sediment runoff into the creek below. Therefore, hydroseeding is eligible for funding under Recovery Policy 9524.5.

The cost for landscaping, including both trees and hydroseeding, was invoiced as a lump sum. In letters dated April 16, 2003, and November 9, 2004, the State supported reimbursement for hydroseeding in the amount of $3,200, which is half the total cost of landscaping done at the project site. The Zander Associates report indicates that 2,380 ft2 (0.05 acre) would be disturbed during construction of the project. According to the 2005 National Construction Estimator, hydroseeding costs for projects less than 10,000 ft2 are estimated to be $71.10 per thousand square feet, so for this project the cost would be $71.10 * 3 = $213.30. However, the Estimator recommends using $1,500 as a minimum cost for a hydroseeding project. Therefore, $1,500 is eligible for costs associated with hydroseeding.

Engineering Fees

The Applicant hired two different engineering firms to complete designs and construction drawings for the culvert repairs. In their second appeal, the Applicant states that the first firm, RJA, provided “conceptual” and “some minor preliminary” design services, and that the second firm, MM, utilized the information provided on the RJA engineering plans toward preparing their final construction plans. In a letter from MM to the Applicant dated October 16, 2003, Mark Mesiti-Miller, Principal Engineer of the firm, compares the plans prepared by RJA to the ones used for construction of the project. The letter states that “the plans prepared by RJA were incomplete, inaccurate, did not address several major design issues, and could not have been constructed.” MM apparently did a peer review of “the original construction documents” prepared by RJA and found them to be “deficient in their design and inadequate for guiding a contractor during competitive bidding and construction of the improvements…In summary, the plans and specifications prepared by RJA were technically incomplete and unconstructible.” This language suggests that the Applicant’s first contractor, RJA, prepared construction drawings that were more than “conceptual” and “preliminary.” It is unlikely that designs that are “incomplete, inaccurate” and that “do not address several major design issues” could be used by another engineer to complete final construction drawings. The scope of engineering services provided RJA duplicates the scope of engineering services provided by MM. Federal regulations require FEMA to reimburse applicants reasonable costs for eligible work. It is not reasonable to reimburse for the same work twice. Therefore, the cost of engineering services provided by RJA is not eligible for FEMA funding.

CONCLUSION

Based on a review of the information provided in the Applicant’s second appeal, we have determined that (1) costs associated with construction of the upstream sidewalk are ineligible, (2) the concrete lining in the culvert meets eligibility criteria, (3) hydroseeding is eligible but plantings are ineligible, and (4) the cost of RJA’s engineering services are ineligible. Eligible costs for this appeal include $4,200 for the concrete culvert lining and $1,500 for hydroseeding.

The Applicant’s appeal is partially approved for $5,700.