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Riverwalk Park Repair
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1577-DR-CA; City of Fillmore
Cross-reference: Eligible work; Flood Control Works
Summary: As a result of heavy rainfall during the January 2005 Winter Storms, Project Worksheet (PW) 1596 was prepared in May 2005 for repairs to Riverwalk Park (Park) in the estimated amount of $288,700. FEMA obligated PW 1596 for $0 because it determined that the facility was a Flood Control Work (FCW) under the authority of the U.S. Corps of Engineers (USACE). The City of Fillmore (the Applicant) owns and operates the Park. The Park is situated on the crown of a soil covered concrete levee along the Santa Clara River.
The Applicant submitted its first appeal to the California Governors Office of Emergency Services (OES) on January 25, 2006, and OES forwarded it to FEMA on March 7, 2006. In the appeal, the Applicant requested that FEMA determine that the Park was eligible for permanent repair under the Public Assistance Program because the Park was not relevant to the integrity of the levee and, therefore, did not meet the USACE definition of a FCW. In a letter dated January 30, 3007, the Deputy Regional Director denied the Applicants first appeal. The Deputy Regional Director agreed that the Park was not an integral part of the levee control work and, therefore the Park should not be considered a FCW. The Deputy Regional Director stated that the proposed repairs were not consistent with the goals of Executive Order (EO) 11988, which requires FEMA to avoid floodplains when possible and reduce the risk of flood loss.
The Applicant submitted a second appeal to OES on April 27, 2007, and OES forwarded it to FEMA on June 29, 2007. The Applicant contends that the proposed groins and fill will create water eddy areas to preserve and enhance the impacted floodplain in accordance with the requirements of EO 11988. The Applicant provided additional documentation supporting active maintenance of the riparian habitat.
Issues: 1. Are permanent repairs to the soil embankment eligible for Public Assistance funding?
2. Is the construction of groins eligible?
Findings: 1. Yes.
2. No.
Rationale: 44 CFR §9.9 and §206.226.
As a result of heavy rainfall during the January 2005 Winter Storms, Project Worksheet (PW) 1596 was prepared in May 2005 for repairs to Riverwalk Park (Park) in the estimated amount of $288,700.
The City of Fillmore (the Applicant) owns and operates the Park. The Park is situated on the crown of a soil covered concrete levee along the Santa Clara River. The material under the Park consists of compacted sand and gravel mix that is sloped, with a height to width ratio of 1:5 feet, from the crown of the levee to the rivers edge. Large volumes of high-velocity flows in the Santa Clara River during the January 2005 Winter Storms heavily eroded the soil embankment along the Park and removed approximately 10,300 cubic yards (CY) of bank material. The area of embankment scour and erosion is 925 feet in length, 60 feet wide, and 10 feet down to the rivers edge. An irrigation pipeline for the Park that the Applicant had installed in the embankment between the Park and the River was also damaged when portions of the embankment were washed away during the disaster. The irrigation system had the capacity for 55,500 square feet of ground coverage and consisted of 1.5-inch PVC pipe with 18-inch sprinklers.
FEMA prepared PW 1596 to restore the Park to its pre-disaster condition and function. The scope of work as set forth in PW 1596 includes replacing the scoured and eroded parts of the Park with approximately 10,300 CY of a sand and gravel mix; compacting and grading the deposited sand and gravel mix; restoring the irrigation system to a capacity of 55,500 square feet of ground coverage; and placing two rock groins situated at equal distances along the length of the eroded embankment. FEMA determined that the facility met the US Army Corps of Engineers (USACE) definition of Flood Control Work (FCW) and, therefore, permanent repairs to the facility were not eligible for Public Assistance. The Applicant disagrees with FEMAs determination that permanent repairs to the Park are ineligible for Public Assistance funding.
First Appeal
The Applicant submitted its first appeal to the California Governors Office of Emergency Services (OES) on January 25, 2006. OES forwarded the appeal to FEMA on March 7, 2006. The Applicant argued that the Park was eligible for permanent repair under the Public Assistance Program because the Park was not relevant to the integrity of the levee and, therefore, did not meet the definition of a FCW. The Applicant provided a letter dated January 24, 2006, from Daniel E. Sulzer, Acting Chief of the USACE Planning Division, stating that the fill material that washed out in the 2005 flood was not part of the soil cement levee FCW. The Park was designed and constructed with private funds for the purpose of concealing the soil cement levee and to act as a park and riparian refuge for wildlife.
In a letter dated January 30, 3007, the Deputy Regional Director denied the Applicants first appeal. The Deputy Regional Director agreed that the Park was not an integral part of the levee control work and the Park should not be considered a FCW. However, the Deputy Regional Director denied the appeal based upon Executive Order (EO) 11988. The Deputy Regional Director stated that the proposed repairs were not consistent with the goals of EO 11988, which requires FEMA to avoid floodplains when possible and reduce the risk of flood loss.
Second Appeal
The Applicant submitted a second appeal to OES on April 27, 2007. OES forwarded it to FEMA on June 29, 2007. The Applicant contends that the proposed groins will create water eddy areas that will act to preserve and enhance the impacted floodplain. Thus, the proposed project is in accordance with EO 11988 and 44 CFR §9.2(b)(2).
DISCUSSION
The Park is an improved and maintained facility and is eligible for permanent repairs. In its second appeal, the Applicant provided documentation demonstrating that the Park, designed as a riparian refuge for native wildlife, is a maintained facility. The agreement dated June 1, 2000, between the Applicant and the California Department of Fish and Game (DFG) outlines applicable Federal, State, and local laws and ordinances protecting this streambed and establishes reporting and maintenance requirements. In a memorandum dated November 9, 2004, the Applicant accepted the public improvements of tract 5099, Riverwalk Subdivision, after submission of a 5-year maintenance agreement with DFG and USACE for the levee maintenance. In accordance with 44 CFR §206.223, the replacement of the eroded material and repairs to the damaged irrigation system are eligible for Public Assistance funding.
Since the Park is located in a floodplain, EO 11988 and FEMAs implementing regulations outlined in 44 CFR Part 9 apply to the proposed project. In accordance with 44 CFR §9.6, FEMA must identify and evaluate practicable alternatives to the proposed action in a floodplain. 44 CFR §9.9(d)(2) states that after evaluating alternatives, FEMA shall take no action in a floodplain unless the importance of the floodplain site clearly outweighs the requirements of EO 11988 to avoid direct or indirect support of floodplain development; minimize the impact of floods on human safety, health and welfare; and restore and preserve floodplain values.
The Applicant requests $154,550 to restore the damaged irrigation system and replace eroded sand and gravel. Work to restore facilities to their pre-disaster design is eligible work under 44 CFR §206.226 and is consistent with EO 11988. Therefore, work to restore the damaged irrigation system and replace eroded sand and gravel is eligible for funding.
The Applicant requests $134,160 to place two rock groins along the eroded embankment. These groins were not in place at the time of the disaster declaration. The Applicant suggests that the placement of two groins and fill will serve as a buffer between development and the river system; therefore, the Park will most likely not be damaged by floods again. In the event of future flooding, storm water will pool and help build up the soils along the embankment and help protect the floodplain. Replacement standards that change the pre-disaster construction of a facility must meet the criteria set forth under 44 CFR §206.226(d). The Applicant has not submitted any existing codes and standards that were adopted, implemented and enforced on or before the date of the disaster declaration that satisfy 44 CFR §206.226(d). Therefore, the Applicants request for funding to place two rock groins along the eroded embankment is denied.
CONCLUSION
The Applicant maintains the riparian refuge; therefore, the Park meets the definition of a facility under the Public Assistance Program. Permanent work to restore the Park embankment is eligible for Public Assistance funding based upon 44 CFR §206.226 and EO 11988. The request for funding to construct the groins is denied based upon 44 CFR §206.226(d). Accordingly, the second appeal is partially granted.
Appeal Brief
| Desastre | 1577 |
| Applicant | City of Fillmore |
| Appeal Type | Second |
| PA ID# | 111-24092-00 |
| PW ID# | 1596 |
| Date Signed | 2007-12-21T05:00:00 |
The Applicant submitted its first appeal to the California Governors Office of Emergency Services (OES) on January 25, 2006, and OES forwarded it to FEMA on March 7, 2006. In the appeal, the Applicant requested that FEMA determine that the Park was eligible for permanent repair under the Public Assistance Program because the Park was not relevant to the integrity of the levee and, therefore, did not meet the USACE definition of a FCW. In a letter dated January 30, 3007, the Deputy Regional Director denied the Applicants first appeal. The Deputy Regional Director agreed that the Park was not an integral part of the levee control work and, therefore the Park should not be considered a FCW. The Deputy Regional Director stated that the proposed repairs were not consistent with the goals of Executive Order (EO) 11988, which requires FEMA to avoid floodplains when possible and reduce the risk of flood loss.
The Applicant submitted a second appeal to OES on April 27, 2007, and OES forwarded it to FEMA on June 29, 2007. The Applicant contends that the proposed groins and fill will create water eddy areas to preserve and enhance the impacted floodplain in accordance with the requirements of EO 11988. The Applicant provided additional documentation supporting active maintenance of the riparian habitat.
2. Is the construction of groins eligible?
2. No.
Appeal Letter
December 21, 2007
Mr. Paul Jacks
Governors Authorized Representative
Governors Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655
Re: Second Appeal City of Fillmore, PA ID 111-24092-00
Riverwalk Park Repair, FEMA-1577-DR-CA, PW 1596
Dear Mr. Jacks:
This is in response to your letter dated June 29, 2007, which transmitted the referenced second appeal on behalf of the City of Fillmore (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) determination that permanent repair work to the embankment along the Riverwalk Park is not eligible for Public Assistance funding.
For reasons explained in the enclosed analysis, I have determined that permanent repair of the damaged irrigation system and the replacement of eroded sand and gravel are eligible for Public Assistance funding. However, the Applicants request for Public Assistance funding to place two rock groins along the eroded embankment is denied. Therefore, I am partially granting this appeal. By copy of this letter, I request that the Regional Administrator take appropriate action to implement this determination.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.
Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate
Enclosure
cc: Nancy Ward
Regional Administrator
FEMA Region IX
Mr. Paul Jacks
Governors Authorized Representative
Governors Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655
Re: Second Appeal City of Fillmore, PA ID 111-24092-00
Riverwalk Park Repair, FEMA-1577-DR-CA, PW 1596
Dear Mr. Jacks:
This is in response to your letter dated June 29, 2007, which transmitted the referenced second appeal on behalf of the City of Fillmore (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) determination that permanent repair work to the embankment along the Riverwalk Park is not eligible for Public Assistance funding.
For reasons explained in the enclosed analysis, I have determined that permanent repair of the damaged irrigation system and the replacement of eroded sand and gravel are eligible for Public Assistance funding. However, the Applicants request for Public Assistance funding to place two rock groins along the eroded embankment is denied. Therefore, I am partially granting this appeal. By copy of this letter, I request that the Regional Administrator take appropriate action to implement this determination.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.
Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate
Enclosure
cc: Nancy Ward
Regional Administrator
FEMA Region IX
Appeal Analysis
BACKGROUNDAs a result of heavy rainfall during the January 2005 Winter Storms, Project Worksheet (PW) 1596 was prepared in May 2005 for repairs to Riverwalk Park (Park) in the estimated amount of $288,700.
The City of Fillmore (the Applicant) owns and operates the Park. The Park is situated on the crown of a soil covered concrete levee along the Santa Clara River. The material under the Park consists of compacted sand and gravel mix that is sloped, with a height to width ratio of 1:5 feet, from the crown of the levee to the rivers edge. Large volumes of high-velocity flows in the Santa Clara River during the January 2005 Winter Storms heavily eroded the soil embankment along the Park and removed approximately 10,300 cubic yards (CY) of bank material. The area of embankment scour and erosion is 925 feet in length, 60 feet wide, and 10 feet down to the rivers edge. An irrigation pipeline for the Park that the Applicant had installed in the embankment between the Park and the River was also damaged when portions of the embankment were washed away during the disaster. The irrigation system had the capacity for 55,500 square feet of ground coverage and consisted of 1.5-inch PVC pipe with 18-inch sprinklers.
FEMA prepared PW 1596 to restore the Park to its pre-disaster condition and function. The scope of work as set forth in PW 1596 includes replacing the scoured and eroded parts of the Park with approximately 10,300 CY of a sand and gravel mix; compacting and grading the deposited sand and gravel mix; restoring the irrigation system to a capacity of 55,500 square feet of ground coverage; and placing two rock groins situated at equal distances along the length of the eroded embankment. FEMA determined that the facility met the US Army Corps of Engineers (USACE) definition of Flood Control Work (FCW) and, therefore, permanent repairs to the facility were not eligible for Public Assistance. The Applicant disagrees with FEMAs determination that permanent repairs to the Park are ineligible for Public Assistance funding.
First Appeal
The Applicant submitted its first appeal to the California Governors Office of Emergency Services (OES) on January 25, 2006. OES forwarded the appeal to FEMA on March 7, 2006. The Applicant argued that the Park was eligible for permanent repair under the Public Assistance Program because the Park was not relevant to the integrity of the levee and, therefore, did not meet the definition of a FCW. The Applicant provided a letter dated January 24, 2006, from Daniel E. Sulzer, Acting Chief of the USACE Planning Division, stating that the fill material that washed out in the 2005 flood was not part of the soil cement levee FCW. The Park was designed and constructed with private funds for the purpose of concealing the soil cement levee and to act as a park and riparian refuge for wildlife.
In a letter dated January 30, 3007, the Deputy Regional Director denied the Applicants first appeal. The Deputy Regional Director agreed that the Park was not an integral part of the levee control work and the Park should not be considered a FCW. However, the Deputy Regional Director denied the appeal based upon Executive Order (EO) 11988. The Deputy Regional Director stated that the proposed repairs were not consistent with the goals of EO 11988, which requires FEMA to avoid floodplains when possible and reduce the risk of flood loss.
Second Appeal
The Applicant submitted a second appeal to OES on April 27, 2007. OES forwarded it to FEMA on June 29, 2007. The Applicant contends that the proposed groins will create water eddy areas that will act to preserve and enhance the impacted floodplain. Thus, the proposed project is in accordance with EO 11988 and 44 CFR §9.2(b)(2).
DISCUSSION
The Park is an improved and maintained facility and is eligible for permanent repairs. In its second appeal, the Applicant provided documentation demonstrating that the Park, designed as a riparian refuge for native wildlife, is a maintained facility. The agreement dated June 1, 2000, between the Applicant and the California Department of Fish and Game (DFG) outlines applicable Federal, State, and local laws and ordinances protecting this streambed and establishes reporting and maintenance requirements. In a memorandum dated November 9, 2004, the Applicant accepted the public improvements of tract 5099, Riverwalk Subdivision, after submission of a 5-year maintenance agreement with DFG and USACE for the levee maintenance. In accordance with 44 CFR §206.223, the replacement of the eroded material and repairs to the damaged irrigation system are eligible for Public Assistance funding.
Since the Park is located in a floodplain, EO 11988 and FEMAs implementing regulations outlined in 44 CFR Part 9 apply to the proposed project. In accordance with 44 CFR §9.6, FEMA must identify and evaluate practicable alternatives to the proposed action in a floodplain. 44 CFR §9.9(d)(2) states that after evaluating alternatives, FEMA shall take no action in a floodplain unless the importance of the floodplain site clearly outweighs the requirements of EO 11988 to avoid direct or indirect support of floodplain development; minimize the impact of floods on human safety, health and welfare; and restore and preserve floodplain values.
The Applicant requests $154,550 to restore the damaged irrigation system and replace eroded sand and gravel. Work to restore facilities to their pre-disaster design is eligible work under 44 CFR §206.226 and is consistent with EO 11988. Therefore, work to restore the damaged irrigation system and replace eroded sand and gravel is eligible for funding.
The Applicant requests $134,160 to place two rock groins along the eroded embankment. These groins were not in place at the time of the disaster declaration. The Applicant suggests that the placement of two groins and fill will serve as a buffer between development and the river system; therefore, the Park will most likely not be damaged by floods again. In the event of future flooding, storm water will pool and help build up the soils along the embankment and help protect the floodplain. Replacement standards that change the pre-disaster construction of a facility must meet the criteria set forth under 44 CFR §206.226(d). The Applicant has not submitted any existing codes and standards that were adopted, implemented and enforced on or before the date of the disaster declaration that satisfy 44 CFR §206.226(d). Therefore, the Applicants request for funding to place two rock groins along the eroded embankment is denied.
CONCLUSION
The Applicant maintains the riparian refuge; therefore, the Park meets the definition of a facility under the Public Assistance Program. Permanent work to restore the Park embankment is eligible for Public Assistance funding based upon 44 CFR §206.226 and EO 11988. The request for funding to construct the groins is denied based upon 44 CFR §206.226(d). Accordingly, the second appeal is partially granted.