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Ventura River at Santa Anna Boulevard
Appeal Brief
Appeal Letter
Citation: FEMA-1577-DR-CA, Ventura County Watershed Protection District, PW 2373
Cross-reference: Flood Control Works (FCW)
Summary: Following the January 2005 Winter Storms, the Ventura County Watershed Protection District (Applicant) requested funding for permanent repairs to the Ventura River riprap embankment, levee access road, and retaining wall at Santa Anna Boulevard. FEMA and the United States Army Corps of Engineers (USACE) determined that the facility met the definition of a flood control work (FCW). FEMA further determined the completed work restored the facility to pre-disaster function and capacity. The repairs were permanent work and ineligible for Public Assistance funding.
The Applicant submitted its first appeal on December 15, 2005, stating that the costs were eligible because the facility was not active in the USACE Rehabilitation and Inspection Program (RIP) and, as such, was not under the specific authority of the USACE. The Applicant stated that because it had sole responsibility for maintenance, the permanent repairs should be eligible for reimbursement under the FEMA Public Assistance Program. On December 8, 2006, FEMA denied the Applicants first appeal stating the facility met the USACE definition of an FCW. In accordance with Policy 9524.3, Policy for Rehabilitation for Levees and Other Flood Control Works, authority for permanent repairs to FCWs resides with another Federal agency.
On March 8, 2007, the Applicant submitted its second appeal to FEMA reiterating the position presented in its first appeal. In addition the Applicant raised a new argument requesting a change in the category of work from Category D (permanent work) to Category B (emergency protective measures). The documentation the Applicant provided did not support its request.
Issue(s):
1. Does the facility meet the USACE definitional criteria of an FCW?
2. Are permanent repair of FCWs eligible under the FEMA Public Assistance Program?
3. Did the Applicant establish the existence of an immediate threat that would warrant emergency protective measures?
Finding(s): 1. Yes.
2. No.
3. No.
Rationale: Robert T. Stafford Disaster Relief and Emergency Assistance Act, Section 403 (a)(3); 44 CFR §§206.221(c), 206.225(a) (3), and 206.226; FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation for Levees and Other Flood Control Works
Appeal Brief
| Desastre | FEMA-1577-DR |
| Applicant | Ventura County Watershed Protection District |
| Appeal Type | Second |
| PA ID# | 111-UL4GF-00 |
| PW ID# | Project Worksheet 2373 |
| Date Signed | 2008-06-17T04:00:00 |
The Applicant submitted its first appeal on December 15, 2005, stating that the costs were eligible because the facility was not active in the USACE Rehabilitation and Inspection Program (RIP) and, as such, was not under the specific authority of the USACE. The Applicant stated that because it had sole responsibility for maintenance, the permanent repairs should be eligible for reimbursement under the FEMA Public Assistance Program. On December 8, 2006, FEMA denied the Applicants first appeal stating the facility met the USACE definition of an FCW. In accordance with Policy 9524.3, Policy for Rehabilitation for Levees and Other Flood Control Works, authority for permanent repairs to FCWs resides with another Federal agency.
On March 8, 2007, the Applicant submitted its second appeal to FEMA reiterating the position presented in its first appeal. In addition the Applicant raised a new argument requesting a change in the category of work from Category D (permanent work) to Category B (emergency protective measures). The documentation the Applicant provided did not support its request.
Issue(s):
1. Does the facility meet the USACE definitional criteria of an FCW?
2. Are permanent repair of FCWs eligible under the FEMA Public Assistance Program?
3. Did the Applicant establish the existence of an immediate threat that would warrant emergency protective measures?
Finding(s): 1. Yes.
2. No.
3. No.
Appeal Letter
June 17, 2008
Frank McCarton
Acting Governors Authorized Representative
Governors Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655
Re: Second Appeal−Ventura County Watershed Protection District, PA ID 111-UL4GF-00
Ventura River at Santa Anna Boulevard, FEMA-1577-DR-CA, Project Worksheet 2373
Dear Mr. McCarton:
This is in response to a letter from your office dated May 10, 2007, which transmitted the referenced second appeal on behalf of the Ventura County Watershed Protection District (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) denial of funding for repairs to the Ventura River riprap embankment, levee access road, and retaining wall at Santa Anna Boulevard.
The storms and heavy rains of December 27, 2004, through January 11, 2005, caused excessive storm water runoff and mud flows into the Ventura River. The Applicant requested reimbursement of $734,592 for permanent repairs to 400 linear feet of the levee riprap embankment, 350 feet of gravel access road, and 102 linear feet of a retaining wall that were damaged as result of the disaster. The Applicant completed the work on June 10, 2005. FEMA denied the request because the facility met the United States Army Corps of Engineers (USACE) definition of a flood control work (FCW), and permanent repairs to the facility are not eligible for Public Assistance reimbursement.
The Applicant submitted its first appeal on December 15, 2005. The Applicant claimed that the costs were eligible as the facility was not active in the USACE Rehabilitation and Inspection Program (RIP) and as such, was not under the specific authority of the USACE. The Applicant stated that because it had sole responsibility for maintenance, the repairs should be eligible for reimbursement under the FEMA Public Assistance Program. The California Governors Office of Emergency Services maintained that FEMA could waive its administrative conditions on reimbursement of facilities under the authority of another Federal agency.
The Deputy Regional Director denied the first appeal on December 8, 2006, because the facility met the definition of an FCW. In accordance with FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation for Levees and Other Flood Control Works, authority for
FCWs resides with another Federal agency and Public Assistance reimbursement for FCWs is limited to emergency work necessary to reduce an immediate threat to life, public health and safety, or improved property. The Deputy Regional Director also explained that FEMA was unable to waive the administrative conditions on reimbursement for facilities under the authority of another Federal agency.
The Applicant submitted its second appeal on March 8, 2007, reiterating the position presented in its first appeal. In its second appeal, the Applicant claims that the permanent repairs were necessary as an emergency protective measure to protect adjacent residential properties from erosion. The Applicant is requesting a change in the category of work from Category D (permanent work) to Category B (emergency protective measures).
In accordance with FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation for Levees and Other Flood Control Works, authority for FCWs resides with another Federal agency and Public Assistance reimbursement for FCWs is limited to emergency work necessary to reduce an immediate threat to life, public health and safety, or improved property. Pursuant to 44 CFR §206.221(c), an immediate threat means the threat of additional damage or destruction from an event which can reasonably be expected to occur within 5 years. The second appeal does not provide documentation to demonstrate that the repair work was necessary for the channel to convey a 5-year flood event, or that a 5-year flood would result in any damage if the riprap were not repaired. The work would, therefore, be considered Category D (permanent work).
I have reviewed all information submitted with the appeal and have determined that the Deputy Regional Directors decision in the first appeal is consistent with Public Assistance Program regulations and policies. The Applicants request for a category of work change is denied. Therefore, the Applicants second appeal is denied.
Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.
Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate
cc: Nancy Ward
Regional Administrator
FEMA Region IX
Frank McCarton
Acting Governors Authorized Representative
Governors Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655
Re: Second Appeal−Ventura County Watershed Protection District, PA ID 111-UL4GF-00
Ventura River at Santa Anna Boulevard, FEMA-1577-DR-CA, Project Worksheet 2373
Dear Mr. McCarton:
This is in response to a letter from your office dated May 10, 2007, which transmitted the referenced second appeal on behalf of the Ventura County Watershed Protection District (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) denial of funding for repairs to the Ventura River riprap embankment, levee access road, and retaining wall at Santa Anna Boulevard.
The storms and heavy rains of December 27, 2004, through January 11, 2005, caused excessive storm water runoff and mud flows into the Ventura River. The Applicant requested reimbursement of $734,592 for permanent repairs to 400 linear feet of the levee riprap embankment, 350 feet of gravel access road, and 102 linear feet of a retaining wall that were damaged as result of the disaster. The Applicant completed the work on June 10, 2005. FEMA denied the request because the facility met the United States Army Corps of Engineers (USACE) definition of a flood control work (FCW), and permanent repairs to the facility are not eligible for Public Assistance reimbursement.
The Applicant submitted its first appeal on December 15, 2005. The Applicant claimed that the costs were eligible as the facility was not active in the USACE Rehabilitation and Inspection Program (RIP) and as such, was not under the specific authority of the USACE. The Applicant stated that because it had sole responsibility for maintenance, the repairs should be eligible for reimbursement under the FEMA Public Assistance Program. The California Governors Office of Emergency Services maintained that FEMA could waive its administrative conditions on reimbursement of facilities under the authority of another Federal agency.
The Deputy Regional Director denied the first appeal on December 8, 2006, because the facility met the definition of an FCW. In accordance with FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation for Levees and Other Flood Control Works, authority for
FCWs resides with another Federal agency and Public Assistance reimbursement for FCWs is limited to emergency work necessary to reduce an immediate threat to life, public health and safety, or improved property. The Deputy Regional Director also explained that FEMA was unable to waive the administrative conditions on reimbursement for facilities under the authority of another Federal agency.
The Applicant submitted its second appeal on March 8, 2007, reiterating the position presented in its first appeal. In its second appeal, the Applicant claims that the permanent repairs were necessary as an emergency protective measure to protect adjacent residential properties from erosion. The Applicant is requesting a change in the category of work from Category D (permanent work) to Category B (emergency protective measures).
In accordance with FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation for Levees and Other Flood Control Works, authority for FCWs resides with another Federal agency and Public Assistance reimbursement for FCWs is limited to emergency work necessary to reduce an immediate threat to life, public health and safety, or improved property. Pursuant to 44 CFR §206.221(c), an immediate threat means the threat of additional damage or destruction from an event which can reasonably be expected to occur within 5 years. The second appeal does not provide documentation to demonstrate that the repair work was necessary for the channel to convey a 5-year flood event, or that a 5-year flood would result in any damage if the riprap were not repaired. The work would, therefore, be considered Category D (permanent work).
I have reviewed all information submitted with the appeal and have determined that the Deputy Regional Directors decision in the first appeal is consistent with Public Assistance Program regulations and policies. The Applicants request for a category of work change is denied. Therefore, the Applicants second appeal is denied.
Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.
Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate
cc: Nancy Ward
Regional Administrator
FEMA Region IX