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Second Appeal Brief
PA ID# 111-UL4GF-00; Ventura County Watershed Protection District
PW ID# Project Worksheet 2726; Santa Clara River Levee
FEMA-1577-DR-CA, Ventura County Watershed Protection District (Applicant), Santa Clara River Levee, PW 2726Cross-reference:
Flood Control Works (FCW)Summary:
As a result of the January 2005 Winter Storms, the Applicant requested funding for permanent repairs to the Santa Clara River Levee. Repairs were made to an area of riprap, an access road parallel to the levee, and a chain link gate. FEMA and the United States Army Corps of Engineers (USACE) determined that the facility met the definition of an FCW. FEMA prepared PW 2726 but did not provide any funding for it because FEMA also determined that 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 January 13, 2006, stating that the costs were eligible because the facility was not active in the USACE Rehabilitation and Inspection Program (RIP) and 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. The California Governors Office of Emergency Services asserted that FEMA may waive its respective administrative conditions on reimbursement for facilities under the authority of another Federal agency. On December 8, 2006, FEMA denied the Applicants first appeal stating the facility met the USACE definition of an FCW. In accordance with FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation of Levees and Other Flood Control Works,
authority for FCWs resides with another Federal agency.
On March 8, 2007, the Applicant submitted its second appeal to FEMA reiterating the arguments presented in its first appeal, and requesting a change in the category of work from Category D (permanent work) to Category B (emergency protective measures). Issues:
1. Does the facility meet the USACE definitional criteria of an FCW?
2. Are permanent repairs 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?Findings:
3. No. Rationale:
Robert T. Stafford Disaster Relief and Emergency 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 of Levees and Other Flood Control Works