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Las Llajas Canyon Chanel at Alamo Street and Arroyo Simi Channel at Tapo Canon Channel

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1577-DR
ApplicantVentura County Watershed Protection District
Appeal TypeSecond
PA ID#111-UL4GF-00
PW ID#Project Worksheets 1845 and 2783
Date Signed2008-06-17T04:00:00
Citation: FEMA-1577-DR-CA, Ventura County Watershed Protection District, PWs 1845 and 2783
Cross-reference: Flood Control Works (FCW)

Summary: As a result of the January 2005 Winter Storms, the Ventura County Watershed Protection District (Applicant) requested funding for permanent repairs to Las Llajas Canyon and Arroyo Simi Channels. FEMA and the United States Army Corps of Engineers (USACE) determined that the facilities met the definition of an FCW and FEMA further determined the completed work restored the facilities to pre-disaster function and capacity. FEMA did not provide any funding for PWs 1845 and 2783 because they were for permanent work.

The Applicant submitted its first appeal for Las Llajas Canyon Channel on December 5, 2005, and for Arroyo Simi Channel on November 5, 2005, stating that the costs were eligible as the facilities were not active in the USACE Rehabilitation and Inspection Program (RIP), and were 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. FEMA denied the Applicant’s first appeals stating the facilities met the USACE definition of an FCW on December 8, 2006. In accordance with Response and Recovery Policy 9524.3, Policy for Rehabilitation for Levees and Other Flood Control Works, authority for FCWs resides with another Federal agency.
On March 8, 2007, the Applicant submitted its second appeals to FEMA reiterating the arguments presented in its first appeals, and requesting a change in the category of work from Category D to Category B. The Applicant asserted that repairs were necessary as an emergency protective measure to protect adjacent residential properties from erosion. The appeals did not contain documentation that demonstrated the repairs were necessary to reduce an immediate threat to life, public health and safety, or improved property.
Issue(s): 1. Does the facility meet the USACE definition for an FCW?
2. Are permanent repair of an FCW eligible under the FEMA Public Assistance
Program?
Finding(s): 1. Yes.

2. 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 Policy 9524.3, Policy for Rehabilitation for Levees and Other Flood Control Works

Appeal Letter

June 17, 2008

Frank McCarton
Acting Governor’s Authorized Representative
Governor’s 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
Las Llajas Canyon Channel at Alamo Street and Arroyo Simi Channel at Tapo Canyon Channel, FEMA-1577-DR-CA, Project Worksheets (PWs) 1845 and 2783

Dear Mr. McCarton:

This letter is in response to a letter from your office dated May 10, 2007, which transmitted the referenced second appeal on behalf of Ventura County Watershed Protection District (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding for repairs to the Las Llajas Canyon Channel and Arroyo Simi Channel.
The storms and heavy rains of December 27, 2004, through January 11, 2005, caused excessive storm water runoff and mud flows into Las Llajas Canyon and Arroyo Simi Channels. The Applicant requested reimbursement of $189,195 to repair erosion and damage to five concreted riprap grade stabilizers in Las Llajas Canyon Channel downstream of Alamo Street, and $939,951 for repairs to rock riprap bank protection and reinforced concrete stabilizers in Arroyo Simi Channel at the junction of Tapo Canyon Channel. FEMA denied the requests because the facilities met the United States Army Corps of Engineers’ (USACE) definition of a flood control work (FCW), and permanent repairs to the facilities are not eligible for Public Assistance reimbursement.
The Applicant submitted its first appeal for Las Llajas Canyon Channel on December 5, 2005, and Arroyo Simi Channel on November 15, 2005. The Applicant claimed that the costs were eligible because the facilities were not active in the USACE Rehabilitation and Inspection Program (RIP), and were 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 Governor’s Office of Emergency Services believe that FEMA could waive its respective administrative conditions on reimbursement of facilities under the authority of another Federal agency.

The Deputy Regional Director denied the first appeals on December 8, 2006, because the facilities 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 stated that FEMA cannot modify or waive its administrative conditions for facilities under the authority of another Federal agency.

The Applicant submitted its second appeals on March 8, 2007. In addition to restating the arguments in the first appeal, the Applicant claims that the 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 five years. The second appeals do not contain 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 or concrete stabilizers were not repaired. The repairs restored the facilities to pre-disaster function and capacity. The work would, therefore, be considered Category D.

I have reviewed all information submitted with the appeal and have determined that the Deputy Regional Director’s decision in the first appeal is consistent with Public Assistance Program regulations and policies. The Applicant’s request for a category of work change is denied. The Applicant’s second appeals are 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