Petaluma River Channel Embankment

Appeal Brief

Citation:   FEMA-1628-DR-CA, City of Petaluma, Petaluma River Channel Embankment, PW 3329

Cross-Reference:  Eligible Facility; Codes and Standards

Summary:  Flooding caused by severe winter storms damaged the Petaluma River channel embankment in the City of Petaluma (Applicant).   The flooding eroded 120 feet of the embankment and rip rap.  The Applicant requested a change of scope to include the cost of permitting, engineering, repair, and environmental mitigation in the amount of $335,467.  FEMA de-obligated previously approved funding stating that the embankment was not an eligible facility because it was a natural, unimproved embankment and denied the Applicant’s request for the change of scope.  The Applicant states that the embankment was previously armored with rip rap that was washed away as a result of the disaster event; and it is therefore an eligible facility in accordance with Title 44 Code of Federal Regulations (44 CFR) §206.201(c) Definitions used in this subpart, Facility.  The Applicant also maintains that the compromised integrity of the Copeland Sewer Station would have been catastrophic to the health, safety and welfare of the entire City as well as to the San Francisco Bay.

Issues:  1. Was the natural embankment improved and maintained at the time of the disaster?

               2. Is the change in scope of work in the amount of $335,467 submitted by the Applicant eligible for Public Assistance funding? 

Findings:   1. Yes.

                   2. Yes, partially.  An additional $115,431 in funding is considered eligible to restore the Petaluma River channel embankment to its pre-disaster condition.

Rationale:  Section 406(e) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act; 44 CFR §206.226(d) Restoration of damaged facilities, Standards; 44 CFR §206.201(c) Definitions used in this subpart, Facility

Appeal Letter

Appeal Analysis

Background

During the 2005/2006 winter storm which resulted in disaster declaration FEMA-1628-DR-CA, heavy rains caused flooding and high velocity flow in the Petaluma River channel in the City of Petaluma, California (Applicant).  The flooding eroded 120 feet of the embankment.  On July 18, 2006, FEMA approved PW 3329 for $28,073 to restore the embankment to its pre-disaster condition.  The approved scope of work was to excavate 71.1 cubic yards (CY), import and place 500 - 1,000 pounds (LB) of rock for buttressing, and import and place 250 - 500 LBs of rip rap.

On January 11, 2011, the Applicant sent a letter to the California Emergency Management Agency (Cal EMA) requesting a change of scope for the Petaluma River channel embankment.  The basis for the requested change order was that the original PW cost estimate was underestimated as it lacked sufficient funding for permitting, engineering, repair, and environmental mitigation costs. The Applicant requested an additional $335,467 to cover the permitting and engineering fees.

Cal EMA forwarded the Applicant’s request for a change in the scope of work for the Petaluma River Channel embankment to FEMA on April 21, 2011.  FEMA requested that the Applicant provide pre-disaster design drawings for the embankment.  On July 22, 2011, FEMA denied the Applicant’s request and de-obligated previously approved funding stating that the embankment was not an eligible facility in accordance with Title 44 Code of Federal Regulations (44 CFR) §206.201(c) Definitions used in this subpart, Facility because it was a natural, unimproved embankment.

First Appeal

The Applicant’s first appeal was submitted to Cal EMA on September 27, 2011, with supplemental information submitted on October 20th and November 2, 2011.  The Applicant stated that they have maintained the embankment annually since 1996.  In addition, the Applicant contends that embankment failure and erosion could have potentially caused the release of sewage into the Petaluma River.  In support of its appeal, the Applicant submitted engineering plans for the Copeland Street Sewer and Force Main Pump Stations which were approved July 10, 1996.  The Applicant also submitted its storm drain maintenance schedule for 2005 (identifying catch basins scheduled to be inspected and cleaned each month and a reactive maintenance plan for cleaning catch basins and patrolling for flooding).  The Applicant also submitted a 2006 aerial photograph to document that there was rip rap just upstream of the area identified in PW 3329.

Cal EMA forwarded the Applicant’s first appeal to FEMA on November 17, 2011.  Cal EMA supported the appeal and requested: 1) reinstatement of project funding in the amount of $28,073 for the restoration of embankment protection at the dead end of Water Street north of the Washington Street Bridge and 2) revision of PW 3329 to include permitting, engineering, repair, and environmental mitigation costs (with the exception of the costs associated with post-construction activities).  Cal EMA stated that the costs associated with meeting special conditions required by a federal regulatory agency, the United States Army Corps of Engineers (USACE) are eligible for reimbursement.

FEMA denied the Applicant’s appeal on May 21, 2012, because the documentation submitted did not establish that the embankment was an improved and maintained natural feature at the time of the declared event.  In order to be recognized as an eligible facility, the natura1 embankment must have been improved and maintained at the time of the disaster in accordance with 44 CFR §206.201(c).

Second Appeal

The Applicant submitted its second appeal on July 16, 2012, stating that the embankment is an eligible facility since it was previously armored with rip rap that was washed away as a result of the disaster event.  The Applicant also stated:  (1) “the river channel north of the Copeland Sewer Pump Station has been lined by the City of Petaluma with rip rap, cement pieces and cobbles to protect the facilities for years”; (2) “the compromised integrity of the Copeland Sewer Station would have been catastrophic to the health, safety and welfare of the entire City of Petaluma as well as the San Francisco Bay”; and (3) “telecommunication lines run parallel to and across the channel and had the disaster further eroded the Petaluma River channel embankment at this location telecommunications would have been adversely affected.”

Cal EMA supports the Applicant’s statement that the embankment was previously armored with rip rap that was washed away as a result of the disaster event, and urges FEMA to obligate the initially approved funding in the amount of $20,073 and to obligate an additional $335,467 to address funding for permitting, engineering, repair, and environmental mitigation costs.

Discussion

Pursuant to 44 CFR §206.201(c), “Facility means any publicly or privately owned building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature.”  The first issue in this appeal is whether the Petaluma River channel embankment was an improved and maintained natural feature at the time of the declared event.  The Applicant has provided supporting documentation including a maintenance schedule for the channel embankment and post-disaster photos that clearly show washed out rip rap in the area to demonstrate that the embankment was previously armored with rip rap.  FEMA also obtained aerial imagery from the National Agriculture Imagery Program (NAIP) from 2005 and Sonoma County from 2000 confirming that the embankment had been armored with rip rap prior to the disaster event.  Based on this information, FEMA has determined that the Petaluma River channel embankment is an eligible facility.

The second issue in this appeal is whether the change of scope request to include costs for permitting, engineering, repair, and environmental mitigation is eligible for FEMA funding.  In its second appeal, the Applicant claimed $194,408 in “Government Agency Permit Requirements”:

* The Applicant’s letter includes this figure; however, the back-up documentation (January 15, 2009, letter proposal from Recovery Operation Specialty Services) shows $36,549 for this work.

Under Section 406 of the Stafford Act, Public Assistance funding is generally limited to the repair, replacement, reconstruction, or restoration of facilities in accordance with applicable codes and standards.  FEMA also has the discretion to approve hazard mitigation funding for cost- effective measures that will reduce the likelihood of future damage.  Post construction activities such as long-term project monitoring generally are not eligible for funding unless required by FEMA.  In addition, permit requirements are typically eligible only when required by a code or standard that meets FEMA’s criteria established at 44 CFR §206.226(d) Restoration of damaged facilities, Standards, which states: 

For the costs of Federal, State, and local repair…standards which change the pre -disaster construction of [a] facility to be eligible, the standards must (1) Apply to the type of repair…required;… (2) Be appropriate to the pre -disaster use of the facility; (3)(i) Be found reasonable, in writing, and formally adopted and implemented by the … local government on or before the disaster declaration date or be a legal Federal requirement applicable to the type of restoration;… (4) Apply uniformly to all similar types of facilities within the jurisdiction of the owner of the facility; and (5) For any standard in effect at the time of a disaster, it must have been enforced during the time it was in effect.

FEMA does not fund code-mandated work if the code does not meet the five criteria above, even though such work may be required in order to obtain a building, occupancy, environmental, or other permit.  Federal permit requirements are subject to the same criteria as local or State permit requirements and codes.

The permit documentation submitted by the Applicant did not identify specific engineering design standards or performance criteria that were required in order to receive the permit.  Rather, the specific environmental permitting requirements from the National Marine Fisheries Service, USACE,  the California Department of Fish and Game, and the Regional Water Quality Control Board allow the permitting authority the discretion to make decisions on a case-by-case basis upon review of plans and specifications submitted by an applicant.  In accordance with FEMA regulations cited above, codes and standards cannot be subject to discretionary enforcement by building or permitting officials; it must provide for uniform applicability to all similar facilities.  Accordingly,    costs for the permit requirements ($72,902) and the monitoring plan ($67,32332) are not eligible for reimbursement.

Further, the Applicant did not sufficiently document that the additional rip rap and structural excavation included in the change of scope request was required to restore the facility’s pre -disaster condition.  Therefore, the costs for rip rap ($68,875) and structural excavation ($21,375) are not eligible for reimbursement.  However, the structural stabilization fabric ($6,250) is an eligible hazard mitigation measure as reflected in Response and Recovery Policy 9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act) Appendix A.5.  

Conclusion

The Applicant has documented that the natural embankment had been improved and maintained at the time of the disaster.  FEMA has determined that some of the requested repair scope of work items are eligible for funding (e.g., construction area signs, traffic control systems, clearing and grubbing coffer dam construction and mobilization costs).  Additionally, the Applicant has established that the project and permitting requirements are sufficiently complex to justify the engineering and design service costs of $26,153.  However, in accordance with 44 CFR§206.226(d), FEMA will not fund the costs associated with the permit requirements and the monitoring plan in the Applicant’s version request. The appeal is partially approved in the amount of $143,504 (See the table below).