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Restoration of Bee Canyon Retarding Basin

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1044-DR
ApplicantOrange County Emergency Management Agency
Appeal TypeThird
PA ID#059-00000
PW ID#94063
Date Signed1999-03-26T05:00:00
PURPOSE: Respond to third appeal submitted by the Orange County Emergency Management Agency for permanent restoration of Bee Canyon Retarding Basin.

DISCUSSION: The winter storms of January 1995 (FEMA-1044-DR-CA) caused extensive damage to flood control facilities throughout Orange County. FEMA prepared DSR 94063 to fund repairs to Bee Canyon Retarding Basin. DSR 94063 was approved in the amount of $1,208 to fund repairs to the facility with unclassified fill. The subgrantee's first appeal challenged the scope of work under DSR 94063 and requested that the damaged slope be repaired in accordance with Orange County's codes and standards. During first appeal review, DSR 94063 was found ineligible on the basis that the Basin meets the United States Army Corps of Engineers' (USACE's) definition of a flood control work (FCW), such that restoration funding for the damaged slope would be under the specific authority of the USACE. DSR 83810 was prepared to deobligate funding in the amount of $1,208. The subgrantee's second appeal primarily challenged the Federal Levee Policy and FEMA's coordination of disaster assistance as it relates to FCWs and the Policy as well as FEMA's denial of their slope repair codes and standards. Appeal responses upheld the initial determinations of ineligibility. The third appeal reiterates much of the earlier positions. It is found that, given the circumstances under which information was provided during the disaster event regarding funding authorities for FCWs, there is sufficient basis to consider these flood control facilities as eligible facilities for this disaster event. A supplemental DSR will be prepared for the eligible scope of work described in the November 2, 1998, FEMA analysis of similar Orange County third appeals, and funding in the amount of $13,570. However, the subgrantee's codes and standards are not eligible.

RECOMMENDED ACTION: Sign letter partially granting the appeal.

Appeal Letter

March 26, 1999

Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, Third Floor
Pasadena, CA 91103-3678

Dear Mr. Najera:

This is in response to your May 8, 1998, submittal of the Orange County Emergency Management Agency's (subgrantee's) third appeal of Damage Survey Report (DSR) 94063 prepared for permanent restoration of Bee Canyon Retarding Basin (facility) damaged during the FEMA-1044 disaster event. It is recognized that the response to this appeal is overdue, please accept our apology for the inconvenience. This response was delayed because the third appeal of DSR 94063 was inadvertently separated from other third appeals from the subgrantee submitted in March, April, and May, 1998. These appeals included 68 DSRs and were addressed in the November 2, 1998, response from FEMA. The issues in this May 8, 1998, appeal are the same as those in addressed in the November 2, 1998, response and the analysis is enclosed as a reference.

The damage to the facility consisted of erosion of the west bank of the Bee Canyon Retarding Basin. DSR 94063 was prepared as Category G, to restore the slope to pre-disaster condition using unclassified fill at a cost of $1,208. The subgrantee submitted a hazard mitigation proposal (HMP), requesting the use of riprap in accordance with slope repair codes and standards. The HMP was determined to be not cost-effective and was denied. The subgrantee submitted a letter of non-concurrence dated October 17, 1995, in which they request that the scope of repair work under DSR 94063 include riprap repairs in accordance with the slope repair code and standard. During review, the FEMA regional staff concluded that the subgrantee's slope repair codes and standards were not eligible for funding. DSR 94063 was approved on January 11, 1996, and obligated in the amount of $1,208.

The subgrantee submitted a first appeal letter dated April 25, 1996, which requested that funding be provided to repair the facility in accordance with Orange County's codes and standards for riprap. During review, FEMA concluded that this facility meets the United States Army Corps of Engineers' (USACE's) definition of a flood control work (FCW), such that restoration funding for the Basin would be under the specific authority of the USACE. Accordingly, FEMA prepared DSR 83810 to deobligate funding in the amount of $1,208. The Regional Director notified the subgrantee of this determination by letter dated March 20, 1997. The issue of Orange County's codes and standards for slope repair was not addressed due to the FCW issue.

The subgrantee submitted a second appeal of FEMA's determination to deobligate funding to repair the facility by letter dated June 11, 1997. The primary issue of the subgrantee's appeal was that FEMA failed to perform its obligation to coordinate Federal disaster assistance. The subgrantee did not contest that the Basin meets the USACE definition of an FCW. FEMA responded to this appeal by further clarifying the intent of the Federal Levee Policy (Policy) and stressing the importance of providing Federal assistance within the appropriate funding agency. In support of the USACE Program, and the Policy, the Executive Associate Director upheld the determination of ineligibility. As with the first appeal, the issue of Orange County's codes and standards for slope repair was not addressed due to the FCW issue.

The subgrantee's third appeal of DSR 94063/83810 was transmitted by OES to FEMA in correspondence dated May 4, 1998. This appeal primarily challenges the Policy itself as well as FEMA's coordination of disaster assistance as it relates to FCWs and the Policy. As discussed above, these issues are the same as in several third appeal letters submitted by the subgrantee in March, April, and May, 1998, and FEMA responded to these appeals in a letter dated, November 2, 1998.

DSR 94063 has been reviewed for eligibility for permanent restoration funding through the Public Assistance Program, consistent with FEMA regulations and policy for restoration of eligible facilities. The decision for this appeal is based on the November 2, 1998, response from FEMA. The issues involved are the implementation of the Federal Levee Policy during the 1044 event, eligible scope of work, and future disaster assistance for the Bee Canyon Retarding Basin. Please refer specifically to the following sections of the November 2, 1998, response analysis for a detailed discussion of these issues:

Consideration for Funding of Flood Control Facilities, page 2

Eligible Work, page 5, Section II, specifically paragraph 9 "DSRs 24317, 24337, 34608, 34618, and 96301"

Future Assistance, page 9

No actual costs were submitted for the repair work in DSR 94063. Therefore, the $5 per damaged square foot (SF) cost basis (as mentioned in the enclosed analysis) will be applied to determine funding for this repairs. The damaged square footage according to DSR 94063 was 2,714 SF. Therefore, the amount of eligible funding is $13,570. By copy of this letter, I am requesting the Regional Director to prepare a supplemental DSR with the scope of work as described in the enclosed analysis and estimated cost of $13,570. Accordingly, the subgrantee's appeal is partially granted.

Please inform the subgrantee of my determination, which constitutes the final level of appeal in accordance with 44 CFR 206.206(e).

Sincerely,

/S/
James L. Witt
Director

Enclosure

cc: Martha Z. Whetstone
Regional Director
FEMA Region IX