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Various DSRs for Flood Control Channels
Appeal Brief
Appeal Letter
Appeal Analysis
PURPOSE: Respond to third appeals submitted by the Alameda County Flood Control and Water Conservation District for permanent restoration of various flood control facilities.
DISCUSSION: The winter storms of January and March 1995 (FEMA-1044/1046-DR-CA) caused extensive damage to flood control facilities throughout Alameda County. FEMA prepared numerous DSRs (66 in appeal) to fund repairs to various flood control facilities. The DSRs were found ineligible on the basis that the channels meet the United States Army Corps of Engineers' (USACE's) definition of a flood control work (FCW), such that restoration funding for the channel would be under the specific authority of the USACE. The subgrantee's first and second appeals 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 channel repair standards. Appeal responses upheld the initial determinations of ineligibility. The third appeal reiterates much of the earlier positions. It is found that information regarding the eligibility of FCWs was not provided in a timely manner in these disasters. Therefore, there is sufficient basis to consider these flood control facilities as eligible facilities for this disaster event. Supplemental DSRs will be prepared for the eligible scope of work described in the attached analysis. However, the subgrantee's codes and standards are not eligible.
RECOMMENDED ACTION: Sign letter partially granting these appeals.
Due to the severe winter storms and flooding that occurred during the FEMA-1044 and FEMA-1046 (1044/1046) winter storm events, various flood control channels in Alameda County were damaged. The Alameda County Flood Control and Water Conservation District (subgrantee) requested disaster assistance from the Federal Emergency Management Agency (FEMA) for the repair of these channels. FEMA inspection teams, consisting of representatives of FEMA, the California Governor's Office of Emergency Services (OES), and the subgrantee, visited the individual sites to document damages and prepare Damage Survey Reports (DSRs). A summary of the channels and the particular DSRs is provided in the enclosure. It is noted that of the 66 DSRs in this appeal, 46 were prepared in response to the initial site inspections and one supplemental DSR was prepared at the request of the subgrantee for additional engineering costs incurred. The remaining 19 DSRs were prepared to de-obligate funding subsequent to the first appeal review.
For the DSRs discussed herein, the reported damages occurred to components of the channels themselves, including access roads and other various appurtenances. Damages generally consisted of erosion of earth lined channel banks, scouring of riprap channel banks, scouring of riprap from channel drop structures, and erosion of road surfaces. At the time of the site inspections (April through September 1995), repair of the damaged channels had not been initiated, with the exception of DSRs 64515 and 64516, which were 100 percent complete. All of the DSRs were prepared as Category D, permanent restoration, except DSR 20037 (Category C), and DSRs 64515 and 64516 (Category B). The subgrantee requested that all repairs be performed according to their channel repair standards.
During review, the regional staff concluded that the subgrantee's channel repair standards were not eligible for funding, and thus limited the scope of repair on some DSRs to the pre-disaster design. Further, the Federal Interagency Levee Task Force conducted a review of each DSR and concluded that 29 of the channels meet the United States Army Corps of Engineers' (USACE) definition of a flood control work (FCW). Accordingly, FEMA denied funding for those DSRs. The subgrantee, however, was not notified of this determination until the DSRs were finalized, often six months or more after the initial site inspection. The Levee Task Force review incorrectly identified the remaining 17 DSRs as local drainage channels. Consequently, these DSRs were found to be eligible and funding was obligated.
First appeal
On October 4, 1996, OES forwarded the subgrantee's first appeals of FEMA's determination that the subgrantee's channel repair standards did not satisfy eligibility criteria and that restoration funding for certain channels would be under the specific authority of the USACE. The subgrantee did not contest that the channels meet the definition of an FCW, but rather asserted that the completed repairs were not eligible for USACE PL 84-99 Rehabilitation and Inspection Program funding.
In response to the appeal, the Regional Director conducted a detailed review of every DSR and determined that all of the channels were FCWs and, therefore, ineligible for FEMA funding. Accordingly, the subgrantee was notified in a letter dated December 11, 1996 that supplemental DSRs would be prepared to de-obligate funding for those DSRs originally obligated as eligible. Subsequently, 19 DSRs were prepared to de-obligate funding (DSR 15149 was de-obligated twice and a third DSR was prepared to return the DSR value to zero.)
The first appeal response also addressed five individual DSRs, which were found ineligible for other reasons. These DSRs were discussed separately in the Regional Director's first appeal response. The determinations of ineligibility for these DSRs were disputed in the subgrantee's second and third appeals and are, therefore, discussed later in this analysis.
Second Appeal
OES forwarded the subgrantee's second appeal in a letter dated April 30, 1997. The primary issue of the appeal was regarding FEMA's implementation of the Federal Levee Policy, which the subgrantee contended resulted in the ineligibility of the various flood control facilities for FEMA assistance. Additionally, the subgrantee appealed the individual determinations of ineligibility of several DSRs that were addressed in the Regional Director's response to the first appeal. FEMA responded to this appeal by further clarifying the intent of the Federal Levee Policy and stressing the importance of providing Federal assistance within the appropriate funding agency. In support of the USACE Program, and the Federal Levee Policy, the Executive Associate Director upheld the determination of ineligibility.
Third Appeal
The subgrantee's third appeal of these DSRs was transmitted by OES in a letter dated March 20, 1998. The subgrantee's appeal primarily challenges the Federal Levee Policy itself as well as FEMA's coordination of disaster assistance as it relates to FCWs and the Policy. The subgrantee's appeal also addresses FEMA's determination that the subgrantee's channel repair standards did not satisfy eligibility criteria. Additionally, the subgrantee is appealing the individual determinations of ineligibility of several DSRs that were addressed in the Regional Director's response to the first appeal. The issues associated with these individual DSRs are discussed separately below.
DISCUSSION
Consideration for Funding of Flood Control Facilities
The subgrantee asserts that there was a change in FEMA's implementation of the Federal Levee Policy during the course of the disaster and that they were misled by FEMA inspectors to believe that FEMA funding would be available. In support of this assertion, the subgrantee provided documentation from the USACE and the Natural Resources Conservation Service (NRCS) to establish that the channels are not eligible for restoration funding from these agencies because the subgrantee had not applied to the PL84-99 Program prior to the 1044 event and the channels do not meet the requirements for the NRCS. In the absence of funding from the USACE or NRCS, the subgrantee believes that the flood control channels are eligible for FEMA assistance.
In response to this appeal and other numerous appeals from various applicants regarding the implementation of the Federal Levee Policy during the 1044/1046 disaster events, we have conducted an extensive review of the circumstances associated with eligibility determinations regarding flood control facilities prior to and during the response to these disasters. Based on this review, it has been concluded that some confusion as to the eligibility of flood control facilities was apparent. We have found that some applicants received funding for such facilities during previous disasters, particularly FEMA-979 in 1993, supporting these applicants' positions that they relied on funding from previous disasters. Additionally, for many applicants who did apply before the disaster to the USACE for enrollment in their PL 84-99 Rehabilitation and Inspection Program, inspections of the facilities by the USACE were often not completed prior to the disaster, making them ineligible for the PL 84-99 Program. It is noted that some inspections were not completed within a year of the request, and then not all requested facilities were inspected. Additionally, review of the 66 DSRs in this appeal found that for 29 of the initial DSRs the FEMA inspector did not notify the subgrantee that their facilities were under the funding authority of another Federal agency, and that the subgrantee was not notified of these determinations until the DSRs were finalized, oft. SRs were obligated and the subgrantee was not notified of the determination of ineligibility until the first appeal response was prepared in December of 1996.
Therefore, although the Federal Levee Policy does specifically indicate that permanent restoration of FCWs is not eligible for FEMA funding, it is recognized that some applicants may have relied on previous funding from FEMA to expect disaster related funding in subsequent disasters. Further, FEMA's delay in notifying applicants during the 1995 Storms that their facilities were under the authority of the USACE or NRCS may have contributed to an applicant's failure to receive Federal funding for disaster related damages. Accordingly, FEMA has concluded that flood control facilities damaged during the 1044/1046 disaster that were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program for these disasters. Although some of the circumstances described above do not specifically apply to this subgrantee's request for funding, the decision to consider permanent restoration funding of FCWs applies to all FCWs damaged as a result of the 1044/1046 disaster events.
Eligible Scope of Work
In accordance with the discussion presented above, each of the 66 DSRs addressed in this appeal have been reviewed for eligibility for permanent restoration funding through the Public Assistance Program, consistent with FEMA regulations and policy for restoration of eligible facilities. Each of the DSRs had been prepared considering the subgrantee's request for restoration in accordance with their codes and standards. However, some modifications to the requested scopes of work were often made by either the inspector or the FEMA reviewer. In general, these modifications reduced the scope of work to repair the facility to pre-disaster conditions. Therefore, in response to this third appeal reversal of eligibility, we have performed an independent review of these DSRs to determine a consistent eligible scope of work. Comments regarding specific scope items are provided below. A summary of the eligible scope and costs is provided in Enclosure 2.
Specific comments for each of the DSRs are provided below. Supplemental or de-obligating DSRs are indicated in parentheses:Earth Channel Bank Repairs - DSRs 15132 (74490), 15134, 15147, 15148 (74491), 15149 (74492, 99225, 17147), 20016, 20017, 20018, 20019, 20024, 20025, 20026, 20027, 20029, 20034, 20035, 20040 (27178), 20041, 20042, 20050, 20053, 71407 (74493), 71412 (74494), 71413 (74495), 71414 (74496), 71415 (74497), 71416 (74498), 71417 (74499), 71418 (74500), 71420 (97154), 71421 (27174), and 97469
These DSRs were prepared for erosion of earth channel banks. Damages ranged from minor erosion at the top of the slope to scouring of the entire slope face. Each of these DSRs have been reviewed for a consistent eligible scope of work. The Regional Director will prepare supplemental DSRs to reflect repairs of earth channel banks as described above, and summarized in Enclosure 2.
Riprap Channel Bank Repairs - DSRs 20037 (27175), 20039 and 20051
DSR 20037 (27175) - Damages at this site included erosion of a riprap channel bank and erosion of aggregate material on the adjacent access road. The subgrantee requested replacement of riprap to pre-disaster thickness, replacement of aggregate, engineering costs, and mobilization. The inspector prepared the DSR for 4-ft. thick riprap replacement and aggregate replacement. However, the reviewer reduced the scope to include a 2-ft. thickness of fill overlaid by 2-ft. of riprap. This reduction in scope would not restore the channel to pre-disaster conditions. Therefore, the eligible scope of work to be reflected in the supplemental DSR includes 4-ft. thick riprap replacement, aggregate replacement, and engineering services.
DSR 20039 - In the case of this DSR, a riprap channel bank was eroded to a depth of approximately 6-inches. The subgrantee requested excavation of the entire slope to completely replace the riprap channel bank as well as steps to remove the silt deposition on a concrete low water crossing. It has been determined that these measures are excessive to repair the damage to this channel bank. The eligible scope of work for this site includes placement of dumped riprap 6-inches thick to reestablish pre-disaster thickness, removal of the silt deposition, and engineering services. The Regional Director will prepare a supplemental DSR to reflect the eligible scope of work.
DSR 20051 - DSR 20051 was written to repair 1-ft. of erosion of a riprap channel bank. The subgrantee requested excavation of the entire slope to completely replace the riprap channel bank. As with DSR 20039, these measures have been determined to be excessive for repair of this channel bank. Instead, replacing 1-ft. thickness of riprap on the channel slope and engineering services are considered the eligible scope of work. The Regional Director will prepare a supplemental DSR to reflect the eligible scope of work.
Scoured Riprap Drop Structures - DSRs 20015, 20028, 20030, 20031, and 20033
These DSRs were written for repairs to damaged riprap drop structures. The subgrantee's requests for repairs to these facilities ranged from ?-ton riprap, 3.3-ft. thick throughout the structure and any damaged bank areas, to <-ton riprap, 4.2-ft. thick on the face of the drop structure and adjacent slopes. Each of these DSRs were reviewed and it has been determined that replacing 3.3-ft. of ?-ton riprap to maintain the engineering integrity within the channel is eligible. No justification for increasing riprap size to <-ton or thickness to 4.2-ft. has been given. Therefore, supplemental DSRs reflecting these determinations will be prepared by the Regiona6 DSRs for incidental repairs at various sites within Alameda County to reflect work completed by contract prior to the site inspection. Repairs included cementing a sinkhole and placement of riprap along channel banks and several drop structures. Both of these DSRs were prepared by the inspector as Category B and changed to Category D by the FEMA reviewer. The FEMA reviewer also changed DSR 64516 to reflect cost estimates prepared with FEMA cost codes. The documentation provided with these DSRs supports the subgrantee's request for contract costs. Based on this review, the actual contract costs are eligible costs for these DSRs, $2,655 for DSR 64515 and $16,354 for DSR 64516.
Silt Removal from Access Roads - DSRs 20032 (83830) and 71419 (97153)
DSR 20032 - This DSR was prepared to remove silt from an access road. The subgrantee submitted a letter of non-concurrence that included additional costs of mobilization and engineering. These additional costs are not warranted for this repair; however, it has been determined that the cost for an onsite inspector to survey the silt removal is appropriate. Accordingly, the Regional Director will prepare a supplemental DSR to reflect costs for silt removal, aggregate replacement, and an onsite inspector.
DSR 71419 - The FEMA inspector prepared this DSR to restore channel slope integrity and the adjacent road on the Tassajara canal. The FEMA reviewer removed the line items for repairs to the road on the basis that no disaster-related damages were evident. Further review of the photographs provided with this DSR supports the inspector's position that the road incurred disaster-related damages. Other damages at this site include three holes at the top of the channel bank and one hole at the bottom of the bank. These damages will be repaired using the methods for earth channel bank repair outlined above. Based on this determination, the eligible scope of work on the supplemental DSR will reflect debris removal and aggregate replacement for the road and appropriate earth channel bank repair methods.
Silt Removal from Channel Bottom - DSR 64518
During review of the subgrantee's first appeal, the Regional Director determined that the debris removal work associated with DSR 64518 would be eligible for FEMA funding pending submission of maintenance records. The subgrantee contends in their second appeal that there are no such records because the facility had not experienced any deposition of debris prior to the disaster as it was designed to be "self-cleaning" and was not wet until the 1046 winter storm events.
In this case, it is recognized that for flooding conditions as those reported during the disaster, some deposition of debris would be expected to occur. Therefore, it is reasonable to attribute a portion, but not all, of the scope of work in DSR 64518 to the disaster. Although the subgrantee has stated that the channel was dry from construction in 1991 until the 1046 events of 1995, some amount of debris would have been deposited by wind, rain, or other means in the four years since construction. Without a formal maintenance program, it is expected that some sediment would have been present in the channel at the onset of the 1046 disasters. Accordingly, we have concluded that approximately 75% of the debris present in the channel after the 1046 disasters can be reasonably attributed to the 1046 events. It has also been determined that a cost for an onsite inspector to survey the silt removal would be appropriate, however, engineering costs are not necessary for this routine procedure. Accordingly, the Regional Director will prepare a supplemental DSR to reflect the revised scope of work.
Engineering Services - DSR 20052 (64517)
DSRs 20052 and 64517 were prepared in the total amount of $91,042 for disaster-related services performed for the subgrantee by an independent engineering consulting firm. The scope of work was identified as disaster grant management, engineering design, permitting and project management services. During eligibility review, the FEMA reviewer noted that the portion of work referred to as disaster grant management is included in the statutory administrative costs. Regarding the engineering and other services, it was noted on the DSR that portions of the engineering type services may be eligible for FEMA assistance if the applicant can break down the costs and provide adequate documentation for the individual DSRs for damage repairs where applicable. Those engineering design services which may be appropriate should be shown on the individual DSRs. The DSRs were determined to be ineligible.
The subgrantee asserts that retaining the assistance of a consulting firm was necessary due to their own limited disaster expertise and available staffing. Their appeals regarding these services have attempted to demonstrate the need for such services, asserting that this scope of work is not covered in the statutory administrative costs. While FEMA does not disagree that the costs reported by the applicant may have been incurred as a result of the disaster, FEMA regulations provide various mechanisms for funding disaster related services, as discussed below.
44 CFR 206.228(2)(i) Statutory Administrative Costs provides an allowance, based on the percentage of eligible work, for funding costs of requesting, obtaining and administering Federal disaster assistance. Work which is generally considered to be included in this allowance includes preliminary disaster assessment, preparation of DSRs, project applications, interim and final inspections for grant management purposes, preparation and submission of final claims, and audits. Our review of the specific scope items listed in the subgrantee's Request For Proposal as well as the engineering firm's proposal of work include some items which would be considered to be included in this statutory administrative allowance. Accordingly, such work is not eligible as a line item on a separate DSR.
Other services, such as engineering design, bid and permit preparation, and project management activities are considered eligible costs. However, to be eligible for funding, the subgrantee must provide sufficient documentation to accurately describe the work performed and to demonstrate that the scope of services was directly related to a specific scope of eligible work. The cost of these services is then assessed to determine if it is a reasonable expense compared to the scope and cost of the eligible work. For these reasons, engineering services must be reported on specific DSRs. The FEMA reviewer's notes on each of these DSRs indicated that this correlation between the engineering effort and a specific DSR must be provided. However, to-date, the subgrantee has not provided this information. Accordingly, these costs remain ineligible for funding.
Additionally, it is noted that each DSR in this appeal has included an allowance for engineering services, provided as an estimate of the total DSR project cost. The intent of this allowance is to fund the type of engineering and project management services requested in DSRs 20052 and 64517. A discussion as to the eligibility for these services on the individual DSRs is provided earlier in this analysis. Therefore, it is found that FEMA has appropriately funded engineering services for each DSR. The subgrantee has not demonstrated that the scope of work in DSRs 20052 and 64517 is warranted beyond that which is funded on the individual DSRs.
Based on this review, the Regional Director will prepare supplemental DSRs for the eligible scope of work described herein. It is noted that as for all permanent restoration projects, prior to project approval, it will be necessary for the FEMA regional office to complete a variousn and historic preservation regulations.
Future Assistance
Although FEMA is providing this exception for funding of flood control channels for those facilities damaged during the 1044/1046 disaster events, it should be understood that the Federal Levee Policy will be strictly adhered to for all disasters occurring after December 31, 1996. I have enclosed a copy of the 1996 Policy entitled, "Policy for Rehabilitation Assistance for Levees and Other Flood Control Works" for reference regarding funding for flood control channels damaged after 1996.
In preparation for future disaster events, the subgrantee should take appropriate steps to apply to the USACE PL 84-99 Program or take steps to meet the criteria of the NRCS Emergency Watershed Protection Program. Facilities that meet the USACE's definition of an FCW will not be eligible for FEMA permanent restoration assistance. As indicated in the attached Policy, the USACE defines a flood control work as a "structure designed and constructed to have appreciable and dependable effects in preventing damage by irregular and unusual rises in water level." To determine if a certain facility meets this definition, the USACE will review the design of that facility and in most cases, perform a site inspection. Facilities that meet the definition of an FCW but are not "active" ("inactive") in the PL 84-99 Program due to lack of inspection request, failure to meet design or maintenance criteria, or other reasons determined by the USACE, will not be eligible under the Public Assistance Program. As a result, a facility that meets the USACE definition but is not in "active" status in the program may not be eligible for any Federal disaster assistance for permanent restoration.
Other channels that do not meet the USACE's definition of an FCW may be eligible for FEMA assistance. However, for those channels which appear to meet the definition of an FCW, it may be necessary for the subgrantee to provide appropriate documentation to demonstrate that the facility does not meet the USACE's definition, in order for the channel to be considered an eligible facility. To best support their position, it is recommended that the subgrantee provide a letter from the USACE indicating that they do not consider the facility an FCW. The subgrantee should anticipate that it may be necessary for the USACE to perform an inspection of a site to definitively determine that a facility does not meet their definition of an FCW. This documentation would be significantly important to those facilities which were found ineligible in the 1044/1046 or previous disasters.
CONCLUSION
It is concluded that flood control facilities which were found ineligible based on the Federal Levee Policy during the 1044/1046 disaster response, may be considered eligible facilities under the Public Assistance Program. Accordingly, each of the 66 DSRs included with this appeal have been reviewed for eligibility for permanent restoration funding through the Public Assistance Program. However, it is found that the subgrantee's codes and standards are not eligible. The Regional Director will prepare supplemental DSRs for the eligible scope of work described herein. Two DSRs remain ineligible. The subgrantee's appeal is partially granted.
ENCLOSURE 1
* Supplemental deobligation DSRs
ENCLOSURE 2
The attached pages offer a detailed outline of the eligible scope of work to be utilized by the Regional Director in preparation of the supplemental DSRs granting the subgrantee's third appeal. Each sheet contains a brief description of the original DSR it applies to as well as a basis for the repair method chosen. The methodologies utilized are detailed below.
The following table outlines the codes and unit prices used in determining the estimated project costs:
In calculating the volume for excavation and the volume of riprap required, a thickness of 2-ft. of riprap, with a toe trench 3-ft. high by 3-ft. wide was used. It was assumed that excavation would be required for < the volume of any hole in the slope, plus any extra volume of slope that would need to be removed to place the riprap.
For dewatering, the following method was used to calculate a daily cost of $1000:
Unclassified fill was used to fill any holes in access roads.
Appeal Brief
| Disaster | FEMA-1044/10 |
| Applicant | Alameda County Flood Control and Water Conservation District |
| Appeal Type | Third |
| PA ID# | 001-91017 |
| PW ID# | Multiple (66) |
| Date Signed | 1999-03-08T05:00:00 |
DISCUSSION: The winter storms of January and March 1995 (FEMA-1044/1046-DR-CA) caused extensive damage to flood control facilities throughout Alameda County. FEMA prepared numerous DSRs (66 in appeal) to fund repairs to various flood control facilities. The DSRs were found ineligible on the basis that the channels meet the United States Army Corps of Engineers' (USACE's) definition of a flood control work (FCW), such that restoration funding for the channel would be under the specific authority of the USACE. The subgrantee's first and second appeals 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 channel repair standards. Appeal responses upheld the initial determinations of ineligibility. The third appeal reiterates much of the earlier positions. It is found that information regarding the eligibility of FCWs was not provided in a timely manner in these disasters. Therefore, there is sufficient basis to consider these flood control facilities as eligible facilities for this disaster event. Supplemental DSRs will be prepared for the eligible scope of work described in the attached analysis. However, the subgrantee's codes and standards are not eligible.
RECOMMENDED ACTION: Sign letter partially granting these appeals.
Appeal Letter
March 6, 1999
Ms. Nancy Ward
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 239013
Sacramento, California 95823
Dear Ms. Ward:
This is in response to your March 20, 1998, submittals of the Alameda County Flood Control and Water Conservation District's third appeal of 66 Damage Survey Reports (DSRs) prepared for permanent restoration of various flood control channels damaged during the FEMA-1044 and FEMA-1046 (1044/1046) disaster events. Each of the DSRs were found ineligible on the basis that the channels meet the Unites States Army Corps of Engineers' (USACE's) definition of a Flood Control Work (FCW), such that restoration funding for the channel would be under the specific authority of the USACE.
Based on a review of the circumstances regarding the implementation of the Federal Levee Policy during the 1044/1046 disaster events, it is concluded that flood control facilities damaged during these events which were found ineligible based on the Federal Levee Policy may be considered eligible facilities under the Public Assistance Program. Accordingly, each of the 66 DSRs included with this appeal have been reviewed for eligibility for permanent restoration funding through the Public Assistance Program, consistent with FEMA regulations and policy for restoration of eligible facilities. However, it is found that the subgrantee's codes and standards are not eligible. By copy of this letter, I am requesting the Regional Director to prepare supplemental DSRs with the scope of work and estimated costs as described in the enclosed analysis. 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
Ms. Nancy Ward
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 239013
Sacramento, California 95823
Dear Ms. Ward:
This is in response to your March 20, 1998, submittals of the Alameda County Flood Control and Water Conservation District's third appeal of 66 Damage Survey Reports (DSRs) prepared for permanent restoration of various flood control channels damaged during the FEMA-1044 and FEMA-1046 (1044/1046) disaster events. Each of the DSRs were found ineligible on the basis that the channels meet the Unites States Army Corps of Engineers' (USACE's) definition of a Flood Control Work (FCW), such that restoration funding for the channel would be under the specific authority of the USACE.
Based on a review of the circumstances regarding the implementation of the Federal Levee Policy during the 1044/1046 disaster events, it is concluded that flood control facilities damaged during these events which were found ineligible based on the Federal Levee Policy may be considered eligible facilities under the Public Assistance Program. Accordingly, each of the 66 DSRs included with this appeal have been reviewed for eligibility for permanent restoration funding through the Public Assistance Program, consistent with FEMA regulations and policy for restoration of eligible facilities. However, it is found that the subgrantee's codes and standards are not eligible. By copy of this letter, I am requesting the Regional Director to prepare supplemental DSRs with the scope of work and estimated costs as described in the enclosed analysis. 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
Appeal Analysis
BACKGROUNDDue to the severe winter storms and flooding that occurred during the FEMA-1044 and FEMA-1046 (1044/1046) winter storm events, various flood control channels in Alameda County were damaged. The Alameda County Flood Control and Water Conservation District (subgrantee) requested disaster assistance from the Federal Emergency Management Agency (FEMA) for the repair of these channels. FEMA inspection teams, consisting of representatives of FEMA, the California Governor's Office of Emergency Services (OES), and the subgrantee, visited the individual sites to document damages and prepare Damage Survey Reports (DSRs). A summary of the channels and the particular DSRs is provided in the enclosure. It is noted that of the 66 DSRs in this appeal, 46 were prepared in response to the initial site inspections and one supplemental DSR was prepared at the request of the subgrantee for additional engineering costs incurred. The remaining 19 DSRs were prepared to de-obligate funding subsequent to the first appeal review.
For the DSRs discussed herein, the reported damages occurred to components of the channels themselves, including access roads and other various appurtenances. Damages generally consisted of erosion of earth lined channel banks, scouring of riprap channel banks, scouring of riprap from channel drop structures, and erosion of road surfaces. At the time of the site inspections (April through September 1995), repair of the damaged channels had not been initiated, with the exception of DSRs 64515 and 64516, which were 100 percent complete. All of the DSRs were prepared as Category D, permanent restoration, except DSR 20037 (Category C), and DSRs 64515 and 64516 (Category B). The subgrantee requested that all repairs be performed according to their channel repair standards.
During review, the regional staff concluded that the subgrantee's channel repair standards were not eligible for funding, and thus limited the scope of repair on some DSRs to the pre-disaster design. Further, the Federal Interagency Levee Task Force conducted a review of each DSR and concluded that 29 of the channels meet the United States Army Corps of Engineers' (USACE) definition of a flood control work (FCW). Accordingly, FEMA denied funding for those DSRs. The subgrantee, however, was not notified of this determination until the DSRs were finalized, often six months or more after the initial site inspection. The Levee Task Force review incorrectly identified the remaining 17 DSRs as local drainage channels. Consequently, these DSRs were found to be eligible and funding was obligated.
First appeal
On October 4, 1996, OES forwarded the subgrantee's first appeals of FEMA's determination that the subgrantee's channel repair standards did not satisfy eligibility criteria and that restoration funding for certain channels would be under the specific authority of the USACE. The subgrantee did not contest that the channels meet the definition of an FCW, but rather asserted that the completed repairs were not eligible for USACE PL 84-99 Rehabilitation and Inspection Program funding.
In response to the appeal, the Regional Director conducted a detailed review of every DSR and determined that all of the channels were FCWs and, therefore, ineligible for FEMA funding. Accordingly, the subgrantee was notified in a letter dated December 11, 1996 that supplemental DSRs would be prepared to de-obligate funding for those DSRs originally obligated as eligible. Subsequently, 19 DSRs were prepared to de-obligate funding (DSR 15149 was de-obligated twice and a third DSR was prepared to return the DSR value to zero.)
The first appeal response also addressed five individual DSRs, which were found ineligible for other reasons. These DSRs were discussed separately in the Regional Director's first appeal response. The determinations of ineligibility for these DSRs were disputed in the subgrantee's second and third appeals and are, therefore, discussed later in this analysis.
Second Appeal
OES forwarded the subgrantee's second appeal in a letter dated April 30, 1997. The primary issue of the appeal was regarding FEMA's implementation of the Federal Levee Policy, which the subgrantee contended resulted in the ineligibility of the various flood control facilities for FEMA assistance. Additionally, the subgrantee appealed the individual determinations of ineligibility of several DSRs that were addressed in the Regional Director's response to the first appeal. FEMA responded to this appeal by further clarifying the intent of the Federal Levee Policy and stressing the importance of providing Federal assistance within the appropriate funding agency. In support of the USACE Program, and the Federal Levee Policy, the Executive Associate Director upheld the determination of ineligibility.
Third Appeal
The subgrantee's third appeal of these DSRs was transmitted by OES in a letter dated March 20, 1998. The subgrantee's appeal primarily challenges the Federal Levee Policy itself as well as FEMA's coordination of disaster assistance as it relates to FCWs and the Policy. The subgrantee's appeal also addresses FEMA's determination that the subgrantee's channel repair standards did not satisfy eligibility criteria. Additionally, the subgrantee is appealing the individual determinations of ineligibility of several DSRs that were addressed in the Regional Director's response to the first appeal. The issues associated with these individual DSRs are discussed separately below.
DISCUSSION
Consideration for Funding of Flood Control Facilities
The subgrantee asserts that there was a change in FEMA's implementation of the Federal Levee Policy during the course of the disaster and that they were misled by FEMA inspectors to believe that FEMA funding would be available. In support of this assertion, the subgrantee provided documentation from the USACE and the Natural Resources Conservation Service (NRCS) to establish that the channels are not eligible for restoration funding from these agencies because the subgrantee had not applied to the PL84-99 Program prior to the 1044 event and the channels do not meet the requirements for the NRCS. In the absence of funding from the USACE or NRCS, the subgrantee believes that the flood control channels are eligible for FEMA assistance.
In response to this appeal and other numerous appeals from various applicants regarding the implementation of the Federal Levee Policy during the 1044/1046 disaster events, we have conducted an extensive review of the circumstances associated with eligibility determinations regarding flood control facilities prior to and during the response to these disasters. Based on this review, it has been concluded that some confusion as to the eligibility of flood control facilities was apparent. We have found that some applicants received funding for such facilities during previous disasters, particularly FEMA-979 in 1993, supporting these applicants' positions that they relied on funding from previous disasters. Additionally, for many applicants who did apply before the disaster to the USACE for enrollment in their PL 84-99 Rehabilitation and Inspection Program, inspections of the facilities by the USACE were often not completed prior to the disaster, making them ineligible for the PL 84-99 Program. It is noted that some inspections were not completed within a year of the request, and then not all requested facilities were inspected. Additionally, review of the 66 DSRs in this appeal found that for 29 of the initial DSRs the FEMA inspector did not notify the subgrantee that their facilities were under the funding authority of another Federal agency, and that the subgrantee was not notified of these determinations until the DSRs were finalized, oft. SRs were obligated and the subgrantee was not notified of the determination of ineligibility until the first appeal response was prepared in December of 1996.
Therefore, although the Federal Levee Policy does specifically indicate that permanent restoration of FCWs is not eligible for FEMA funding, it is recognized that some applicants may have relied on previous funding from FEMA to expect disaster related funding in subsequent disasters. Further, FEMA's delay in notifying applicants during the 1995 Storms that their facilities were under the authority of the USACE or NRCS may have contributed to an applicant's failure to receive Federal funding for disaster related damages. Accordingly, FEMA has concluded that flood control facilities damaged during the 1044/1046 disaster that were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program for these disasters. Although some of the circumstances described above do not specifically apply to this subgrantee's request for funding, the decision to consider permanent restoration funding of FCWs applies to all FCWs damaged as a result of the 1044/1046 disaster events.
Eligible Scope of Work
In accordance with the discussion presented above, each of the 66 DSRs addressed in this appeal have been reviewed for eligibility for permanent restoration funding through the Public Assistance Program, consistent with FEMA regulations and policy for restoration of eligible facilities. Each of the DSRs had been prepared considering the subgrantee's request for restoration in accordance with their codes and standards. However, some modifications to the requested scopes of work were often made by either the inspector or the FEMA reviewer. In general, these modifications reduced the scope of work to repair the facility to pre-disaster conditions. Therefore, in response to this third appeal reversal of eligibility, we have performed an independent review of these DSRs to determine a consistent eligible scope of work. Comments regarding specific scope items are provided below. A summary of the eligible scope and costs is provided in Enclosure 2.
- Code and Standard Review
The subgrantee has requested that their channel repair standards be considered eligible for funding and has provided a copy of their Resolution No. 1757 (Resolution) as adopted by the Board of Directors of Zone No. 7 of the Alameda County Flood Control and Water Conservation District (Zone 7). Under section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, P.L. 93-288, as amended (Stafford Act), FEMA is authorized to provide assistance to restore an eligible facility on the basis of the design of the facility as it existed immediately prior to the disaster and in conformity with applicable codes and standards. To be considered as an "applicable code or standard" for purposes of FEMA funding, a code or standard that changes the predisaster design/construction of a facility (upgrades or improvements) must, at a minimum, satisfy the five criteria set forth in 44 CFR 206.226(b).
Before evaluating the Design Standard to determine whether it satisfies 44 CFR 206.226(b), it is more important, practically speaking, to examine the substance of the Resolution itself. The Resolution simply authorizes the General Manager to adopt engineering practices and design requirements - it does not adopt a construction standard. In other words, the Resolution does not require that any specific type of work be performed. Accordingly, the Resolution is not the type of code or standard contemplated under 44 CFR 206.226(b) and is not, therefore, itself an adequate basis upon which to approve funding for the riprap or rock slope protection (RSP)-based repair work.
Further, subsection (1) of 44 CFR 206.226 requires that an applicable code or standard must apply to the type of repair or restoration required by the disaster-related damage. The Design Standard does establish how and in what manner RSP-based repair work should be carried out, but it is silent with respect to when (or under what circumstances) RSP-based repair work is required to be performed. At a minimum, the application of repair standards must be based on objective criteria that require their application in specific situations. The Design Standard does not reference or otherwise establish objective criteria that define and govern under what circumstances its provisions will be used or applied to repair work. The Standards do not establish thresholds based on the severity of the damage or the extent of work required to repair the damage. On its face, the Design Standard is applicable to the repair of any/all sites regardless of the extent of damage (i.e., de minimis or substantial) and regardless of the site conditions. On its face, the Design Standard is not, therefore, reasonably related to the disaster damage and/or work necessitated by such damage.
Additionally, because the Design Standard does not incorporate thresholds (triggers) or other objective guidelines or criteria that define under what circumstances it must be applied, its application is necessarily based on the discretionary authority of the General Manager or other Zone 7 officials. The unlimited discretion that Zone 7 officials may exercise in choosing to apply or to not apply the Design Standard indicates that the Design Standard does not, in fact, require that any action whatsoever be taken. To be eligible for FEMA funding, work that changes the predisaster design/construction of a facility must be based on a construction code or standard, not upon the exercise of discretionary authority by an official. This is particularly so when that official is an employee of the intended beneficiary of such assistance.
In conclusion, this analysis demonstrates that the Resolution presented by the subgrantee as an applicable standard does not meet the criteria of 44 CFR 206.226(b) and is not, therefore, eligible for FEMA funding.
- Earth Channel Bank Repairs
The subgrantee requested repair of the earth channel banks utilizing the following method:
- Place filter fabric over the eroded surface
- Place riprap on top of the filter fabric to a thickness of 3.3-ft.
- Place soil cover over riprap to 3-in. thickness and hydroseed
Additional scope items considered by the subgrantee to be necessary to facilitate this construction were also requested. These items often included dewatering, clearing and grubbing, debris or silt removal, plus costs for mobilization, traffic control and various engineering services.
Although it is found that the subgrantee's standard for repair with riprap does not meet the criteria for an acceptable code or standard, FEMA does recognize that restoration of a relatively steep slope with compacted fill is not always technically feasible, or practical to construct. FEMA often considers the use of riprap to be a reasonable alternative to placement of soil fill, however, the subgrantee's requested method is considered excessive for repair of these banks. Therefore, as an alternate, more reasonable, approach to that requested by the subgrantee, the eligible scope of work is limited to one of the following methods. Discussion regarding the circumstances for application of either method is provided below.- Riprap Repair (2-ft. thickness)
- Excavation of slope, toe trench, and any sloughed materials and disposal.
- Placement of earth fill to within 2-ft. of the face of the slope.
- Filter fabric placed on all soil surfaces (face of soil slope and toe trench).
- Placement of a 2-ft. thickness of dumped riprap.
- Rockfill Repair
- Excavation of damaged area and sloughed materials and disposal.
- Placement of rockfill in damaged area.
Many oe inces, erosion of the slopes has occurred only within a portion of the slope, either in the upper or lower sections. When the disaster eroded section is relatively minor compared to the overall length of the slope, it may not be reasonable to reconstruct the entire length of the slope with riprap. Accordingly, the following criteria was used to determine the appropriate repair method.
- If more than 30% of the length of the slope is damaged, the eligible scope includes placement of riprap for the full length of the slope.
- If less than 30% of the length of the slope is damaged, only the damaged portion of the slope is eligible for repair. The riprap repair method may be applied when such damage occurs at the base of the slope. Alternatively, when the damage occurs in the upper portion of the slope, it would be more appropriate to use a lighter, yet easily placed material for backfill. For these instances, the rockfill repair method is recommended.
The eligible scope of work for each DSR has therefore been reviewed in accordance with these alternative repair methods. It is noted that these methods of repair are consistent with generally accepted engineering practices, and have been used successfully by other applicants for repair of similarly damaged earth-lined channels.
- Dewatering Measures
The subgrantee has requested funding for dewatering at each damaged site. Their proposed method includes installation of a sheet pile cutoff wall, stating that this method is required by their current USACE permit. However, the FEMA inspector noted on many of the DSRs that certain channels were dry at the time of the inspection, such that dewatering may not be necessary for these channels. Accordingly, dewatering has been omitted from these DSRs. In other instances, the inspector noted that less than one foot of water was typically in the channel. The effort and cost associated with the sheet pile installation seems disproportionate to these water conditions. As such, a more cost effective method has been used in determining the revised scope of work for the supplemental DSRs. This method includes construction of an earth berm within the channel to divert flow from the construction area. Some pumping from inside the berm, and in particular the toe trench, may be necessary. Cost estimates for this effort, including an allowance for USACE permits, will be provided on the relative supplemental DSRs. Dewatering efforts of an equally cost effective nature would be eligible for funding.
- Disposal Costs
In preparing the DSRs for Alameda County, the subgrantee requested a unit cost of $20.00 per cubic yard for material disposal. While we recognize that disposal costs may be at a premium for these sites, there is no justification for such a high cost. The supplemental DSRs will be prepared with a unit cost of $5.00 per cubic yard for material disposal. Should the actual cost of disposal differ from this amount, consideration, with proper documentation, will be given to the actual cost at project close-out.
- Engineering Costs
For each DSR, the subgrantee requested engineering services ranging from 7% to 11% of the project costs. In some instances, the subgrantee also requested geotechnical services at 2% of the project costs. We have reviewed the subgrantee's request for these services and have determined that engineering services (to include geotechnical services) at 7% of the overall project cost are reasonable in most cases. Two DSRs (DSRs 20032 and 64518) were written for silt removal and did not require the extensive efforts of an engineer, but the cost for an inspector to oversee the removal efforts are eligible, and will be included in the supplemental DSRs for 3% of the project costs.
- Other Eligible Scope Items
Additional eligible scope items include installation of siltation fencing, silt removal, moving and restoring displaced riprap, and replacing 6-inch deep aggregate on adjacent access roads lost during the disaster. These items may be necessary at some sites, as indicated by the inspector.
Specific comments for each of the DSRs are provided below. Supplemental or de-obligating DSRs are indicated in parentheses:
These DSRs were prepared for erosion of earth channel banks. Damages ranged from minor erosion at the top of the slope to scouring of the entire slope face. Each of these DSRs have been reviewed for a consistent eligible scope of work. The Regional Director will prepare supplemental DSRs to reflect repairs of earth channel banks as described above, and summarized in Enclosure 2.
Riprap Channel Bank Repairs - DSRs 20037 (27175), 20039 and 20051
DSR 20037 (27175) - Damages at this site included erosion of a riprap channel bank and erosion of aggregate material on the adjacent access road. The subgrantee requested replacement of riprap to pre-disaster thickness, replacement of aggregate, engineering costs, and mobilization. The inspector prepared the DSR for 4-ft. thick riprap replacement and aggregate replacement. However, the reviewer reduced the scope to include a 2-ft. thickness of fill overlaid by 2-ft. of riprap. This reduction in scope would not restore the channel to pre-disaster conditions. Therefore, the eligible scope of work to be reflected in the supplemental DSR includes 4-ft. thick riprap replacement, aggregate replacement, and engineering services.
DSR 20039 - In the case of this DSR, a riprap channel bank was eroded to a depth of approximately 6-inches. The subgrantee requested excavation of the entire slope to completely replace the riprap channel bank as well as steps to remove the silt deposition on a concrete low water crossing. It has been determined that these measures are excessive to repair the damage to this channel bank. The eligible scope of work for this site includes placement of dumped riprap 6-inches thick to reestablish pre-disaster thickness, removal of the silt deposition, and engineering services. The Regional Director will prepare a supplemental DSR to reflect the eligible scope of work.
DSR 20051 - DSR 20051 was written to repair 1-ft. of erosion of a riprap channel bank. The subgrantee requested excavation of the entire slope to completely replace the riprap channel bank. As with DSR 20039, these measures have been determined to be excessive for repair of this channel bank. Instead, replacing 1-ft. thickness of riprap on the channel slope and engineering services are considered the eligible scope of work. The Regional Director will prepare a supplemental DSR to reflect the eligible scope of work.
Scoured Riprap Drop Structures - DSRs 20015, 20028, 20030, 20031, and 20033
These DSRs were written for repairs to damaged riprap drop structures. The subgrantee's requests for repairs to these facilities ranged from ?-ton riprap, 3.3-ft. thick throughout the structure and any damaged bank areas, to <-ton riprap, 4.2-ft. thick on the face of the drop structure and adjacent slopes. Each of these DSRs were reviewed and it has been determined that replacing 3.3-ft. of ?-ton riprap to maintain the engineering integrity within the channel is eligible. No justification for increasing riprap size to <-ton or thickness to 4.2-ft. has been given. Therefore, supplemental DSRs reflecting these determinations will be prepared by the Regiona6 DSRs for incidental repairs at various sites within Alameda County to reflect work completed by contract prior to the site inspection. Repairs included cementing a sinkhole and placement of riprap along channel banks and several drop structures. Both of these DSRs were prepared by the inspector as Category B and changed to Category D by the FEMA reviewer. The FEMA reviewer also changed DSR 64516 to reflect cost estimates prepared with FEMA cost codes. The documentation provided with these DSRs supports the subgrantee's request for contract costs. Based on this review, the actual contract costs are eligible costs for these DSRs, $2,655 for DSR 64515 and $16,354 for DSR 64516.
Silt Removal from Access Roads - DSRs 20032 (83830) and 71419 (97153)
DSR 20032 - This DSR was prepared to remove silt from an access road. The subgrantee submitted a letter of non-concurrence that included additional costs of mobilization and engineering. These additional costs are not warranted for this repair; however, it has been determined that the cost for an onsite inspector to survey the silt removal is appropriate. Accordingly, the Regional Director will prepare a supplemental DSR to reflect costs for silt removal, aggregate replacement, and an onsite inspector.
DSR 71419 - The FEMA inspector prepared this DSR to restore channel slope integrity and the adjacent road on the Tassajara canal. The FEMA reviewer removed the line items for repairs to the road on the basis that no disaster-related damages were evident. Further review of the photographs provided with this DSR supports the inspector's position that the road incurred disaster-related damages. Other damages at this site include three holes at the top of the channel bank and one hole at the bottom of the bank. These damages will be repaired using the methods for earth channel bank repair outlined above. Based on this determination, the eligible scope of work on the supplemental DSR will reflect debris removal and aggregate replacement for the road and appropriate earth channel bank repair methods.
Silt Removal from Channel Bottom - DSR 64518
During review of the subgrantee's first appeal, the Regional Director determined that the debris removal work associated with DSR 64518 would be eligible for FEMA funding pending submission of maintenance records. The subgrantee contends in their second appeal that there are no such records because the facility had not experienced any deposition of debris prior to the disaster as it was designed to be "self-cleaning" and was not wet until the 1046 winter storm events.
In this case, it is recognized that for flooding conditions as those reported during the disaster, some deposition of debris would be expected to occur. Therefore, it is reasonable to attribute a portion, but not all, of the scope of work in DSR 64518 to the disaster. Although the subgrantee has stated that the channel was dry from construction in 1991 until the 1046 events of 1995, some amount of debris would have been deposited by wind, rain, or other means in the four years since construction. Without a formal maintenance program, it is expected that some sediment would have been present in the channel at the onset of the 1046 disasters. Accordingly, we have concluded that approximately 75% of the debris present in the channel after the 1046 disasters can be reasonably attributed to the 1046 events. It has also been determined that a cost for an onsite inspector to survey the silt removal would be appropriate, however, engineering costs are not necessary for this routine procedure. Accordingly, the Regional Director will prepare a supplemental DSR to reflect the revised scope of work.
Engineering Services - DSR 20052 (64517)
DSRs 20052 and 64517 were prepared in the total amount of $91,042 for disaster-related services performed for the subgrantee by an independent engineering consulting firm. The scope of work was identified as disaster grant management, engineering design, permitting and project management services. During eligibility review, the FEMA reviewer noted that the portion of work referred to as disaster grant management is included in the statutory administrative costs. Regarding the engineering and other services, it was noted on the DSR that portions of the engineering type services may be eligible for FEMA assistance if the applicant can break down the costs and provide adequate documentation for the individual DSRs for damage repairs where applicable. Those engineering design services which may be appropriate should be shown on the individual DSRs. The DSRs were determined to be ineligible.
The subgrantee asserts that retaining the assistance of a consulting firm was necessary due to their own limited disaster expertise and available staffing. Their appeals regarding these services have attempted to demonstrate the need for such services, asserting that this scope of work is not covered in the statutory administrative costs. While FEMA does not disagree that the costs reported by the applicant may have been incurred as a result of the disaster, FEMA regulations provide various mechanisms for funding disaster related services, as discussed below.
44 CFR 206.228(2)(i) Statutory Administrative Costs provides an allowance, based on the percentage of eligible work, for funding costs of requesting, obtaining and administering Federal disaster assistance. Work which is generally considered to be included in this allowance includes preliminary disaster assessment, preparation of DSRs, project applications, interim and final inspections for grant management purposes, preparation and submission of final claims, and audits. Our review of the specific scope items listed in the subgrantee's Request For Proposal as well as the engineering firm's proposal of work include some items which would be considered to be included in this statutory administrative allowance. Accordingly, such work is not eligible as a line item on a separate DSR.
Other services, such as engineering design, bid and permit preparation, and project management activities are considered eligible costs. However, to be eligible for funding, the subgrantee must provide sufficient documentation to accurately describe the work performed and to demonstrate that the scope of services was directly related to a specific scope of eligible work. The cost of these services is then assessed to determine if it is a reasonable expense compared to the scope and cost of the eligible work. For these reasons, engineering services must be reported on specific DSRs. The FEMA reviewer's notes on each of these DSRs indicated that this correlation between the engineering effort and a specific DSR must be provided. However, to-date, the subgrantee has not provided this information. Accordingly, these costs remain ineligible for funding.
Additionally, it is noted that each DSR in this appeal has included an allowance for engineering services, provided as an estimate of the total DSR project cost. The intent of this allowance is to fund the type of engineering and project management services requested in DSRs 20052 and 64517. A discussion as to the eligibility for these services on the individual DSRs is provided earlier in this analysis. Therefore, it is found that FEMA has appropriately funded engineering services for each DSR. The subgrantee has not demonstrated that the scope of work in DSRs 20052 and 64517 is warranted beyond that which is funded on the individual DSRs.
Based on this review, the Regional Director will prepare supplemental DSRs for the eligible scope of work described herein. It is noted that as for all permanent restoration projects, prior to project approval, it will be necessary for the FEMA regional office to complete a variousn and historic preservation regulations.
Future Assistance
Although FEMA is providing this exception for funding of flood control channels for those facilities damaged during the 1044/1046 disaster events, it should be understood that the Federal Levee Policy will be strictly adhered to for all disasters occurring after December 31, 1996. I have enclosed a copy of the 1996 Policy entitled, "Policy for Rehabilitation Assistance for Levees and Other Flood Control Works" for reference regarding funding for flood control channels damaged after 1996.
In preparation for future disaster events, the subgrantee should take appropriate steps to apply to the USACE PL 84-99 Program or take steps to meet the criteria of the NRCS Emergency Watershed Protection Program. Facilities that meet the USACE's definition of an FCW will not be eligible for FEMA permanent restoration assistance. As indicated in the attached Policy, the USACE defines a flood control work as a "structure designed and constructed to have appreciable and dependable effects in preventing damage by irregular and unusual rises in water level." To determine if a certain facility meets this definition, the USACE will review the design of that facility and in most cases, perform a site inspection. Facilities that meet the definition of an FCW but are not "active" ("inactive") in the PL 84-99 Program due to lack of inspection request, failure to meet design or maintenance criteria, or other reasons determined by the USACE, will not be eligible under the Public Assistance Program. As a result, a facility that meets the USACE definition but is not in "active" status in the program may not be eligible for any Federal disaster assistance for permanent restoration.
Other channels that do not meet the USACE's definition of an FCW may be eligible for FEMA assistance. However, for those channels which appear to meet the definition of an FCW, it may be necessary for the subgrantee to provide appropriate documentation to demonstrate that the facility does not meet the USACE's definition, in order for the channel to be considered an eligible facility. To best support their position, it is recommended that the subgrantee provide a letter from the USACE indicating that they do not consider the facility an FCW. The subgrantee should anticipate that it may be necessary for the USACE to perform an inspection of a site to definitively determine that a facility does not meet their definition of an FCW. This documentation would be significantly important to those facilities which were found ineligible in the 1044/1046 or previous disasters.
CONCLUSION
It is concluded that flood control facilities which were found ineligible based on the Federal Levee Policy during the 1044/1046 disaster response, may be considered eligible facilities under the Public Assistance Program. Accordingly, each of the 66 DSRs included with this appeal have been reviewed for eligibility for permanent restoration funding through the Public Assistance Program. However, it is found that the subgrantee's codes and standards are not eligible. The Regional Director will prepare supplemental DSRs for the eligible scope of work described herein. Two DSRs remain ineligible. The subgrantee's appeal is partially granted.
ENCLOSURE 1
DSR | Disaster | Channel | ||
15132 (74490*) | 1044 | Arroyo de la Laguna | ||
15134 | 1044 | Alamo Canal | ||
15147 | 1044 | Drainage Channel Bank | ||
15148 (74491*) | 1044 | Alamo Canal | ||
15149 (74492*, 99225*, 17147*) | 1044 | Alamo Canal | ||
20015 | 1044 | Alamo Creek | ||
20016 | 1046 | Arroyo de la Laguna | ||
20017 | 1046 | Arroyo de la Laguna | ||
20018 | 1046 | Arroyo de la Laguna | ||
20019 | 1046 | Arroyo de la Laguna | ||
20024 | 1046 | Line G-1 (Chabot Channel) | ||
20025 | 1046 | Alamo Canal | ||
20026 | 1046 | Arroyo de la Laguna | ||
20027 | 1046 | Alamo Canal | ||
20028 | 1046 | Alamo Creek | ||
20029 | 1046 | Line J-1, Site 35 | ||
20030 | 1046 | Alamo Creek | ||
20031 | 1046 | Alamo Creek | ||
20032 (83830*) | 1046 | Tassajara Creek | ||
20033 | 1046 | 20034 | 1046 | Line G-1-1 (Alamo) |
20035 | 1046 | Arroyo de la Laguna | ||
20037 (27175*) | 1046 | Arroyo de Valle Access Road | ||
20039 | 1046 | Arroyo Seco | ||
20040 (27178*) | 1046 | Arroyo Las Positas | ||
20041 | 1046 | Junction (J-1 and J-2) | ||
20042 | 1046 | Arroyo Las Positas | ||
20050 | 1046 | Line G-1-1(Alamo) | ||
20051 | 1046 | South San Ramon Creek | ||
20052 (64517) | 1046 | Throughout District | ||
20053 | 1046 | Line T | ||
64515 | 1044 | Zone 7 | ||
64516 | 1046 | Channel Banks and Drop Structure | ||
64518 | 1046 | Arroyo Mocho and Las Positas Junction | ||
71407 (74493*) | 1046 | Chabot Canal | ||
71412 (74494*) | 1046 | Chabot Canal | ||
71413 (74495*) | 1046 | Chabot Canal | ||
71414 (74496*) | 1046 | Chabot Canal | ||
71415 (74497*) | 1046 | Chabot Canal | ||
71416 (74498*) | 1046 | Chabot Canal | ||
71417 (74499*) | 1046 | Chabot Canal | ||
71418 (74500*) | 1046 | Chabot Canal | ||
71419 (97153*) | 1046 | Tassajara Canal-East and West Banks | ||
71420 (97154*) | 1046 | Chabot Canal-East Bank | ||
71421 (27174*) | 1046 | Chabot Canal-East Bank | ||
97469 | 1044 | Line g-1-1 |
* Supplemental deobligation DSRs
ENCLOSURE 2
The attached pages offer a detailed outline of the eligible scope of work to be utilized by the Regional Director in preparation of the supplemental DSRs granting the subgrantee's third appeal. Each sheet contains a brief description of the original DSR it applies to as well as a basis for the repair method chosen. The methodologies utilized are detailed below.
The following table outlines the codes and unit prices used in determining the estimated project costs:
Code | Description | Unit Measure | Unit Price |
1010 | DEBRIS (SEDIMENTS) | CY | $7.00 |
1999 | EXCAVATE | CY | $10.00 |
2999 | MATERIAL DISPOSAL | CY | $5.00 |
4070 | RIPRAP (DUMPED) | CY | $44.00 |
3999 | MOVE 1/4 T RIPRAP | CY | $30.00 |
4999 | RESTORE RIPRAP | HRS | $26.00 |
4130 | FILTER FABRIC | SY | $3.00 |
4020 | FILL ( UNCLASSIFIED) | CY | $8.00 |
3051 | ROCKFILL | CY | $31.00 |
5999 | SILT FENCE | LF | $3.00 |
6999 | DEWATERING | DAYS | $1000.00 |
7999 | DEWATERING/LS | LS | $1000.00 |
3011 | AGGREGATE | CY | $38.00 |
8999 | ENGINEERING COSTS | %TOTAL | 7% |
9999 | INSPECTORS COSTS | %TOTAL | 3% |
9999 | USACE PERMIT | %TOTAL | 2% |
In calculating the volume for excavation and the volume of riprap required, a thickness of 2-ft. of riprap, with a toe trench 3-ft. high by 3-ft. wide was used. It was assumed that excavation would be required for < the volume of any hole in the slope, plus any extra volume of slope that would need to be removed to place the riprap.
For dewatering, the following method was used to calculate a daily cost of $1000:
- construction of an earth berm utilizing excavated site soils
- constructed with an hydraulic excavator (CAT 225, Means cost code indicates $57/hour and an operator cost of $49.40/hour)
- a 4 inch pump (FEMA code 2091, $8.75/hour)
- an estimated production rate of 80 linear feet per day
Unclassified fill was used to fill any holes in access roads.