Repairs to East Branch Maria Ygnacia Creek

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	FEMA-1044-DR
Applicant	Santa Barbara County
Appeal Type	Third
PA ID#	083-00000
PW ID#	46572
Date Signed	1998-04-24T04:00:00

PURPOSE: Respond to third appeal submitted by Santa Barbara County concerning the permanent restoration of the East Branch of Maria Ygnacia Creek.

DISCUSSION: Excessive flood flows from the winter storms of 1995, eroded portions of the embankment of the East Branch of Maria Ygnacia Creek in Santa Barbara County. FEMA prepared DSR 46572 for the amount of $14,218 for the permanent restoration of the embankment. Review of the DSR indicated that the creek is a natural stream and, therefore, not eligible for FEMA funding. The subgrantee appealed this determination, stating that the creek is an improved and maintained natural feature and, as such, is an eligible facility. The Regional Director denied this appeal due to a lack of documentation provided by the subgrantee. Upon second appeal, FEMA determined that the facility met the USACE definition of an FCW and was, therefore, under the specific authority of the USACE. The subgrantee submitted a third appeal with documentation supporting that the facility is not an FCW and, therefore, not eligible for funding from the USACE rehabilitation program. Upon review of pertinent third appeal documentation, FEMA determined that although portions of the channel are improved and maintained, the damaged portion is an unimproved natural feature and, therefore, ineligible for FEMA funding.

RECOMMENDED ACTION: Sign the letter informing the GAR of the decision to deny the third appeal.

Appeal Letter

Appeal Analysis

BACKGROUND
Excessive flood flows from the winter storms of 1995, eroded portions of the embankment of the East Branch of Maria Ygnacia Creek near 1118 Via Regina Street in Santa Barbara County. The Federal Emergency Management Agency (FEMA) prepared damage survey report (DSR) 46572 for the permanent restoration of the embankment. The original scope of work proposed stabilization and repair with riprap installation of a 30-foot long by 25-foot high eroded section of the embankment for the amount of $14,218. Review of the DSR indicated that the creek is a natural stream and, therefore, not eligible for FEMA funding. Additionally, according to the DSR comment section, there was no damage to improved property.

First Appeal
The subgrantee submitted a first appeal through the State of California Governor's Office of Emergency Services (OES) dated February 13, 1996. The subgrantee stated that the creek is an improved and maintained natural feature and, as such, is an eligible facility. The correspondence indicated that Maria Ygnacia Creek is an urban flood control channel that is maintained by the flood control district in a quasi-natural state. The subgrantee contended that portions of the creek have been improved by bank protection measures such as pipe and wire revetment, grouted and/or loose rock riprap, gabions, etc. The subgrantee indicated the actual cost for the restoration was $10,332, which had been expended with contract and force account work. On April 8, 1996, the State transmitted its concurrence with the appeal, providing similar rationale for eligibility, while adding that the eligibility should be for $10,332 based on actual costs, as opposed to the $14,218 originally estimated in the DSR.

The Regional Director denied the first appeal in a letter dated September 10, 1996. This determination was based on the lack of documentation that the damaged portion of the creek was improved and maintained. The creek was, therefore, identified as a natural channel that does not meet the definition of a facility eligible for Federal assistance pursuant to Title 44 of the Code of Federal Regulations (CFR), section 206.201(c).

Second Appeal
On January 16, 1997, OES transmitted the subgrantee's second appeal. OES explained that the damaged portion of the channel covered by DSR 46572 had been subject to vegetation removal, desilting and shaping with heavy equipment to maintain channel conveyance. In their second appeal, the subgrantee stated, "Although the specific location of the restoration work covered by DSR No. 46572 is maintained in a natural state, Maria Ygnacia Creek is a flood control system that is an improved and maintained facility in accordance with 44 CFR 206.221(c)."

FEMA denied the subgrantee's second appeal in a letter dated July 3, 1997. The Executive Associate Director explained that although repairing eroded portions of the Maria Ygnacia Creek is consistent with good engineering practices, the documentation submitted by the subgrantee showed that the subject portion of the channel meets the U.S. Army Corps of Engineers' (USACE's) definition of a flood control work (FCW). Per FEMA policy, FCWs are not eligible for permanent restoration funding.

Third Appeal
OES forwarded the subgrantee's third appeal with a transmittal letter dated January 8, 1998. The subgrantee appeals FEMA's determination that the facility is an FCW and under the specific authority of the USACE. The subgrantee states their familiarity with the USACE rehabilitation program and explains that the Maria Ygnacia Creek is a local drainage channel and not an FCW in accordance with USACE program minimum drainage area and flow capacity requirements. The subgrantee enclosed a copy of a USACE database listing of the facility identifying the creek as a local drainage facility.

DISCUSSION
In their third appeal, the subgrantee states that although the channel provides protection to public and private properties adjacent to the creek, the channel was never designed or constructed to have an appreciable effect on flood flows. The subgrantee has adequately demonstrated that the creek is not an FCW and, therefore, is not under the specific authority of the USACE. The third appeal analysis will, therefore, focus on the eligibility of the damaged portion of the creek for Federal disaster assistance.

During the second appeal analysis, FEMA determined that the Maria Ygnacia Creek was an FCW. As such, the damaged portion of the creek, identified as a maintained but unimproved reach, was regarded as a functional part of a larger system engineered to provide dependable effects on flood flows. FEMA determined that the damaged "facility", as per 44 CFR 206.221(h), was the East Branch of the Maria Ygnacia Creek. As the subgrantee had demonstrated that portions of the facility had been improved and maintained, the East Branch of the Maria Ygnacia Creek was identified as an improved and maintained channel ineligible for FEMA funding because it met the USACE definition of an FCW.

The subgrantee established that the Maria Ygnacia Creek is not an FCW; therefore, the subject facility is now considered to be the damaged portion of the channel that DSR 64572 addressed. As previously noted, the subgrantee stated in their second appeal that the damaged portion of the channel was "maintained in a natural state," but was part of an improved facility. As the facility in question must now be considered as only the damaged portion of the channel, it has been established that this area is a maintained but unimproved facility. Pursuant to 44 CFR 206.201(c), an eligible facility means "any publicly or privately owned building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature." Because the damaged portion of the Maria Ygnacia Creek is an unimproved natural feature, it is not an eligible facility for Federal disaster assistance.

In their third appeal letter, the subgrantee refers to the repairs made following the winter storms as emergency work. It should be noted that DSR 46572 was prepared for Category D, permanent restoration. Because of the nature of repairs described in the scope of work, and the lack of evidence supporting the existence of an immediate threat, FEMA maintains that repairs to the Maria Ygnacia Creek are permanent repairs and not emergency work.

CONCLUSION
The East Branch of the Maria Ygnacia Creek is not an FCW, but rather a local drainage channel, and the subject damaged portion is considered an unimproved natural feature as opposed to an unimproved portion of an improved flood control system. Pursuant to 44 CFR 206.201(c), an unimproved natural feature is not eligible for Federal disaster assistance. Accordingly, the third appeal is denied.