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Buena Vista Creek Channel Lining Repairs
Appeal Brief
Appeal Letter
Citation: FEMA-1046-DR-CA; City of Oceanside; DSR 97949
Buena Vista Creek Channel Lining Repairs
Cross
Reference: Flood control works, permanent restoration, coordination of Federal Disaster Assistance with other Federal agencies
Summary: The City of Oceanside is requesting funding for permanent restoration of the
Buena Vista Creek, which suffered damage to its channel lining during the February 1995 winter storm. The channel was found to meet the U. S. Army Corps of Engineers' (USACE's) definition of a flood control work (FCW). Therefore, in accordance with the Federal Emergency Management Agency (FEMA) Levee Policy, the channel was under the specific authority of other Federal agencies, and ineligible for FEMA permanent restoration funding. The basis of the subgrantee's second appeal was that FEMA failed to perform its obligation to coordinate Federal disaster assistance, resulting in the loss of Federal assistance to the subgrantee. The subgrantee maintained that in the absence of funding from other Federal agencies, FEMA has the authority to fund permanent repairs on FCWs. The subgrantee does not contest that the channel is an FCW.
Issues: 1) Is the Buena Vista Creek channel eligible for FEMA assistance?
2) Did FEMA fail to adequately coordinate Federal disaster assistance, resulting in the subgrantee's loss of assistance from the USACE?
Findings: 1) No, the channel meets the USACE's definition of an FCW and is therefore ineligible for FEMA assistance.
2) No, the determination of ineligibility for the channel is not due to a lack of coordination of Federal disaster assistance on FEMA's part, but rather due to the subgrantee's failure to adhere to the USACE's design and maintenance standards for FCWs, and/or failure to apply to the USACE PL 84-99 Rehabilitation and Inspection Program.
Rationale: Under the current FEMA Levee Policy, permanent restoration of facilities
that meet the USACE definition of an FCW is work that is considered to be within the specific authority of either USACE or the Natural Resources Conservation Service (NRCS), and, therefore, not eligible for FEMA assistance. This is true whether or not USACE or NRCS provides any funding for the project.
(Title 44 of the Code of Federal Regulations, 206.226(a))
Appeal Brief
| Disaster | FEMA-1046-DR |
| Applicant | City of Oceanside |
| Appeal Type | Second |
| PA ID# | 073-53322 |
| PW ID# | 97949 |
| Date Signed | 1997-10-28T05:00:00 |
Buena Vista Creek Channel Lining Repairs
Cross
Reference: Flood control works, permanent restoration, coordination of Federal Disaster Assistance with other Federal agencies
Summary: The City of Oceanside is requesting funding for permanent restoration of the
Buena Vista Creek, which suffered damage to its channel lining during the February 1995 winter storm. The channel was found to meet the U. S. Army Corps of Engineers' (USACE's) definition of a flood control work (FCW). Therefore, in accordance with the Federal Emergency Management Agency (FEMA) Levee Policy, the channel was under the specific authority of other Federal agencies, and ineligible for FEMA permanent restoration funding. The basis of the subgrantee's second appeal was that FEMA failed to perform its obligation to coordinate Federal disaster assistance, resulting in the loss of Federal assistance to the subgrantee. The subgrantee maintained that in the absence of funding from other Federal agencies, FEMA has the authority to fund permanent repairs on FCWs. The subgrantee does not contest that the channel is an FCW.
Issues: 1) Is the Buena Vista Creek channel eligible for FEMA assistance?
2) Did FEMA fail to adequately coordinate Federal disaster assistance, resulting in the subgrantee's loss of assistance from the USACE?
Findings: 1) No, the channel meets the USACE's definition of an FCW and is therefore ineligible for FEMA assistance.
2) No, the determination of ineligibility for the channel is not due to a lack of coordination of Federal disaster assistance on FEMA's part, but rather due to the subgrantee's failure to adhere to the USACE's design and maintenance standards for FCWs, and/or failure to apply to the USACE PL 84-99 Rehabilitation and Inspection Program.
Rationale: Under the current FEMA Levee Policy, permanent restoration of facilities
that meet the USACE definition of an FCW is work that is considered to be within the specific authority of either USACE or the Natural Resources Conservation Service (NRCS), and, therefore, not eligible for FEMA assistance. This is true whether or not USACE or NRCS provides any funding for the project.
(Title 44 of the Code of Federal Regulations, 206.226(a))
Appeal Letter
October 28, 1997
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, 3rd Floor
Pasadena, California 91103
Dear Mr. Najera:
This is in response to your February 28, 1997, submittal of the City of Oceanside's second appeal of Damage Survey Report (DSR) 97949 under FEMA-1046-DR-CA. The subgrantee requested Federal Emergency Management Agency (FEMA) disaster assistance funding for permanent restoration to portions of the Buena Vista Creek channel lining. FEMA's determination of ineligibility was based on the fact that the flood control work (FCW) is under the authority of the U.S. Army Corps of Engineers (USACE), and, is therefore, not eligible for FEMA funding.
In your transmittal letter, you cite several reasons why FEMA should fund the requested repairs. First, you state that FEMA failed in its duty and obligation to coordinate the disaster assistance of other Federal agencies and that there has not been accurate dissemination of information regarding the Federal Levee Policy. Second, you state that Section 312 of the Stafford Act allows FEMA to provide Federal assistance when other Federal agencies' funds are not available. Before addressing your specific issues, I will comment on the general eligibility of FCWs.
Eligibility for Flood Control Works
Congress authorized both FEMA and USACE to fund repairs to FCWs. When two Federal agencies are authorized to perform the same function, the agencies must determine the best way to implement public policy consistent with congressional intent. In the present case, USACE has a specific program that encourages owners of FCWs to build or upgrade their facilities to specific standards and maintain them on a regular basis to ensure that they perform as designed. If the owners meet USACE's requirements and join its program, USACE will fund repairs to those facilities when they are damaged during an unusual event, for example, a flood that is declared a major disaster by the President.
When carrying out its responsibilities under the Stafford Act, FEMA must work with other Federal agencies to provide disaster assistance to applicants without undermining the programs of the other agencies. All Federal agencies must work together towards a common
goal - assisting victims and eligible applicants in recovering from the devastating effects of disasters as quickly as possible. USACE provides assistance to owners of FCWs who commit to certain actions to ensure the integrity of their facilities. It is not good public policy for FEMA to fund the repair of FCWs when owners have not made similar commitments to protect the integrity of their facilities by meeting USACE's program requirements. If FEMA were to fund permanent repairs of FCWs that are not participating in the USACE program, this would possibly remove the incentive for those owners to join the USACE program. With this incentive, more FCWs are better maintained and the public is better protected.
The Federal approach to repairing flood control works is articulated in the Federal Levee Policy which FEMA adhered to following the 1995 winter floods. As the applicant has indicated that they are not familiar with this policy, I have enclosed a copy of the 1993 Policy with this letter. Note that the 1993 Policy was utilized during the 1995 winter floods, but has since been revised. Therefore, a copy of the 1996 revision is enclosed as well.
Coordination of Federal Disaster Assistance
You assert that FEMA failed to perform its duty and obligation under the authority of
Section 402(2)(3) of the Stafford Act to coordinate all disaster relief assistance provided by Federal agencies. You further cite Title 44 of the Code of Federal regulations (CFR) 206.42, stating that this regulation gives FEMA the responsibility to coordinate all federal disaster assistance, including taking appropriate action to make certain that all of the Federal agencies carry out their appropriate disaster assistance roles under their own legislative authorities and operational policies. The Subgrantee asserted that FEMA did not notify the subgrantee of the requirements of the Federal Levee Policy nor provide them with a clear definition of an FCW to properly support an appeal of this issue. On this basis, the subgrantee asserted that FEMA's failure to properly coordinate all Federal disaster assistance resulted in the loss of Federal assistance to the subgrantee.
We believe that we fulfilled our obligation to coordinate all Federal disaster assistance following the 1044 and 1046 disasters. USACE was actively implementing its programs immediately after the disasters. A Federal interagency Levee Task Force composed of FEMA, USACE and Natural Resource Conservation Services representatives evaluated many of the DSRs involving water control facilities to determine if they were FCWs, and under whose authority they were eligible for repairs. In other cases, FEMA consulted directly with USACE representatives to aid in this determination. Based on these reviews, we determined that the channel that is under appeal met the USACE definition of an FCW and is eligible for the USACE's PL 84-99 Rehabilitation and Inspection Program. Therefore, based on the Federal Levee Policy, these facilities are ineligible for FEMA funding. The Federal Levee Policy has been in effect for some time. The policy was clarified and reissued in 1993 and 1996. In 1996, FEMA renamed the levee policy "The Policy for Rehabilitation Assistance for Levees and Other Flood Control Works."
FEMA's Authority to Fund Permanent Restoration of Flood Control Works
You argue that section 312(b)(1) of the Stafford Act gives FEMA authority to provide assistance when other Federal funds are not available at the time of application to FEMA. In that provision, the recipient must agree to repay all FEMA assistance when the other Federal assistance is provided. Our General Counsel has opined that the above section of the law applies to assistance to individuals, not public entities. The situation in this case is not one of duplication of benefits but rather that FEMA regulations and policy do not allow FEMA assistance for permanent restoration of an FCW.
Conclusion
I have determined that there is no basis to overturn our previous determination that, as an FCW, the channel is not eligible for FEMA funding. Further, I have found that there is no basis for the subgrantee's assertion that a lack of coordination by FEMA resulted in the determination of ineligibility for Federal disaster assistance for the subgrantee. Therefore, I am denying the appeal. I have also included a copy of the 1993 Federal Levee Policy.
Please inform the applicant of my determination. The applicant may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, 3rd Floor
Pasadena, California 91103
Dear Mr. Najera:
This is in response to your February 28, 1997, submittal of the City of Oceanside's second appeal of Damage Survey Report (DSR) 97949 under FEMA-1046-DR-CA. The subgrantee requested Federal Emergency Management Agency (FEMA) disaster assistance funding for permanent restoration to portions of the Buena Vista Creek channel lining. FEMA's determination of ineligibility was based on the fact that the flood control work (FCW) is under the authority of the U.S. Army Corps of Engineers (USACE), and, is therefore, not eligible for FEMA funding.
In your transmittal letter, you cite several reasons why FEMA should fund the requested repairs. First, you state that FEMA failed in its duty and obligation to coordinate the disaster assistance of other Federal agencies and that there has not been accurate dissemination of information regarding the Federal Levee Policy. Second, you state that Section 312 of the Stafford Act allows FEMA to provide Federal assistance when other Federal agencies' funds are not available. Before addressing your specific issues, I will comment on the general eligibility of FCWs.
Eligibility for Flood Control Works
Congress authorized both FEMA and USACE to fund repairs to FCWs. When two Federal agencies are authorized to perform the same function, the agencies must determine the best way to implement public policy consistent with congressional intent. In the present case, USACE has a specific program that encourages owners of FCWs to build or upgrade their facilities to specific standards and maintain them on a regular basis to ensure that they perform as designed. If the owners meet USACE's requirements and join its program, USACE will fund repairs to those facilities when they are damaged during an unusual event, for example, a flood that is declared a major disaster by the President.
When carrying out its responsibilities under the Stafford Act, FEMA must work with other Federal agencies to provide disaster assistance to applicants without undermining the programs of the other agencies. All Federal agencies must work together towards a common
goal - assisting victims and eligible applicants in recovering from the devastating effects of disasters as quickly as possible. USACE provides assistance to owners of FCWs who commit to certain actions to ensure the integrity of their facilities. It is not good public policy for FEMA to fund the repair of FCWs when owners have not made similar commitments to protect the integrity of their facilities by meeting USACE's program requirements. If FEMA were to fund permanent repairs of FCWs that are not participating in the USACE program, this would possibly remove the incentive for those owners to join the USACE program. With this incentive, more FCWs are better maintained and the public is better protected.
The Federal approach to repairing flood control works is articulated in the Federal Levee Policy which FEMA adhered to following the 1995 winter floods. As the applicant has indicated that they are not familiar with this policy, I have enclosed a copy of the 1993 Policy with this letter. Note that the 1993 Policy was utilized during the 1995 winter floods, but has since been revised. Therefore, a copy of the 1996 revision is enclosed as well.
Coordination of Federal Disaster Assistance
You assert that FEMA failed to perform its duty and obligation under the authority of
Section 402(2)(3) of the Stafford Act to coordinate all disaster relief assistance provided by Federal agencies. You further cite Title 44 of the Code of Federal regulations (CFR) 206.42, stating that this regulation gives FEMA the responsibility to coordinate all federal disaster assistance, including taking appropriate action to make certain that all of the Federal agencies carry out their appropriate disaster assistance roles under their own legislative authorities and operational policies. The Subgrantee asserted that FEMA did not notify the subgrantee of the requirements of the Federal Levee Policy nor provide them with a clear definition of an FCW to properly support an appeal of this issue. On this basis, the subgrantee asserted that FEMA's failure to properly coordinate all Federal disaster assistance resulted in the loss of Federal assistance to the subgrantee.
We believe that we fulfilled our obligation to coordinate all Federal disaster assistance following the 1044 and 1046 disasters. USACE was actively implementing its programs immediately after the disasters. A Federal interagency Levee Task Force composed of FEMA, USACE and Natural Resource Conservation Services representatives evaluated many of the DSRs involving water control facilities to determine if they were FCWs, and under whose authority they were eligible for repairs. In other cases, FEMA consulted directly with USACE representatives to aid in this determination. Based on these reviews, we determined that the channel that is under appeal met the USACE definition of an FCW and is eligible for the USACE's PL 84-99 Rehabilitation and Inspection Program. Therefore, based on the Federal Levee Policy, these facilities are ineligible for FEMA funding. The Federal Levee Policy has been in effect for some time. The policy was clarified and reissued in 1993 and 1996. In 1996, FEMA renamed the levee policy "The Policy for Rehabilitation Assistance for Levees and Other Flood Control Works."
FEMA's Authority to Fund Permanent Restoration of Flood Control Works
You argue that section 312(b)(1) of the Stafford Act gives FEMA authority to provide assistance when other Federal funds are not available at the time of application to FEMA. In that provision, the recipient must agree to repay all FEMA assistance when the other Federal assistance is provided. Our General Counsel has opined that the above section of the law applies to assistance to individuals, not public entities. The situation in this case is not one of duplication of benefits but rather that FEMA regulations and policy do not allow FEMA assistance for permanent restoration of an FCW.
Conclusion
I have determined that there is no basis to overturn our previous determination that, as an FCW, the channel is not eligible for FEMA funding. Further, I have found that there is no basis for the subgrantee's assertion that a lack of coordination by FEMA resulted in the determination of ineligibility for Federal disaster assistance for the subgrantee. Therefore, I am denying the appeal. I have also included a copy of the 1993 Federal Levee Policy.
Please inform the applicant of my determination. The applicant may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure