Eligible Work

December 27, 2010

Stephen Sellers

Governor’s Authorized Representative

California Emergency Management Agency

3650 Schriever Avenue

Mather, CA  95655

Re:  Second Appeal – California Department of Water Resources

        Eligible Work, FEMA-1810-DR-CA, Project Worksheet (PW) 99

Dear Mr. Sellers:

This is in response to your letter dated April 22, 2010, which transmitted the referenced second appeal for the California Department of Water Resources (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny its first appeal for force account labor costs and travel expenses associated with the Applicant’s participation in the Burn Area Recovery Team (BART) program.  The amount being appealed is $165,000.  

Following the wildfire activity in November  2008, the Governor of California ordered the California Emergency Management Agency (Cal EMA) to mitigate the effects of the fires and coordinate the assistance programs offered by Federal, state and local agencies.  Cal EMA asked the Applicant to participate in the multi-agency BART.  The BART conducted on-site evaluations to determine potential site specific mitigation measures that could address the post- fire effects to life, safety, property and natural resources above and beyond the typical fire suppression repair activities.  The Applicant incurred force account labor and travel expenses for its participation on the BART and requested reimbursement from FEMA.  To document the request, FEMA prepared PW 99 in the amount of $165,000 for force account labor and travel expenses. Subsequently, FEMA determined that the work was ineligible for funding.  

The Applicant submitted its first appeal on August 24, 2009, and asserted that similar types of expenses were eligible in previous disasters 1731 and 1498, that the costs incurred are eligible for reimbursement under Disaster Assistance Policy DAP 9525.7, Labor Costs – Emergency Work; Title 44 of the Code of Federal Regulations (CFR), §206.201 (b), Definitions used in this subpart; and §206.225 (a)(3)(ii) Emergency work.  On December 17, 2009, the Deputy Regional Administrator denied the appeal because the scope of work that the Applicant performed was not eligible for funding.  The Applicant, through its BART participation, supported the efforts to conduct on-site evaluations to determine potential site specific mitigation measures.  The Applicant’s participation did not constitute emergency work nor was it their responsibility to recommend emergency protective measures for other entities.  In addition, FEMA did not authorize these types of efforts for federal funding under disaster FEMA-1810-DR-CA.  

The Applicant submitted its second appeal on February 23, 2010, reiterating the arguments from the first appeal.  The Applicant provided additional information and stated that pursuant to the California Water Code section 128, Executive Order S-15-08 and the Department of Water Resources Administrative Order, that it had the authority to perform the assessments associated with the BART. 

Title 44 CFR §206.225 (a)(3) Emergency Work, General, states that “In order to be eligible, emergency protective measures must: (i) Eliminate or lessen immediate threats to live, public health or safety; or (ii) Eliminate or lessen immediate threats of significant additional damage to improved public or private property through measure which are cost effective.”  The Applicant, as a BART participant, performed safety assessments that were published and provided to local officials, but did not perform any work designated as emergency protective measures.   

I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy.  Accordingly, I am denying the second appeal.

Please inform the Applicant of my decision.  My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206, Appeals.

Sincerely,

/s/                                                                       

Deborah Ingram

Acting Assistant Administrator

Recovery Directorate

cc:  Nancy Ward

       Regional Administrator

       FEMA Region IX