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Slope Repairs

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster1952-DR-CA
ApplicantSan Diego County
Appeal TypeSecond
PA ID#073-99073-00
PW ID#918
Date Signed2013-01-22T00:00:00

Citation:  FEMA-1952-DR-CA, San Diego County, Slope Repairs, Project Worksheet (PW) 918

Cross-
Reference:
 Erosion, Slope Stability and Repair

Summary:   Severe storms eroded two sites along the uphill slope of Belvedere Drive. FEMA prepared PW 918 documenting erosion damages at the two sites. FEMA denied the PW stating that the cut slopes were not integral to the road’s support, and that permanent restorative work was not eligible, citing FEMA landslide policy.  The first appeal requested $213,500 (reduced to $194,460) to repair the sites, including an anchored straw blanket and fence at Site 1 and an 80-foot masonry retaining wall at Site 2.  FEMA denied the appeal stating that the proposed work is neither eligible emergency work, nor eligible temporary or permanent work in accordance with the FEMA landslide policy.  The Applicant’s second appeal contends that the uphill slope is an eligible facility and the proposed repairs are eligible.  Upon review, the Applicant has demonstrated that the slope was engineered when the road was built and is regularly maintained by the Applicant; therefore, it is an eligible facility.  Eligible damage caused by the disaster is properly described as erosion and minimal slope repairs are required to restore the slopes to pre-disaster condition.  Although not the only alternative recommended by the geotechnical report, the use of erosion control devices are feasible at both locations.  The construction of a retaining wall is not eligible as it goes well beyond that which is necessary to restore the facility to its pre-disaster condition.  Based on a review of the original PW damage description, quantities, and cost estimates, and those provided by the Applicant, this second appeal response outlines a reasonable scope of work and cost estimate for approval. This second appeal response partially approves the request for an estimate of $12,942 for minimal slope repairs at the two identified sites.

Issues:  1) Is the uphill slope of Belvedere Drive an eligible facility? 
               2) Are the proposed repairs and cost estimates for Site 1 and 2 proposed by the Applicant eligible for funding under the Public Assistance Program?

Finding:   1) Yes.
                2) Partially. Minimal slope restoration is eligible to restore to pre-disaster condition.

Rationale: Section 406 of the Stafford Act; 44 CFR §206.226; FEMA 322/June 2007, Public Assistance Guide, Recovery Policy 9524.2 Landslides and Slope Stability Related to Public Facilities (October 8, 2010)
 

Appeal Letter

January 22, 2013

Mark Ghilarducci
Secretary
California Emergency Management Agency
3650 Schriever Avenue
Mather, California 95655

Re: Second Appeal—San Diego County, PA ID 073-99073-00, Slope Repairs, FEMA 1952-DR-CA, Project Worksheet (PW) 918

Dear Secretary Ghilarducci:

This letter is in response to your letter dated July 16, 2012, which transmitted the referenced second appeal on behalf of San Diego County (Applicant).  The Applicant appealed the Department of Homeland Security's Federal Emergency Management Agency's (FEMA) decision to deny slope repairs that occurred at two sites along Belvedere Drive.

As explained in the enclosed analysis, I have determined the uphill slope on Belvedere Drive is an eligible facility.  Minimal slope restoration is eligible to restore the identified areas to pre-disaster condition.  However, the requested construction of a retaining wall at Site 2 exceeds the scope of work necessary to repair the disaster damage and is not eligible. Accordingly, I am partially approving this appeal for $12,942 of permanent work. By copy of this letter, I am requesting the Regional Administrator to take appropriate action to implement this determination.

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.

Sincerely,

/s/

Deborah Ingram
Assistant Administrator
Recovery Directorate

Enclosure

cc: Nancy Ward
Regional Administrator
FEMA Region IX

Appeal Analysis

Background

Severe winter storms and flooding occurring from December 17, 2010 to January 4, 2011, caused washouts at two sites along the uphill slope on the north side of Belvedere Drive in the county of San Diego.  San Diego County (Applicant) removed debris (eroded soil and loose material) from the roadway immediately after the event.  The road itself suffered no damage as a result of the disaster.  FEMA inspected the sites on March 29, 2011, and identified erosion damage on the cut slopes.  FEMA identified erosion damage at the first site to be 10 feet high by 25 feet wide at the top of the slope and 30 feet wide at the toe of slope.  Depth of the erosion was 5 feet deep at top and 2 feet deep at the toe.  The second site erosion area was identified as being 10 feet high and 25 feet wide at the top of the slope and 25 feet wide at the toe.  The depth of erosion was 2 feet deep.  The Applicant suggested repair in the form of stabilizing the slopes by filling the upper portion of Site 1 and placing jute mesh and hydro-seed on the slopes of Sites 1 and 2.  Using RS Means Heavy Construction Cost Data, 2010 edition, FEMA calculated an estimate of $10,630 for the repairs.  The PW was denied based on the determination that the uphill cut slopes are not integral to the road’s support, and in accordance with Recovery Policy (RP) 9524.2 Landslides and Slope Stability Related to Public Facilities (October 8, 2010), not eligible as permanent work.

First Appeal

The Applicant submitted a first appeal on September 21, 2011, requesting funding in the amount of $213,500 for repairs to the two Belvedere Drive sites.  In support of the appeal, the Applicant provided a geotechnical report containing observations and recommendations for restoration and prevention of future damages from erosion.  The estimate provided by the Applicant was based on the following scope of work:

• Site 1 – Reconstruct failed area; install anchored straw blanket to stabilize slope; install fence at toe of uphill cut slope to minimize potential soil sloughing onto roadway.
• Site 2 – Construct 80-foot long County standard masonry retaining wall and roadway reconstruction due to excavation of the wall footing.

The Applicant requested eligibility based on the threat to public health and safety posed by the eroded slope, and the contention that the slope is an eligible facility that was designed and is maintained by the County.  On November 1, 2011, the California Emergency Management Agency (Cal EMA) forwarded the appeal to FEMA with a recommendation of approval, but reduced the estimate to $194,640 by omitting a 20 percent construction contingency.

FEMA denied the appeal on February 22, 2012, stating that the proposed work is neither eligible emergency work pursuant to 44 CFR §206.204(c)(1), Project Performance, Deadlines, nor eligible temporary or permanent work in accordance with the Recovery Policy 9524.2 Landslides and Slope Stability Related to Public Facilities (October 8, 2010).  FEMA determined that emergency protective measures are not eligible because no substantial measures have been put into place more than six months from the date of declaration. In addition, FEMA determined that the uphill slopes were not integral to the support of the road, and citing policy on slope stability, permanent work was not eligible.

Second Appeal

The Applicant submitted a second appeal on May 17, 2012, with new supporting documentation, including County Public Road Standards, follow-up correspondence from the geotechnical engineers, and other road design standards and diagrams.  The Applicant contends that the damaged uphill slope is an eligible facility and it is the County’s responsibility to keep its roadways and rights-of-way (of which the uphill cut slope on Belvedere Drive is a part) in the “safe and usable condition” to which they are constructed.

Discussion

In order to determine eligibility of the proposed slope repairs, the following discussion focuses on whether the uphill slope of Belvedere Drive is considered an eligible facility, and if so, what repairs are necessary to restore the damaged sites to pre-disaster condition.

Funding under the Public Assistance Program is provided to restore eligible facilities to their pre-disaster condition.  Certain improved and maintained natural features can be considered eligible facilities provided they meet certain criteria.  FEMA Public Assistance Guide 322/June 2007 states “the improvement of a natural feature should be based on a documented design that changes and improves the natural characteristics of the feature.”  Furthermore, the constructed improvement must result in a measurable difference in performance over the unimproved natural feature.  In addition, such an improvement must be maintained for the natural feature to be considered a facility. 

In this case, the Applicant states that Belvedere Drive was built 80 years ago as part of a subdivision on a cut-and-fill design.  On such a road design, standard engineering practice is to ensure that the downhill and uphill slopes are graded sufficiently to not only support the road, but to reduce or prevent slope failure.  According to the documentation, the uphill slopes are within the road right-of way and are maintained by the Applicant.  Based on the statement from the Department of Public Works attached to the original PW, maintenance consists of preserving the vegetation present on the slopes through trimming and hydro-seeding for soil stabilization and removing unstable rocks.  For these reasons, the uphill slope along Belvedere Drive can be considered an eligible facility. 

While FEMA and the Applicant have applied RP 9524.2 Landslides and Slope Stability Related to Public Facilities (October 8, 2010), in appealing PW 918, according to the available documentation and this review, the damage at the two sites along Belvedere Drive is properly described as eroded surface vegetation and soil erosion on the uphill slopes due to heavy rains.  The Public Assistance Policy Digest (page 51) defines erosion as “the washing away of soil and rocks” in this case, from the slope of the road right-of-way.  There is no indication of landslides and/or slope failures at either of these locations.  Therefore, RP 9524.2 is not applicable in determining eligible damages and repairs for permanent work. 

Pursuant to 44 CFR §206.226, Restoration of damaged facilities, work to restore the eroded area to its pre-disaster design is eligible for funding.  The original scope of work identified in PW 918 (and suggested by the Applicant) was to stabilize the slopes by placing fill, jute mesh and hydro-seeding.  Repairing the slopes through the placement of erosion control devices would restore the uphill slopes to their pre-disaster condition.  This method is consistent with the recommendations found in the geotechnical investigation dated September 13, 2011, by Southern California Soil & Testing, Inc. (SCS&T), which states “the placement of erosion control product such as an anchored straw blanket can be installed.”  Erosion control was the “most economical” alternative proposed by SCS&T.  FEMA notes this method of repair is also consistent with the normal maintenance and repair procedures performed by the Applicant in the past for these types of uphill slopes. 

A second alternative proposed by the Applicant is the construction of an 80-foot masonry wall at Site 2, which has a steeper slope than Site 1.  The Applicant contends that “the site won’t stabilize without a capital improvement project” (i.e., retaining wall).  However, according to the original SCS&T geotechnical report from September 2011 and follow-up report dated November 4, 2011, an erosion control device is “feasible from a geotechnical standpoint.”  Based on the observations documented in the PW and the subsequent geotechnical reports, the erosion control repair alternative is most closely aligned with the disaster damages and is considered appropriate to restore the slope as it existed prior to the disaster.  While it may be cost-beneficial to the Applicant to engineer a long-term solution for the site, the construction of a retaining wall goes well beyond that which is necessary to restore the facility to its pre-disaster condition and is not eligible for FEMA funding. 

Given the above eligibility determination, a reasonable cost estimate for the eligible scope of work is provided in this appeal analysis.  A review of the cost estimate provided by the Applicant found ineligible items and some excessive or unsupported estimates, which have been removed or reduced as detailed below:

Repair Work 
• General Supplemental Work - Development and implementation of a “Water Pollution Control Plan” (WPCP) should be very minimal and simple for such a small project.  The Applicant did not delineate costs for the WPCP (out of the $15,000 estimate for each site), but based on estimating guidance from the California Department of Transportation (Caltrans), a reasonable estimate for a WPCP for this project size is $1,000.  Construction site management and field orders for such a small project are not eligible.
• Fencing - The original PW did not identify an existing fence at either Site 1 or 2 and, therefore, fencing is not an eligible item and an estimate for fencing is removed from the Applicant’s erosion control line item.
• Traffic Control – The Applicant estimates $5,000 for traffic control at each site, but provides no basis for the cost. The original PW estimate of $1,484 (for both sites) is more aligned with the eligible scope of work.
• Mobilization – The Applicant did not provide justification for mobilization at 8 percent.  Again, considering the size and minimal complexity of this project, mobilization is not eligible.


Project Engineering and Project Management
• Utility conflict investigation, design, right-of-way and CEQA/NEPA for such a small project are not eligible.
• Geotechnical Report – The Applicant did not provide the actual cost for the geotechnical report performed on the site; however, a reasonable cost for such services is eligible.  An estimate of $3,000 based on 30 hours at a blended rate of $100 for field site visit, testing and analysis, and report preparation is considered appropriate.
• In accordance with the Public Assistance Guide 322/June 2007, “Estimates for engineering and design services and construction inspection typically are not included in small project estimates . . . except for complex projects or projects where special services are required.”  Again, considering the size and minimal complexity of this project, project management costs are not eligible.
• Although normally not eligible for a project this size and minimal complexity, limited construction management (work site inspection visits, checking and approving of material samples, etc.) is being allowed and is estimated at 3 percent of construction costs per the Public Assistance Guide 322/June 2007.
• Direct Administrative Costs (DACs) – The Applicant estimated $7,000 for DAC, however has provided no details to support the activities performed, the time required to perform the activities or skill levels associated with the activities.  The original PW estimate of one hour for direct administration is allowed.

In summary, the following table outlines the eligible scope of work and associated cost estimate approved in this appeal.

 

Item

Description

Source

Estimate

Site 1

 

 

 

Erosion Control

Erosion Control Blanket (50 SY)

Applicant

$2,000

Earthwork

Slope Preparation and Fill (20 CY)

Applicant

$2,000

Traffic Control

Traffic Control

PW 918 (Site 1)

$742

Construction Management

Construction Management (3%)

FEMA

$142

Subtotal Site 1

$4,884

Site 2

 

 

 

Erosion Control

Erosion Control Blanket (28 SY)

Applicant/PW 918

$1,120

Earthwork

Slope Preparation and Fill (20 CY)

Applicant/PW 918

$2,000

Traffic Control

Traffic Control

PW 918 (Site 2)

$742

Construction Management

Construction Management (3%)

FEMA

$116

Subtotal Site 2

$3,978

Other General

 

 

 

WPCP

Water Pollution Control Plan

Caltrans*

$1,000

Geotechnical Report

Field site visit, analysis, report preparation

FEMA

$3,000

Direct Administrative Costs

Eligible activities associated with administration of PW (1 hour)

PW 918

$80

Subtotal General

$4,080

TOTAL

$12,942

*Estimating Guidance for Construction General Permit, September 2010, California Department of Transportation

Conclusion

In conclusion, the uphill slopes on Belvedere Drive are considered eligible facilities as they are improved natural features designed when the original road was constructed and are regularly maintained by the County.  Permanent work, to include the placement of erosion control devices, is eligible to restore the two eroded uphill slopes on Belvedere Drive.  Minimal slope repairs estimated at $12,942 are approved in this appeal.  The construction of a masonry retaining wall at Site 2 is not eligible because it goes well beyond that which is necessary to restore the site to pre-disaster condition.