Various DSRs for Flood Control Channels

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1044/10
ApplicantOrange County Environmental Management Agency
Appeal TypeThird
PA ID#059-00000
PW ID#Multiple (68)
Date Signed1998-11-02T05:00:00
PURPOSE: Respond to third appeals submitted by the Orange County Environmental Management Agency 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 Orange County. FEMA prepared numerous DSRs (68 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 codes and standards. Appeal responses upheld the initial determinations of ineligibility. The third appeals reiterate much of the earlier positions. It is found that, given the circumstances under which information was provided (or not provided) during the disaster event regarding funding authorities for FCWs, 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. Documentation submitted by the subgrantee as applicable codes and standards was reviewed and determined to not meet the requirements of 44 CFR, Sections 206.226.

RECOMMENDED ACTION: Sign letter partially granting these appeals.

Appeal Letter

November 2, 1998

Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, Third Floor
Pasadena, CA 91103-3678

Dear Mr. Najera:

This is in response to your March, April, and May 1998, submittals of the Orange County Environmental Management Agency's third appeals of 68 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 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.

Based on a review of the circumstances regarding the implementation of the Federal Levee Policy (Policy) during the 1044/1046 disaster events, I have concluded that some flood control facilities damaged during these events that were found ineligible under this Policy may be eligible facilities under the Public Assistance Program. Each of the 68 DSRs included with this appeal has been reviewed for eligibility for permanent restoration funding through the Public Assistance Program, consistent with FEMA regulations and policy for restoration of eligible facilities, and the specific circumstances related to the implementation of the Policy. Additional funding will be provided based on the finding of that review. Documentation submitted by the subgrantee as applicable codes and standards was reviewed and determined to not meet the requirements of 44 CFR, Sections 206.226.

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

BACKGROUND
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 Orange County were damaged. The Orange County Environmental Management Agency (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 total of 68 DSRs (Enclosure 1) are addressed in this appeal analysis.

The damaged facilities included various components of flood control channels, including concrete-lined, earth-lined, and stone/riprap protected channel walls, earth levees, access roads, and fencing. All of the DSRs were prepared as Category D, requesting permanent restoration, except DSR 24320 (Category B). The applicant requested that all repairs be performed according to their channel repair codes and standards. During review, the FEMA regional staff concluded that the subgrantee's channel repair codes and standards were not eligible for funding. At the time of inspection, 39 DSRs were 95% to 100% complete and 29 DSRs were less than 20% complete.

During eligibility review, FEMA concluded that each of these channels meet the United States Army Corps of Engineers' (USACE's) definition of a flood control work (FCW), such that restoration funding for the channels would be under the specific authority of the USACE. Accordingly, FEMA denied funding for each of these Category B and D DSRs except DSR 24310, which was initially funded and then deobligated after the first appeal review. The subgrantee, however, was not notified of this rejection until the DSR was finalized, often one year or more after the initial site inspection.

First appeal
The subgrantee issued first appeals of FEMA's determination of ineligibility in various letters in June, July, August, and September 1996 for the 68 DSRs. 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 the USACE PL 84-99 Rehabilitation and Inspection Program funding. The subgrantee stated that many facilities have had reductions in their scope and dollar amounts based on FEMA's lack of recognition of the subgrantee's codes and standards.

The Regional Director responded to these appeals stating that each of these channels meet the USACE's definition of an FCW and were therefore not eligible for FEMA funding. The issue of Orange County's codes and standards for channel repair was not addressed due to the FCW issue.

DSR 24310 which was initially funded, was deobligated by DSR 83559 in response to the first appeal review. This DSR was not eligible for funding due to the FCW issue as described above.

Second Appeal
The subgrantee submitted second appeals to FEMA in various letters in April, May, September and November 1997 for the 68 DSRs. The primary issues of the subgrantee's appeals were that FEMA failed to perform its obligation to coordinate Federal disaster assistance. As with the first appeals, the subgrantee did not contest that the channels meet the USACE definition of an FCW and also restated that many facilities have had reductions in their scope and dollar amounts based on FEMA's lack of recognition of the subgrantee's codes and standards.

FEMA responded to these appeals by further clarifying the intent of the Federal Levee Policy (Policy) and stressing the importance of providing Federal assistance within the appropriate funding agency. In support of the USACE Program, and the Policy, the Executive Associate Director upheld the determination of ineligibility. As with the first appeals, the issue of Orange County's codes and standards for channel repair was not addressed due to the FCW issue.

Third Appeal
The subgrantee's third appeal of these DSRs were transmitted by OES to FEMA in various letters in March, April, May, and June 1998. The subgrantee's appeal primarily challenges the Policy itself as well as FEMA's coordination of disaster assistance as it relates to FCWs and the Policy.

DISCUSSION

Consideration for Funding of Flood Control Facilities
In response to 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 was apparent that there was some confusion as to the eligibility of flood control facilities. Some applicants had 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. 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. Some inspections were not completed within a year of the request, and then not all requested facilities were inspected. Finally, a review of the 68 DSRs in this appeal found that FEMA did not notify the subgrantee that the facilities were under the funding authority of another Federal agency, and that the subgrantee was not notified of this determination until the DSRs were finalized. This was often one year or more after the initial site inspections.

Although the Federal Levee Policy specifically states that permanent restoration of FCWs is not eligible for FEMA funding, some applicants may have relied on previous funding from FEMA and expected disaster related funding in subsequent disasters. FEMA's delay in notifying applicant's that their facilities were under the authority of the USACE or Natural Resources Conservation Service (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 Work
In accordance with the discussion presented above, each of the 68 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. As these DSRs were found to be ineligible based on the FCW issue, further review of the specific scope of work recommended by the inspector was not always performed. In response to this third appeal reversal of eligibility, we have performed an independent review of each of these DSRs to determine the eligible scope of work and cost. The 68 DSRs are described with regard to specific conditions and scope items below and are summarized in Enclosure 1. A summary of the eligible scope and costs is provided in Enclosure 2.

I. Repair to Pre-Disaster Design

DSRs 24300, 34683, 91672, 93809, 93815, 93841, 93863, 93865, 94318, 96351, 96364, 96366, 96371, 96375, 96397, 98369acned channels, right-of-way fencing, and levees; and were prepared to repair the damaged areas to pre-disaster conditions. For 16 of these 18 DSRs, the work was completed at the time of the site inspections and the actual cost for the completed work was presented on the final DSR. Our review of each of these 16 DSRs has found that the completed scope of work is to pre-disaster design and the actual costs are reasonable for the work completed. The work for DSRs 93865 and 93841 was not complete at the time of site inspections, however the subgrantee submitted actual costs when the repairs were completed. The completed scope of work and actual cost for DSR 93865 are reasonable to repair the damaged facility. However, the actual cost for DSR 93841 exceeded what was reasonable for the damage resulting from the 1044/1046 incident because other storms destroyed the repair work on two separate occasions. The scope of work and estimated costs on the final DSR reflect the repair of those damages caused by the disaster. The subgrantee concurred with the final DSR as submitted. Accordingly, supplemental DSRs will be prepared for each of these DSRs, consistent with the scope of work and actual costs as submitted by the subgrantee or on the final DSR as described herein.

II. Repair with Riprap

DSRs 24301, 24304, 24305, 24306, 24307, 24315, 24316, 24317, 24318, 24319, 24320, 24323, 24324, 24330, 24337, 29404, 29405, 29406, 34602, 34603, 34601, 34607, 34688, 93877, 93879, 94223, 96350, 98385, 34608, 34618, and 96301.

These 31 DSRs include repairs to earth channels. It is the position of the subgrantee that the scope of eligible repair work for its disaster-damaged earth-lined channels should be the rock slope protection (RSP) standards incorporated into Resolution F93-39 adopted on October 5, 1993 (Resolution) by the Board of Supervisors of the Orange County Flood Control District (OCFCD). The subgrantee requested the following scope of work be accepted by FEMA:
  • Placement of earth fill to within 2-ft. of the face of the slope;
  • Construction of a 3-ft. by 3-ft. toe trench, filled with riprap to provide a stable base for the support of the riprap;
  • Placement of filter fabric on all soil surfaces (face of soil slope and toe trench); and
  • Placement of a 2-ft. thickness of placed riprap on top of the filter fabric.
Acceptance by FEMA of state and local ordinances requiring the upgrade of disaster-damaged facilities without the exercise of independent judgement or review would result in an impermissible delegation of FEMA's ultimate authority to determine the scope of work for which the subgrantee is eligible.

Each of the governmental entities and private nonprofit organizations that applies for FEMA assistance has an interest in receiving the greatest amount of funding possible to reconstruct its facilities. State and local officials have a significant and legitimate interest in minimizing disaster-related damage and losses within their jurisdiction. It would be unreasonable for FEMA to delegate its responsibility for administering the Federal disaster assistance programs and related expenditures to the parties that are the recipients of Federal disaster assistance funds. In such a case, the same public entity that adopted the Resolution also owns and operates the only facilities that are subject to the provisions thereof and this same public entity is also charged with the enforcement of the Resolution. A conflict of interest is, therefore, unavoidable. This conflict does not, in and of itself, render the Resolution inapplicable, but does require FEMA to scrutinize very carefully the provisions thereof and the subgrantee's adoption, application and enforcement thereof.

Based on our review of the Resolution, we have determined that it does not satisfy criteria (4) and (5) of Section 206.226(b) of the Code of Federal Regulations (44 CFR). Together, these subsections require that a code or standard be applied and uniformly enforced to/for all similar types of facilities within the jurisdiction of the facility owner/operator. The Resolution fosters a two-tiered system of loss/damage prevention and mitigation standards that is contrary to the intent of the Stafford Act generally, and 44 CFR 206.226(b)(4) and (5), specifically.

In pertinent part, the Resolution provides that, when erosion exceeds ten cubic yards at a single washout location, or 15 linear feet of channel bank, damaged slopes of earthen bank-lined channels must be repaired using rock riprap of a minimum size of 18", placed 24" thick with a rock keyway below the invert. The Resolution states that the standard shall be uniformly applied to OCFCD regional flood control facilities regardless of the source of funding; however, exceptions are permitted "when the repair is legally regulated by federal or state agencies, or by agreements; or the use of rock is not cost effective due to programmed future modifications to the channel."

The Resolution states the OCFCD has historically repaired erosion to slopes of earthen bank-lined channels using RSP. Assuming that the Resolution merely codifies OCFCD "custom and practice," OCFCD's use of the RSP repair standard should be quite evident. Review of files from the 1992 (FEMA-DR-935) and 1993 (FEMA-DR-979) winter storms indicates that OCFCD's earthen-banked channels had little (if any) RSP of any significance in place prior to these events. In other words, the historic use to which the OCFCD refers appears, at best, to mean repair work performed subsequent to presidentially declared disasters (DR-935 and DR-979) for which it requested and received federal disaster assistance funding. In this regard, both of the damage thresholds established by the Resolution would, almost without exception, be triggered by flooding/winter storm events of sufficient intensity to warrant a presidential disaster declaration. They would not, in all probability, be triggered by ordinary storm events or even a five-year flood event.

The exceptions created by the Resolution are vague and overbroad. There are no objective criteria or parameters governing the interpretation and application of the exceptions and the Resolution, in effect, empowers the same officials charged with implementing and ensuring the use of the RSP standards with
apparent unfettered discretion to "opt out." There appears to be no mechanism or authority with which to enforce compliance with the Resolution, and given the subjective nature of the permitted exceptions, it is unlikely that the Resolution can be applied or enforced uniformly. In fact, it appears that the principal OCFCD enforcement efforts have been vis-?-vis FEMA and its funding eligibility determinations.

In summary, the Resolution is not an applicable code or standard for purposes of determining the extent of eligible FEMA funding for damaged OCFCD facilities. The scope of work eligible for FEMA funding may properly be determined to include only that necessary to repair the channel on the basis of its pre-disaster designed construction. FEMA does recognize that restoration of a relatively steep slope with compacted fill is not always technically feasible, or practical to construct. Therefore, FEMA may determine that the use of riprap is a reasonable alternative to placement of soil fill. In this instance, it is found that the subgrantee's detail for placement of riprap is consistent with generally accepted engineering practices. In defining the eligible scope of work and estimated costs, however, FEMA normally uses the Cost Code for dumped riprap rather than placed riprap as was generally presented on the DSRs. Accordingly, we have reviewed the requested scope of work and costs for each of the DSRs where the subgrantee requested funding for restoration of the banksionsw.

DSRs 24301, 24305, 24307, 24316, 24318, 24320, 24324, 24330, 29404, 29405, 29406, 34603, 34688, 93877, 93879, 94223, 96350, and 98385
For six of these 18 DSRs (24316, 24318, 34688, 94223, 96350, and 98385) the work was completed at the time of the site inspections and the actual cost for the completed work was presented on the final DSR. The work for DSRs 93877 and 93879 was complete at the time of inspection, however the final DSRs did not reflect the actual scope of work or cost. The final DSRs were prepared to restore these facilities to pre-disaster condition and did not include repairs with riprap. However, the inspectors' narrative included the actual cost and scope of completed work. For the other ten DSRs, the work was not completed at the time of the site inspections, but the repairs were completed during the appeal process and actual costs were submitted by the subgrantee. Our review of each of these DSRs has found that the completed scope of work is generally consistent with the riprap repair method described above, and the actual costs are found to be reasonable for the work completed. Accordingly, supplemental DSRs will be prepared for each of these DSRs, consistent with the scope of work as described in the riprap repair method above and actual costs as submitted by the subgrantee, presented on the final DSR, or the inspectors' narrative as discussed herein.

DSRs 24317, 24337, 34608, 34618, and 96301
None of the work was complete for these five DSRs at the time of site inspections. The scope of work presented on the final DSRs is generally not consistent with the riprap repair method described above. In an effort to determine a more reasonable basis for estimating costs we have conducted a review of the actual costs for the 18 completed DSRs described above. It was found that the actual cost per square foot was fairly consistent among the 18 DSRs above. The average value of $5 per damaged square foot of channel developed from this review was used to provide a reasonable cost estimate of work shown on these five DSRs. Supplemental DSRs will be prepared for each of these DSRs, consistent with the scope of work as described above in the riprap repair method, using estimated costs based of $5/sf of damaged bank.

DSRs 24304, 24306, 24319, 24323, 34601, 34602, and 34607
For these seven DSRs, localized sections of the channel banks were eroded within a given reach of the channel. The subgrantee requested that the entire reach be lined with riprap, including the undamaged portions of this reach of the channel. The subgrantee asserts that the entire reach should be lined because more than 50% of the reach of channel was damaged, and therefore, in accordance with 44 CFR 206.226(d), the channel reach should be eligible for replacement. However, when evaluating the benefit of repair versus replacement, the cost of repairing the damaged sections of a facility are compared against the cost of reconstructing the entire facility. For channel replacement, the cost of replacement would be calculated for the entire channel, not limited to the length of the particular reach included in the DSR. Based on this cost comparison, the cost of repair of the damaged sections of the reach is significantly less than 50% of the cost of replacement of the entire channel. Accordingly placement of riprap on the undamaged sections of the channel is not eligible.

The work was less than 5% complete at the time of the site inspections. However, the repairs were completed during the appeal process and the actual costs were submitted by the subgrantee. Our review of each of these DSRs has found that the completed scope of work is generally consistent with the riprap repair method described in the beginning of this section except for the placement of riprap on the undamaged sections of the channel. The actual costs are found to be reasonable, however these costs include the repair of the undamaged portions of the slope. Accordingly, supplemental DSRs will be prepared, consistent with the scope of work as described by using the riprap repair method above, but applying only to the damaged portions of the channel.

Repair of the undamaged sections of the channels would be considered an improvement. Accordingly, it would be necessary for the subgrantee to apply to OES for an Improved Project in accordance with 44 CFR 206.203(d). Federal funding for improved projects is limited to the Federal share of the approved estimate of eligible costs as presented on the supplemental DSRs. Additionally, the subgrantee must ensure that all required permits and clearances have been received, including those required under the provisions of the National Environmental Policy Act of 1969.

DSR 24315
For this DSR, the work was 5% complete at the time of the site inspection. However, some of the repairs were completed during the appeal process and the actual cost was submitted by the subgrantee. Our review of this DSR found that the completed scope of work is consistent with the riprap repair method described in the beginning of this section. The actual costs are found to be reasonable, however these costs do not include the repair of all of the damaged portions of the slope. FEMA recognizes that these remaining damaged areas are still eligible for repair. The percentage of the damaged area that was not repaired was found with respect to the entire damaged portion of the reach. The costs estimated to be required to make these repairs will be added to the actual costs already incurred. Accordingly, the supplemental DSR will be prepared, consistent with the scope of work as described by the riprap repair method above and with an increased cost which accounts for the repair of all of the damaged portions of the channel.

III. Repair with Grout and Riprap

DSRs 24302,24325, 24329, and 94215
These four DSRs were prepared for repairs to earth channels with concrete outlet transitions, channel dikes, concrete lining, or splash pads, and the repairs included both grouted and non-grouted riprap. During review of these DSRs, it was determined that the grouted riprap is eligible for funding as it was either existing prior to the disaster or is considered a reasonable repair for erosion adjacent to concrete lining. The subgrantee requested the earth portions of these channels not adjacent to concrete lining be repaired with ungrouted riprap. Our review of these riprap repairs has found that the completed ungrouted riprap work is consistent with the riprap repair method described in Section II.

For DSR 24302, the work was 95% complete at the time of the site inspection and the actual cost for the completed work was presented on the final DSR. DSRs 24325 and 24329, were less than 5% complete at the time of site inspections, however during the appeal process these repairs were completed and the actual costs were submitted by the subgrantee. Our review of each of these DSRs has found that the completed scope of work is consistent with the methods described in this section and Section II above, and the actual costs are found to be reasonable for the work completed. The work for DSR 94215 was less than 5% complete at the time of the site inspections, and no actual cost has been submitted by the subgrantee. Our review of this DSR has found that the scope of work and estimated cost as presented on the final DSR are reasonable to repair the damage. Accordingly, supplemental DSRs will be prepared for each of these four DSRs, consistent with the scope of work and costs as discussed herein.

IV. Repair with Concrete

DSRs 24309, 96363, 96367, 96370, 96385, 96387, 96390, 96393, 98382, 98384, and 98386
For all of these 11 DSRs the work was at least 95% complete at the time of the site inspectioinal Dthese DSRs has found that the completed scope of work and actual costs are found to be reasonable for the work completed. Accordingly, supplemental DSRs will be prepared for each of these DSRs, consistent with the scope of work and actual costs as presented on the final DSR.

DSRs 24310/83559, 93873, 94276, and 96331
These 4 DSRs relate to damages of sections of concrete-lined channels. The pre-disaster designs for these sections include four-inch (4") reinforced concrete. The subgrantee requested these channels be repaired in accordance with formally adopted codes and standards for concrete-lined channels, which include repairing the sections with eight-inch (8") reinforced concrete.

The subgrantee has requested that their channel repair standards be considered eligible for funding and in support of its position the subgrantee cites the "Design Manual for Channel Hydraulics and Structures" approved by the Chief Engineer of the Orange County Flood Control District (OCFCD) in July 1972 (Design Manual). The subgrantee claims that the Design Manual constitutes an "current applicable code and standard." The subgrantee, therefore, claims that costs to repair the channel in compliance with the Design Manual standards are eligible for FEMA funding.

Section 406(a) of the Stafford Act authorizes FEMA to make contributions for the repair, restoration, reconstruction or replacement of public facilities damaged or destroyed by a major disaster. Section 406(e) recognizes as eligible costs required to repair, restore, reconstruct or replace an eligible facility on the basis of its pre-disaster design and "in conformity with current applicable codes, specifications and standards." (emphasis added). The regulation adopted by FEMA to implement the highlighted portion of Section 406(e) of the Stafford Act is 44 CFR 206.226(b). In determining the eligibility of code-mandated work which changes the pre-disaster construction of a facility (i.e., a facility upgrade or improvement), FEMA must, at a minimum, determine whether the applicable code or standard satisfies the five (5) criteria set forth in 44 CFR 206.226(b).

Based a review of the Design Manual, we have determined that it does not satisfy criteria (1), (3), (4) and (5) of Section 206.226(b) of the Code of Federal Regulations (44 CFR). The scope of work determined by FEMA to be eligible may properly be determined to include only that necessary to repair the channel on the basis of its pre-disaster designed construction.

Subsection (1) of 44 CFR 206.226(b) requires that an applicable code or standard must apply to the type of repair or restoration required by the disaster-related damage. Under 44 CFR 206.226(d), the eligible scope of work for the disaster-damaged channel includes only that necessary to repair disaster damage. Thus, only codes and standards applicable to the disaster-related repair work itself would satisfy 44 CFR 206.226(b)(1). While quite applicable to the design and construction of new channels and related facilities, the Design Manual does not provide guidance relating to, or contain thresholds or other criteria requiring, the application of the standards to the repair of damaged channels. Accordingly, the Design Manual standards are not applicable to the type of work required by the disaster (repair) and do not, therefore, satisfy 44 CFR 206.226(b)(1).

Additionally, the Design Manual was not formally adopted as required by 44 CFR 206.226(b). The subgrantee provided to FEMA an opinion from its Deputy County Counsel that concludes that the approval by the OCFCD Chief Engineer of the Design Manual represents "formal adoption" as such term is used in 44 CFR 206.226(b)(3). The Deputy County Counsel asserts that in the absence of a specific regulatory definition of the term "formally adopted," the words should be given their "plain meaning" under the rules of statutory construction. The Deputy County Counsel, therefore, concludes that the procedures used by the OCFCD to adopt the Design Manual satisfy 44 CFR 206.226(b)(3). That conclusion is incorrect. The absence in FEMA regulations of a specific definition of "formal adoption" does not mean that the term is subject to definition by the subgrantee. The term "formal adoption" has been consistently interpreted and applied by FEMA as formal action taken by the appropriate legislative or rulemaking body within the subject jurisdiction. It is a well-settled principle of federal administrative law that an agency's interpretation of its regulations is entitled to even greater deference than its interpretation of the statute it is charged with administering. U.S. v. Alcan Aluminum Corp., 964, F.2d 252, 263 (3d Cir. 1992).

Section 36-3 of the Orange County Flood Control Act (OCFC Act) designates and empowers the Board of Supervisors of Orange County to act as the board of supervisors of the OCFCD. Section 36-2.9 of the OCFC Act defines the term "legislative body" as the board of supervisors of the OCFCD. Section 36-3 of the OCFC Act states that "[a]ll ordinances, resolutions and other legislative acts for said district shall be adopted by said board of supervisors.". There is no indication in the Act or otherwise that the board of supervisors delegated any of its rulemaking authority to the OCFCD Chief Engineer. Thus, for purposes of satisfying criteria 44 CFR 206.226(b), the Design Manual must have been adopted by the OCFCD board of supervisors.

Finally, subsections (4) and (5) of 44 CFR 206.226, together, require that a code or standard must be applied and uniformly enforced to/for all similar types of facilities within a Subgrantee's jurisdiction. As noted above, the Design Manual does not specify when the standard specifications are to be used for the repair of OCFCD channels. At a minimum, standards must be based on objective guidance and criteria which require their application in specific situations for there to exist even an expectation of uniform application and enforcement. Although the subgrantee alludes to its uniform application of the Design Manual standards for channel repair projects, the only project specifically cited by the subgrantee (i.e., Fullerton Creek Storm Channel, downstream Beach Blvd.) was funded by FEMA following the 1992 floods (DR-935). This example simply supports the subgrantee's application of the Design Manual standards to repair work when it is provided by FEMA with funding.

As it is found that the subgrantee's standard for use of 8-in. reinforced concrete does not meet the criteria for an acceptable code or standard, the eligible scope of work for these DSRs is limited to repair to pre-disaster design. Therefore, supplemental DSRs will be prepared to restore the channel sections using 4-in. reinforced concrete. Should the subgrantee choose to repair the channels with the 8-in. concrete, this scope of work would be considered an improvement. Accordingly, it would be necessary for the subgrantee to apply to OES for an Improved Project in accordance with 44 CFR 206.203(d). Federal funding for improved projects is limited to the Federal share of the approved estimate of eligible costs as presented on the supplemental DSRs. As previously stated, the subgrantee must ensure that all required permits and clearances have been received, including those required under the provisions of the National Environmental Policy Act of 1969.

Future Assistance
Although FEMA is providing this exception for funding of flood control channels for the conditions stated above, it should be understood that the Federal Levee Policy will be strictly adhered to for all disasters occurring after the 1044/1046 events. A copy of the 1996 Policy entitled "Policy for Rehabilitation Assistance for Levees and Other Flood Control Works" is enclosed forol channIn preparation for future disaster events, it is recommended that the subgrantee take appropriate steps to apply to the USACE PL 84-99 Program or to 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 are eligible for FEMA assistance. To be considered an eligible facility, the subgrantee must provide appropriate documentation to demonstrate that the facility does not meet the USACE's definition of an FCW. 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 that were found ineligible in previous disasters.

CONCLUSION
Flood control facilities that 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. Each of the 68 DSRs included with this appeal has been reviewed for eligibility for permanent restoration funding through the Public Assistance Program, and funding determinations and limits have been addressed. Documentation submitted by the subgrantee as applicable codes and standards were reviewed, and determined not to meet the requirements of Title 44, Code of Federal Regulation, Sections 206.226. The Regional Director will prepare supplemental DSRs to fund the scope of work and estimated costs for these DSRs as described above. The subgrantee's appeal is partially granted.


ENCLOSURE 1
THIRD APPEAL ANALYSIS
FEMA-1044/1046-DR-CA
PA ID #059-00000 ; Orange County Environmental Management Agency
Various DSRs for Flood Control Channels


I.

II.

III.

IV.

Repair to Pre-Disaster Design

Repair with Riprap

Repair with Grout and Riprap

Repair with Concrete

y

Actual Cost

Actual Cost

Actual Cost

Actual Cost

Supplemental DSR to be prepared for eligible funding based on Actual costs as in final DSR or as submitted by the Subgrantee.

24300

34683

91672

93809

93815

93863

93865

94318

96351

96364

96366

96371

96375

96397

98369

98370

98371

y

24301

24305

24307

24316

24318

24320

24324

24330

29404

29405

29406

34603

34688

93877

93879

94223

96350

98385

24302

24325

24329

24309

96363

96367

96370

96385

96387

96390

96393

98382

98384

98386

No Actual Cost

No Actual Cost

No Actual Cost

No Actual Cost

Supplemental DSR to be prepared for eligible funding based on estimates. Actual Costs not available.

None

24317

24337

34608

34618

96301

94215

None

Adjusted Cost

A

Adjusted Cost

Adjusted Cost

Supplemental DSR to be prepared for modified eligible scope. Funding estimated accordingly.

93841

24304

24306

24319

24323

34601

34602

34607

24315

None

24310/83559

93873

94276

96331

*Refer to analysis for further description of the categories mentioned here.

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