Union House Creek Canal

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1044-DR
ApplicantCity of Sacramento
Appeal TypeSecond
PA ID#067-64000
PW ID#38102
Date Signed1998-08-19T04:00:00
Citation: FEMA-1044-DR-CA; City of Sacramento; DSR 38102

Cross Reference: Federal Levee Policy, Eligible Facility

Summary: During the 1995 winter storms (FEMA-1044-DR-CA), portions of the earth-lined banks of the Union House Creek Canal, a flood control facility, were eroded. The subgrantee requested assistance through the USACE's PL 84-99 Program but was denied funding because the Canal deficiencies previously identified by the USACE had not been corrected. The subgrantee then requested disaster assistance from FEMA for the repair of this Canal. DSR 38102 was prepared to repair the damaged earth slopes using unclassified and compacted clay fill, and for reseeding the banks, for a total estimated cost of $16,277 (a math error was later corrected, reducing the cost of repair to $11,450). Both the FEMA inspector and the reviewer concluded that as an FCW, the Canal would be under the specific authority of the USACE and therefore not eligible for FEMA assistance. DSR 38102 was found ineligible. The subgrantee submitted the first appeal requesting that FEMA reconsider funding for the repair of the Canal on the basis that the USACE denied their funding request. The Regional Director upheld the determination that as an FCW, permanent restoration funding for this Canal is within the specific authority of the USACE and therefore ineligible for FEMA assistance, regardless of whether the USACE provides any funding for the project. The subgrantee's second appeal again asserts that as the USACE has denied funding for the repairs, the work should be eligible for FEMA assistance.

Issues: Is permanent restoration of this flood control facility eligible for FEMA Public Assistance funding?

Findings: Yes. As FEMA has determined that flood control facilities damaged during the 1044/1046 disaster events may be considered eligible facilities under the Public Assistance Program, the scope of work performed in the appealed DSR may also be considered for permanent restoration funding.

Rationale: Based on a review of the circumstances regarding the implementation of the Federal Levee Policy during the 1044/1046 disaster events, it has been concluded that flood control facilities damaged during these events which were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program for these disasters only.

Appeal Letter

August 19, 1998

Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 419023
Rancho Cordova, California 95741-9023

Dear Mr. Christian:

This is in response to your January 9, 1998, submittal of the City of Sacramento's second appeal of Damage Survey Report (DSR) 38102 prepared for permanent restoration of the Union House Creek Canal damaged during the FEMA-1044 disaster event. The DSR was found ineligible on the basis that the channel meets 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 during the FEMA-1044 and FEMA-1046 (1044/1046) disaster events, the Federal Emergency Management Agency's (FEMA's) Director has concluded that flood control facilities damaged during these events which were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program for these disasters only. Accordingly, DSR 38102 has been reviewed for eligibility for permanent restoration funding through the Public Assistance Program. As explained in the enclosed analysis, by copy of this letter, I am requesting the Regional Director to prepare a Supplemental DSR to fund the scope of work and estimated cost for DSR 38102, consistent with that identified on the final DSR. The subgrantee's appeal is granted.

Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.

Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

Enclosure

cc: Martha Z. Whetstone
Regional Director
FEMA Region IX

Appeal Analysis

BACKGROUND
Severe winter storms and flooding that occurred during the FEMA-1044 winter storm event (January/February 1995) damaged portions of the Union House Creek Canal (Canal). The Canal is a flood control channel with earth-lined banks and a concrete-lined invert. In a letter dated February 14, 1995, the City of Sacramento (subgrantee) requested assistance through the United States Army Corps of Engineers' (USACE's) PL 84-99 Rehabilitation and Inspection Program. The USACE had initially inspected this Canal in 1991 and determined that the overall channel reach meets the eligibility criteria for the PL 84-99 Program, but specific maintenance and design upgrades were recommended. The USACE re-inspected the site on February 22, 1995, and responded to the subgrantee's request for disaster assistance in a letter dated March 24, 1995, stating that the repair of the damage along the Canal does not qualify for PL 84-99 funding because the previously identified deficiencies had not been corrected.

The subgrantee then requested disaster assistance from the Federal Emergency Management Agency (FEMA) for the repair of this Canal. FEMA inspection teams, consisting of representatives of FEMA, the California Governor's Office of Emergency Services (OES), and the subgrantee, visited the site on June 7, 1995, to document damages and prepare Category D Damage Survey Report (DSR) 38102. The DSR was prepared to repair the damaged earth slopes of the Canal using unclassified and compacted clay fill, and for reseeding the banks, for a total estimated cost of $16,277. The work was reported as 1% complete at the time of the site inspection.

The FEMA inspector submitted the DSR for review, but did not recommend the scope of work. Based on the acknowledgement from both the subgrantee and the USACE that the Canal meets the USACE's definition of a flood control work (FCW), it was determined that in accordance with the Federal Levee Policy, restoration funding for the Canal would be under the specific authority of the USACE and, therefore, not eligible for FEMA assistance. The FEMA reviewer concurred with this determination. Although the repair work was found ineligible, the FEMA reviewer did review the scope of work as proposed on the DSR. An apparent math error made by the FEMA inspector was corrected, reducing the quantity of compacted clay material and thus reducing the DSR amount to $11,450. DSR 38102 was finalized on October 6, 1995, and found ineligible for funding.

First Appeal
The subgrantee submitted a first appeal of FEMA's determination of ineligibility in a letter dated September 3, 1996. The subgrantee requested that FEMA reconsider funding for the repair of the Canal on the basis that the USACE denied their funding request. The Regional Director responded to the first appeal in a letter dated July 2, 1997, upholding the determination that as an FCW, permanent restoration funding for this Canal is within the specific authority of the USACE and, therefore, ineligible for FEMA assistance, regardless of whether the USACE provides any funding for the project.

Second Appeal
The subgrantee's second appeal of DSR 38102 was transmitted by OES in a letter dated January 9, 1998. As in the first appeal, the subgrantee stated that the requested repairs are not eligible for funding through the USACE PL 84-99 Program, such that FEMA should reconsider eligibility for funding of these repairs.

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 FEMA-1044 and FEMA-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 has been concluded that some confusion as to the eligibility of flood control facilities was apparent. We have found that some applicants received funding for such facilities during previous disasters, particularly FEMA-979 in 1993, supporting these applicant's positions that they relied on funding from previous disasters. Additionally, 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, maintaining the applicant's "inactive" status in the PL 84-99 Program. It is noted that some inspections were not completed within a year of the request, and then not all requested facilities were inspected. Additionally, review of numerous DSRs prepared for the various applicants in these disasters found that the FEMA inspector often did not notify the applicants that their facilities were under the funding authority of another Federal agency, and that the applicants were not notified of these determinations until the DSRs were finalized, often one year or more after the initial site inspections.

Therefore, although the Federal Levee Policy does specifically indicate that permanent restoration of FCWs is not eligible for FEMA funding, it is recognized that some applicants may have relied on previous funding from FEMA to expect disaster related funding in subsequent disasters. Further, FEMA's delay in notifying applicants during the 1995 Storms 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 only. Although 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, DSR 38102 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. DSR 38102 was prepared with the intent to restore the Canal to its pre-disaster design utilizing earth fill. As noted earlier, the FEMA reviewer noted an apparent math error in the inspectors calculation of compacted clay fill, and thus reduced the quantity and associated cost for this item on the final DSR. The subgrantee has not addressed this reduction in their appeal letters. However, it is recognized that the subgrantee's focus has been directed toward the primary determination of ineligibility, that the facilities are FCWs, rather than specific line items of scope. Therefore, we have performed an independent review of this DSR to determine the eligible scope of work, and have found that this reduction was appropriately made, limiting eligible funding to that shown on the final DSR, $11,450.

Based on this review, the Regional Director will prepare a Supplemental DSR to restore the scope of work and estimated cost for DSR 38102, consistent with that identified on the final DSR. It is noted that as for all permanent restoration projects, prior to project approval, it may be necessary, if applicable, for the FEMA regional office to complete a review of this project relative to the various environmental protection and historic preservation regulations.

Future Assistance
Although FEMA is providing this exception for funding of flood control channels for those facilitieas understood that the Federal Levee Policy will be strictly adhered to for all disasters occurring after December 31, 1996. I have enclosed a copy of the 1996 Policy entitled, "Policy for Rehabilitation Assistance for Levees and Other Flood Control Works" for reference regarding funding for flood control channels damaged after 1996.

In preparation for future disaster events, the subgrantee should 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 may be eligible for FEMA assistance. However, for those channels which appear to meet the definition of an FCW, it may be necessary for an applicant to provide appropriate documentation to demonstrate that the facility does not meet the USACE's definition, in order for the channel to be considered an eligible facility. To best support their position, it is recommended that an applicant provide a letter from the USACE indicating that they do not consider the facility an FCW. The applicants 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 which were found ineligible in the 1044/1046 or previous disasters.

CONCLUSION
Flood control facilities damaged during the 1044/1046 disaster events, that were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program for these disasters only. Accordingly, the scope of work on DSR 38102 has been reviewed for eligibility for permanent restoration funding through the Public Assistance Program. The Regional Director will prepare a Supplemental DSR to fund the scope of work and estimated cost for DSR 38102, consistent with that identified on the final DSR. The subgrantee's appeal is granted.
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