Repairs to Slater Storm Channel

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1044-DR
ApplicantCity of Huntington Beach
Appeal TypeThird
PA ID#059-36000
PW ID#94253
Date Signed1998-04-24T04:00:00
PURPOSE: Respond to third appeal submitted by the City of Huntington Beach for funding for the permanent restoration of Slater Channel.

DISCUSSION: Excessive flood flows from the winter storms of 1995 eroded portions of Slater Channel in the City of Huntington Beach. FEMA prepared DSR 94253 for $235,690 for the permanent restoration of the facility by filling voids with unclassified fill. The subgrantee appealed the scope of work stating that codes and standards require the channel to be repaired with riprap. Upon review of the first appeal, the Regional Director determined that the subject channel met the USACE definition of a flood control work (FCW) and was, therefore, under the specific authority of the USACE. Accordingly, the Regional Director prepared DSR 01811 to deobligate funding. During the second appeal the subgrantee contended that they were not an FCW, but provided no supporting documentation. The third appeal reiterated the second appeal arguments, again without documentation to support their position. FEMA obtained a determination from the USACE which concluded that Slater Channel is not an FCW, such that disaster damages are eligible for FEMA assistance, and repairs may be made in accordance with the applicable codes and standards. Such funding will be provided by the Regional Director.

RECOMMENDED ACTION: Sign the letter informing the GAR of FEMA's determination to approve eligible costs for the permanent restoration of Slater Channel.

Appeal Letter

April 24, 1998

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

Dear Mr. Najera:

This letter is in response to your September 17, 1997, submittal of the City of Huntington Beach's third appeal of Damage Survey Report (DSR) 94253 under FEMA-1044-DR-CA. This DSR was prepared for the permanent restoration of Slater Channel by filling voids with unclassified fill. This DSR was found ineligible following the Regional Director's first appeal determination that the facility meets the U.S. Army Corps of Engineer's (USACE) definition of a flood control work (FCW).

As explained in the enclosed analysis, the USACE has provided a determination that Slater Channel is an interior drainage channel and not an FCW. Based on the stated and evidenced intention of the subgrantee to ensure that its existing channels and any new channels are concrete-lined, I have determined that the scope of work eligible for funding will include that necessary to reconstruct the disaster-damaged portion of the channel with concrete lining. The amended scope of work represents a change to the pre-disaster design of the facility that could have a significant environmental impact. Accordingly, the work is not a categorical or statutory exclusion and must undergo an environmental review before final approval of the amended scope of work. By copy of this letter, I am requesting that the Regional Director prepare a supplemental DSR to fund estimated eligible costs of $909,934 and perform an environmental review. Because reconstruction of the damaged portions of the channel with concrete lining is not mandated by an applicable code or standard and improves upon the portion of the channel damaged by the disaster, the project will be designated as an improved project. Federal funding will, therefore, be limited to the Federal share of the approved estimate of the eligible cost.

Please inform the applicant 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: Acting Regional Director
FEMA Region IX

Appeal Analysis

BACKGROUND
Excessive flood flows from the winter storms of 1995 saturated and eroded portions of the Slater Storm Channel located in the City of Huntington Beach, creating large voids in the earth lined channel. The Federal Emergency Management Agency (FEMA) prepared damage survey report (DSR) 94253 for $235,690 for the permanent restoration of the channel. The subgrantee requested that the eroded banks be repaired with riprap in accordance with City codes and standards. The scope of work described in the approved DSR was to recompact the failed channel slopes and fill all the voids with unclassified fill along 2,640 linear feet of the channel. A Hazard Mitigation Proposal was prepared to rebuild the channel with a concrete lining but was determined ineligible.

First Appeal
The California Office of Emergency Services (OES) forwarded the applicant's first appeal of the eligible scope of work in a letter dated January 12, 1996. The subgrantee stated that the City of Huntington Beach is a Charter City that follows the guidelines of the Orange County Flood Control District (OCFCD) for the design, construction and maintenance of open flood control channels. The subgrantee continued that applicable codes and standards require the channel to be repaired using riprap rather than soil fill. Upon the applicant's reference to the channel being designed in accordance with "flood control" standards, FEMA contacted the applicant on September 5, 1996, for better definition as to the function of this channel. Mr. Robert Eichblatt, the City Engineer for Huntington Beach, indicated that the main function of the channel is to handle floodwaters. The U.S. Army Corps of Engineers' (USACE) definition of flood control works (FCWs) (ER 500-1-1, June 1995) was reviewed in this conversation and it was agreed that the channel did meet this definition. Further, FEMA received a fax document from Mr. Douglas Stack of the City of Huntington Beach on September 10, 1996, that confirmed that "this channel fits FEMA's definition of `Flood Control Works'."

In a letter dated September 30, 1996, the Regional Director stated that in accordance with the Federal interagency agreement between FEMA, USACE, and the National Resources Conservation Service (NRCS), FEMA will not fund the permanent restoration of water control facilities that fall within the USACE definition of an FCW. As it was found that Slater Channel met this definition, permanent restoration of the facility was found not eligible for FEMA funding. Accordingly, FEMA denied the subgrantee's appeal. Subsequently, DSR 01811 was prepared and approved to de-obligate eligible funding in DSR 94253.

Second Appeal
OES forwarded the subgrantee's second appeal with a letter dated January 30, 1997. The applicant indicated that they were unclear as to the difference between an FCW and a "local drainage facility", and expressed their discontent with the process and implementation of the FEMA Levee Policy. The subgrantee, however, provided no documentation to support that the function of the channel is not for flood control. In an April 14, 1997, letter submitted in addition to the second appeal, the subgrantee argued that Slater Channel is an overflow for a chain of three catchment facilities that are designed to recharge the groundwater table. The subgrantee added that the USACE was preparing a response that would indicate that the channel would not be in their jurisdiction, therefore, declaring Slater Channel to be a "Local Drainage Facility." FEMA did not receive a copy of such a response and, therefore, based second appeal determinations on the information available at that time to expedite the resolution of the appeal. It is noted that in the second appeal transmittal letter OES did not dispute the identification of the facility as an FCW, but rather appealed the ineligibility of FCWs for FEMA assistance.

The Executive Associate Director denied the second appeal in a letter dated July 19, 1997. The Executive Associate Director stated that there was no basis to overturn the previous determination that Slater Channel meets USACE's definition of an FCW. The Executive Associate Director reiterated that under the current FEMA Levee Policy, permanent restoration of facilities that fit the USACE definition of an FCW is work that is considered to be within the specific authority of either the USACE or the NRCS. Therefore, this work is ineligible for FEMA funding regardless of whether or not the agency with authority provides funding. Further, the Executive Associate Director found that the lack of Federal funding was not due to a lack of coordination by FEMA, but rather due to the subgrantee's failure to adhere to the USACE's design and maintenance standards for flood control works, and/or failure to apply to the PL 84-99 Rehabilitation and Inspection Program.

Third Appeal
OES forwarded the subgrantee's third appeal with a letter dated September 17, 1997. The subgrantee's appeal letter focuses mainly on their dissatisfaction with FEMA's funding and appeal process, providing no new documentation in support of their request for funding. Regarding the specific issue of whether Slater Channel meets the USACE definition of an FCW, the subgrantee only states, "If FEMA wants an official determination from the U.S. Army Corps of Engineers, it is FEMA's responsibility to secure such a determination." OES supports the subgrantee's appeal, and in their transmittal letter reiterates their second appeal position that FEMA failed to properly coordinate Federal disaster assistance. OES further references various sections of the Stafford Act to demonstrate that FEMA has the authority to fund the repair of FCWs.

DISCUSSION
The subgrantee's main arguments concern the issues of coordination of Federal disaster assistance and the implementation of the Federal Levee Policy. Eligibility, however, is determined by whether or not Slater Channel meets the USACE definition of an FCW.

Determination of Eligibility of Slater Channel for Permanent Restoration
Upon submittal of the third appeal the subgrantee had still not provided documentation from the USACE to support their position that the facility is not an FCW. FEMA contacted the USACE and received a March 3, 1998, determination from the USACE stating that Slater Channel is an interior drainage channel and not an FCW. Accordingly, Slater Channel is eligible for funding for permanent restoration.

Applicability of Codes and Standards
During first appeal the subgrantee appealed the scope of work described in the approved DSR. As repairs to the channel have been determined eligible, the following section will address the first appeal issue of the applicability of codes and standards for the eligible scope of work.

In its first appeal, the subgrantee asserted that the FEMA-approved scope of work (i.e., re-grading and compacting imported fill) did not satisfy applicable codes and standards. More specifically, the subgrantee stated that the eligible scope of repair work should include riprap as called for by Resolution No. 93-39 adopted by the Orange County Board of Supervisors acting as the OCFCD. At the same time, however, the subgrantee asserted that using concrete lining to reconstruct earthen channels was a more effective method of repair because it was less costly than using riprap and provided a better hydraulic section for conveying flood flows. FEMA did not address the applicability of the repair standard set forth in the Resolution in the first appeal response because it was determined that the channel was an FCW and not eligible for FEMA funding.

While the OCFCD Resolution states that the repair standard is uniformly applicable, exceptions to the use of riprap are permitted (section 5)tide-compliant or acceptable. Thus, should an OCFCD jurisdiction determine that an exception to the riprap standard is appropriate, the alternative method of repair cannot be considered "code-mandated." In this regard we note that the subgrantee also claims that it must comply with the repair standard set forth in the Resolution, but has indicated to FEMA that it does not intend to repair the channel with riprap and will pursue another repair method (i.e., concrete lining). Additionally, the subgrantee pointed out in its first appeal that it "owns and maintains" four channels within the City of Huntington Beach. Three of these channels are concrete-lined and the subgrantee has advised FEMA that Slater Channel "is currently 25% concrete lined and will eventually be entirely concrete lined as funding permits." The riprap repair standard set forth in the OCFCD Resolution is not, therefore, practicably or legally applicable on a uniform basis to the subgrantee's flood control facilities.

CONCLUSION
In response to FEMA's request for a determination regarding the design and function of Slater Channel, the USACE stated that Slater Channel is an interior drainage channel and not an FCW. Accordingly, FEMA has determined that the channel is eligible for permanent restoration funding. Based on the stated and evidenced intention of the subgrantee to ensure that its existing channels and any new channels are concrete-lined, FEMA has determined that the scope of work eligible for funding will be based on the reconstruction of the disaster-damaged portion of the channel with concrete lining. Review of the subgrantee's line item estimate of the cost indicates that it is reasonable. Accordingly, a supplemental DSR will be prepared by the Regional Director in the amount of $909,934 for restoration of the disaster-damaged portion of the channel with concrete lining. The amended scope of work represents a change to the pre-disaster design of the facility that could have a significant environmental impact. Accordingly, the work is not a categorical or statutory exclusion. Therefore, final approval of the supplemental DSR is pending the completion of an environmental review to be performed by the Region. Also, because the repairs to the channel are not mandated by an applicable code or standard and thus improve upon the portion of the channel damaged by the disaster, the project will be designated as an improved project. Federal funding will, therefore, be limited to the Federal share of the approved estimate of the eligible cost.
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