Pine Creek Channel Bank Repair

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1044-DR
ApplicantContra Costa County Public Works Department
Appeal TypeSecond
PA ID#013-92100
PW ID#20354,20356
Date Signed1997-10-31T05:00:00
Citation: FEMA-1044-DR-CA; Contra Costa County Public Works Department, DSRs 20354/20356

Cross-Reference: Flood control work, Codes and Standards

Summary: Approximately 300 feet downstream of Ygnacio Valley Road, a portion of the Pine Creek channel bank eroded on both the east and west sides. The documented repairs included riprap (rock slope protection (RSP)) and riprap fabric. DSRs 28371 and 28372 were prepared in the amount of $9,958 and $14,168, respectively. During review, the eligible funding was reduced to reflect only repair to pre-disaster condition, which did not include the use of RSP. Ultimately, the work was deemed completely ineligible because Pine Creek was an FCW per the Levee Task Force. The subgrantee's appeal of this decision stated that Pine Creek was an improved channel not eligible for USACE funding and should be eligible for FEMA funding. The Regional Director determined that the facility was not an FCW and provided funding for the restoration of the channel banks to pre-disaster condition, which did not include RSP because the subgrantee's RSP policy did not meet the requirements of 44 CFR 206.226(b). Accordingly, permanent restoration to pre-disaster condition was funded at an amount of $2,946 in DSR 20354 (supplement to DSR 28371) and $3,746 in DSR 20356 (supplement to DSR 28372). The second appeal requested additional funding for the placement of RSP and engineering, inspection and environmental processing costs associated with all of the work.

Issues:
  1. Is the facility an FCW?
  2. Are the repairs eligible for FEMA disaster assistance?
Findings:
  1. Yes. Per the Levee Task Force determination and information provided in the subgrantee's first appeal, the subject portion of Pine Creek was improved for flood control purposes. Therefore, funding allocated by the first appeal determination must be deobligated.
  2. No. The channel banks are part of an FCW.
Rationale: The facility meets the USACE definition of an FCW and according to the Levee Policy, permanent restoration of such facilities is not eligible. Also, the subgrantee's RSP policy does not meet the requirements of 44 CFR 206.226(b).

Appeal Letter

October 31, 1997

Ms. Nancy Ward
Governor's Authorized Representative
Governor's Office of Emergency Services
Public Assistance Section
Post Office Box 239013
Sacramento, California 95823

Dear Ms. Ward:

This letter is in response to your submittal of the Contra Costa County Public Works Department's second appeal of Damage Survey Reports (DSRs) 20354 and 20356 under FEMA-1044-DR-CA. The applicant is requesting funding for the use of rock slope protection, dewatering, and engineering, inspection, and environmental processing costs. In the first appeal determination, the Federal Emergency Management Agency (FEMA) funded the restoration of the Pine Creek channel banks to pre-disaster condition only.

After reviewing the documentation submitted by the subgrantee, I have determined that the damaged portion of Pine Creek is part of a flood control work. Therefore, the permanent restoration of the channel banks is not eligible for FEMA disaster assistance. Accordingly, I am denying this appeal as further explained in the enclosed appeal analysis. Additionally, I have directed the Regional Director deobligate supplemental DSRs 20354 and 20356.

Please inform the applicant of my determination. The applicant may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.


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

Enclosure

Appeal Analysis

BACKGROUND
Stream flows from the 1995 winter storms caused Pine Creek channel banks, located approximately 300 feet downstream of Ygnacio Valley Road, to erode, resulting in the preparation of two damage survey reports (DSRs) 28371 and 28372. DSR 28371 documented a 70x10 foot eroded section on the west channel bank and proposed repair using rock slope protection (RSP) and riprap fabric for a cost of $9,958. Restoration of the 80x15 foot eroded section on the east channel bank utilizing RSP and fabric for a cost of $14,168 was reported in DSR 28372. During review, DSRs 28371 and 28372 were reduced to $2,946 and $3,746 respectively, for restoration to pre-disaster condition only, which did not include RSP. Later in the review process, the Levee Task Force determined that the subject portion of Pine Creek was a flood control work (FCW) under the specific authority of the U.S. Army Corps of Engineers (USACE). Therefore, both DSRs were ineligible.

First Appeal
With a November 20, 1995, letter the subgrantee appealed the Federal Emergency Management Agency's (FEMA) decisions regarding these DSRs. In the appeal, the subgrantee stated that the subject portion of Pine Creek was improved to an earth and rock slope protection (RSP) trapezoidal channel by the USACE, and was a flood control channel maintained by the County Flood Control District. However, upon completion of the channel improvements, the USACE no longer provided funding and required the subgrantee to assume all maintenance responsibilities. Therefore, the subgrantee adopted a policy to use RSP for channel bank repairs. For this reason the subgrantee believed that the channel bank repairs, including RSP, were eligible. Further, the appeal noted that costs associated with required engineering, dewatering, and environmental processing not included in the DSRs cost estimates were also eligible. In a January 26, 1996, letter, the State of California Governor's Office of Emergency Services (OES) concurred with and transmitted the subgrantee's appeal.

In response, the Regional Director determined that Pine Creek was not an FCW because the channel improvements were to improve drainage and erosion control within the watercourse. Also, a letter submitted by the subgrantee indicated that USACE denied funding for the repairs because the subgrantee had the maintenance responsibility. Accordingly, permanent restoration to pre-disaster condition was funded at an amount of $2,946 in DSR 20354 (a supplement to DSR 28371) and $3,746 in DSR 20356 (a supplement to DSR 28372). Again, the eligible cost did not include funding for RSP, engineering, and environmental work. The ineligibility of the RSP work was based on the fact that the subgrantee's policy to use RSP did not meet the requirements of 44 CFR Section 206.226(b) because its application was discretionary.

Second Appeal
The second appeal from the subgrantee dated January 2, 1997, was transmitted by an April 4, 1997, letter from the State concurring with the subgrantee's position. The subgrantee believed that the policy for the installation of RSP met the requirements of 44 CFR section 206.226(b) and should be eligible. Further, the subgrantee maintained that engineering, inspection, and environmental processing costs were incurred because the work was performed by a contractor. They requested funding for a total of $12,933 for the work completed on the west bank (DSR 28371) damage location, and for the east bank (DSR 28372) damage site, $11,971 was requested.

DISCUSSION
Flood Control Work
Throughout the processing of these DSRs, the decision of whether or not Pine Creek is an FCW has been an issue. The Levee Task Force determined the channels to be FCWs during the preparation of the two DSRs. The Regional office altered this determination upon receipt of the first appeal, concluding that this section of Pine Creek does not qualify as an FCW as defined by the USACE. This determination was based on FEMA's understanding that this portion of the channel "was improved primarily to provide better drainage and erosion control within the existing watercourse." In the first appeal, the subgrantee stated, "The storm damage described in this DSR is in a portion of Pine Creek that is a man-made and County Flood Control District -maintained flood control channel," suggesting that the completed improvements are associated with its function of providing flood control. The subgrantee continued by stating that the USACE funded and performed the work involved with improving the channel, and only upon completion was the responsibility given to the subgrantee. Based on the Levee Task Force review and documentation submitted by the subgrantee, the damaged portion of Pine Creek is considered an FCW. Therefore, this analysis continues on the original premise that this channel and its improvements meet the USACE definition of a flood control work. Accordingly, all previously allocated permanent restoration funding for the channel banks is not eligible. Also, the use of the Rock Slope Protection Policy does not apply to the determination of ineligibility of the subject repairs of Pine Creek, as this facility is an FCW ineligible for permanent restoration funding.

Eligibility of Flood Control Works
Congress authorized FEMA and the UASCE to fund repairs to flood control works. When different Federal agencies are authorized to perform the same function, these agencies must determine the best way to implement public policy that is consistent with the congressional intent. Both USACE and the Natural Resources Conservation Service (NRCS) have specific programs that encourage owners of flood control works to build/upgrade their facilities to specific standards and to maintain them on a regular basis to ensure that they perform as designed. In the present case, if the owners meet USACE requirements and participate in the PL 84-99 Rehabilitation and Inspection Program, USACE will fund repairs to those facilities when they are damaged during an unusual event, for example a flood that is declared a Presidential disaster.

When carrying out its responsibilities under the Stafford Act, FEMA must work with other Federal agencies to provide disaster assistance to applicants without undermining the programs of the other agencies. All Federal agencies must work together toward a common goal-assisting victims and eligible applicants in recovering from the devastating effects of disasters as quickly as possible. USACE can provide assistance to owners of flood control works who commit to certain actions to ensure the integrity of their facilities. However, it is not good public policy for FEMA to fund the repair of flood control works when the owners have not made similar commitments to protect the integrity of their facilities by meeting USACE program requirements. If FEMA were to fund permanent repairs of flood control works that are not participating in either the USACE or NRCS programs this would possibly remove the incentive for those owners to join a program. With this incentive, more flood control works are better maintained and the public is better protected.

Coordination of Federal Disaster Assistance
Under the authority of Section 402 (2) and (3) of the Stafford Act, FEMA coordinated all disaster relief assistance provided by Federal agencies. Further, 44 CFR Section 206.42 established FEMA's responsibility to coordinate all Federal disaster assistance, including taking appropriate action to make certain that all of the Federal agencies carry out their appropriate disaster assistance roles under their own legislative authorities and operational policies. During the 1995 disasters, 1044 and 1046, FEMA fulfilled the roles established by the Stafford Act and regulations. To support these acd es evaluated many DSRs involving water control facilities to determine if they were flood control works. In other cases, FEMA consulted with USACE representatives to aid in this determination. Using the USACE definition of a flood control work, levees, channels, and other facilities were identified as flood control works, as such they were ineligible for FEMA funding based on the Federal Levee Policy. This was done for DSRs 28371 and 28372.

The Federal Levee Policy has been in effect for some time. This policy was clarified and reissued in 1993 and 1996. In 1996, FEMA renamed the levee policy "The Policy for Rehabilitation Assistance for Levees and Other Flood Control Works." As this channel meets the USACE definition of a flood control work, funding of its repair would potentially be available through the PL 84-99 program, only if the program's requirements were met. However, if the subgrantee did not adhere to USACE criteria, this does not imply that FEMA would fund the permanent restoration of the levee, even if USACE denies funding the repairs, as well. FEMA is not authorized to fund other agencies' programs when those agencies do not have funds or when they do not provide funding.

CONCLUSION
Based on the Levee Task Force review and documentation submitted by the subgrantee, the damaged portion of Pine Creek is an FCW. Therefore, all previously allocated permanent restoration funding for the channel banks is not eligible. Consequently, supplemental DSRs 20354 and 20356 must be deobligated.
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