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Second Appeal Analysis
PA ID# 013-57764; City of Pleasant Hill
DSR ID# 28435; Alhambra Avenue Landslide
Due to the severe winter storms and flooding that occurred in February and March of 1995, the President declared the State of California a major disaster area. The City of Pleasant Hill is an eligible applicant for Public Assistance Funding. Two landslides occurred within the upslope hillside adjacent to Alhambra Avenue, reportedly due to rain and excessive ground moisture. The hillside property is an undeveloped parcel of land, owned by the applicant. Alhambra Avenue is an FHWA road. Residential properties are located on the north and south sides of this hillside, and also on the west side of the road.
On May 16, 1995, representatives from FEMA, the California Office of Emergency Services (OES) and the City of Pleasant Hill (applicant) visited the site to document the damages. Two slides were observed within the hillside. The first area, on the south side of the hill, has a 10 ft. high vertical face at the headscarp, the top of which was located approximately 40 feet from the adjacent residence. The second slide, on the east side, has a 5 ft. high headscarp . The lateral length of the two slide areas is about 200 to 250 ft. Debris which was deposited on the sidewalk and the roadway had been cleared. A contractor placed and compacted some of the debris material at the toe of the slide to temporarily stabilize the hillside. It was noted that neither the road or sidewalk was damaged by the slides. Further, it was concluded that the condition of the hillside did not pose a threat to any facility, including the residence adjacent to the first slide area.
Several geotechnical engineering reports were provided by the applicant that described previous landslides (a total of five) which had occurred at various locations within this hillside, apparently due to the 1986 declared disaster event. Two of the previous slide areas are within the same general location as these recent movements. It was noted that the failed materials consisted of loosely placed fill material which had been placed upon several older landslides. These areas were "stabilized" by grading and hydromulching of the slope in October and November of 1987, funded by FEMA. No subdrainage was provided for this portion of the hillside.
In response to this site visit, two DSRs were prepared. DSR 28438 was prepared as Category A for removal of the slide debris but was determined to be ineligible on the basis that the road was an FHWA road, and that the debris did not pose a threat. The applicant was advised to contact FHWA regarding funding for this site. The second DSR (DSR 28435, the subject of this appeal), was prepared as Category G to document the damages to the hillside. This DSR was also considered ineligible for funding by both the FEMA inspector and reviewers as there was no damage to, nor any threat to, an eligible facility. The applicant did no concur with FEMA's determination of ineligibility for either of these DSRs.
Request for Reconsideration
On September 20, 1995, OES transmitted the applicant's request for reconsideration of the Category G DSR 28435. The applicant stated that the condition of the hillside threatened both the roadway and the private residence, submitting a geotechnical report, dated September 11, 1995, to support this position. This report indicated the slide mass did continue to creep, and had widened somewhat laterally, but the data suggests that the primary direction of movement was in the western direction (downhill toward the street). It was noted that the stability of the residential property to the south of the slide was not evaluated as part of this study. No indication that the slide was encroaching upon this property was noted. Further, it was concluded that the landslides occurred as a result of the saturation of the "weak old landslide" and colluvial materials. The recommended method of repair consisted of reconstructing the slope with compacted fill and "extensive drainage". Secondly. the applicant indicated that the hillside should not be considered "unimproved", as it had been graded after the 1986 landslide, and maintained (weeded). Lastly, the applicant requested that the DSR be changed to Category B.
FEMA responded to this request in a letter dated October 25, 1995, reaffirming the position that there is no apparent threat, that the previously completed slope grading does not meet the criteria of an "improvement", and that as no threat has been demonstrated, the requested repair is not eligible for Category B Emergency Work. The applicant's request for reconsideration was therefore denied.
On November 16, 1995, OES submitted the applicant's first appeal of FEMA's determination of ineligibility. The applicant again stated that the slope should be considered an improved property due to the grading completed after the 1986 disaster. The applicant asserted that they believe that a threat does exist to the residential property, and they have begun the repair work as of October 1995. The estimated cost for the proposed repair (engineered fill and drainage) is $250,000. FEMA denied the appeal in a letter dated August 1, 1996, again concluding that the hillside is considered an unimproved feature which is only eligible for Emergency Work, and that the condition of the slope did not pose a threat to public or private properties.
The applicant's second appeal was forwarded by OES to FEMA in a letter dated January 24, 1997. The applicant is again appealing FEMA's determination that a threat is not present and that the site is an unimproved feature. The applicant states that the site is "fully improved for it's designated use". The repair work is now complete at the site. It is noted that no new documentation has been provided in support of the applicant's position.
The primary issue of appeal is regarding the eligibility for repair of a hillside located adjacent to Alhambra Avenue. FEMA has determined that the hillside in an unimproved natural feature, and that a threat is not present to any public or private properties. The applicant is appealing these two determinations.
DSR 28435 was originally prepared as Category G, requesting permanent restoration of the hillside. The applicant is now requesting that the category of work be changed to Category B to provide funding for the repair as Emergency Work. In light of both of these approaches, we have reviewed the project eligibility relative to both permanent and emergency work. A discussion of these analyses is provided below.
Eligibility for Permanent Restoration
Under section 406 of the Stafford Act, only damaged or destroyed "facilities" are eligible for permanent restoration funding. The term "facility", as defined by 44 CFR 206.201(c), means any publicly or privately owned building, works, system, or equipment, built or manufactured, or an improved and maintained natural feature. Further, 44 CFR 206.221 defines "improved property" as a structure, facility or item of equipment which was built, constructed or manufactured. For a natural feature, such as a slope, to be considered improved, engineered and constructed stabilization systems such as retaining walls or other toe or head stabilization systems would be required to be in-place. Although we concur that some modifications were made to the slope by the grading efforts in 1986, this level of work does not constitute an improvement in accordance with the criteria defined above. Accordingly, the hillside is not considered an eligible "facility" and is therefore not eligible for permanent restoration funding.
On November 30, 1995, FEMA issued a Landslide Policy Relating to Public Facilities. This document was the result of a review of an existing policy that wa84 supports that stabilization of a natural feature is not eligible for restoration, but that it is the responsibility of the applicant. It is further noted that when evaluating an "eligible" slope for eligibility for stabilization, the Landslide Policy requires that the stability of the site be evaluated. If a site is found to be unstable due to an identified, pre-existing condition, the applicant is again responsible for stabilizing the site. The Alhambra Avenue hillside has been identified as being previously unstable. This is evidenced by the various landslides which occurred in 1986, and based on the assessments made by the applicant's engineers. Specifically, the September 11, 1995 report by Rogers/Pacific referenced the occurrence of older landslides within this site, and concluded that the 1995 disaster slide occurred "as a result of the saturation of the weak old landslide and colluvial materials". Accordingly, even if the hillside was otherwise considered an eligible facility, the applicant would be responsible for stabilizing the slope. Such stabilization would not be eligible for FEMA permanent restoration funding.
Finally, it should be noted that, if the hillside was found to be eligible for permanent restoration, the work which has been completed effectively altered the pre-disaster condition of the slope. The applicant completed this work without consulting with FEMA in advance for environmental clearance for the improvements. In accordance with 40CFR1506.1(a)(2), no action can be taken which would limit the choice of reasonable alternatives prior to our record of a decision in regard to the National Environmental Policy Act (NEPA). Our policy for implementing the requirements of NEPA are outlined under Environmental Policy Memo #3, dated March 24, 1995, which states that actions initiated and/or completed without fulfilling the specific documentation and procedural requirements of NEPA may not be considered for disaster assistance funding. As the completed scope of work changes the predisaster design of the facility, there are no statutory or categorical exclusions that would permit us to provide permanent restoration funding for the work at issue in compliance with applicable environmental laws. Accordingly, funding for the completed slope repairs could not be granted for permanent restoration.
Eligibility as Emergency Work
FEMA assistance for repair of a natural hillside would be limited to providing emergency protective measures (Category B) in the event that the condition of the hillside posed an "immediate threat" to an eligible public or private facility, such as the adjacent road or residences. Pursuant to 44 CFR 206.225(a), to be eligible for assistance, emergency protective measures must be necessary to eliminate or lessen immediate threats to life, public health or safety, or must eliminate or lessen significant damage to improved public or private property. Immediate threat is defined in 44 CFR 206.221(c) as a threat of additional damage or destruction from an event that can reasonably be expected to occur within five years. This is normally attributed to a threat which would occur due to a magnitude of flooding representative of a five year flood event.
The August 1, 1995 preliminary geotechnical evaluation by Rogers/Pacific indicates that "it appears likely that the lateral scarp will ultimately retreat into the adjacent subdivision boundaries." This statement does not necessarily demonstrate that the condition of the slope poses a threat to the improved property consistent with the definition of "immediate threat" cited above. Our review of the August and September 1995 geotechnical reports concludes that there is no data to support that the failure plane of the disaster landslide extends into the residential property, or that there is any evidence that further movement will continue in the direction of this residence. It should be further noted that the September 11, 1995, final report does not provide any reference to the condition of the slope relative to the adjacent homes, and specifically indicates that the stability of the residential property was not evaluated as part of their study. As such, based on our review of the available documentation, we maintain that the applicant's documentation, as well as FEMA's visual observations during various site visits, does not support that the condition of the slope posed an "immediate threat" to the adjacent private property or roadway. Accordingly, the scope of work proposed in DSR 28435 is not eligible for funding as Category B emergency work.
Further, for eligible emergency work projects, emergency protective measures are limited only to those which reduce the "immediate" threat to specific property, and do not necessarily include stabilization of the overall slope. Based on the information provided, the scope of work described in DSR 28435 is considered to represent permanent restoration of the slope, rather than providing work consistent with the intent of emergency protective measures. Accordingly, FEMA would be unable to provide assistance for this scope of completed work as emergency work.
The applicant is appealing FEMA's determination that the slope stabilization work completed for the Alhambra Avenue hillside is not eligible for FEMA assistance. Regarding permanent restoration funding, it is noted that numerous slope failures have occurred at the site, for which some regrading efforts have been performed. However, the regraded slope does not constitute an "improved" facility, and therefore, we maintain that the slope is considered an unimproved, natural feature. Further, as the slope has been defined as previously being unstable, even if the slope was found to be an eligible facility, the Landslide Policy indicates that stabilization of the slope would be the responsibility of the applicant. Regarding emergency work funding, it is concluded that the available documentation does not support that the condition of the slope poses an "immediate threat" to the adjacent improved public or private property. Additionally, the scope of the completed repair is not consistent with the intent of emergency protective measures, but is more representative of permanent work. Accordingly, the hillside repair work is not eligible for Category B emergency work.