Flood Control Work Maintenance Road Repair

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1203-DR
ApplicantAlameda County Flood Control & Water District
Appeal TypeSecond
PA ID#001-91017
PW ID#Multiple
Date Signed2000-10-24T04:00:00
Citation: FEMA-1203-DR-CA, P.A. #001-91017, Alameda County Flood Control and Water Conservation District, Zone 7, DSRs 07054, 51569, 51570, 51571, 51577, 51582, 74080, and 95741, Maintenance Road Repair

Cross-reference: Flood Control Works Policy, Other Federal Agencies

Summary: Winter storms in 1998 eroded several portions of flood control work (FCW) maintenance roads in the Alameda County Flood Control and Water Conservation District, Zone 7 (District). DSRs 07054, 51569, 51570, 51571, 51577, 51582, 74080, and 95741 were written to remove debris and place aggregate surface course at 16 sites for a total of $211,745. FEMA found these DSRs ineligible because maintenance roads are considered an integral part of an FCW and therefore ineligible for permanent restoration, according to FEMA's FCW policy (Policy 9524.3). The District argued in its first appeal that because roads are not a requirement for eligibility in the U.S. Army Corps of Engineers (USACE) Public Law (PL) 84-99 program, they are not an integral part of an FCW. The District explained that the roads are an essential part of a public recreation facility and do not exist solely to service the flood control facilities. It included an agreement (no. A3-7.409) between the District and the City of Pleasanton, which allows the City to open these roads to the public for recreational purposes. FEMA denied this appeal on November 1, 1999, stating that the roads are under the authority of USACE because the facilities are FCWs and the primary purpose of the roads is flood control, drainage and water conservation. The District claimed in its second appeal that the roads are not under the jurisdiction of USACE and are primarily used for recreation while access for flood control "remains permissible." It also provided a letter from USACE's San Francisco District, which explains its policy for repairing haul roads.

Issues: 1) Are the roads described in these DSRs integral parts of FCWs? 2) Are FCWs eligible for permanent restoration work through FEMA?

Findings: 1) Yes. 2) No.

Rationale: 44 CFR  206.226(a)(1). Policy for Rehabilitation Assistance for Levees and Other Flood Control Works (FEMA-RR Policy No. 9524.3)

Appeal Letter

October 24, 2000

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

Re: Second Appeal - Alameda County Flood Control and Water Conservation District, Zone 7, Flood Control Work Maintenance Road Repair, FEMA-1203-DR-CA, DSRs 07054, 51569, 51570, 51571, 51577, 51582, 74080, and 95741

Dear Mr. Christian:

This is in response to the referenced second appeal forwarded by your office on April 12, 2000. The Alameda County Flood Control and Water Conservation District, Zone 7 (District) is asking FEMA to reconsider its denial of $211,745 for flood control work (FCW) maintenance road repairs as described in Damage Survey Reports (DSRs) 07054, 51569, 51570, 51571, 51577, 51582, 74080, and 95741.

Winter storms in 1998 caused high flows in flood channels that overtopped their banks and eroded several portions of maintenance roads in the District. DSRs 07054, 51569, 51570, 51571, 51577, 51582, 74080, and 95741 were written to remove debris and place aggregate surface course at 16 sites for a total of $211,745. FEMA found these DSRs ineligible because the maintenance roads are considered an integral part of an FCW, thereby making them ineligible for permanent restoration, according to FEMA's FCW policy (Policy 9524.3). The District was informed of FEMA's determination on January 26, 1999.

The District submitted its first appeal on March 26, 1999, arguing that because roads are not a requirement for eligibility in the U.S. Army Corps of Engineers (USACE) Public Law (PL) 84-99 program, they should not be considered an integral part of an FCW. The District explained that the roads in question are an essential part of a public recreation facility, and do not exist solely to service the flood control facilities. It included an agreement (no. A3-7.409) between the District and the City of Pleasanton, which allows the City to use these roads for recreational purposes.

In its first appeal response on November 1, 1999, the Regional Director stated that while the roads are not a requirement for inclusion in the USACE program, they are still under the jurisdiction of USACE because the primary purpose of the roads is flood control, drainage and water conservation. The Regional Director pointed to the use agreement between the District and the City of Pleasanton, which states that the primary use of the sites is for flood control and water conservation. This agreement indicates that the use of these facilities for recreational purposes is secondary.

The District submitted its second appeal on February 10, 2000. It again argues that the roads are not under the jurisdiction of USACE and that despite the terms of the agreement with the City of Pleasanton, the roads are primarily used for recreation while access for flood control and water conservation "remains permissible." However, having reviewed the use agreement, we find it is clear that the primary purpose of the facilities is flood control and water conservation and that this takes precedence over all other uses. The agreement states, "use by the Licensee [Pleasanton] or public shall be at all times subject to the primary use of the aforesaid sites for purposes of flood control and water conservation." Further, "it is understood and agreed by Licensee that the primary purposes for which Licensor has acquired and owns the subject sites are flood control and water conservation and that operations in furtherance of said purposes must take precedence over any and all other uses of the subject sites."

On March 14, 2000, the District provided a letter from the San Francisco District of USACE, which states that in certain circumstances, USACE will repair haul roads that are damaged during USACE floodfight or rehabilitation efforts. The letter is based on a USACE policy memorandum dated November 17, 1998, titled "U.S. Army Corps of Engineers Policy Concerning Restoration of Damages to Haul Roads Caused by Floodfight Activities and/or Levee Rehabilitation Work Executed Under Authority of Public Law (PL) 84-99." The policy defines haul roads as "any privately owned road used by Corps vehicles or Corps contractor's vehicles to haul rock, earth fill, or other borrow material to the site of a repair/floodfight/ rehabilitation effort, or on which empty haul vehicles return." This description is not relevant in this case because the roads were not damaged by Corps activity. The policy does not address repair of disaster damage itself, but restoration activity required "when Corps activity has degraded the haul road's condition from the condition that existed immediately prior to the beginning of Corps activity."

Pursuant to our FCW policy, permanent work on facilities that meet the USACE or Natural Resources Conservation Service (NRCS) definition of an FCW is ineligible for reimbursement from FEMA. FEMA has consistently determined that access roads are an integral part of an FCW and are therefore under the authority of another federal agency. In December 1998, a joint team comprised of FEMA and USACE representatives reviewed DSRs in 1203-DR to determine if the damaged facilities are FCWs that are eligible for the USACE PL 84-99 Program. For each of the DSRs in this appeal, the San Francisco District, USACE, found that the damaged facility was an FCW eligible for the USACE PL 84-99 program. For this reason, I am denying this appeal.

Please inform the applicant of this determination. My decision constitutes the final decision on this matter as set forth in 44 CFR  206.206.

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

cc: Martha Whetstone
Regional Director
FEMA Region IX
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