CITY OF LAGUNA BEACH
Appeal Brief
Appeal Letter
Appeal Analysis
1. PURPOSE: Respond to the third appeal submitted by the City of Laguna Beach for stabilization of the slopes under Dunning Drive.
2. DISCUSSION: Heavy rains in February and March 1995, caused two landslides on a natural slope below Dunning Drive. Category B DSR 93802 under FEMA-1046-DR-CA was prepared for $64,662 for studies and designs intended to lead to the restoration of the landslides. The work was determined to be ineligible because no damage to the roadway existed at that time, and no immediate threat was apparent. In August 1995, cracks appeared in the roadway establishing an immediate threat. A category B DSR (39660) under FEMA-1044-DR-CA was written for $65,107 to pay for the design and construction of a caisson shoring system along Dunning Drive. The landslides were permanently repaired in the fall of 1995. In the third appeal, the City requested that the net unfunded cost of $865,922 for permanent landslide repair be declared eligible because the landslides posed an immediate threat to life, public health and safety, and significant damage to improved public and private property. Because the caisson shoring system provided protection to Dunning Drive, no immediate threat existed. Additionally, because the landslides occurred on natural ground which has been determined to be unstable prior to the disaster, permanent restoration of these slopes is not eligible pursuant to the landslide policy. Therefore, the third appeal should be denied.
3. RECOMMENDED ACTION: Sign letter to Governor's Authorized Representative denying this appeal.
As the result of heavy rains in February and March 1995, two nearly contiguous landslides occurred on a natural hillside below Dunning Drive. The two landslides encompassed five private properties along Dunning Drive. The first landslide, referred to as landslide A, occurred initially on March 25, 1995, and affected developed properties at 1339 and 1345 Dunning Drive. The second landslide, referred to as landslide B, occurred on April 24-25, 1995, and affected developed properties at 1299 and 1323 Dunning Drive. However, the majority of landslide B affected lot 1315, a vacant lot between lots 1299 and 1323 Dunning Drive. The landslides damaged three houses within these private properties and a 24-inch Reinforced Concrete Pipe (RCP) storm sewer that carried storm runoff from Dunning Drive to the natural drainage swale at the bottom of the hillside. Additionally, debris from the landslides blocked this drainage swale.
In a May 11, 1995, report titled "Limited Geotechnical Investigation of Landsliding Below Dunning Drive," the City of Laguna Beach's (City) geotechnical consultant, Geofirm, drew several conclusions. The two most relevant being that the recent slope failures were caused by the re-activation of ancient landslides and that protection of the Dunning Drive right-of-way could be achieved through two different methods. The two methods were a buttress fill placed along the toe of the slopes or a structural caisson-tieback system.
When the Damage Survey Report (DSR) inspection team made their site inspection in May of 1995, there was no apparent damage to the roadway. As a result of several inspections, two DSRs associated with the two landslides were written.
u On May 31, 1995, under FEMA-1046-DR-CA, DSR 93802 (category B) was written for $64,662 for geotechnical and civil engineering services in connection with the landslides. The entire scope of work and associated costs was declared ineligible during review because no damage to a public facility had been identified at the time of inspection.
u DSR 34639 (category D) was written on May 31, 1995, under FEMA-1046-DR-CA, for $48,474 to replace the damaged RCP storm drain, and to remove landslide debris from the drainage. During review, the cost for debris removal was deleted because the debris was located on private property and would not have affected public facilities. The final DSR amount was $10,220.
In August 1995, cracks appeared in the roadway above landslide B, indicating that the sliding was progressing up the hillside. Measurements between pairs of nails located across the cracks indicated continued movement. This movement was confirmed by measurements in a slope inclinometer located in the roadway. No visible signs of distress were observed in the roadway above landslide A. This was also confirmed by no movement being detected in two slope inclinometers located in the roadway above landslide A. In September 1995, the City constructed a caisson shoring system along Dunning Drive above landslide B as an emergency protective measure to preserve the integrity of the roadway. Subsequently, both landslides were excavated and replaced with compacted fill. The drainage swale at the bottom of the hillside was partially filled with compacted fill to act as a buttress. A storm drain was then placed beneath the buttress fill to carry the water that normally flowed down the drainage swale.
As a result of the observed damages and a September 6, 1995, geotechnical report by Geofirm, the site was reinspected. Based on the reinspection, an additional DSR was written for the site.
u DSR 94255 (category B) was written on September 12, 1995, under FEMA-1044-DR-CA, for $63,827. The scope of work consisted of engineering and construction costs for the caisson shoring system along Dunning Drive described above. The FEMA reviewer declared the work ineligible because the landslide occurred due to a pre-existing condition (ancient landslides).
First Appeal
FEMA-1046
On December 15, 1995, the City appealed FEMA's denial of DSR 93802. The bases for the City's appeal were the visible damages to Dunning Drive and the need to clear the obstructed drainage course (at the bottom of the canyon) to prevent future "flooding problems that would have undermined the roadway and other public facilities". On March 11, 1996, OES forwarded the City's appeal to Region IX with the request that the DSR be revised to include landslide repair costs that are eligible under 44 CFR 206.225. The Regional Director denied the appeal on August 14, 1996. The basis for denial was that the documentation submitted did not demonstrate damage to or an immediate threat to Dunning Drive. Therefore, the costs for repairing the landslide were determined to be ineligible.
FEMA-1044
In response to the City's first appeal of DSR 94255, submitted on June 13, 1996, DSR 39660 (category B) was written under FEMA-1044-DR-CA on August 26, 1996, for $65,107, for the actual costs of engineering and the construction of a caisson shoring system along Dunning Drive. The reversal occurred because FEMA's Landslide Policy allows emergency protective measures to be taken even though the immediate threat caused by the disaster is exacerbated by a pre-existing condition.
Second Appeal
On October 22, 1996, the City issued a second appeal to FEMA's denial of DSR 93802. The City submitted documentation supporting remedial construction costs of $976,766. After subtracting previously obligated and requested funding, the City asked to be reimbursed an additional $865,922. The City expanded their request beyond the engineering studies detailed in DSR 93802 to include the construction that was associated with those engineering services and had been completed. The Executive Associate Director denied the City's second appeal of DSR 93802. The appeal was denied because the instability of the site was due to a pre-existing condition (ancient landslides) and emergency protective measures had been provided through the caisson installation funded under DSR 39660. In accordance with FEMA's Landslide Policy, the permanent repair of a slope that is unstable due to pre-existing conditions is the responsibility of the applicant. However, a portion of the original DSR amount ($29,012) was determined eligible because the costs were for problem definition, detection of an immediate threat, and the design of eligible emergency protective measures. Other eligible costs (not included in the $29,012) were slope inclinometer measurements during June through August 1995, and any pavement, curb and/or utility repairs that were documented. Three DSRs were written in October of 1997 as a result of the Second Appeal Analysis. These include:
u DSR 29682, Category C, was written for $380, to cover repair to the pavement damages to Dunning Drive.
u DSR 29656, Category B, was written for $21,603, to cover additional costs associated with the detection and evaluation of an immediate threat to Dunning Drive from the two landslides.
u DSR 59504, Category C, was written for -$26,765, to de-obligate funding provided under DSR 29702, to avoid duplication of funding.
Third Appeal
The City of Laguna Beach submitted their third appeal of DSR 93802 on November 19, 1997. In their appeal, they request that FEMA fund $854,404 to cover the costs of the permanent restoration of the two landslides adjacent to Dunning Drive. They base their request on the fact that had they not performed the restoration, a threat would still have existed to public health and safety and to public facilities such as Dunning Drive. OES supports the City's position stating that had the restorationacSSION
The third appeal raises four issues in support of the request to fund the permanent restoration of both landslides A and B. The first is the immediate threat Dunning Drive and associated utilities and emergency access to the 17 homes that would be isolated in the event that Dunning Drive failed. The second issue is the time frame in which the work was completed. The next issue is the stable ground under the storm drain repaired under DSR 34639. Finally, the approval of DSR 94255 as a precedent is cited as basis for overturning DSR 93802.
Immediate Threat
The City raises the issue that had the restoration of the landslides not been performed, Dunning Drive and associated utilities would have remained in jeopardy. Additionally, they believe that public health and safety for the residents of the 17 homes located along Dunning Drive would also be in jeopardy should the road fail, thereby eliminating access.
FEMA agrees that an immediate threat did in fact exist to Dunning Drive. As discussed above, DSR 39660 (category B) was written for the installation of a caisson shoring system along Dunning Drive above landslide B. This was the result of a first appeal of a previous DSR (94255) that was written in response to both visible cracks in Dunning Drive and inclinometer readings that verified movement. In addition to this caisson system, the City is requesting the funding of the permanent restoration of the slopes below Dunning Drive as emergency protective measures because they believe Dunning Drive was still at risk. The nature of their request implies that the City believes the caisson shoring system is not satisfactorily performing its function of eliminating movement of Dunning Drive. Yet, they have not supported that position with evidence of movement either by slope inclinometer measurements or, measurements of the pairs of nails within Dunning Drive. FEMA utilized geotechnical engineers from their technical assistance contractors to review whether an immediate threat did exist in support of both this and the second appeal responses. In both instances, it was determined that the caisson system provided sufficient support to Dunning Drive such that the immediate threat to the road and utilities was alleviated. To further support this, the City's own consultant, Geofirm, as discussed above, recommended either the caisson system or the re-grading of the slopes as a temporary measure to protect Dunning drive from failure. Emergency protective measures are not intended to be a permanent solution. The intent is to eliminate or lessen an immediate threat to public health and safety, or damage to improved property. Therefore, because the caisson shoring system was in place and sufficiently provided protection to Dunning Drive against failure, the permanent restoration of the slopes as an emergency protective measure is considered duplicative and not necessary.
Because the permanent restoration of the landslides cannot be considered eligible as emergency protective measures, the only other alternative would be to consider the landslide repair as eligible permanent restoration. However, because the landslides occurred on private property, no eligible facility exists. Therefore, pursuant to 44 CFR 206.223, permanent restoration of the slopes would not be eligible.
Had the emergency protective measures not worked and Dunning Drive failed, the restoration of the slopes on which Dunning Drive rests would not be eligible. The slopes are an unimproved natural feature and would not be an eligible facility. Additionally, based on the landslide policy, when natural ground that is supporting ground to an eligible facility, is determined to be unstable prior to a disaster, it is the responsibility of the applicant to stabilize that ground before any restoration work to an eligible facility can be funded.
Time Frame
The City raises the issue that because they performed the re-grading of the landslides within six months of the disaster declaration, this would constitute the eligibility of the work as emergency protective measures. Although 44 CFR 206.204 (c)(1) requires that emergency protective measures must be completed within six months of a disaster declaration, this in itself does not constitute eligibility of the measure. Pursuant to 44 CFR 206.225 (3), emergency protective measures must eliminate or reduce threats to live, public health or safety or eliminate or reduce the threat of significant damage to improved public or private property to be eligible. As discussed above, the threat of Dunning Drive failing and subsequently removing access for the 17 residents, has been alleviated by the caisson shoring system funded under DSR 39660.
Stable Ground
OES states that "the cost for stabilizing the landslide should be included in the broad scope of work of repairing the landslide damaged storm drains (funded under 34639) adjacent to Dunning Drive." They base this statement on an assumption that neither FEMA nor the City would agree to repair a storm drain that is determined to be on unstable ground that is threatened by a landslide. They state that "Such repairs would be in violation of safety and construction codes and standards. OES' statement is true although it is out of context.
DSR 34639 provided for one end section and 120 linear feet of 24-inch diameter RCP to replace-in-kind the public infrastructure, which was lost or damaged during the landslide. This is consistent with the landslide policy. Additionally, DSR 34639 provided for the installation of 120 linear feet of 12-inch diameter ABS pipe to serve as a temporary diversion pipe. From a technical perspective this was imperative to alleviate storm runoff from further aggravating the two landslides. As discussed above, the landslide area was determined to be natural ground, which was unstable prior to the disaster. Therefore, in accordance with the landslide policy, it is the responsibility of the City to stabilize the ground prior to the repair of the storm drain. The unstable ground was implied in DSR 34639 by virtue of the inclusion of the temporary ABS pipe. Unfortunately, the fact that the City was responsible for the stabilization of the landslide was never formally stated. It is true that the replacement of the 24-inch RCP should have been suspended until the City could prove that the supporting ground had been stabilized. However, the inadvertent approval prior to the City stabilizing the ground does not make the stabilization effort eligible for FEMA funding.
DSR 94255
OES states that FEMA overturned DSR 94255 and approved DSR 39660 for emergency protective measures. They believe that because of this favorable decision, DSR 93802, written for emergency protective measures, should also be overturned. It is not clear how OES reaches their conclusion that because one DSR (94255) is overturned, a similar DSR (93802) should be overturned. In fact, because the emergency protective measures were funded under DSR 94255 would indicate that FEMA has provided protection to Dunning Drive. As indicated above, any additional work performed would be considered as permanent restoration and therefore ineligible.
CONCLUSION
The City's third appeal of DSR 93802 is denied because the instability of the site was due to a pre-existing condition (ancient landslides) and emergency protective measures (caisson system) have already been granted under DSR 39660. In accordance with FEMA's Landslide Policy, the permanent repair of a slope that is unstable due to pre-existing conditions is the responsibility of the applicant.
Appeal Brief
| Disaster | FEMA-1046-DR |
| Applicant | CITY OF LAGUNA BEACH |
| Appeal Type | Third |
| PA ID# | 059-39178 |
| PW ID# | 93802 |
| Date Signed | 1998-07-13T04:00:00 |
1. PURPOSE: Respond to the third appeal submitted by the City of Laguna Beach for stabilization of the slopes under Dunning Drive.
2. DISCUSSION: Heavy rains in February and March 1995, caused two landslides on a natural slope below Dunning Drive. Category B DSR 93802 under FEMA-1046-DR-CA was prepared for $64,662 for studies and designs intended to lead to the restoration of the landslides. The work was determined to be ineligible because no damage to the roadway existed at that time, and no immediate threat was apparent. In August 1995, cracks appeared in the roadway establishing an immediate threat. A category B DSR (39660) under FEMA-1044-DR-CA was written for $65,107 to pay for the design and construction of a caisson shoring system along Dunning Drive. The landslides were permanently repaired in the fall of 1995. In the third appeal, the City requested that the net unfunded cost of $865,922 for permanent landslide repair be declared eligible because the landslides posed an immediate threat to life, public health and safety, and significant damage to improved public and private property. Because the caisson shoring system provided protection to Dunning Drive, no immediate threat existed. Additionally, because the landslides occurred on natural ground which has been determined to be unstable prior to the disaster, permanent restoration of these slopes is not eligible pursuant to the landslide policy. Therefore, the third appeal should be denied.
3. RECOMMENDED ACTION: Sign letter to Governor's Authorized Representative denying this appeal.
Appeal Letter
July 13, 1998
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
State of California
74 North Pasadena Avenue, West Annex, Third Floor
Pasadena, CA 91103-3678
Dear Mr. Najera:
This is the Federal Emergency Management Agency's (FEMA's) response to your January 13, 1998, transmittal of the City of Laguna Beach's third appeal of Disaster Survey Report 93802 under FEMA-1046-DR-CA. The applicant is requesting reimbursement for costs associated with the restoration of two landslides on the natural slope below Dunning Drive.
Based on a review of the documentation submitted, I have determined that this appeal should be denied for the reasons explained in the enclosed appeal analysis. Briefly, emergency protective measures had been provided by the installation of the caisson shoring system and the instability of the natural slope was due to a pre-existing condition (ancient landslides). In accordance with FEMA's Landslide Policy, the permanent repair of a natural slope that is unstable due to pre-existing conditions is the responsibility of the applicant.
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 Martha Z. Whetstone
Regional Director
FEMA Region IX
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
State of California
74 North Pasadena Avenue, West Annex, Third Floor
Pasadena, CA 91103-3678
Dear Mr. Najera:
This is the Federal Emergency Management Agency's (FEMA's) response to your January 13, 1998, transmittal of the City of Laguna Beach's third appeal of Disaster Survey Report 93802 under FEMA-1046-DR-CA. The applicant is requesting reimbursement for costs associated with the restoration of two landslides on the natural slope below Dunning Drive.
Based on a review of the documentation submitted, I have determined that this appeal should be denied for the reasons explained in the enclosed appeal analysis. Briefly, emergency protective measures had been provided by the installation of the caisson shoring system and the instability of the natural slope was due to a pre-existing condition (ancient landslides). In accordance with FEMA's Landslide Policy, the permanent repair of a natural slope that is unstable due to pre-existing conditions is the responsibility of the applicant.
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 Martha Z. Whetstone
Regional Director
FEMA Region IX
Appeal Analysis
BACKGROUNDAs the result of heavy rains in February and March 1995, two nearly contiguous landslides occurred on a natural hillside below Dunning Drive. The two landslides encompassed five private properties along Dunning Drive. The first landslide, referred to as landslide A, occurred initially on March 25, 1995, and affected developed properties at 1339 and 1345 Dunning Drive. The second landslide, referred to as landslide B, occurred on April 24-25, 1995, and affected developed properties at 1299 and 1323 Dunning Drive. However, the majority of landslide B affected lot 1315, a vacant lot between lots 1299 and 1323 Dunning Drive. The landslides damaged three houses within these private properties and a 24-inch Reinforced Concrete Pipe (RCP) storm sewer that carried storm runoff from Dunning Drive to the natural drainage swale at the bottom of the hillside. Additionally, debris from the landslides blocked this drainage swale.
In a May 11, 1995, report titled "Limited Geotechnical Investigation of Landsliding Below Dunning Drive," the City of Laguna Beach's (City) geotechnical consultant, Geofirm, drew several conclusions. The two most relevant being that the recent slope failures were caused by the re-activation of ancient landslides and that protection of the Dunning Drive right-of-way could be achieved through two different methods. The two methods were a buttress fill placed along the toe of the slopes or a structural caisson-tieback system.
When the Damage Survey Report (DSR) inspection team made their site inspection in May of 1995, there was no apparent damage to the roadway. As a result of several inspections, two DSRs associated with the two landslides were written.
u On May 31, 1995, under FEMA-1046-DR-CA, DSR 93802 (category B) was written for $64,662 for geotechnical and civil engineering services in connection with the landslides. The entire scope of work and associated costs was declared ineligible during review because no damage to a public facility had been identified at the time of inspection.
u DSR 34639 (category D) was written on May 31, 1995, under FEMA-1046-DR-CA, for $48,474 to replace the damaged RCP storm drain, and to remove landslide debris from the drainage. During review, the cost for debris removal was deleted because the debris was located on private property and would not have affected public facilities. The final DSR amount was $10,220.
In August 1995, cracks appeared in the roadway above landslide B, indicating that the sliding was progressing up the hillside. Measurements between pairs of nails located across the cracks indicated continued movement. This movement was confirmed by measurements in a slope inclinometer located in the roadway. No visible signs of distress were observed in the roadway above landslide A. This was also confirmed by no movement being detected in two slope inclinometers located in the roadway above landslide A. In September 1995, the City constructed a caisson shoring system along Dunning Drive above landslide B as an emergency protective measure to preserve the integrity of the roadway. Subsequently, both landslides were excavated and replaced with compacted fill. The drainage swale at the bottom of the hillside was partially filled with compacted fill to act as a buttress. A storm drain was then placed beneath the buttress fill to carry the water that normally flowed down the drainage swale.
As a result of the observed damages and a September 6, 1995, geotechnical report by Geofirm, the site was reinspected. Based on the reinspection, an additional DSR was written for the site.
u DSR 94255 (category B) was written on September 12, 1995, under FEMA-1044-DR-CA, for $63,827. The scope of work consisted of engineering and construction costs for the caisson shoring system along Dunning Drive described above. The FEMA reviewer declared the work ineligible because the landslide occurred due to a pre-existing condition (ancient landslides).
First Appeal
FEMA-1046
On December 15, 1995, the City appealed FEMA's denial of DSR 93802. The bases for the City's appeal were the visible damages to Dunning Drive and the need to clear the obstructed drainage course (at the bottom of the canyon) to prevent future "flooding problems that would have undermined the roadway and other public facilities". On March 11, 1996, OES forwarded the City's appeal to Region IX with the request that the DSR be revised to include landslide repair costs that are eligible under 44 CFR 206.225. The Regional Director denied the appeal on August 14, 1996. The basis for denial was that the documentation submitted did not demonstrate damage to or an immediate threat to Dunning Drive. Therefore, the costs for repairing the landslide were determined to be ineligible.
FEMA-1044
In response to the City's first appeal of DSR 94255, submitted on June 13, 1996, DSR 39660 (category B) was written under FEMA-1044-DR-CA on August 26, 1996, for $65,107, for the actual costs of engineering and the construction of a caisson shoring system along Dunning Drive. The reversal occurred because FEMA's Landslide Policy allows emergency protective measures to be taken even though the immediate threat caused by the disaster is exacerbated by a pre-existing condition.
Second Appeal
On October 22, 1996, the City issued a second appeal to FEMA's denial of DSR 93802. The City submitted documentation supporting remedial construction costs of $976,766. After subtracting previously obligated and requested funding, the City asked to be reimbursed an additional $865,922. The City expanded their request beyond the engineering studies detailed in DSR 93802 to include the construction that was associated with those engineering services and had been completed. The Executive Associate Director denied the City's second appeal of DSR 93802. The appeal was denied because the instability of the site was due to a pre-existing condition (ancient landslides) and emergency protective measures had been provided through the caisson installation funded under DSR 39660. In accordance with FEMA's Landslide Policy, the permanent repair of a slope that is unstable due to pre-existing conditions is the responsibility of the applicant. However, a portion of the original DSR amount ($29,012) was determined eligible because the costs were for problem definition, detection of an immediate threat, and the design of eligible emergency protective measures. Other eligible costs (not included in the $29,012) were slope inclinometer measurements during June through August 1995, and any pavement, curb and/or utility repairs that were documented. Three DSRs were written in October of 1997 as a result of the Second Appeal Analysis. These include:
u DSR 29682, Category C, was written for $380, to cover repair to the pavement damages to Dunning Drive.
u DSR 29656, Category B, was written for $21,603, to cover additional costs associated with the detection and evaluation of an immediate threat to Dunning Drive from the two landslides.
u DSR 59504, Category C, was written for -$26,765, to de-obligate funding provided under DSR 29702, to avoid duplication of funding.
Third Appeal
The City of Laguna Beach submitted their third appeal of DSR 93802 on November 19, 1997. In their appeal, they request that FEMA fund $854,404 to cover the costs of the permanent restoration of the two landslides adjacent to Dunning Drive. They base their request on the fact that had they not performed the restoration, a threat would still have existed to public health and safety and to public facilities such as Dunning Drive. OES supports the City's position stating that had the restorationacSSION
The third appeal raises four issues in support of the request to fund the permanent restoration of both landslides A and B. The first is the immediate threat Dunning Drive and associated utilities and emergency access to the 17 homes that would be isolated in the event that Dunning Drive failed. The second issue is the time frame in which the work was completed. The next issue is the stable ground under the storm drain repaired under DSR 34639. Finally, the approval of DSR 94255 as a precedent is cited as basis for overturning DSR 93802.
Immediate Threat
The City raises the issue that had the restoration of the landslides not been performed, Dunning Drive and associated utilities would have remained in jeopardy. Additionally, they believe that public health and safety for the residents of the 17 homes located along Dunning Drive would also be in jeopardy should the road fail, thereby eliminating access.
FEMA agrees that an immediate threat did in fact exist to Dunning Drive. As discussed above, DSR 39660 (category B) was written for the installation of a caisson shoring system along Dunning Drive above landslide B. This was the result of a first appeal of a previous DSR (94255) that was written in response to both visible cracks in Dunning Drive and inclinometer readings that verified movement. In addition to this caisson system, the City is requesting the funding of the permanent restoration of the slopes below Dunning Drive as emergency protective measures because they believe Dunning Drive was still at risk. The nature of their request implies that the City believes the caisson shoring system is not satisfactorily performing its function of eliminating movement of Dunning Drive. Yet, they have not supported that position with evidence of movement either by slope inclinometer measurements or, measurements of the pairs of nails within Dunning Drive. FEMA utilized geotechnical engineers from their technical assistance contractors to review whether an immediate threat did exist in support of both this and the second appeal responses. In both instances, it was determined that the caisson system provided sufficient support to Dunning Drive such that the immediate threat to the road and utilities was alleviated. To further support this, the City's own consultant, Geofirm, as discussed above, recommended either the caisson system or the re-grading of the slopes as a temporary measure to protect Dunning drive from failure. Emergency protective measures are not intended to be a permanent solution. The intent is to eliminate or lessen an immediate threat to public health and safety, or damage to improved property. Therefore, because the caisson shoring system was in place and sufficiently provided protection to Dunning Drive against failure, the permanent restoration of the slopes as an emergency protective measure is considered duplicative and not necessary.
Because the permanent restoration of the landslides cannot be considered eligible as emergency protective measures, the only other alternative would be to consider the landslide repair as eligible permanent restoration. However, because the landslides occurred on private property, no eligible facility exists. Therefore, pursuant to 44 CFR 206.223, permanent restoration of the slopes would not be eligible.
Had the emergency protective measures not worked and Dunning Drive failed, the restoration of the slopes on which Dunning Drive rests would not be eligible. The slopes are an unimproved natural feature and would not be an eligible facility. Additionally, based on the landslide policy, when natural ground that is supporting ground to an eligible facility, is determined to be unstable prior to a disaster, it is the responsibility of the applicant to stabilize that ground before any restoration work to an eligible facility can be funded.
Time Frame
The City raises the issue that because they performed the re-grading of the landslides within six months of the disaster declaration, this would constitute the eligibility of the work as emergency protective measures. Although 44 CFR 206.204 (c)(1) requires that emergency protective measures must be completed within six months of a disaster declaration, this in itself does not constitute eligibility of the measure. Pursuant to 44 CFR 206.225 (3), emergency protective measures must eliminate or reduce threats to live, public health or safety or eliminate or reduce the threat of significant damage to improved public or private property to be eligible. As discussed above, the threat of Dunning Drive failing and subsequently removing access for the 17 residents, has been alleviated by the caisson shoring system funded under DSR 39660.
Stable Ground
OES states that "the cost for stabilizing the landslide should be included in the broad scope of work of repairing the landslide damaged storm drains (funded under 34639) adjacent to Dunning Drive." They base this statement on an assumption that neither FEMA nor the City would agree to repair a storm drain that is determined to be on unstable ground that is threatened by a landslide. They state that "Such repairs would be in violation of safety and construction codes and standards. OES' statement is true although it is out of context.
DSR 34639 provided for one end section and 120 linear feet of 24-inch diameter RCP to replace-in-kind the public infrastructure, which was lost or damaged during the landslide. This is consistent with the landslide policy. Additionally, DSR 34639 provided for the installation of 120 linear feet of 12-inch diameter ABS pipe to serve as a temporary diversion pipe. From a technical perspective this was imperative to alleviate storm runoff from further aggravating the two landslides. As discussed above, the landslide area was determined to be natural ground, which was unstable prior to the disaster. Therefore, in accordance with the landslide policy, it is the responsibility of the City to stabilize the ground prior to the repair of the storm drain. The unstable ground was implied in DSR 34639 by virtue of the inclusion of the temporary ABS pipe. Unfortunately, the fact that the City was responsible for the stabilization of the landslide was never formally stated. It is true that the replacement of the 24-inch RCP should have been suspended until the City could prove that the supporting ground had been stabilized. However, the inadvertent approval prior to the City stabilizing the ground does not make the stabilization effort eligible for FEMA funding.
DSR 94255
OES states that FEMA overturned DSR 94255 and approved DSR 39660 for emergency protective measures. They believe that because of this favorable decision, DSR 93802, written for emergency protective measures, should also be overturned. It is not clear how OES reaches their conclusion that because one DSR (94255) is overturned, a similar DSR (93802) should be overturned. In fact, because the emergency protective measures were funded under DSR 94255 would indicate that FEMA has provided protection to Dunning Drive. As indicated above, any additional work performed would be considered as permanent restoration and therefore ineligible.
CONCLUSION
The City's third appeal of DSR 93802 is denied because the instability of the site was due to a pre-existing condition (ancient landslides) and emergency protective measures (caisson system) have already been granted under DSR 39660. In accordance with FEMA's Landslide Policy, the permanent repair of a slope that is unstable due to pre-existing conditions is the responsibility of the applicant.
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