Repairs to Misselbeck Dam Spillway
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: Appeal Brief; Second Appeal; Igo Ono Community Services District; FEMA-1046-DR-CA; PA #089-91028
Cross-
Reference: DSR 20138 and 39696; Eligible Facility; Hazard Mitigation Proposal
Summary: As a result of the disaster event, flood waters overtopped the spillway of Misselbeck Dam resulting in severe erosion and the undermining of the spillway floor slab and walls. DSR 20138 was prepared for $2,192 for engineering costs and for $20,299 for installation of control density fill to repair a cavity under the spillway floor. However, DSR 20138 did not include the $10,098 for Hazard Mitigation Proposal (HMP), as requested by the subgrantee. Upon review, FEMA deleted the engineering cost and the DSR was reduced to $20,299. On July 2, 1996, the State submitted the first appeal for inclusion of $10,098 for HMP and reinstatement of $2,192 for engineering costs with DSR 20138. The Regional Director denied the first appeal on October 4, 1996, because the damages were the result of the subgrantee's failure to maintain the spillway and advised the subgrantee that 44 CFR 206.233 (e) states "no assistance will be provided to an applicant for damages caused by its own negligence." Accordingly, FEMA prepared DSR 39696 to deobligate $20,299 from DSR 20138. The State submitted the second appeal on April 15, 1997, requesting reinstatement of the engineering costs and the deobligated funds, and inclusion of the HMP funding. Additional information was provided to document that the spillway was actually in the middle of a major project to reconstruct the 60 linear feet of wall along the west side of the chute when the disaster occurred.
Issues: 1. Was the original scope of work in DSR 20138 for $20,299 necessary as a direct result of the disaster event?
2. Are the engineering costs ($2,192) for the repair work warranted?
3. Is the HMP an eligible expense?
Findings: 1. Yes. The undermining damage to the floor slab and spillway walls were a result of the disaster and not the result of inadequate maintenance by the subgrantee.
2. Yes. The engineering costs, which were part of the repair project, are warranted and eligible for funding.
3. No. The HMP work was under contract by the subgrantee prior to the disaster, therefore the HMP work is not eligible.
Rationale: In accordance with the Public Assistance Guide, "If a Federal or state agency or other governing or regulatory body directed the applicant to correct deficiencies in a facility before the disaster, and the work had not yet been completed and accepted by the owner, the estimated cost of that work should be deducted from the disaster damages." Therefore, the HMP is not eligible. However, the engineering cost and repair of the erosion under the spillway walls and floor are a direct result of the disaster event and are eligible expenses.
Background:
As a result of the winter storms of 1995, flood waters overtopped the spillway of Misselbeck Dam resulting in severe erosion and undermining of the spillway floor slab and walls. Damage survey report (DSR) 20138 was prepared for $2,192 for engineering costs and $20,299 for installation of control density fill to repair a cavity under the spillway floor. However, DSR 20138 did not include the $10,098 for Hazard Mitigation Proposal (HMP) for chute wall repairs, as requested by the Igo Ono Community Services District (District). Upon review, FEMA determined that the engineering costs were unwarranted for the original scope of work of the DSR, and reduced the DSR to $20,299.
First Appeal
The District sent a February 19, 1996, letter to California's Governor's Office of Emergency Services (OES) to appeal the $10,098 HMP expenses and the $2,192 engineering costs. The letter justified the inclusion of the engineering fees associated with the repair of the spillway as necessary because the California Division of Safety of Dams (DSD) "specifically prohibited us from beginning any repair work on the spillway until complete plans, stamped by Civil Engineer (sic) had been submitted and approved by DSD." OES transmitted its concurrence with the appeal, on July 2, 1996.
In an October 4, 1996, letter the Regional Director denied the first appeal and prepared DSR 39696 to deobligate the $20,299 of DSR 20138. The Regional Director stated that, "based on our review of the documentation, there was an area of 60 linear feet (lf) of chute wall and 16 lf of concrete slope protection that had deteriorated prior to the disaster." The denial letter further stated that, "because the spillway channel is designed to discharge water in a prescribed area, the subgrantee's failure to maintain the spillway allowed the water to breach the spillway, causing severe erosion and undermining to take place." The Regional Director determined the repairs to be ineligible pursuant to Title 44 of the Code of Federal Regulations (CFR), section 206.233 (e), which states that "no assistance will be provided to an applicant for damages caused by its own negligence." Because the Misselbeck Dam spillway repairs were determined to be ineligible, the engineering costs and HMP were also determined to be ineligible.
Second Appeal
On May 14, 1997, Region IX received a second appeal from the OES. The subgrantee disagreed with FEMA's conclusion that the damage occurred as a result of a lack of maintenance and deterioration of the spillway and stated:
- "The spillway was actually in the middle of a major project to reconstruct the 60 lf of wall along west side of the chute when the 1995 disaster occurred."
- " The dam and spillway are under the jurisdiction of the DSD and they required us to correct the problem of the potential `crosswave' action."
- " In the summer and fall of 1994 we removed the corner and approximately 60 lf of the west wall and 16 lf concrete slope protection, and excavated the slope before winter weather stopped construction. The slopes were terraced and mulched to prevent erosion and the level of the lake lowered to approximately 30 feet below the spillway." and
- "Therefore, the reason that the wall was not in place when the disaster hit is that it was being reconstructed by District forces, under mandate and approval of the DSD."
The subgrantee also reiterated the first appeal justification for HMP and engineering expenses.
Discussion:
The subgrantee has stated that, "The spillway was actually in the middle of a major project to reconstruct the 60 LF of wall along the west side of the chute when the 1995 disaster occurred." The subgrantee's pace of construction and the resultant need to suspend the reconstruction of the spillway during the winter months increased the risk of damage in the event of flooding conditions. Once it was determined that construction could not be completed prior to the winter, efforts were made by the subgrantee to mitigate the impact of a storm event by lowering the water level of the lake. FEMA's policy, on the eligibility of facilities under repair, is clearly stated in the Public Assistance Guide, as follows:
"A somewhat similar situation occurs when replacement of a facility or portion of a facility is already under contract using non-Federal funds but work has not started. In that case, damages to that portion being replaced would not be eligible for assistance. The amount of ineligible costs to be deducted from the total disaster damage is the amount of the contract work. Similarly, if a Federal or state agency or other governing or regulatory body had directed the applicant to correct deficiencies in a facility before the disaster, and the work had not yet been completed and accepted by the owner, the estimated cost of that work would also be deducted from the disaster damages. The eligibility of any such work in progress would depend on how responsibility was assigned in the contract."
The original DSR 20138 was prepared in the amount of $20,299 for replacement of materials eroded by the flood and $2,192 for engineering fees associated with this work. The $20,299 amount is eligible because the scope of work in DSR 20138 is not considered the result of the requirement of the State for repair of dams. As such, the $2,192 for engineering supervision is eligible, as it relates to the scope of work in DSR 20138.
Conclusion:
The replacement of the 60 lf of chute wall and 16 lf of concrete slope protection, that had been removed by the subgrantee in preparation for the DSD mandated improvements, is not eligible for funding as either permanent restoration or hazard mitigation because the work was planned and in process before the disaster. However, the engineering costs and the erosion of material along the spillway were a direct result of the flood. As such, these are eligible repairs. Therefore, the engineering costs ($2,192) and spillway repair costs ($20,299) are approved.
Appeal Brief
| Disaster | FEMA-1046-DR |
| Applicant | Igo Ono Community Services District |
| Appeal Type | Second |
| PA ID# | 089-91028 |
| PW ID# | 11111 |
| Date Signed | 1997-11-24T05:00:00 |
Citation: Appeal Brief; Second Appeal; Igo Ono Community Services District; FEMA-1046-DR-CA; PA #089-91028
Cross-
Reference: DSR 20138 and 39696; Eligible Facility; Hazard Mitigation Proposal
Summary: As a result of the disaster event, flood waters overtopped the spillway of Misselbeck Dam resulting in severe erosion and the undermining of the spillway floor slab and walls. DSR 20138 was prepared for $2,192 for engineering costs and for $20,299 for installation of control density fill to repair a cavity under the spillway floor. However, DSR 20138 did not include the $10,098 for Hazard Mitigation Proposal (HMP), as requested by the subgrantee. Upon review, FEMA deleted the engineering cost and the DSR was reduced to $20,299. On July 2, 1996, the State submitted the first appeal for inclusion of $10,098 for HMP and reinstatement of $2,192 for engineering costs with DSR 20138. The Regional Director denied the first appeal on October 4, 1996, because the damages were the result of the subgrantee's failure to maintain the spillway and advised the subgrantee that 44 CFR 206.233 (e) states "no assistance will be provided to an applicant for damages caused by its own negligence." Accordingly, FEMA prepared DSR 39696 to deobligate $20,299 from DSR 20138. The State submitted the second appeal on April 15, 1997, requesting reinstatement of the engineering costs and the deobligated funds, and inclusion of the HMP funding. Additional information was provided to document that the spillway was actually in the middle of a major project to reconstruct the 60 linear feet of wall along the west side of the chute when the disaster occurred.
Issues: 1. Was the original scope of work in DSR 20138 for $20,299 necessary as a direct result of the disaster event?
2. Are the engineering costs ($2,192) for the repair work warranted?
3. Is the HMP an eligible expense?
Findings: 1. Yes. The undermining damage to the floor slab and spillway walls were a result of the disaster and not the result of inadequate maintenance by the subgrantee.
2. Yes. The engineering costs, which were part of the repair project, are warranted and eligible for funding.
3. No. The HMP work was under contract by the subgrantee prior to the disaster, therefore the HMP work is not eligible.
Rationale: In accordance with the Public Assistance Guide, "If a Federal or state agency or other governing or regulatory body directed the applicant to correct deficiencies in a facility before the disaster, and the work had not yet been completed and accepted by the owner, the estimated cost of that work should be deducted from the disaster damages." Therefore, the HMP is not eligible. However, the engineering cost and repair of the erosion under the spillway walls and floor are a direct result of the disaster event and are eligible expenses.
Appeal Letter
November 24, 1997
Ms. Nancy Ward
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 239013
Sacramento, California 95823
Dear Ms. Ward:
This is in response to your letter dated April 15, 1997, to the Federal Emergency Management Agency (FEMA). With that letter, you forwarded a second appeal of damage survey reports (DSRs) 20138 and 39696 under FEMA-1046-DR-CA on behalf of Igo Ono Community Services District, requesting FEMA to reinstate the deobligated funding and engineering costs, and to include funding for a hazard mitigation proposal (HMP) for repairs to the Misselbeck Dam Spillway.
We have carefully reviewed the information submitted with the second appeal and have made the following determinations. We find there is sufficient documentation to establish that the voids caused by the erosion and undermining of the spillway are a direct result of the disaster event and the associated engineering costs are eligible for funding. Therefore, I am approving $2,192 for engineering costs and $20,299 for the repair work. However, I support the Regional Director's determination regarding the HMP. Therefore, I am denying this portion of the second appeal. This decision is explained in the enclosed appeal analysis.
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
cc: Ray Williams
Acting Regional Director
FEMA Region IX
Ms. Nancy Ward
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 239013
Sacramento, California 95823
Dear Ms. Ward:
This is in response to your letter dated April 15, 1997, to the Federal Emergency Management Agency (FEMA). With that letter, you forwarded a second appeal of damage survey reports (DSRs) 20138 and 39696 under FEMA-1046-DR-CA on behalf of Igo Ono Community Services District, requesting FEMA to reinstate the deobligated funding and engineering costs, and to include funding for a hazard mitigation proposal (HMP) for repairs to the Misselbeck Dam Spillway.
We have carefully reviewed the information submitted with the second appeal and have made the following determinations. We find there is sufficient documentation to establish that the voids caused by the erosion and undermining of the spillway are a direct result of the disaster event and the associated engineering costs are eligible for funding. Therefore, I am approving $2,192 for engineering costs and $20,299 for the repair work. However, I support the Regional Director's determination regarding the HMP. Therefore, I am denying this portion of the second appeal. This decision is explained in the enclosed appeal analysis.
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
cc: Ray Williams
Acting Regional Director
FEMA Region IX
Appeal Analysis
Background:
As a result of the winter storms of 1995, flood waters overtopped the spillway of Misselbeck Dam resulting in severe erosion and undermining of the spillway floor slab and walls. Damage survey report (DSR) 20138 was prepared for $2,192 for engineering costs and $20,299 for installation of control density fill to repair a cavity under the spillway floor. However, DSR 20138 did not include the $10,098 for Hazard Mitigation Proposal (HMP) for chute wall repairs, as requested by the Igo Ono Community Services District (District). Upon review, FEMA determined that the engineering costs were unwarranted for the original scope of work of the DSR, and reduced the DSR to $20,299.
First Appeal
The District sent a February 19, 1996, letter to California's Governor's Office of Emergency Services (OES) to appeal the $10,098 HMP expenses and the $2,192 engineering costs. The letter justified the inclusion of the engineering fees associated with the repair of the spillway as necessary because the California Division of Safety of Dams (DSD) "specifically prohibited us from beginning any repair work on the spillway until complete plans, stamped by Civil Engineer (sic) had been submitted and approved by DSD." OES transmitted its concurrence with the appeal, on July 2, 1996.
In an October 4, 1996, letter the Regional Director denied the first appeal and prepared DSR 39696 to deobligate the $20,299 of DSR 20138. The Regional Director stated that, "based on our review of the documentation, there was an area of 60 linear feet (lf) of chute wall and 16 lf of concrete slope protection that had deteriorated prior to the disaster." The denial letter further stated that, "because the spillway channel is designed to discharge water in a prescribed area, the subgrantee's failure to maintain the spillway allowed the water to breach the spillway, causing severe erosion and undermining to take place." The Regional Director determined the repairs to be ineligible pursuant to Title 44 of the Code of Federal Regulations (CFR), section 206.233 (e), which states that "no assistance will be provided to an applicant for damages caused by its own negligence." Because the Misselbeck Dam spillway repairs were determined to be ineligible, the engineering costs and HMP were also determined to be ineligible.
Second Appeal
On May 14, 1997, Region IX received a second appeal from the OES. The subgrantee disagreed with FEMA's conclusion that the damage occurred as a result of a lack of maintenance and deterioration of the spillway and stated:
- "The spillway was actually in the middle of a major project to reconstruct the 60 lf of wall along west side of the chute when the 1995 disaster occurred."
- " The dam and spillway are under the jurisdiction of the DSD and they required us to correct the problem of the potential `crosswave' action."
- " In the summer and fall of 1994 we removed the corner and approximately 60 lf of the west wall and 16 lf concrete slope protection, and excavated the slope before winter weather stopped construction. The slopes were terraced and mulched to prevent erosion and the level of the lake lowered to approximately 30 feet below the spillway." and
- "Therefore, the reason that the wall was not in place when the disaster hit is that it was being reconstructed by District forces, under mandate and approval of the DSD."
The subgrantee also reiterated the first appeal justification for HMP and engineering expenses.
Discussion:
The subgrantee has stated that, "The spillway was actually in the middle of a major project to reconstruct the 60 LF of wall along the west side of the chute when the 1995 disaster occurred." The subgrantee's pace of construction and the resultant need to suspend the reconstruction of the spillway during the winter months increased the risk of damage in the event of flooding conditions. Once it was determined that construction could not be completed prior to the winter, efforts were made by the subgrantee to mitigate the impact of a storm event by lowering the water level of the lake. FEMA's policy, on the eligibility of facilities under repair, is clearly stated in the Public Assistance Guide, as follows:
"A somewhat similar situation occurs when replacement of a facility or portion of a facility is already under contract using non-Federal funds but work has not started. In that case, damages to that portion being replaced would not be eligible for assistance. The amount of ineligible costs to be deducted from the total disaster damage is the amount of the contract work. Similarly, if a Federal or state agency or other governing or regulatory body had directed the applicant to correct deficiencies in a facility before the disaster, and the work had not yet been completed and accepted by the owner, the estimated cost of that work would also be deducted from the disaster damages. The eligibility of any such work in progress would depend on how responsibility was assigned in the contract."
The original DSR 20138 was prepared in the amount of $20,299 for replacement of materials eroded by the flood and $2,192 for engineering fees associated with this work. The $20,299 amount is eligible because the scope of work in DSR 20138 is not considered the result of the requirement of the State for repair of dams. As such, the $2,192 for engineering supervision is eligible, as it relates to the scope of work in DSR 20138.
Conclusion:
The replacement of the 60 lf of chute wall and 16 lf of concrete slope protection, that had been removed by the subgrantee in preparation for the DSD mandated improvements, is not eligible for funding as either permanent restoration or hazard mitigation because the work was planned and in process before the disaster. However, the engineering costs and the erosion of material along the spillway were a direct result of the flood. As such, these are eligible repairs. Therefore, the engineering costs ($2,192) and spillway repair costs ($20,299) are approved.
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