Flood Control Work

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1577-DR
ApplicantBanning Heights Mutual Water Company
Appeal TypeSecond
PA ID#065-07A18-00
PW ID#Project Worksheet 2823
Date Signed2008-02-19T05:00:00
Citation: FEMA-1577-DR-CA, Banning Heights Mutual Water Company,
PA ID 065-07A18-00, Million-Gallon Tank Gabion Berm, PW 2823
Cross-reference: Flood Control Work, Permanent Work
Summary: As a result of the storms and heavy rains of December 27, 2004 through
January 11, 2005, the Banning Heights Mutual Water Company (Applicant) requested funding for permanent repairs to a 300-foot section of the 800-foot long by 15-foot high gabion berm installed to protect the tank, foundation, and adjacent building and equipment of the Applicant’s million-gallon water storage tank. The U.S. Army Corps of Engineers (USACE) advised FEMA that the facility met the definition of a Flood Control Work (FCW). Therefore, FEMA de-obligated PW 2823 for $63,619.70, the portion of the PW covering those repairs.
The Applicant submitted its first appeal on January 9, 2006. The Applicant stated that the costs were eligible because the facility is not an FCW but rather an erosion control device, is not active in the USACE Rehabilitation and Inspection Program (RIP), and is not under the specific authority of the USACE. The Applicant stated that because it has sole responsibility for maintenance, the repairs should be eligible for permanent work reimbursement. FEMA denied the Applicant’s first appeal on April 18, 2007, stating that the facility met the USACE definition of an FCW. In accordance with FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works, disaster assistance authority for permanent work on FCW resides with another federal agency.

On July 12, 2007, the Applicant filed a second appeal with FEMA reiterating the position presented in its first appeal.

Issues: Are permanent repairs to a facility that meets the USACE definition of an FCW eligible under the Public Assistance Program?

Findings: No.

Rationale: Response and Recovery Policy 9524.3 and 44 CFR §206.226(a)(1)

Second Appeal–Banning Heights Mutual Water Company, FEMA-1577-DR-CA

Appeal Letter

February 19, 2008

Paul Jacks
Governor’s Authorized Representative
Governor’s Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655

Re: Second Appeal–Banning Heights Mutual Water Company, PA ID 065-07A18-00,
Flood Control Work, FEMA-1577-DR-CA, Project Worksheet (PW) 2823
Dear Mr. Jacks:

This letter is in response to the referenced second appeal submitted by the Banning Heights Mutual Water Company (Applicant), dated July 12, 2007. The Applicant is appealing the Federal Emergency Management Agency’s (FEMA) denial of funding for the repair of a
million-gallon tank gabion berm.

The storms and heavy rains of December 27, 2004 through January 11, 2005, caused flooding and erosion along a 300-foot section of the 800-foot long by 15-feet high gabion berm installed to protect the tank, foundation, and adjacent building and equipment of the applicant’s million-gallon water storage tank. The Applicant requested $63,619.70 for permanent repairs to the berm. FEMA denied the funding because the facility meets the U.S. Army Corps of Engineers (USACE) definitional criteria of a Flood Control Work (FCW).

The Applicant submitted its first appeal on January 9, 2006. The Applicant claimed that the costs were eligible because the facility was not active in the USACE Rehabilitation and Inspection Program (RIP), and was not under the specific authority of the USACE. Furthermore, the Applicant stated that the purpose of the facility is erosion, not flood control, and it should not be considered an FCW. The Applicant stated that because it has sole responsibility for maintenance, the repairs should be eligible for permanent work reimbursement under the Public Assistance Program.

The Deputy Regional Director denied the appeal on April 18, 2007, because the facility met the definition of an FCW. In accordance with FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works, disaster assistance authority for permanent work to an FCW resides with another Federal agency. The Applicant submitted a second appeal July 12, 2007, reiterating its position that the facility is not an FCW.

We have reviewed all information submitted with the appeal and have determined that the Deputy Regional Director’s decision in the first appeal is consistent with Public Assistance Program regulations and policies. Therefore, the appeal is denied.

Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.

Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate

cc: Nancy Ward
Regional Administrator
FEMA Region IX
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