Corte Madera Creek
Appeal Brief
Appeal Letter
Citation: FEMA-1628-DR-CA, County of Marin, Corte Madera Creek, PW 3304
Cross-reference: Emergency Protective Measures
Summary: Heavy rains from December 17, 2005, through January 3, 2006, caused
Corte Madera Creek to rise approximately 23 feet, eroding the creeks embankment, uprooting a tree on the northern creek bed, and damaging a fence located at 21 Sir Francis Drake Boulevard. FEMA determined that debris removal from the creek was eligible. The damage to the creek embankments did not pose an immediate threat and the fence was on private property. Therefore, these sites were not eligible facilities. FEMA prepared PW 3304 for debris removal.
The Applicant submitted its first appeal on October 25, 2006. The Applicant argued that there was an immediate threat to improved property and the fence was damaged by the disaster. The first appeal was denied on June 22, 2007.
On September 12, 2007, the Applicant filed a second appeal. The Applicant established that a plausible immediate threat to public safety and improved property existed. The Applicant did not establish that it had the legal responsibility to repair or replace the damaged fence.
Issues: 1. Did the damage pose an immediate threat to life, public health and safety, or to improved property at 21 Sir Francis Drake Boulevard?
2. Did the Applicant have the legal authority to repair damaged private property?
Findings: 1. Yes.
2. No.
Rationale: 44 CFR §206.225 (3)
Appeal Brief
| Disaster | FEMA-1628-DR |
| Applicant | County of Marin Department of Public Works |
| Appeal Type | Second |
| PA ID# | 041-99041-00 |
| PW ID# | Project Worksheet 3304 |
| Date Signed | 2008-03-20T04:00:00 |
Corte Madera Creek to rise approximately 23 feet, eroding the creeks embankment, uprooting a tree on the northern creek bed, and damaging a fence located at 21 Sir Francis Drake Boulevard. FEMA determined that debris removal from the creek was eligible. The damage to the creek embankments did not pose an immediate threat and the fence was on private property. Therefore, these sites were not eligible facilities. FEMA prepared PW 3304 for debris removal.
The Applicant submitted its first appeal on October 25, 2006. The Applicant argued that there was an immediate threat to improved property and the fence was damaged by the disaster. The first appeal was denied on June 22, 2007.
On September 12, 2007, the Applicant filed a second appeal. The Applicant established that a plausible immediate threat to public safety and improved property existed. The Applicant did not establish that it had the legal responsibility to repair or replace the damaged fence.
2. Did the Applicant have the legal authority to repair damaged private property?
2. No.
Appeal Letter
March 20, 2008
Grace Koch
Governors Authorized Representative
Governors Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655
Re: Second AppealCounty of Marin, PA ID 041-99041-00, Corte Madera Creek,
FEMA-1628-DR-CA, Project Worksheet (PW) 3304
Dear Ms. Koch:
This letter is in response to the referenced second appeal submitted by the County of Marin (Applicant) on September 12, 2007. The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) denial of $83,151 for emergency work on the embankments of Corte Madera Creek adjacent to a private residence at 21 Sir Francis Drake Boulevard (SFDB).
Heavy rains from December 17, 2005, through January 3, 2006, caused Corte Madera Creek to rise approximately 23 feet, flooding adjacent buildings and roads, and eroding the creeks embankment. The flooding eroded 444 cubic yards (CY) of the northern embankment and
130 CY of the southern embankment. In addition, a 36-inch diameter tree on the northern creek bed was uprooted and fell into the creek. This tree, and approximately four CY of other vegetative debris, impeded the flow of water and exacerbated the flooding. In addition, a
6-foot-high by 75-foot-long fence, located on SFDB, was damaged when the tree fell. The Applicants contractor removed 20 CY of debris, graded 170 square yards of slope, installed
56 CY of backfill material and 83 CY of riprap, and replaced the damaged fence. The Applicant requested $78,865 for the work completed. Upon review, FEMA determined that the debris removal from the creek was eligible. However, the creek embankments and the fence were not eligible facilities because the damage did not pose an immediate threat to life, public health and safety, or improved property. In addition, the fence was on private property. The Applicant used a time and materials contract and could not submit an itemized invoice for its expenses. As a result, PW 3304 was approved for $4,239 (federal share $3,179) for estimated debris removal expenses.
The Applicant submitted its first appeal on October 25, 2006. The Applicant argued that the extensive erosion exposed loamy soil that could be further eroded and threatened improved property below the creek. The Applicant also stated that the fence was damaged by the disaster and should therefore be eligible. On June 22, 2007, the Deputy Regional Administrator denied
the appeal because the Applicant did not establish an immediate threat to public safety or improved property and the Applicant did not have legal responsibility to replace the fence.
In its second appeal, dated September 12, 2007, the Applicant submitted photographs, taken from the site immediately following the disaster, to demonstrate the proximity of the water in the channel to the residence. According to the Applicant, the runoff from its 28 square mile watershed is conveyed via Corte Madera Creek. In order to establish that an immediate threat existed, the Applicant submitted a narrative from the Marin County Flood Control and Water Conservation District (FCWCD). The narrative stated that the storms destroyed 100 feet of protective vegetation along the banks of SFDB, and due to saturation, additional flooding and erosion would cause the house and other structures at SFDB to enter the channel and damage property downstream. Based on the FCWCD assessment, the Applicant placed riprap along the creek bank. According to the Applicant, the fence at SFDB had to be removed in order to install the riprap. In its second appeal, the Applicant claimed that the total project cost is $83,151, which includes $3,356.51 for overtime force account labor. However, the Applicant only submitted an invoice for $78,864.54, and did not submit payroll records.
Based upon the information submitted with the second appeal, the Applicant has established that an immediate threat was present at the time of the work. However, the Applicant has not established that it had legal responsibility to repair or replace the fence at SFDB. According to the Applicant the fence was replaced for $2,500. This expense is ineligible. Additionally, the Applicant did not provide documentation for its claim of force account overtime labor. Subsequently, the request for $3,356.51 is denied. I am granting the cost of placing riprap along the creek bank as an emergency protective measure. By copy of this letter, I request that the Regional Administrator take appropriate action to implement this determination.
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
Grace Koch
Governors Authorized Representative
Governors Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655
Re: Second AppealCounty of Marin, PA ID 041-99041-00, Corte Madera Creek,
FEMA-1628-DR-CA, Project Worksheet (PW) 3304
Dear Ms. Koch:
This letter is in response to the referenced second appeal submitted by the County of Marin (Applicant) on September 12, 2007. The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) denial of $83,151 for emergency work on the embankments of Corte Madera Creek adjacent to a private residence at 21 Sir Francis Drake Boulevard (SFDB).
Heavy rains from December 17, 2005, through January 3, 2006, caused Corte Madera Creek to rise approximately 23 feet, flooding adjacent buildings and roads, and eroding the creeks embankment. The flooding eroded 444 cubic yards (CY) of the northern embankment and
130 CY of the southern embankment. In addition, a 36-inch diameter tree on the northern creek bed was uprooted and fell into the creek. This tree, and approximately four CY of other vegetative debris, impeded the flow of water and exacerbated the flooding. In addition, a
6-foot-high by 75-foot-long fence, located on SFDB, was damaged when the tree fell. The Applicants contractor removed 20 CY of debris, graded 170 square yards of slope, installed
56 CY of backfill material and 83 CY of riprap, and replaced the damaged fence. The Applicant requested $78,865 for the work completed. Upon review, FEMA determined that the debris removal from the creek was eligible. However, the creek embankments and the fence were not eligible facilities because the damage did not pose an immediate threat to life, public health and safety, or improved property. In addition, the fence was on private property. The Applicant used a time and materials contract and could not submit an itemized invoice for its expenses. As a result, PW 3304 was approved for $4,239 (federal share $3,179) for estimated debris removal expenses.
The Applicant submitted its first appeal on October 25, 2006. The Applicant argued that the extensive erosion exposed loamy soil that could be further eroded and threatened improved property below the creek. The Applicant also stated that the fence was damaged by the disaster and should therefore be eligible. On June 22, 2007, the Deputy Regional Administrator denied
the appeal because the Applicant did not establish an immediate threat to public safety or improved property and the Applicant did not have legal responsibility to replace the fence.
In its second appeal, dated September 12, 2007, the Applicant submitted photographs, taken from the site immediately following the disaster, to demonstrate the proximity of the water in the channel to the residence. According to the Applicant, the runoff from its 28 square mile watershed is conveyed via Corte Madera Creek. In order to establish that an immediate threat existed, the Applicant submitted a narrative from the Marin County Flood Control and Water Conservation District (FCWCD). The narrative stated that the storms destroyed 100 feet of protective vegetation along the banks of SFDB, and due to saturation, additional flooding and erosion would cause the house and other structures at SFDB to enter the channel and damage property downstream. Based on the FCWCD assessment, the Applicant placed riprap along the creek bank. According to the Applicant, the fence at SFDB had to be removed in order to install the riprap. In its second appeal, the Applicant claimed that the total project cost is $83,151, which includes $3,356.51 for overtime force account labor. However, the Applicant only submitted an invoice for $78,864.54, and did not submit payroll records.
Based upon the information submitted with the second appeal, the Applicant has established that an immediate threat was present at the time of the work. However, the Applicant has not established that it had legal responsibility to repair or replace the fence at SFDB. According to the Applicant the fence was replaced for $2,500. This expense is ineligible. Additionally, the Applicant did not provide documentation for its claim of force account overtime labor. Subsequently, the request for $3,356.51 is denied. I am granting the cost of placing riprap along the creek bank as an emergency protective measure. By copy of this letter, I request that the Regional Administrator take appropriate action to implement this determination.
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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