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Second Appeal Letter
PA ID# 111-UL4GF-00; Ventura County Watershed Protection District
PW ID# Project Worksheets 258 and 263; Arroyo Simi at Dry Canyon Channel and Arroyo Simi at Peach Hill Wash
June 30, 2008
Acting Governors Authorized Representative
Governors Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655
Re: Second AppealVentura County Watershed Protection District, PA ID 111-UL4GF-00, Arroyo Simi at Dry Canyon Channel and Arroyo Simi at Peach Hill Wash
FEMA-1585-DR-CA, Project Worksheets (PWs) 258 and 263
Dear Mr. McCarton:
This is in response to your letter dated May 10, 2007, which transmitted the referenced second appeal of the Ventura County Watershed Protection District (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) category designation of the repairs for Arroyo Simi Channel at Dry Canyon Channel and at Peach Hill Wash, and the designation of the facilities as flood control works (FCWs).
Heavy storms and rain from February 16, 2005, through February 23, 2005, caused high flows in the Arroyo Simi Dry Canyon Cannel and at Peach Hill Wash that resulted in scouring and erosion of the hardened channels. FEMA and the United States Army Corps of Engineers (USACE) inspected these channels and determined that they met the definition of FCWs. Pursuant to FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works,
disaster assistance for permanent repair of FCWs resides with USACE. Therefore, FEMA did not approve funding for PWs 258 and 263.
The Applicant submitted the first appeal on January 27, 2006. The Applicant stated that the facilities were not active in the USACE Rehabilitation and Inspection Program (RIP), and were not under the specific authority of USACE. The Applicant stated that it bears sole responsibility for maintenance and the FEMA Public Assistance Program should provide reimbursement of the permanent work. California Governors Office of Emergency Services (OES) supported the Applicant and argued that specific authority, as described in 44 CFR §206.226(a), is established through a formal process and/or a mutual aid agreement between parties rather than through the design and function of a facility and that FEMA funding should offset any resulting shortfalls in the availability of federal assistance for disaster related damage to FCWs. Furthermore, OES maintained that FEMA and USACE may waive their respective administrative conditions in the interest of allowing FEMA to fund repairs of damaged FCWs.
The Deputy Regional Director denied the appeal stating that in accordance with FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works,
authority for permanent work resides with another Federal Agency.
FEMA cannot modify or waive its administrative conditions regarding Section 301 of the Robert T. Stafford Disaster Relief and Emergency Act for the provision of disaster assistance.
In the second appeal, the Applicant reiterated the arguments it raised in the first appeal. Additionally, the Applicant raised a new argument requesting a change in the category of work for both PW 258 and PW 263. The Applicant states that the category of work should be changed from category D (permanent work) to category B (emergency work) because the work was essential to protect residences adjacent to the channel banks from instability due to erosion. The Applicant argued that the channel posed an immediate threat. OES stated that the work was completed within the six month regulatory timeframe for emergency work.
The Applicant did not provide documents that adequately disputed FEMA and USACEs determination that the facility is within the United States Army Corps of Engineers (USACE) definition of an FCW. The documentation the Applicant submitted also did not demonstrate an immediate threat to life, public health and safety or improved property which is required to support a category change from category D to category B.
We have reviewed all information submitted with the appeal and have determined that the Deputy Regional Directors decision in the first appeal is consistent with Public Assistance Program regulations and policies. The Applicants request for a change of work category is not warranted. Therefore, the Applicants second appeal is denied.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.
Carlos J. Castillo
Disaster Assistance Directorate
cc: Nancy Ward
cc: Regional Administrator
cc: FEMA Region IX