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Second Appeal Letter
PA ID# 041-40438-00; City of Larkspur
PW ID# PW 768; Hawthorne-Myrtle Retaining Wall
August 13, 2009
Governor’s Authorized Representative
Office of the Secretary
California Emergency Management Agency
3650 Schriever Avenue
Mather, California 95655
Re: Second Appeal–City of Larkspur, PA ID 041-40438-00,
Hawthorne-Myrtle Retaining Wall, FEMA-1646-DR-CA, Project Worksheet (PW) 768
Dear Mr. McCarton:
This letter is in response to your letter dated January 20, 2009, which transmitted the referenced second appeal on behalf of the City of Larkspur (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of additional funding of $231,110 for the extension of its retaining wall.
Severe storms from March 29, 2006, through April 16, 2006, resulted in a slope failure that damaged approximately 142 linear feet (LF) of a concrete pile and timber lagging retaining system consisting of three dilapidated walls on the corner of Hawthorne and Myrtle streets. All three walls were of similar construction, eight inches in diameter with six-inch by eight-inch timber lagging between the piles. The lowest wall on the slope was 142 LF long and 5.5 feet high, the middle wall was 80 LF long and 4 feet high, and the top wall was 70 LF long and 4 feet high. On July 31, 2006, FEMA prepared PW 768 for $44,291 to repair the retaining system. However, FEMA only obligated $6,730 to fund a geotechnical study conducted for the Applicant by the Miller Pacific Engineering Group (MPEG), which later determined that damage to 142 LF of the retaining system was directly caused by the disaster. FEMA subsequently revised PW 768 and reinstated $37,561 on June 6, 2007. On October 11, 2007, the Applicant requested an additional $505,614 to replace the lagging walls with a single 240 LF retaining wall. FEMA determined that extending the wall 59 percent beyond the damage caused by the slope failure constituted an improved project, as defined by Title 44 Code of Federal Regulations (CFR) §206.203 (d), Improved Projects. As a result, FEMA denied the Applicant’s request to change the scope of work on February 22, 2008, and obligated $314,503 for eligible project costs.
In its first appeal, submitted May 9, 2008, the Applicant argued that the western portion of the wall would be weakened by repairs to the damaged 142 LF section. According to the Applicant, this justified extending the wall to 240 LF and the extension should be eligible for funding as a hazard mitigation project. The Applicant also disputed FEMA’s use of LF instead of square footage (SF) to determine the percentage that the wall would be extended. The Applicant claimed that by using a SF calculation, only 20 percent of the project cost could be attributed to extending the wall. FEMA determined that the extension of the wall is an improved project and
any repairs to an undamaged section are ineligible for hazard mitigation funding under Section 406 of the Robert T. Stafford Act. The Deputy Regional Administrator denied the Applicant’s appeal on October 14, 2008.
In its second appeal, submitted December 18, 2008, the Applicant maintained that the full project cost of $589,904 should be eligible for reimbursement. According to the Applicant, the construction of a 240 LF wall was the “most practical and feasible method of repair” and “anything less would not have been the best use of taxpayers’ money.” The Applicant included a photo of the completed 240 LF wall to support its claims. The photo clearly demonstrates that the Applicant chose to construct a new wall rather than repair the three-tiered retaining wall system that was damaged by the declared disaster. The Applicant also stated that it “was willing to concede that 20 percent of the wall could be considered as an improvement.”
Based on the documentation provided by the Applicant, it is clear that the completed construction is an improved project that involved replacement with a new wall rather than repair to sections of the system that were directly damaged by the disaster. The Applicant’s construction of a new wall exceeds the authorities of FEMA to repair a damaged facility to its pre-disaster condition under Section 406 of the Robert T. Stafford Act and 44 CFR §206.226, Restoration of Damaged Facilities, and is therefore an improved project.
The Applicant also argued that FEMA’s determination of eligible work should be based on the square footage of the eligible portion of the new wall rather than the length. However, the Applicant’s proposed methodology is not appropriate for determining FEMA’s contribution to the improved project. The eligible repair estimate is based on the dimensions of the damaged wall, not the newly constructed wall. The Region’s methodology for determining the eligible estimate was appropriate and reasonable.
Based on the review of all information submitted with the appeal, I have determined that the Regional Administrator’s decision on this matter is consistent with program statute and regulations. Therefore, I am denying the second appeal.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
Elizabeth A. Zimmerman
Disaster Assistance Directorate
cc: Nancy Ward
FEMA Region IX