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Second Appeal Brief
PA ID# 097-56784-00; City of Petaluma
PW ID# 1969; Storm Drain Outfall
Citation: FEMA-1628-DR-CA, City of Petaluma, Creek Bank Erosion, Project Worksheet (PW) 1969
Cross-Reference: Legal Responsibility
Summary: Heavy rains resulting from FEMA-1628-DR-CA caused high velocity flows in the Washington Creek River and caused substantial erosion of creek banks and damage to the storm drain outfall facility. FEMA approved Project Worksheet (PW) 1969 in the amount of $13,883 to repair and restore the storm drain outfall facility. On October 12, 2010, the Applicant requested a change in scope of work and additional funding in the amount of $204,803 to add engineering and permitting costs and an increased scope based on design plans provided by the United States Army Corps of Engineers (USACE). On August 10, 2011, FEMA denied the Applicant’s request for a scope of work change, and de-obligated previously approved funding for the project. Furthermore, FEMA confirmed that the project was an active USACE project and, therefore, was ineligible for FEMA funding in accordance with Section 312 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act. On October 12, 2011, the Applicant submitted a first appeal stating that the Applicant constructed the outfall facility and has maintained it. The FEMA Deputy Regional Administrator denied the first appeal, stating that the Applicant did not have legal responsibility for the facility at the time of the declared event under the terms of the Project Cooperation Agreement between the Department of the Army and the City of Petaluma (Agreement) dated July 5, 1996. Article II C of the Agreement stipulated that the Applicant did not become responsible for the maintenance of the facility until it received written notification of completion along with an operation and maintenance manual. This Agreement was in place prior to the declared disaster and the Applicant had not yet received the notification of completion or an operation and maintenance manual as the project had not yet been completed. The Applicant submitted a second appeal of PW 1969, requesting FEMA approve the change in the scope of work and re-obligate the previously approved funding of $13,883. In the appeal, the Applicant reiterates its position that the maintenance and repair of the facility was, and continues to be, the responsibility of the Applicant, not the USACE.
Issues: 1. Does the Applicant have legal responsibility for the restoration of the disaster damage to the storm drain outfall facility?
Findings: 1. No.
Rationale: 44 CFR §206.223(a)(3), General Work Eligibility