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Second Appeal Analysis
PA ID# 097-56784-00; City of Petaluma
PW ID# 1969; Storm Drain Outfall
During the winter storm between December 17, 2005 through January 3, 2006, excessive rains and resulting run-off caused flooding and high velocity flow in Washington Creek. The high flows of runoff storm water scoured the rip rap and eroded the supporting creek bank material from a storm drain outlet (facility) at Arden Way, causing damage to a 15-inch corrugated metal pipe (CMP).
On June 27, 2006, FEMA approved PW 1969 for estimated costs of $13,883 to repair damage to the facility. The approved scope of work (SOW) consisted of exposing and removing the old drainage structure, restoring 10 linear feet of a 15-inch CMP, reconstructing the headwalls, importing and placing 74.1 cubic yards (CY) of fill, replacing 4.4 CY of rip rap, and providing hazard mitigation measures.
On October 12, 2010, the Applicant requested a change in the SOW to alter the proposed method of repair to meet the requirements of the United States Army Corps of Engineers (USACE), resulting in an additional cost of $204,803 for a total project cost of $218,686.
On August 10, 2011, FEMA denied the Applicant’s request for a change in the SOW and de-obligated previously approved funding of $13,883 because the USACE had confirmed the facility was a part of an active USACE project. As such, the facility was ineligible for Public Assistance (PA) funding in accordance with Section 312 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act)and Title 44 of the Code of Federal Regulations (44 CFR) § 206.226(a), Restoration of damaged facilities.
The Applicant submitted a first appeal of PW 1969 on October 12, 2011, stating that it built and maintained the facility long before the USACE began construction of the flood wall project. Moreover, the repair and maintenance of the facility had always been and continued to be the responsibility of the Applicant, not the USACE. The Applicant also argued that the request to change the SOW was only to add engineering and permitting costs that had not been included in the original estimate and that the SOW remains the same as written in the original PW. The Applicant submitted documentation that proved the facility existed prior to the USACE project.
On December, 5, 2011, the California Emergency Management Agency (Cal EMA) forwarded, but did not support, the Applicant’s appeal to FEMA, recommending FEMA confirm that the facility is an active USACE project and deny the Applicant’s appeal because it did not provide any evidence to substantiate the assertion that the facility was not part of an active USACE project. The Applicant submitted a USACE email correspondence dated November 20, 2011 to Cal EMA that “does not clearly state that [USACE] will repair the [facility].” After Cal EMA received this additional information, it forwarded FEMA the email correspondence on December 12, 2011, recommending a partial approval of the Applicant’s first appeal by restoring the de-obligated funding in the amount of $13,883 and by approving funding associated with the Applicant’s SOW request with the exception of post construction costs.
On May 31, 2012, 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. Therefore, the PW was ineligible for PA funding in accordance with
44 CFR § 206.223(a)(3), General work eligibility.
On August 2, 2012, the Applicant submitted a second appeal of PW 1969, requesting FEMA approve the change in the SOW 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.
Under 44 CFR §206.223(a)(3), General Work Eligibility, FEMA’s regulations establish that in order to be eligible for PA funding the work must “be the legal responsibility of an eligible applicant.” If an applicant does not have the legal responsibility of a facility, the work to repair the facility is ineligible for PA funding.
According to Article II C of the Agreement between the Department of the Army and the Applicant,
[w]hen the District Engineer determines that the entire [or a portion of the] Project is complete…, the District Engineer shall so notify the Non-Federal Sponsor in writing and furnish the Non-Federal Sponsor with an Operation, Maintenance, Repair, Replacement, and Rehabilitation Manual (hereinafter the Manual) and with copies of all of the Government’s Written Notice of Acceptance of Completed Work for all contracts for the Project or the functional portion of the Project that have not been provided previously. Upon such notification, the Non-Federal Sponsor shall operate, maintain, repair, replace, and rehabilitate the entire Project or the functional portion of the Project….
Based on the language of the Agreement, the Applicant becomes legally responsible for the maintenance and repair of the facility only when the USACE sends the Applicant written notification of the complete or partial projects and the Manual. The Applicant’s documentation does not demonstrate that it received the written notification, stating that the facility is complete under the terms of the Agreement, nor that it received the accompanying Manual from the USACE. The Applicant, therefore, does not have the legal responsibility to repair the facility and the work performed is not eligible for PA funding.
The Applicant has not provided documentation sufficient to support that it has legal responsibility for the facility. Based on its Agreement with the USACE, it did not have the legal responsibility to repair the facility at the time of the event. Therefore, the repair of the facility is not eligible.