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Cache Creek

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1628-DR
ApplicantYolo County
Appeal TypeSecond
PA ID#113-99113-00
PW ID#Project Worksheet 2449
Date Signed2008-08-07T04:00:00

Citation:

FEMA-1628-DR-CA, Yolo County, Cache Creek, Project Worksheet (PW) 2449

Cross-reference:

Emergency Work, Permanent Work, Unimproved Property

Summary:

Heavy rains from December 17, 2005, through January 3, 2006, eroded the embankments of Cache Creek. FEMA determined that the Cache Creek channel and its embankments are earthen, unimproved sites and therefore ineligible for permanent work. FEMA also determined that the Applicant did not document an imminent threat to life or improved property and denied funding for emergency repairs.

The Applicant submitted its first appeal on January 16, 2007. The Applicant maintained that the channel including its embankments is a levee and that an imminent threat was present. The Deputy Regional Administrator denied the appeal on May 31, 2007.

The Applicant submitted its second appeal on July 31, 2007 and provided supplemental information on February 20, 2008. The Applicant maintained that the channel including its embankments is a levee and that an imminent threat was present.

Issues:

1. Are the embankments of Cache Creek channel improved properties?

2. Did an imminent threat to improved property exist?

Findings:

1. No

2. No

Rationale:

44 CFR §206.201(c) and i(1)

Appeal Letter

August 7, 2008

Frank McCarton
Governor’s Authorized Representative
Governor’s Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655

Re: Second Appeal–Yolo County, PA ID 113-99113-00, Cache Creek, FEMA-1628-DR-CA, Project Worksheet (PW) 2449

Dear Mr. McCarton:

This letter is in response to a letter from your office dated September 28, 2007, which transmitted the referenced second appeal on behalf of Yolo County (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding for emergency repairs to earthen banks along Cache Creek.

Heavy rains from December 17, 2005, through January 3, 2006, eroded two areas along the banks of Cache Creek. The south bank was identified as Site 1. Site 2 is commonly known as Huff’s Corner. Site 1 is located 850 feet upstream from Interstate 5 and 800 feet downstream of Site 2. FEMA determined that both sites are natural creek banks and denied funding for the project.

The Applicant submitted its first appeal on January 16, 2007. The Applicant requested $167,387 for permanent repairs to Site 1, $1,767,682 for permanent repairs to Site 2 and $156,108 for the cost of a temporary setback levee that it erected at Site 2 as an emergency protective measure. The Applicant stated that the California Department of Water Resources considers both sites as part of a flood control levee. To support its claim, the Applicant submitted a copy of the 1961 California Legislature Assembly Bill Number 1282, which establishes that the Applicant is responsible for operating and maintaining Cache Creek. However, the bill is not sufficient evidence that the facility is a flood control levee. Moreover, the U.S. Army Corps of Engineers determined that the Cache Creek channel and its embankments do not meet the definition of a flood control work. The Deputy Regional Administrator denied the Applicant’s appeal on
May 31, 2007, because unimproved sites are not eligible for permanent work. Since the Applicant did not establish that there was an imminent threat to improved property at either site, emergency repairs to the banks were also determined to be ineligible.
The Applicant submitted its second appeal on July 31, 2007. The Applicant also met with FEMA Public Assistance Division staff on January 17, 2008, and provided supplemental information on February 20, 2008. The Applicant maintained that the channel and its embankments serve a flood control function. In addition, the Applicant restated that it was necessary to erect a temporary setback levee to protect improved private property. The Applicant supplied photos to support its claims. The photos of Site 1 and Site 2 do not establish that the channel is a flood control facility. The photos display an earthen channel and embankments covered with grass. The photos of Site 2 show the proximity of improved private property to the channel. However, the photos do not establish that improved property nearby would be damaged by a five-year flood event.

The Applicant also provided maintenance records for a road atop the embankment of Site 2. These records do not establish the pre-disaster condition of the channel or its embankments. Finally, the Applicant included a letter of ineligibility for the National Resources Conservation Service’s (NRCS) Emergency Watershed Program (EWP). The letter states that two farmsteads nearest to Huff’s Corner are at risk from flooding from the channel. However, NRCS determined that the potential for flood damage did not meet its threshold for EWP assistance.

I have reviewed all information submitted with the second appeal and determined that the Cache Creek channel is not an improved facility and is ineligible for permanent work under the Public Assistance Program. In addition, the Applicant did not establish that there was an immediate threat to improved property that would necessitate emergency work. Therefore, I am denying the appeal.

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

Last updated February 4, 2020