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City of Napa

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

ApplicantCity of Napa
Appeal TypeSecond
PA ID#055-50258
PW ID#21700
Date Signed1997-04-10T04:00:00
Citation: FEMA-1046-DR-CA; City of Napa; DSR 21700

Reference: Facility, Emergency work

Summary: As a result of the March 1995 winter storms, approximately 530 feet of embankment along the Napa River and Napa Creek were eroded in the vicinity of China Point Park. The DSR was prepared to fund the restoration of the embankment based on the subgrantee's standard for creek and river bank repair, for a total of $416,834. The work was determined to be ineligible because the embankment is part of a natural channel, meaning that the embankment is not an improved or maintained natural feature. To obtain funding for the restoration of the embankment, the subgrantee has submitted a second appeal. The incoming correspondence states that eligibility should be based on either the fact that the city has adopted and implemented standard for the repair of creek and river banks, or if the embankment is not considered a facility, the work should be eligible as emergency work.

Issues: 1) Does the embankment meet the definition of a facility? 2) Is the subgrantee's standard applicable to the restoration work? 3) Is the work considered to be emergency work to eliminate an immediate threat?

Findings: 1) No. The natural channel embankment is not improved or maintained, accordingly it is a natural feature. 2) No. There is no facility involved, the codes and standard regulation does not apply. 3) No. In order for emergency work to be eligible, an immediate threat must be present and the work must be to eliminate or lessen that threat.

Rationale: For a natural feature to be considered a facility it must be improved and maintained. There is no evidence that the embankment has ever been improved or maintained. Further, the subgrantee states that rock protection was not present at the time of the disaster. Based on the above statement, there is no facility involved to require a standard be used to restore the embankment with Federal disaster funding. Subsequently, no documentation was submitted to demonstrate that an immediate threat was created by the erosion requiring that the work be emergency work. Consequently, the work in DSR 21700 is not eligible for FEMA disaster assistance.

Appeal Letter

April 7, 1997

Mr. Richard Ray
Governor's Authorized Representative
Governors Office of Emergency Services
Post Office Box 239013
Sacramento, CA 95823-9013

Dear Mr. Ray:
This letter is in response to your November 7, 1996, letter submitting the City of Napa's second appeal of Damage Survey Report (DSR) 21700 under FEMA-1046-DR-CA. This DSR was prepared for erosion along the embankment of the Napa River and Napa Creek in the vicinity of China Point Park.
As explained in the enclosed analysis, review of the submitted documentation shows that the embankment, which is not improved or maintained, is not a facility. Rather, the embankment is a natural feature. Federal disaster assistance is not provided for permanent work that does not restore an eligible facility. Accordingly, the requirement for utilizing a standard does not apply because a facility is not involved. Further, there was no documentation to support that an immediate threat exists. Thus, the work cannot be considered emergency work. Therefore, I have denied the this appeal.
Please inform the applicant of this determination and their right to submit a third appeal pursuant to 44 CFR 206.206 (e).


Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

Appeal Analysis


As a result of winter storms in March 1995, approximately 530 feet of stream embankment along the Napa River and Napa Creek were eroded in the vicinity of the China Point Park. The park is located at the confluence of these streams and serves as a recreational area, with surrounding land designated for a waterfront improvement project.

DSR 21700 was prepared for the restoration of the embankment by using rip rap, unclassified fill, filter fabric, and excavation. Additionally, mobilization costs were included in the cost estimate. The total cost for this project was $416,834. During review, the DSR was reduced to fund only the replacement of unclassified fill for a cost of $12,368. However, final review determined that the work was not eligible because the embankment is an unimproved, natural feature ( a "natural waterway" per the DSR) and does not meet the definition of an eligible facility.

First Appeal

With a January 2, 1996, letter, the State of California Governor's Office of Emergency Services (State) transmitted the subgrantee's November 6 and 30, 1995, letters appealing the denial of DSR 21700. In these letters, the subgrantee explained the following:

u Rock slope protection was not in-place at the time of the disaster;
u the city has an adopted and applied standard for repairing eroded creek and river banks;
u the park has undergone improvements;
u more park improvements are planned but were put on hold because of a USACE flood control project; and
u the consequences of no embankment protection include, endangered structures, potential loss of historic artifacts, and weakened condition of the embankments.

The city stated that rip rap is necessary as required by the standard, entitled, "Creek Bank and River Bank Slope Repair", a copy of which was included with the DSR. As a result, the subgrantee requests $416,834 for the embankment restoration. In support of the subgrantee's first appeal position, the State cited 44 CFR 206.201, 206.226(b), 206.225, and Section 403 of the Stafford Act.

Second Appeal Analysis, FEMA-1046-DR-CA Page 1 of 3
City of Napa, DSR 21700

In an April 3, 1996, response to the first appeal, FEMA Region IX denied the request to deem the work eligible and to provide funding for the restoration project. This decision was based on the following:

u The embankment is a natural feature, not a facility. There has been no modification of the stream and its embankment from the original state.
u The embankment is not an eligible facility, therefore; funding cannot be provided to comply with the subgrantee's standard.
u Permanent restoration of a natural stream embankment is not an emergency protective measure, and the existence of an immediate threat has not been demonstrated.

Second Appeal

With a November 7, 1996, letter, the State transmitted the subgrantee's June 20, 1996, second appeal, regarding the denial of funding for DSR 21700. The subgrantee reiterates the fact that they have an adopted standard for the repair of stream and river banks. The application of this standard was demonstrated by work completed for Veterans Memorial Park, as stated by the subgrantee. Also, the subgrantee's letter explains that city development plans have been impeded and that there are health and safety concerns, as a result of the eroded banks. Further, the state recommends that the work be considered emergency work, since the RD determined that the embankment is not a facility. No additional information was submitted with the second appeal.


As stated previously in the first appeal response, the embankment does not meet the definition of a facility for permanent work. The work to restore such a facility is eligible only if the natural feature, in this case, the stream and its embankment, was improved and maintained prior to the disaster event (44 CFR 206.201 ( c ) ). This does not apply to planned future improvements. The subject embankment, was not an improved and maintained natural feature at the time of the disater. Based on this regulation, permanent work to restore the embankment is not eligible.

The incoming correspondence indicates that the work, proposed in DSR 21700 to restore the embankment, should be eligible because the city has an adopted and enforced standard for embankment repair. Based on FEMA regulations, work to restore eligible facilities as they existed immediately prior to the disaster and in conformity with certain standards is eligible (44 CFR 206.226 and 206.226 (b)). As stated previously, the embankment in not an eligible facility, consequently these regulations do not pertain. Accordingly, the work is not eligible for disaster assitance.

Second Appeal Analysis, FEMA-1046-DR-CA Page 2 of 3
City of Napa, DSR 21700

Finally, the State contends that, if the work is performed, it should be eligible, in accordance with 44 CFR 206.225 and Section 403 of the Stafford Act. This recommendation is based on the fact that a facility is not required for emergency work to be eligible for funding. However, to be eligible, emergency work must eliminate or lessen immediate threats to life, public health or safety, or of significant additional damage to improved public or private property through measures which are cost effective.

For a flood-related disaster, eligible emergency work is limited to that which would provide protection from an immediate threat caused by a five-year flood event on the subject flooding source(s). A five-year flood is defined as having a 0.2 percent chance of occurring in any given year. To establish an immediate threat, the delineation of the flood plain for the five- year flood must be provided along with supporting backup calculations. The backup calculations must, at a minimum, include hydrologic and hydraulic analyses along with site specific topography which illustrates the threat to the facility in question. If, upon review, the delineation supports that an immediate threat exists, work to eliminate that threat would be considered eligible.

A hydrologic and hydraulic analysis of the watershed must be performed to determine the five-year flood elevations of the subject flooding source(s). These computed flood elevations should then be compared to the elevations should then be compared to the elevation of the improved property that may be affected by an immediate threat, only to eliminate that threat would be eligible for funding.


The permanent restoration of the embankment along the Napa River and Napa Creek in the vicinity of China Point Park is not eligible for disaster funding. The natural embankment does not meet the definition of a facility, accordingly work to restore it is not eligible. The codes and standards regulation does not apply because the restoration of a facility is not involved. Further, the work cannot be considered emergency work because no immediate threat has been established. Therefore, the second appeal of DSR 21700 should be denied.

Last updated February 4, 2020