Emergency Protective Measures

October 16, 2006

Mr. Paul Jacks
Governor’s Authorized Representative
Governor’s Office of Emergency Services
3650 Schriever Avenue
Mather, California 95655

Re: Second Appeal – City of San Juan Capistrano, PA ID 059-68028, Emergency Protective Measures, FEMA 1577-DR-CA, PW 1056

Dear Mr. Jacks:

This is in response to your letter dated April 25, 2005, which transmitted the referenced second appeal on behalf of the City of San Juan Capistrano (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $58,244 in additional funding for the restoration of a slope failure at 31692 Via Cervantes.

On March 17, 2005, FEMA prepared Project Worksheet (PW) 1056 for $4,786, to reimburse the Applicant for the emergency protective measures taken to stabilize a slope failure located in the back yard of 31692 Via Cervantes. An eight-inch City water line located approximately 7.5 feet upslope of the failure was not damaged. The Applicant’s geotechnical consultant and two FEMA geotechnical specialists determined the water line was not threatened by the slope failure at the time of their site visits. Therefore, FEMA did not prepare a PW to fund the permanent restoration of the slope. In mid June of 2005, the Applicant adopted its geotechnical consultant’s recommendations to restore the slope and proceeded with repairs. The repair cost was $58,244.

In its first appeal dated August 10, 2005, the Applicant asserts that the slope restoration was an emergency protective measure. The Applicant argues that the condition of the slope was an immediate threat as defined by 44 CFR § 206.221 (c), which defines an immediate threat as a “threat of additional damage or destruction from an event which can be reasonably be expected to occur within five years.” The Regional Director denied this appeal stating that the Applicant had not provided any documentation that challenged or disproved the FEMA geotechnical consultant’s conclusion that there was no immediate threat to the water line. Because there was no immediate threat and the integral ground to the waterline was not damaged, the repair of the slope was not eligible.

The Applicant’s second appeal dated March 2, 2006, and transmitted to FEMA by your letter dated April 25, 2006, presents the case for the repairs to be considered emergency protective measures. The Applicant’s geotechnical consultant provides a statement that the repair was necessary to eliminate or lessen immediate threats of damage due to the location of the water line 7.5 feet uphill of the failure and the severity of the steep slope. The Applicant asserts that the slope is an engineered facility and is an integral part of the Applicant’s water system and therefore, is eligible for funding.

The Applicant’s geotechnical consultant recommendations, on page 2 of their January 18, 2005, report detail work required to 1) “…help ensure that the slope does not continue to fail or fail in other areas” and for 2) “…reconstruction of the failed slope.” The two recommendations fit into FEMA’s emergency and permanent work definitions, respectively.

FEMA regulations at 44 CFR § 206.201 (b) defines emergency work as “work that must be done immediately to save lives and to protect improved property and public health and safety or to avert or lessen the threat of a major disaster.” The consultant’s first recommendation “to ensure the slope does not continue to fail,” is an example of emergency protective measures. PW 1056 funded slope stabilization measures completed approximately seven weeks after the slope failure was identified. The work performed is consistent with the consultant’s recommendation and the definition of emergency work as stated above.

The consultant’s second recommendation to reconstruct the failed slope was bid and completed more than 150 days after the discovery of the slope failure. The consultant describes this recommendation as a “design that we have observed to be successful at similar sites” and provides additional recommendations once the “slope is reconstructed to original grades.” It is clear that this was considered a permanent repair of the slope. Therefore, FEMA considers the slope reconstruction permanent work as defined at 44 CFR § 206.201(g), which states “that restorative work that must be performed through repairs or replacement, to restore an eligible facility on the basis of pre-disaster design and current applicable standards.”
An eligible facility is defined at 44 CFR § 206.201(c) as “any public or privately owned … system…or an improved and maintained natural feature.” The Applicant has provided no evidence that it owned, improved, or maintained the failed portion of the hillside as part of its water distribution system. Therefore, the slope is not an eligible facility and, accordingly, is not eligible for permanent restoration.

I have determined that the additional $58,244 claimed is for permanent repair work and cannot be funded as an emergency protective measure. Therefore, I am denying the appeal.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR § 206.206.

Sincerely,
/s/
John R. D’Araujo, Jr.
Director of Recovery

cc: Karen E. Armes
Acting Regional Director
FEMA Region IX