Emergency Repair or Stabilization – Immediate Threat – Improved Property – Landslides and Slope Stabilization

Appeal Brief

Summary Paragraph

As a result of flooding and mudslides that impacted California from February 1 through 23, 2017, the Applicant requested approval for the construction of retaining walls on two upslope hillsides adjacent to two roadways.  In a determination memorandum, FEMA found the work associated with constructing the retaining walls to be ineligible for Public Assistance (PA) funding as either emergency protective measures or permanent work.  The Applicant filed a first appeal requesting reimbursement for the work as eligible emergency protective measures.  In support, it transmitted two reports from a geotechnical engineering firm that opined: (1) the disaster caused site instability at each upslope hillside location; (2) the site instability presented an immediate threat to lives, public health and safety, and improved property; and (3) each respective retaining wall was the most cost-effective option for permanent site protection.  The FEMA Region IX Regional Administrator determined the work was neither eligible as emergency protective measures nor permanent work.  For the emergency work issue, FEMA found there was no indication of active slides or instabilities on the upslope hillsides.  Concerning the permanent work issue, FEMA determined both upslope hillsides were ineligible facilities and additionally found they were not integral ground.  On second appeal, the Applicant submits a supplemental report from its geotechnical engineering firm.  The report outlines, with specificity, how the disaster caused the immediate threats, as well as the danger those threats posed.  It also states that cut slopes along the uphill slopes constitute designed and constructed improvements, and alternatively, the uphill slopes constitute integral ground essential to support the use and function of each roadway below.   
 

Authorities and Second Appeals

• 44 C.F.R. § 206.225(a)(3).
• PAPPG, at 15-16, 37, 58, 83, 129.
   

Headnotes

• Per 44 C.F.R. § 206.225(a)(3) and the PAPPG, at 58, to be eligible for PA funding, emergency protective measures must: (1) eliminate or lessen immediate threats to lives, public health or safety; or (2) eliminate or lessen immediate threats of significant additional damage to improved public or private property through measures which are cost effective.
  • The Applicant has established through its geotechnical engineering reports that the disaster created immediate threats at each location to lives, public health and safety, and improved property, and the retaining walls were the most cost-effective protective option.
• Per the PAPPG, at 16, a natural feature may be an eligible facility if it meets all the following conditions: (1) the natural feature has a designed and constructed improvement to its natural characteristics, such as a terraced slope or realigned channel; (2) the constructed improvement enhances the function of the unimproved natural feature; and, (3) the applicant maintains the improvement on a regular schedule to ensure that the improvement performs as designed. 
  • The Applicant’s supplemental geotechnical engineering report addresses the first prong, but the administrative record does not contain documentation establishing the second and third conditions.  Therefore, the upslope hillsides are not eligible facilities.
• Per the PAPPG, at 129, if an eligible facility is located on a slope and is damaged as a result of a landslide or slope instability triggered by the incident, FEMA may approve PA funding for restoration of integral ground that supports the facility. 
  • The disaster did not cause damages to an eligible facility located on either slope. 

Conclusion

While the work associated with constructing retaining walls at both sites is not eligible permanent work, the Applicant has demonstrated the work on appeal constitutes eligible emergency protective measures.  Accordingly, this appeal is granted. 

Appeal Letter

Appeal Analysis

Background

In February 2017, severe winter storms resulted in flooding and mudslides throughout California.[1]  Flooding during the event displaced trees, triggered landlsides, and deposited debris on multiple slopes and adjacent roadways in the city of Mill Valley (Applicant).  After the disaster, the Applicant included a description of damage and scope of work (SOW) for two of the sites discussed in this appeal–Monte Vista and Edgewood Avenues.  The Applicant noted a SOW at each location that included either tree or debris removal, as well as a retaining wall.  The disaster had caused tree displacement on an upslope hillside located adjacent to each roadway. 

FEMA thereafter awarded Project Worksheet (PW) 1369, disallowing costs associated with the work at Monte Vista and Edgewood Avenues.[2]  In a determination memorandum, FEMA found the construction of the upslope stabilizing retaining walls adjacent to Monte Vista and Edgewood Avenues, to be ineligible for Public Assistance (PA) funding.  The Agency first stated it could not address the work as an emergency protective measure because the Applicant had not indicated the existence of an immediate threat that would have required stabilization.  FEMA further explained the retaining walls were not eligible as permanent work, because the upslope hillsides were not eligible facilities as they were each a natural feature that did not have a designed and constructed improvement.  As an additional basis for denial, FEMA noted that the upslope hillsides were not integral ground that supported a damaged facility; FEMA’s site inspector did not observe any disaster-related damage to roads upslope from the embankment failures.

First Appeal

The Applicant appealed in April 2019, requesting $232,300.00 for construction of the retaining walls as eligible emergency protective measures.  It also itemized costs to confirm that it sought PA funding for all work associated with construction of the walls.  This included costs for: (1) Miller Pacific Engineering Group’s (MPEG) services, a geotechnical engineering firm the Applicant retained to conduct a geotechnical investigation to determine if the instability created an immediate threat; and (2) project management and construction inspection for each site.[3]

The Applicant attached reports from MPEG, dated April 2019, that evaluated the upslope hillsides located at both Monte Vista and Edgewood Avenues.  In the reports, MPEG first stated that as a result of the disaster, the sites became unstable and presented an immediate threat to life, public health and safety, improved public and private property, and the rights-of-way.  Second, MPEG noted that due to the loose, weak soil underlying the slope above each road and the lack of runout area or structural protection along the roadway, MPEG recommended the Applicant construct a debris catchment structure at each location to stabilize the sites to reduce or eliminate the immediate threat posed by the destabilized slope.  Third, MPEG stated each respective retaining wall was the most cost-effective option for permanent site protection.  Last, MPEG affirmed there was no history of predisaster instability at ether site.  Through separate letters dated from May and June 2019, the California Governor's Office of Emergency Services (Grantee) recommended PA funding for both sites’ slope stabilization work.

On September 27, 2019, the FEMA Region IX Regional Administrator issued a first appeal decision that determined the work associated with construction of the upslope retaining walls did not qualify as either eligible emergency protective measures or eligible permanent work.[4]  For the emergency work issue, FEMA found there was no indication of active slides or instabilities on the upslope hillsides.  Thus, the Applicant had not demonstrated that either hillside presented an immediate threat to life, public health and safety, or improved property.  Concerning the permanent work issue, FEMA determined the work to be ineligible because both upslope hillsides were ineligible facilities; neither natural feature had a designed and constructed improvement to its natural characteristics.  In addition, FEMA found the upslope hillsides did not physically support the roadways.  Consequently, they were not deemed integral ground and as such, the slope stabilization work was ineligible on that basis as well.

Second Appeal

In a second appeal letter dated December 4, 2019, the Applicant reiterates its request for $232,300.00 in PA reimbursement, and its assertion that construction of a retaining wall at each location was needed as an emergency protective measure to reduce or eliminate the immediate threat and to protect life and property at both locations.  In the alternative, it disputes the first appeal decision’s finding concerning the eligibility of the work as permanent work.  It submits a supplemental report from MPEG, dated November 2019, to support the Applicant’s position that the work is eligible as either emergency protective measures or permanent work.

In the supplemental report, MPEG states the disaster caused loosening/displacement of soil, creating near-vertical slide scarps[5] on the slopes above the road at each location.  MPEG opines that the near-vertical scarps represented a significant risk of instability, which could result in both debris impact to vehicles in the below roads, as well as potential undermining and damage to private lands and improvements above the slides.  It states, therefore, the Applicant needed to complete emergency protective measures at both sites to safely reopen the roads to public traffic with a reduced risk of property damage, injury, or death, as a result of debris impacts stemming from the overly-steep scarp areas and a lack of runout space between the source areas and the roadways.

Next, MPEG analyzes FEMA’s first appeal decision regarding the permanent work issue.  MPEG states that the Applicant developed roadway alignments along steeply sloping natural terrain by constructing fill slopes along the downhill side and cut slopes along the uphill side.  It states, therefore, the cut slopes along the uphill slopes constituted designed and constructed improvements, without which a functional roadway would not exist.  MPEG further opines that while the upslope hillsides do not physically underlie either roadway, the slopes are integral to the roadway’s function and their stability is essential to support the use and function of each roadway.  The Grantee transmitted the appeal package to FEMA with an accompanying letter dated February 4, 2020, that recommended approval of the work as eligible emergency protective measures that addressed slope instability.

In response to a Request for Information transmitted by FEMA to the Applicant and the Grantee seeking information to clarify whether the work was eligible permanent work, the Applicant reiterated its primary claim that the work associated with constructing the retaining walls constitutes eligible emergency protective measures because the landslide and slope instability caused by the disaster posed an immediate threat to life, public health and safety, and improved property.

Discussion

Emergency Repair or Stabilization/Immediate Threat

To be eligible for PA funding, emergency protective measures must: (1) eliminate or lessen immediate threats to lives, public health or safety; or (2) eliminate or lessen immediate threats of significant additional damage to improved public or private property through measures which are cost effective.[6]  FEMA may also authorize PA funding for post-disaster inspections and limited geotechnical investigations to determine if the instability creates an unsafe condition that poses an immediate threat.[7]  In addition, project management activities tracked and directly related to a specific eligible project, and construction inspection services necessary to complete eligible work, may be eligible for PA funding.[8]

In MPEG’s April 2019 reports, the Applicant’s geotechnical engineering firm stated that the disaster caused instability at both sites that presented an immediate threat to life, public health and safety, and improved public and private property.  It recommended the construction of the barriers in order to stabilize each site and reduce or eliminate the immediate threat to life and property posed by each destabilized slope.  It stated each respective retaining wall was the most cost-effective option for permanent site protection.  MPEG then produced a supplemental November 2019 report that expounded on its earlier findings.  MPEG found that the disaster created near-vertical slide scarps on the slopes.  It noted these represented a significant risk of instability that could have resulted in both debris impact to vehicles in the below roads (increasing risk of injury or death), as well as potential undermining and damage to private lands and improvements above.  Therefore, based on the above, the Applicant has demonstrated the work associated with constructing the retaining wall at each site (including the geotechnical investigations, project management activities, and construction inspection services) constitutes eligible emergency protective measures. 

Permanent Work

1. Improved Property

A natural feature may be an eligible facility if it is improved and maintained.[9]  Specifically, it must meet all the following conditions: (1) the natural feature has a designed and constructed improvement to its natural characteristics, such as a terraced slope or realigned channel; (2) the constructed improvement enhances the function of the unimproved natural feature; and, (3) the Applicant maintains the improvement on a regular schedule to ensure that the improvement performs as designed.[10]  Unimproved properties, such as a hillside or slope, are not eligible facilities.[11] 

Through MPEG’s November 2019 report, the Applicant established the upslope hillsides had designed and constructed improvements to their natural characteristics, i.e., the cut slopes.  However, the Applicant has not demonstrated the constructed improvements enhance the function of the unimproved natural feature, or that the Applicant maintains the improvements on a regular schedule to ensure that the improvements perform as designed.  Therefore, the upslope hillsides (i.e., natural features), are ineligible facilities.

1. Landslides and Slope Stabilization

If an eligible facility is located on a slope and is damaged as a result of a landslide or slope instability triggered by the incident, FEMA may approve PA funding for restoration of integral ground that supports the facility.[12]  Integral ground refers only to the ground necessary to physically support a facility.[13]  It may be natural or improved ground upon which an eligible facility is located and that is essential to support the structural integrity and utility of the facility.[14]

Here, the disaster caused damages to the upslope hillsides, but not to any eligible facility located on either slope.  Therefore, even if the upslope hillsides constitute integral ground that supports the function and use of the roads (as attested to by MPEG in its November 2019 report), the work at issue in this appeal is nonetheless ineligible as permanent work because the slope stabilization work is not tied to eligible facilities (i.e., the roadways) damaged as a result of the disaster.

Conclusion

While the work associated with constructing retaining walls at Monte Vista and Edgewood Avenues is not eligible permanent work, the Applicant has demonstrated the work on appeal constitutes eligible emergency protective measures.  Accordingly, this appeal is granted.