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Live Oak Acres Levee

Appeal Brief Appeal Letter

Appeal Brief

Disaster1585
ApplicantVentura County Watershed Protection District
Appeal TypeSecond
PA ID#111-UL4GF-00
PW ID#508
Date Signed2007-12-21T05:00:00
Citation:SECOND APPEAL BRIEF
FEMA-1585-DR-CA
PA ID 111-UL4GF-00; Ventura County Watershed Protection District
Live Oak Acres Levee, PW 508


Summary: As a result of the February 2005 Winter Storms, the Ventura County Watershed Protection District (Applicant) requested funding for permanent work repairs for the replacement of grouted rip rap along the Live Oak Acres Levee. FEMA and the United States Army Corps of Engineers (USACE) determined that the facility met the definition of a Flood Control Work (FCW). Therefore, FEMA obligated Project Worksheet (PW) 508 for zero dollars ($0).
The Applicant submitted its first appeal on January 30, 2006. The Applicant stated that the costs were eligible because the facility was not active in the USACE Rehabilitation and Inspection Program (RIP), and was not under the specific authority of the USACE. This allows FEMA to waive its respective administrative conditions to reimburse facilities under the authority of another Federal agency. The Applicant stated that because it had sole responsibility for maintenance, the repairs should be eligible for permanent work reimbursement under the FEMA Public Assistance Program. FEMA denied the Applicant’s first appeal on December 8, 2006, stating that the facility met the USACE definition of a FCW. In accordance with FEMA Response and Recovery (R&R) Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works, disaster assistance authority for permanent work on FCWs resides with another federal agency.

On March 12, 2007, the Applicant filed a second appeal with FEMA reiterating the position presented in its first appeal.

Issues: Are the permanent repairs to a facility that meets the USACE definition of a FCW eligible under the Public Assistance Program?

Findings: No.

Rationale: FEMA R&R Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works, and 44 CFR §206.226(a)(1)

Appeal Letter

December 21, 2007

Mr. Paul Jacks
Governor’s Authorized Representative
Governor’s Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655

Re: Second Appeal-Ventura County Watershed Protection District, PA ID# 111-UL4GF-00
Live Oak Acres Levee, FEMA-1585-DR-CA Project Worksheet 508

Dear Mr. Jacks:

This letter is in response to the referenced second appeal that Ventura County Watershed Protection District (Applicant) submitted to the California Governor’s Office of Emergency Services (OES) on March 8, 2007. OES forwarded the appeal to FEMA on May 10, 2007. The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding for the permanent work repair of the Live Oak Acres Levee.

The storms and heavy rains of February 16, 2005, through February 23, 2005, caused flooding and erosion in the Ventura River at the Live Oak Acres Levee upstream of Santa Ana Boulevard. Damage to the facility consisted of loose and concreted riprap being washed away from 1,000 feet of the embankment. The Applicant requested $800,000 for permanent work repairs to replace the concreted riprap along the Live Oak Acres Levee. FEMA denied the request because the facility met the United States Army Corps of Engineers (USACE) definitional criteria of a Flood Control Work (FCW).

The Applicant submitted its first appeal on January 30, 2006. The Applicant claimed that the costs were eligible because the facility was not active in the USACE Rehabilitation and Inspection Program (RIP), and was not under the specific authority of the USACE. Therefore, FEMA could waive its respective administrative conditions to reimburse facilities under the authority of another Federal agency. Furthermore, the Applicant stated that the facility was for erosion control, not flood control, and it should not be considered an FCW. The Applicant stated that because it had sole responsibility for maintenance, the repairs should be eligible for permanent work reimbursement under the FEMA Public Assistance Program.

The Deputy Regional Director denied the appeal on December 8, 2006, because the facility met the definition of an FCW: “structures designed and constructed to have appreciable and dependable effects in preventing damage by irregular and unusual rises in water level.” In accordance with FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation Assistance for Levees and Other Flood Control Works, disaster assistance authority for permanent work on FCWs resides with another federal agency. The Applicant submitted a second appeal on March 8, 2007.

We have reviewed all information submitted with the appeal and have determined that the Deputy Regional Director’s decision in the first appeal is consistent with Public Assistance Program regulations and policies. Therefore, the appeal is denied.

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