Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4308
ApplicantSanta Maria Valley Water Conservation District
Appeal TypeSecond
PA ID#083-UE5BU-00
PW ID#PN SRSMA81 & SRSMC8
Date Signed2022-12-05T17:00:00

Summary Paragraph

From February 1 – 23, 2017, Santa Maria Valley Water Conservation District (Applicant) facilities were impacted by severe winter storms, torrential rain, flooding and mudslides.  The Applicant requested funding from FEMA for removal of sediment from the Twitchell Dam Reservoir outlet works, including a stilling basin, keyhole pond and drying area (referred to collectively as “settling basins”), and for repairs to access roads.  FEMA, the Applicant, and the California Office of Emergency Services (Recipient) jointly inspected the areas.  FEMA denied funding for removal of sediment as the Applicant did not provide sufficient documentation to demonstrate how much sediment, if any, was deposited by the event, and the Applicant failed to provide historical records showing predisaster capacities of silt settling basins or maintenance records showing the last time they were cleaned to accommodate new sediment.  FEMA also denied funding for repair of the access roads as damages to the roads could not be verified as disaster-related damages.  The Applicant submitted an appeal for $3,217,000.00.  FEMA denied the appeal as the Applicant did not provide sufficient documentation to establish the sedimentation and road damages were a direct result of the declared disaster.  The Applicant’s second appeal again challenges FEMA’s decision.

Authorities and Second Appeals

  • Stafford Act § 406(a)(1)(A).
  • 44 C.F.R. §§ 206.201(i)-(j), 206.223(a)(1), 206.226.
  • PAPPG, at 19, 20-21, 118.
  • Brunswick, City of, FEMA-4451-DR-MO, at 2.

Headnotes

  • FEMA does not provide PA funding for repair of damage caused by deterioration, deferred maintenance, the applicant’s failure to take measures to protect a facility from further damage, or negligence.
    • Damages to the roads could not be verified as disaster-related damages, they reflected only wear and tear from use.  Long-term deterioration was documented in the Twitchell Project Manual, as was the need for annual repairs of potholes and cracking.  
  • Restoration of sediment basins, reservoirs, and other water control facilities may be eligible for assistance, but only if the applicant provides documentation to establish the predisaster capacity of the facility and that the applicant maintains the facility on a regular schedule.
    • FEMA could not determine the predisaster condition of the reservoir outlet works due to the Applicant’s failure to establish the predisaster capacity and ambiguity regarding sediment quantities removed or requested to be removed.    

Conclusion

FEMA finds the Applicant has not demonstrated that the sedimentation deposited in the reservoir outlet works and claimed road damages were the result of the declared event.  Accordingly, the appeal is denied.

 

Appeal Letter

Mark Ghilarducci

Director

California Governor’s Office of Emergency Services

3650 Schriever Avenue

Mather, CA 95655

 

Re:       Second Appeal – Santa Maria Valley Water Conservation District, PA ID: 083-UE5BU-00, FEMA-4308-DR-CA, Project Numbers SRSMA81 & SRSMC81 – Result of Declared Incident

 

Dear Mr. Ghilarducci:

This is in response to a letter from your office dated September 1, 2022, which transmitted the referenced second appeal on behalf of the Santa Maria Valley Water Conservation District (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $3,217,000.00 in Public Assistance funding.

As explained in the enclosed analysis, I have determined that the Applicant has not demonstrated that the sedimentation deposited in the reservoir outlet works and claimed road damages were the result of the declared event.  Accordingly, the appeal is denied.

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

 

                                                                    Sincerely,

                                                                         /S/

                                                                    Ana Montero

                                                                   Division Director

                                                                   Public Assistance Division

                                                                       

 

cc:  Robert J. Fenton  

Regional Administrator

FEMA Region IX

Appeal Analysis

Background

From February 1 – 23, 2017, Santa Maria Valley Water Conservation District’s (Applicant) facilities were impacted by severe winter storms, torrential rain, flooding and mudslides.  The Applicant requested funding from FEMA for removal of sediment from the Twitchell Dam Reservoir outlet works, including a stilling basin, keyhole pond and drying area (referred to collectively as “settling basins”), and for repairs to access roads.  FEMA, the Applicant, and the California Office of Emergency Services (Recipient) jointly inspected the areas.  On July 25, 2018, FEMA denied $2,870,000.00 in Public Assistance (PA) funding for removal of sediment as the Applicant did not provide sufficient documentation to demonstrate how much sediment, if any, was deposited by the event, and failed to provide historical records showing predisaster capacities of settling basins and maintenance records showing the last time they were cleaned to accommodate new sediment.  FEMA also denied $347,000.00 in funding for repair of the access roads because FEMA could not verify the disaster caused the damage.  

First Appeal

The Applicant submitted an appeal for $3,217,000.00 on November 9, 2018.  The Applicant contended that it is eligible for PA funding and stated that it would support its claims for removal of sediment and for road repairs with additional documentation, including observation documents, task budgets, statements of work, project history and logbook sheets. 

The Recipient transmitted the first appeal, with a letter concluding that it could not support the appeal after reviewing information it received from the Applicant upon request.  This included information for the condition of the settling basins (records of sediment removal from the stilling basin in 2009, a sediment survey report, maintenance records showing the last time basins were cleaned, and bathymetric surveys[1] for the time between 2012 and the February 2017 storms) and for the access roads (routine maintenance-activity logs, invoices, before/after photographs, and other information).  Regarding reservoir outlet works, the Recipient cited a report[2] that compared 2012 pre-flood topographic surveys and 2018 post-flood topographic surveys and noted that the report provided no data for the time between 2012 and 2017.  The Recipient also noted the Applicant did not provide maintenance records showing the last time the basins were cleaned or the requested bathymetric surveys.  The Recipient concluded that the Applicant did not provide sufficient documentation demonstrating that the disaster event caused the sedimentation in the basins.  Regarding access roads, the Recipient reviewed limited road repair activity logs that failed to confirm normal road maintenance, along with photographs of alligator and longitudinal cracking, and concluded that the road damages reflected long-term wear and tear not caused directly by the disaster event.

FEMA subsequently requested (1) bathymetric survey data regarding sedimentation for the period between 2009 and 2017; (2) maintenance records showing basins were cleaned between 2014 and 2017; (3) the quantity of sediment deposited as a result of the disaster; (4) road maintenance records for the period between 2014 and 2017; and (5) evidence of pre-and post-disaster road conditions.  The Applicant and Recipient responded with additional documentation and information.

On May 6, 2022, the FEMA Region IX Regional Administrator denied the appeal.  Regarding the settling basins, FEMA noted that a summary report from the principal engineer (“Summary Report”) provided in response to prior requests for information stated the reservoir storage capacity in 2015 corresponded to the 2012 capacity, but did not address sediment accumulation from storms in 2016 and from events in 2017 prior to the disaster, or provide maintenance information or methods to establish the predisaster condition.[3]  FEMA further stated that a supplement to the report (“Report Update”) did not substantiate that the requested work was solely due to the declared event or establish the predisaster condition through maintenance records or other evidence.[4]  Regarding the access roads, FEMA noted that neither its inspectors nor the Recipient observed disaster-related damages to the access roads, only long-term deterioration as documented in the April 23, 2010 Twitchell Project Manual; additionally, maintenance records, photographs and other evidence failed to demonstrate that the roadway damage was a result of the declared event.

Second Appeal

In its June 30, 2022 second appeal, the Applicant notes that its 2012 bathymetric survey was the only one completed between 2009 and 2017, and that for six of those nine years, no water was released from the dam.[5]  The Applicant states the amount of sediment deposited by the disaster is 81,420 yards.[6]  The Applicant cites daily operations sheets for January, February and March 2017 that show Reservoir storage, release and rainfall.  The Applicant refers to a caption on the historical release tables that reads in part “…four ‘dry’ years before 2017, now water, no sediment.”[7]  The Recipient’s second appeal transmittal, dated September 1, 2022, does not support the Applicant’s second appeal.

 

Discussion

FEMA has authority to fund the restoration of damaged public facilities to their predisaster capacity and condition.[8]  To be eligible for PA funding, an item of work must be required as the result of a major disaster.[9]  FEMA does not provide PA funding for repair of damage caused by deterioration, deferred maintenance, the applicant’s failure to take measures to protect a facility from further damage, or negligence.[10]  Restoration of sediment basins, reservoirs, and other water control facilities may be eligible for assistance, but only if the applicant provides documentation to establish the predisaster capacity of the facility and that the applicant maintains the facility on a regular schedule.[11]  This documentation may be in the form of a written maintenance plan and/or activity logs documenting regular intervals of activity.[12]

Regarding the settling basins, FEMA cannot determine the predisaster capacity.  The Summary Report states the reservoir storage capacity in 2015 generally corresponded to the 2012 capacity since the reservoir was empty in 2015.  The Report Update supports the Summary Report, and states the reservoir was empty and dry beginning in 2014 through most of 2015.[13]  The historical release tables record four “dry” years before 2017.  However, the Summary Report does not address sediment accumulation from storms in 2016 and from events in 2017 prior to this event, and the Report Update provides no documentation to establish the predisaster condition.  For instance, the documents that describe various quantities of sediment removed or requested to be removed call into question the claim that the settling basins were empty prior to the disaster and conflict with the Applicant’s description of their predisaster condition.[14]  Finally, due to the Applicant’s statement on first appeal that “[t]he Outlet works flowed fine when the Reservoir flowed out at the end of discharge on previous cycle 2016,”[15]  FEMA cannot determine from the tables and documentation provided whether there were discharges and sedimentation accumulation after the 2014 maintenance.

Regarding the access roads, neither FEMA nor the Recipient could verify disaster-related damages to the roads upon inspection, only wear and tear from long-term use.[16]  In addition, long-term deterioration was documented in the April 23, 2010 Twitchell Project Manual, as was the need for annual repairs of potholes and cracking.  Finally, maintenance records, photographs and other evidence failed to demonstrate that the roadway damage was a result of the declared event.

 

Conclusion

The
Applicant has not demonstrated that the sedimentation deposited in the settling basins and claimed road damages were the result of the declared event.  Accordingly, the appeal is denied.

 

 

[1] A bathymetric survey scans a body of water to map depth and features.

[2] Twitchell Dam and Reservoir: Summary of Changes Pre- and Post-Storm Sediment Levels at Outlet Works, Principal Eng’r., MNS Eng’rs Inc. (Dec. 4, 2018) [hereinafter Summary].

[3] FEMA First Appeal Analysis, Santa Maria Valley Water Conservation Dist., FEMA-4308-DR-CA, at 5 (Apr. 27, 2022) (citing the Summary).

[4] Id., at 5-6; Santa Maria Valley Water Conservation Dist. and MNS Eng’rs Inc., Twitchell Reservoir – Results of 2018 Aerial Survey & Sedimentation Update (Aug. 5, 2019) [hereinafter Update].

[5] Letter from Dir., Div. 6, Santa Maria Valley Water Conservation Dist., to Recovery Div. Dir., FEMA Region IX, at 2 (June 30, 2022).

[6] Id., at 4.

[7] Id., attach. at Group 1, Luhdorff & Scalmanini, Consulting Eng’rs, Historical Releases, Twitchell Reservoir, Santa Maria Valley Management Area, 20-1-025 Annual Report, Twitchell Management Authority/Santa Maria Valley, CA (undated).  The phrase “now water” may be a typographical error, with “no water” intended instead.

[8] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 406(a), Title 42, United States Code § 5172(a) (2012); Title 44 Code of Federal Regulations (C.F.R.) §§ 206.201(i)-(j); 206.226 (2016).

[9] 44 C.F.R. § 206.223(a)(1); Public Assistance Program and Policy Guide, FP 104-009-2, at 20 (Apr. 2017) [hereinafter PAPPG].

[10] PAPPG, at 20-21

[11] PAPPG, at 118; see also FEMA Second Appeal Analysis, Brunswick, City of, FEMA-4451-DR-MO, at 2 (Mar. 21, 2022).

[12] PAPPG, at 118.

[13] Update, at 16.

[14] Letter from State PA Ofc’r, Cal OES, to Chief, Projects Closeout Branch, FEMA Region IX, at 17 (July 23, 2021) (the Applicant stated 4700 cubic yards of sediment were removed); Email from Acting General Mgr. Santa Maria Valley Water Conservation Dist., to Projects Closeout Branch, FEMA Region IX, at 23 (July 20, 2021) (work logs that showed 1420 cubic yards were removed); Email from Acting General Mgr. Santa Maria Valley Water Conservation Dist., to Projects Closeout Branch, FEMA Region IX, at 16 (July 20, 2021) (in which the Applicant requested that 7038 cubic yards of sediment be removed).

[15] Letter from V. P., Santa Maria Valley Water Conservation Dist., to PA Ofc’r, Cal OES, at 4 (Nov. 9, 2018).

[16] Damage Description and Dimensions, Project Number SRSMC81, at 1 (Aug. 19, 2017) (stating that Access Road Marker 18 showed no disaster-related damage to the road, did show pre-existing asphalt road cracks along road edge; Access Road Marker 02 showed no visible disaster-related damages; Overflow Access Road (gravel road) showed no damages at road surface or road base).

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