Santa Ana River Flood Control Berm
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1044-DR-CA; City of Redlands; DSR 97832
Cross Reference: Legal Responsibility, Pre-Disaster Design, Codes and Standards
Summary: During the winter storms of 1995, a flood control berm/access road, separating the California Street Landfill (owned and operated by the applicant) from the Santa Ana River, was eroded by the floodwaters in the river. An existing wire and rail revetment system, approximately 500 ft. in length, and a portion of the adjacent embankment were significantly damaged. DSR 97832 was originally prepared as Category D in the amount of $62,881 to restore the embankment using riprap. As the damaged berm was reported to be owned by the San Bernardino County Flood Control District, FEMA concluded that the applicant was not legally responsible for repair of the damages, and denied funding. The applicant submitted a first appeal providing documentation to support that they are legally responsible for the repairs, but during review of the appeal, the Regional Director concluded that the Santa Ana River was a flood control work, such that repair of the banks would be under the authority of the USACE. The first appeal was denied. In their second appeal, the applicant (1) provided documentation from the USACE and the NRCS to support their position that this portion of the Santa Ana River is not a flood control work, (2) restated their argument that they have legal responsibility for repair of the bank, and (3) requested that a concrete face be constructed along the full length of the bank (5000 lf), suggesting that codes and standards require such work.
Issues:
During the winter storms of 1995, a flood control berm/access road, separating the California Street Landfill from the Santa Ana River, was eroded by the flood waters in the River. An existing wire and rail revetment system (700 ft. in length), previously constructed to protect the bank, and a portion of the adjacent embankment (500 ft. in length) were significantly damaged.
The applicant owns and operates the solid waste disposal facility (landfill) and a wastewater treatment plant on the property located southerly of and adjacent to the Santa Ana River. Landfill material has been placed nearly adjacent to the river. Separating the property containing the landfill waste from the river is a 10 foot high by 30 foot wide earth and rock berm, a portion of which contained the section of the wire and rail revetment damaged in the disaster. It is understood that the purpose of the revetment is to stabilize and protect the channel bank from erosion during heavy storm flows in the river. The berm and revetment system is owned and maintained by the San Bernardino County Flood Control District (District), however, the applicant states that the District does not intend to repair the damaged revetment system. The applicant further states that they are legally responsible for preventing landfill material from entering into the adjacent waters and are therefore obligated to take measures to adequately contain the landfill material. Concerned that continued erosion of the embankment would result in the deposition of adjacent solid waste materials into the Santa Ana River, the applicant requested assistance to repair the embankment.
DSR 97832 was originally prepared as Category D in the amount of $62,881 to restore the damaged 500 linear feet (lf) of embankment using placed rip rap, including permit fees and engineering costs. However, during eligibility review, it was concluded that the repair of the embankment was not the legal responsibility of the applicant, and therefore, was not eligible for funding.
First Appeal
The applicant appealed FEMA's determination of ineligibility in a August 23, 1996, letter to the State of California Governor's Office of Emergency Services (OES). Specifically, the applicant indicated that they are legally responsible for the work and provided various references to support their position. Further, the applicant indicated that it has, with the assistance of the District, previously repaired and stabilized this section of the bank. The applicant therefore requested that the original DSR funding be found eligible, along with a supplemental DSR for $3.2 million to permanently repair the damaged channel section and provide for upgrades to current codes and standards.
The first appeal concluded that the applicant may be responsible for repair of the embankment, however, based on the review of the design and function of the channel facility, the Regional Director concluded that the damaged facility, including the post and wire revetment within the bank of the channel, and the channel itself, met the United States Army Corps of Engineer's (USACE) definition of a Flood Control Work (FCW). Accordingly, the repair of this facility was found to be ineligible for Public Assistance funding, and the appeal was denied. As the appeal was denied for reasons other than initially presented on the DSR, the first appeal issues regarding legal responsibility and applicability of codes and standards were not addressed in the Regional Director's response.
Second Appeal
The applicant submitted a second appeal of FEMA's determination of ineligibility of DSR 97832, transmitted through your office in a letter dated August 18, 1997. The applicant appealed FEMA's determination that the damaged berm and revetment system meet the USACE's definition of an FCW, providing supporting documentation from the USACE and the Natural Resource Conservation Service (NRCS). The applicant therefore requested FEMA reconsider the issue of legal responsibility presented in their first appeal, and provide funding for the scope of work presented in DSR 97832 ($62, 881), as well as the proposed permanent restoration at a cost of $3.2 million.
DISCUSSION
Issue of USACE Authority
During the review of the first appeal, various sections of the Santa Ana River Channel throughout San Bernardino County were found to be on the active list for the USACE PL 84-99 Rehabilitation and Inspection Program. As only facilities that are classified as FCWs are eligible for USACE funding under this program, FEMA conducted a further review of this section of the Santa Ana River channel and concluded that it also would be classified as an FCW. The applicant has submitted a letter from the USACE to support their position that this section of the Santa Ana River is not an FCW. The USACE letter to the applicant, dated May 8, 1997, states "Our field visit and research conclude that the portion of the Santa Ana River in the vicinity of your landfill shows evidence of providing localized bank erosion protection only. The project is not a flood control works, therefore the Corps of Engineers does not have rehabilitation authority." Further, a letter from the NRCS, dated May 14, 1997, states that the proposed streambank protection repairs are not eligible for financial assistance under the Emergency Watershed Protection Program. Based on this information, it is concluded that the revetment system and embankment do not meet the definition of a FCW, and are therefore eligible for FEMA assistance.
Legal Responsibility
Regarding the issue of legal responsibility, the applicant's first appeal states that their authority to repair this site is based on requirements imposed on them by the Federal Government. The applicant cites regulations promulgated by the Environmental Protection Agency (published as Title 40 of the Code of Federal Regulations (40 CFR) Part 208, Section 258.11, Solid Waste Disposal Facility Criteria: Final Rule), which states:258.11 Floodplains. (a) Owners or operators of new MSWLF units, existing MSWLF units, and lateral expansions located in the 100-year floodplains must demonstrate that the unit will not restrict the flow of the 100-year flood, reduce the temporary water storage capacity of the floodplain, or result in washout of solid waste so as to pose a hazard to human health and the environment. The applicant also asserts that Order No. 93-57, Amending Waste Discharge Requirements for Municipal Solid Waste Disposal Sites in the Santa Ana Region to implement State Water Board Resolution No. 93-62, California Regional Water Control Board, Santa Ana Region, September 1993, provides adopted codes and standards identifying applicable provisions regarding the protection in the 100-year floodplain in accordance with, and to enforce 40 CFR 258. This Order states that the owner or operator of such a facility must submit a report to the Regional Board by October 9, 1993 to demonstrate that the requirements of 40 CFR 258.11 have been met.
Further, the applicant states that in the past it has, with the assistance of the District, repaired and stabilized this section of the bank protecting the solid waste disposal facility and wastewater treatment plant from storm flows. On this basis, the applicant believes that the repairs are their legal responsibility and, therefore, are eligible for Federal disaster assistance.
Based on the apparent intent of these regulations to require that owners of landfills design such facilities to protect from hazards to human health and the environment from washouts of solid waste, and the fact that the applicant has performed such efforts in the past, I have found that the applicant does have a responsibility to restore the embankment to its pre-disastge500 linear feet), as was originally proposed in DSR 97832 is considered a reasonable repair method for the reported damages. Accordingly, the Regional Director will prepare a Category D, supplemental DSR to restore eligibility of the scope of work provided for in DSR 97832 ($62,881). It is noted that the applicant's proposal for the Hazard Mitigation Grant Program, as discussed below, indicates that the District may provide the rip-rap to the applicant for these repairs. As the scope of work in DSR 97832 represents a Large Project (44 CFR 206.203(c)(1)), the applicant will be reimbursed the actual costs expended for the eligible scope of work as documented by the applicant at the completion of work. Accordingly, if the applicant does not incur costs for purchase of the rip-rap, the eligible funding would be reduced accordingly.
Codes and Standards
The applicant's first and second appeal have requested that FEMA provide assistance to perform permanent restoration of this facility in accordance with current codes and standards. A description of the requested work and cost estimate were submitted with the first appeal, and had initially been requested to be funded through the Hazard Mitigation Grant Program under Section 404 of the Stafford Act. The applicant is proposing to construct a hard surface along 5,000 linear feet (lf) of the channel bank to protect the landfill and wastewater treatment plant from flows and debris loading which is projected to be generated by at least a 100 year storm event. The estimated cost for this work is $3.2 million. It is noted that the proposed repair along 5,000 lf of the embankment far exceeds the 500 lf length of disaster damaged bank.
Title 44 CFR 206.226(b) indicates that FEMA may provide assistance for the cost of complying with Federal, State, and local repair or replacement standards that change the pre-disaster design of a facility. However, the implementing ordinance of applicable regulations must contain clear and objective criteria requiring the application of these codes and standards in specific situations, such as in response to repair efforts. Although the regulations cited above suggest that the applicant has a responsibility to protect the floodplain from the discharge of landfill waste, these regulations do not indicate that a design upgrade, such as that being requested, is required as part of repair efforts. Rather, as these regulations had been adopted in September of 1993, it is found that such design requirements had been imposed prior to the disaster, and apparently not met in accordance with Order 93-57. Accordingly, it is found that the regulations presented by the applicant do not satisfy the requirements of 44 CFR 206.226(b), such that the requested scope of work is not eligible for FEMA funding.
CONCLUSION
Based on the documentation provided with the second appeal, I have determined that the applicant does have a responsibility to protect the floodplain from potential loss of landfill waste material, and that the proposed scope of work in DSR 97832 is a reasonable method of repair. Accordingly, the Regional Director will prepare a supplemental DSR to restore funding in accordance with the scope of work in DSR 97832. However, the documentation does not support that the $3.2 million slope redesign is required by a code or standard, such that this work remains ineligible for FEMA assistance.
Appeal Brief
| Disaster | FEMA-1044-DR |
| Applicant | City of Redlands |
| Appeal Type | Second |
| PA ID# | 071-59962 |
| PW ID# | 97832 |
| Date Signed | 1998-03-13T05:00:00 |
Cross Reference: Legal Responsibility, Pre-Disaster Design, Codes and Standards
Summary: During the winter storms of 1995, a flood control berm/access road, separating the California Street Landfill (owned and operated by the applicant) from the Santa Ana River, was eroded by the floodwaters in the river. An existing wire and rail revetment system, approximately 500 ft. in length, and a portion of the adjacent embankment were significantly damaged. DSR 97832 was originally prepared as Category D in the amount of $62,881 to restore the embankment using riprap. As the damaged berm was reported to be owned by the San Bernardino County Flood Control District, FEMA concluded that the applicant was not legally responsible for repair of the damages, and denied funding. The applicant submitted a first appeal providing documentation to support that they are legally responsible for the repairs, but during review of the appeal, the Regional Director concluded that the Santa Ana River was a flood control work, such that repair of the banks would be under the authority of the USACE. The first appeal was denied. In their second appeal, the applicant (1) provided documentation from the USACE and the NRCS to support their position that this portion of the Santa Ana River is not a flood control work, (2) restated their argument that they have legal responsibility for repair of the bank, and (3) requested that a concrete face be constructed along the full length of the bank (5000 lf), suggesting that codes and standards require such work.
Issues:
- Is the restoration of damaged bank under the authority of USACE funding?
- Does the applicant have legal responsibility to repair the damaged site?
- Is the concrete face design eligible for assistance?
- No. The documentation submitted by the USACE and NRCS indicate that this section of the Santa Ana River does not meet the USACE's definition of a flood control work.
- Yes. The applicant is responsible to protect the floodplain from discharge of landfill material. A supplemental DSR should be prepared to reinstate the scope of work as presented in DSR 97832.
- No. The applicant has not provided an acceptable code or standard to demonstrate that such a scope of work is required as part of the repair effort. Also, the requested repair extends far beyond the length of the disaster damaged bank.
Appeal Letter
March 13, 1998
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, 3rd Floor
Pasadena, California 91103-3678
Dear Mr. Najera:
This letter is in response to your August 18, 1997, submittal of the City of Redlands' second appeal of damage survey report DSR 97832 under FEMA-1044-DR-CA, in which the subgrantee requested disaster assistance to fund restoration of an embankment adjacent to their California Street Landfill site. FEMA had determined that the adjacent Santa Ana River met the definition of a flood control work such that restoration of the embankment would be under the authority of the USACE. The applicant has submitted documentation to support that the facility is not under the USACE authority, and is requesting funding for both the repair with riprap as originally presented in DSR 97832, as well as for construction of concrete slope protection along the full length of the embankment as permanent repair to meet current codes and standards.
As explained in the attached analysis, I have determined that the documentation provided with the appeal supports the assertion that the embankment and associated revetment system is not a flood control work, and that the applicant does have responsibility to repair the damages. Accordingly, I have found that repair with riprap is suitable for repair. By copy of this letter, I am requesting the Regional Director to prepare a supplemental Category D DSR to restore the scope of work originally presented on DSR 97832. However, I have also found that the requested concrete slope design is not required by the regulations submitted, and is therefore not eligible for assistance.
Please inform the subgrantee of my determination. The subgrantee may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Acting Regional Director
FEMA Region IX
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, 3rd Floor
Pasadena, California 91103-3678
Dear Mr. Najera:
This letter is in response to your August 18, 1997, submittal of the City of Redlands' second appeal of damage survey report DSR 97832 under FEMA-1044-DR-CA, in which the subgrantee requested disaster assistance to fund restoration of an embankment adjacent to their California Street Landfill site. FEMA had determined that the adjacent Santa Ana River met the definition of a flood control work such that restoration of the embankment would be under the authority of the USACE. The applicant has submitted documentation to support that the facility is not under the USACE authority, and is requesting funding for both the repair with riprap as originally presented in DSR 97832, as well as for construction of concrete slope protection along the full length of the embankment as permanent repair to meet current codes and standards.
As explained in the attached analysis, I have determined that the documentation provided with the appeal supports the assertion that the embankment and associated revetment system is not a flood control work, and that the applicant does have responsibility to repair the damages. Accordingly, I have found that repair with riprap is suitable for repair. By copy of this letter, I am requesting the Regional Director to prepare a supplemental Category D DSR to restore the scope of work originally presented on DSR 97832. However, I have also found that the requested concrete slope design is not required by the regulations submitted, and is therefore not eligible for assistance.
Please inform the subgrantee of my determination. The subgrantee may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Acting Regional Director
FEMA Region IX
Appeal Analysis
BACKGROUNDDuring the winter storms of 1995, a flood control berm/access road, separating the California Street Landfill from the Santa Ana River, was eroded by the flood waters in the River. An existing wire and rail revetment system (700 ft. in length), previously constructed to protect the bank, and a portion of the adjacent embankment (500 ft. in length) were significantly damaged.
The applicant owns and operates the solid waste disposal facility (landfill) and a wastewater treatment plant on the property located southerly of and adjacent to the Santa Ana River. Landfill material has been placed nearly adjacent to the river. Separating the property containing the landfill waste from the river is a 10 foot high by 30 foot wide earth and rock berm, a portion of which contained the section of the wire and rail revetment damaged in the disaster. It is understood that the purpose of the revetment is to stabilize and protect the channel bank from erosion during heavy storm flows in the river. The berm and revetment system is owned and maintained by the San Bernardino County Flood Control District (District), however, the applicant states that the District does not intend to repair the damaged revetment system. The applicant further states that they are legally responsible for preventing landfill material from entering into the adjacent waters and are therefore obligated to take measures to adequately contain the landfill material. Concerned that continued erosion of the embankment would result in the deposition of adjacent solid waste materials into the Santa Ana River, the applicant requested assistance to repair the embankment.
DSR 97832 was originally prepared as Category D in the amount of $62,881 to restore the damaged 500 linear feet (lf) of embankment using placed rip rap, including permit fees and engineering costs. However, during eligibility review, it was concluded that the repair of the embankment was not the legal responsibility of the applicant, and therefore, was not eligible for funding.
First Appeal
The applicant appealed FEMA's determination of ineligibility in a August 23, 1996, letter to the State of California Governor's Office of Emergency Services (OES). Specifically, the applicant indicated that they are legally responsible for the work and provided various references to support their position. Further, the applicant indicated that it has, with the assistance of the District, previously repaired and stabilized this section of the bank. The applicant therefore requested that the original DSR funding be found eligible, along with a supplemental DSR for $3.2 million to permanently repair the damaged channel section and provide for upgrades to current codes and standards.
The first appeal concluded that the applicant may be responsible for repair of the embankment, however, based on the review of the design and function of the channel facility, the Regional Director concluded that the damaged facility, including the post and wire revetment within the bank of the channel, and the channel itself, met the United States Army Corps of Engineer's (USACE) definition of a Flood Control Work (FCW). Accordingly, the repair of this facility was found to be ineligible for Public Assistance funding, and the appeal was denied. As the appeal was denied for reasons other than initially presented on the DSR, the first appeal issues regarding legal responsibility and applicability of codes and standards were not addressed in the Regional Director's response.
Second Appeal
The applicant submitted a second appeal of FEMA's determination of ineligibility of DSR 97832, transmitted through your office in a letter dated August 18, 1997. The applicant appealed FEMA's determination that the damaged berm and revetment system meet the USACE's definition of an FCW, providing supporting documentation from the USACE and the Natural Resource Conservation Service (NRCS). The applicant therefore requested FEMA reconsider the issue of legal responsibility presented in their first appeal, and provide funding for the scope of work presented in DSR 97832 ($62, 881), as well as the proposed permanent restoration at a cost of $3.2 million.
DISCUSSION
Issue of USACE Authority
During the review of the first appeal, various sections of the Santa Ana River Channel throughout San Bernardino County were found to be on the active list for the USACE PL 84-99 Rehabilitation and Inspection Program. As only facilities that are classified as FCWs are eligible for USACE funding under this program, FEMA conducted a further review of this section of the Santa Ana River channel and concluded that it also would be classified as an FCW. The applicant has submitted a letter from the USACE to support their position that this section of the Santa Ana River is not an FCW. The USACE letter to the applicant, dated May 8, 1997, states "Our field visit and research conclude that the portion of the Santa Ana River in the vicinity of your landfill shows evidence of providing localized bank erosion protection only. The project is not a flood control works, therefore the Corps of Engineers does not have rehabilitation authority." Further, a letter from the NRCS, dated May 14, 1997, states that the proposed streambank protection repairs are not eligible for financial assistance under the Emergency Watershed Protection Program. Based on this information, it is concluded that the revetment system and embankment do not meet the definition of a FCW, and are therefore eligible for FEMA assistance.
Legal Responsibility
Regarding the issue of legal responsibility, the applicant's first appeal states that their authority to repair this site is based on requirements imposed on them by the Federal Government. The applicant cites regulations promulgated by the Environmental Protection Agency (published as Title 40 of the Code of Federal Regulations (40 CFR) Part 208, Section 258.11, Solid Waste Disposal Facility Criteria: Final Rule), which states:
Further, the applicant states that in the past it has, with the assistance of the District, repaired and stabilized this section of the bank protecting the solid waste disposal facility and wastewater treatment plant from storm flows. On this basis, the applicant believes that the repairs are their legal responsibility and, therefore, are eligible for Federal disaster assistance.
Based on the apparent intent of these regulations to require that owners of landfills design such facilities to protect from hazards to human health and the environment from washouts of solid waste, and the fact that the applicant has performed such efforts in the past, I have found that the applicant does have a responsibility to restore the embankment to its pre-disastge500 linear feet), as was originally proposed in DSR 97832 is considered a reasonable repair method for the reported damages. Accordingly, the Regional Director will prepare a Category D, supplemental DSR to restore eligibility of the scope of work provided for in DSR 97832 ($62,881). It is noted that the applicant's proposal for the Hazard Mitigation Grant Program, as discussed below, indicates that the District may provide the rip-rap to the applicant for these repairs. As the scope of work in DSR 97832 represents a Large Project (44 CFR 206.203(c)(1)), the applicant will be reimbursed the actual costs expended for the eligible scope of work as documented by the applicant at the completion of work. Accordingly, if the applicant does not incur costs for purchase of the rip-rap, the eligible funding would be reduced accordingly.
Codes and Standards
The applicant's first and second appeal have requested that FEMA provide assistance to perform permanent restoration of this facility in accordance with current codes and standards. A description of the requested work and cost estimate were submitted with the first appeal, and had initially been requested to be funded through the Hazard Mitigation Grant Program under Section 404 of the Stafford Act. The applicant is proposing to construct a hard surface along 5,000 linear feet (lf) of the channel bank to protect the landfill and wastewater treatment plant from flows and debris loading which is projected to be generated by at least a 100 year storm event. The estimated cost for this work is $3.2 million. It is noted that the proposed repair along 5,000 lf of the embankment far exceeds the 500 lf length of disaster damaged bank.
Title 44 CFR 206.226(b) indicates that FEMA may provide assistance for the cost of complying with Federal, State, and local repair or replacement standards that change the pre-disaster design of a facility. However, the implementing ordinance of applicable regulations must contain clear and objective criteria requiring the application of these codes and standards in specific situations, such as in response to repair efforts. Although the regulations cited above suggest that the applicant has a responsibility to protect the floodplain from the discharge of landfill waste, these regulations do not indicate that a design upgrade, such as that being requested, is required as part of repair efforts. Rather, as these regulations had been adopted in September of 1993, it is found that such design requirements had been imposed prior to the disaster, and apparently not met in accordance with Order 93-57. Accordingly, it is found that the regulations presented by the applicant do not satisfy the requirements of 44 CFR 206.226(b), such that the requested scope of work is not eligible for FEMA funding.
CONCLUSION
Based on the documentation provided with the second appeal, I have determined that the applicant does have a responsibility to protect the floodplain from potential loss of landfill waste material, and that the proposed scope of work in DSR 97832 is a reasonable method of repair. Accordingly, the Regional Director will prepare a supplemental DSR to restore funding in accordance with the scope of work in DSR 97832. However, the documentation does not support that the $3.2 million slope redesign is required by a code or standard, such that this work remains ineligible for FEMA assistance.
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