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Santa Clara River Levee

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1577-DR
ApplicantVentura County Watershed Protection District
Appeal TypeSecond
PA ID#111-UL4GF-00
PW ID#Project Worksheet 2726
Date Signed2008-06-23T04:00:00
Citation: FEMA-1577-DR-CA, Ventura County Watershed Protection District (Applicant), Santa Clara River Levee, PW 2726
Cross-reference: Flood Control Works (FCW)

Summary: As a result of the January 2005 Winter Storms, the Applicant requested funding for permanent repairs to the Santa Clara River Levee. Repairs were made to an area of riprap, an access road parallel to the levee, and a chain link gate. FEMA and the United States Army Corps of Engineers (USACE) determined that the facility met the definition of an FCW. FEMA prepared PW 2726 but did not provide any funding for it because FEMA also determined that the completed work restored the facility to pre-disaster function and capacity. The repairs were permanent work and ineligible for Public Assistance funding.

The Applicant submitted its first appeal on January 13, 2006, stating 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. The Applicant stated that because it had sole responsibility for maintenance, the permanent repairs should be eligible for reimbursement under the FEMA Public Assistance Program. The California Governor’s Office of Emergency Services asserted that FEMA may waive its respective administrative conditions on reimbursement for facilities under the authority of another Federal agency. On December 8, 2006, FEMA denied the Applicant’s first appeal stating the facility met the USACE definition of an FCW. In accordance with FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation of Levees and Other Flood Control Works, authority for FCWs resides with another Federal agency.
On March 8, 2007, the Applicant submitted its second appeal to FEMA reiterating the arguments presented in its first appeal, and requesting a change in the category of work from Category D (permanent work) to Category B (emergency protective measures).
Issues: 1. Does the facility meet the USACE definitional criteria of an FCW?
2. Are permanent repairs of FCWs eligible under the FEMA Public Assistance Program?
3. Did the Applicant establish the existence of an immediate threat that would warrant emergency protective measures?

Findings: 1. Yes.

2. No.
3. No.
Rationale: Robert T. Stafford Disaster Relief and Emergency Act, Section 403 (a)(3); 44 CFR §§206.221(c), 206.225(a)(3) and 206.226; FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation of Levees and Other Flood Control Works

Appeal Letter

June 23, 2008

Frank McCarton
Acting 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
Santa Clara River Levee, FEMA-1577-DR-CA Project Worksheet (PW) 2726

Dear Mr. McCarton:

This letter is in response to a letter from your office dated May 10, 2007, which transmitted the referenced second appeal on behalf of the Ventura County Watershed Protection District (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding for repairs to the Santa Clara River Levee upstream of the Bardsdale Ditch.
The storms and heavy rains of December 27, 2004, through January 11, 2005, caused excessive storm water runoff and mud flows into the Santa Clara River. The Applicant requested reimbursement of $181,000 for permanent repairs to an area of riprap, an access road parallel to the levee, and a chain link gate at the entrance to the access road. FEMA denied the request because the facility met the United States Army Corps of Engineers’ (USACE) definition of a flood control work (FCW), and permanent repairs to the facility are not eligible for Public Assistance reimbursement.
The Applicant submitted its first appeal on January 13, 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. The Applicant stated that because it had sole responsibility for maintenance, the repairs should be eligible for reimbursement under the FEMA Public Assistance Program. The California Governor’s Office of Emergency Services (OES) maintains that FEMA could waive its respective administrative conditions on reimbursement of facilities under the authority of another Federal agency.
The Deputy Regional Director denied the first appeal on December 8, 2006, because the facility met the definition of an FCW. In accordance with FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation for Levees and Other Flood Control Works, authority for FCWs resides with another Federal agency, and Public Assistance reimbursement for FCWs is limited to emergency work necessary to reduce an immediate threat to life, public health and safety, or improved property. The Deputy Regional Director also stated that FEMA cannot
modify or waive its administrative conditions for facilities under the authority of another Federal agency.

The Applicant submitted its second appeal on March 8, 2007, reiterating the arguments presented in its first appeal. In its second appeal, the Applicant claims that the permanent repairs were necessary as an emergency protective measure to protect adjacent property from erosion. The Applicant is requesting a change in the category of work from Category D (permanent work) to Category B (emergency protective measures).
In accordance with FEMA Response and Recovery Policy 9524.3, Policy for Rehabilitation for Levees and Other Flood Control Works, authority for FCWs resides with another Federal agency and Public Assistance reimbursement for FCWs is limited to emergency work necessary to reduce an immediate threat to life, public health and safety, or improved property. Pursuant to 44 CFR §206.221(c), an immediate threat means the threat of additional damage or destruction from an event which can reasonably be expected to occur within 5 years. The second appeal does not provide any documentation to demonstrate that the repair work was necessary for the channel to convey a 5-year flood event or that a 5-year flood would result in any damage if the repairs were not made. The work would, therefore, be considered Category D (permanent work).

On April 17, 2007, the Applicant submitted a letter that included additional information to support its claim that the facility does not meet USACE’s definition of an FCW. The information consisted of aerial photographs and drawings from a Santa Clara River Bank Restoration project. The Applicant contends that this information illustrated that the purpose of the project was for land reclamation. This letter does not include any information that would change the original determination that the facility meets the definition of an FCW.

We have reviewed all information submitted with the appeal and have determined that the Deputy Regional Administrator’s decision in the first appeal is consistent with Public Assistance Program regulations and policies. The Applicant’s request to change the category of work is denied, and the Applicant’s second 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 Feb 4, 2020