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Dry Creek Stream Bank Repairs
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: Appeal Brief; Second Appeal; City of Roseville; P.A. 061-62938
Cross Reference: DSRs 11935, 16969 and 11081; Caltrans Design Manual; Policy Memo #3
Summary: The heavy rains associated with DR-1044 resulted in high flood flows within Dry Creek in the City of Roseville, California. The flows washed out the base of an existing gabion wall causing it to pull away from the bank and sloughing occurred along the bank above the wall. FEMA approved DSR 11935 for $31,617 for the restoration of the bank, including 130 cubic yards (cu yd) of gabions, riprap fabric, 867 cu yd of backfill, and reseeding of the backfill slope. Based on a low bid for the repairs, the City requested supplemental funding for additional repairs to meet codes and standards, including an additional 390 cu yd of gabions. During review of the supplemental request it was determined that $58,500 of the bid constituted an improvement to the pre-disaster condition. FEMA also determined that the repairs originally identified were necessary as a direct result of the disaster and approved DSR 16969 (to replace DSR 11935) for a total of $66,983 for 130 cu yd of gabions and bank repairs. Subsequently, FEMA determined that the repairs were completed without fulfilling the procedural requirements of NEPA and Environmental Policy Memorandum #3 and prepared DSR 11081 to de-obligate DSRs 11935 and 16969. In the second appeal, the City is requesting re-obligation of DSR 11081 and $58,500 for additional gabion repairs. The City contends that the additional repairs were necessary to meet Caltrans' Highway Design Manual (HDM) requirements, which was adopted by resolution as the City's codes and standards. In the second appeal transmittal, the Disaster Recovery Manager indicates Environmental Policy Memo #3 was misapplied.
Issues:
The heavy rains associated with DR-1044 resulted in high flood flows within Dry Creek in the City of Roseville, California. The flows washed out the base of an existing gabion wall, causing it to pull away from the bank and sloughing to occur along the bank above the wall. FEMA approved Damage Survey Report (DSR) 11935 for $31,617 for the restoration of the bank, including 130 cubic yards (cu yd) of gabions, 217 square yards (sq yd) of riprap fabric, 867 cu yd of backfill, and reseeding of the backfill slope. Based on a low bid for the repairs, the City requested supplemental funding for $157,100 for additional repairs to meet codes and standards, including 390 additional cu yd of gabions. During review of the supplemental request it was determined that a portion of the additional repairs constituted an improvement to the pre-disaster condition and $58,500 of the repairs were denied. FEMA approved DSR 16969, to replace DSR 11935, for $66,983 for a total of 130 cu yd of gabions, based upon the low bid. Subsequently, FEMA determined that, pursuant to Environmental Policy Memorandum #3, the repairs had been completed without fulfilling the procedural requirements of the National Environmental Policy Act (NEPA) and prepared DSR 11081 to de-obligate DSRs 11935 and 16969.
In the second appeal, the City is requesting re-obligation of DSR 11081 and $58,500 for additional gabion repairs. The City contends that the additional repairs have been completed and were necessary to meet Caltrans' Highway Design Manual (HDM), which was adopted by resolution as the City's code and standards. The City contends the HDM mandated armoring of the bank below scour depth. The City also contends that the repairs did not cause any environmental concerns. In the second appeal transmittal, the Disaster Recovery Manager states that FEMA Environmental Policy Memo #3 was misapplied in this situation and that the funding should not have been deobligated.
DISCUSSION
Wall and Bank Repairs
Review of the documentation indicates that the heavy stream flows washed out 130 linear feet of the gabion wall and eroded the bank and that repair of the area was necessary as a direct result of the disaster. A reasonable and prudent engineering method of repair was provided in the original DSR. DSR 11935 provided $31,617 for 130 cu yd of gabions, 217 sq yd of geotextile fabric, 867 cu yd of backfill, and reseeding of the backfill slope. However, in response to a request for supplemental funding, FEMA prepared DSR 16969 to replace, not supplement DSR 11935, for $66,983 for the original damages, based the low bid. However, FEMA later determined that the repairs were completed without fulfilling the procedural requirements of the National Environmental Policy Act and this funding was de-obligated. The Disaster Recovery Manager now states that the City restored the facility substantially to its pre-disaster condition and FEMA's deobligation was a misapplication of the rule. With the issue of environmental compliance resolved, the documentation provided indicates the repair of the damages originally identified are eligible for funding. Therefore, the appeal to re-obligate DSR 16969 is approved and $66,983 for 130 cu yd of gabion repairs is eligible for funding.
Additional Wall and Bank Repairs
As discussed, repair of the damages originally identified was necessary as a direct result of the disaster event and $66,983 for 130 cu yd of gabions is eligible for funding. The City contends that the additional gabion repair (including 390 cu yd of gabions) was also necessary to repair Dry Creek, in accordance with City codes and standards and Caltrans' HDM. Review of the provided documentation indicates that the City did approve a resolution adopting the City's Department of Public Works, Improvement Standards, on May 19, 1993, well before the disaster. However, the standard states that it applies to construction of improvements which are to be dedicated to the public, and does not specifically address requirements for repair of public improvements. Further, Section 1-2 of the standard does state that situations not covered by this standard (such as gabion wall repairs) shall be designed in accordance with the HDM. Review of the pertinent section of the HDM (Section 873.2) states that the lower limit of bank armoring (i.e. the gabions) should be below the anticipated level of scour. The applicant states that lowering the lower limit of the bank to meet this requirement required the additional gabion protection. Pursuant to Title 44 of the Code of Federal Regulations (CFR), section 206.226 (b), standards which change the pre-disaster condition of the facility must meet five criteria, to be eligible for funding. Of the five criteria, the fourth criteria requires that the standard apply uniformly to all similar types of facilities within the jurisdiction of the owner of the facility. The relevant section of the HDM requiring the additional gabion repairs states that the standard does not apply if the repair is not economically feasible. Therefore, this standard is discretionary and does not apply uniformly to all similar facilities in the City and does not meet FEMA's requirements for codes and standards. As such, the additional repair constitute an improvement to the pre-disaster condition, which is not mandated by an uniformly applied standard and is not eligible for funding. Therefore, this portion of the second appeal is denied.
CONCLUSION
In summary, the Disaster Recovery Manager states that FEMA's usage of Environmental Policy Memo #3 was a misapplication of the rule, in this situation. Review of the documentation demonstrates that the gabion wall and bank repair originally identified was necessary as a direct result of the disaster. As such, $66,983 for these repairs is eligible for funding. However, additional repairs beyond these constitute an improvement to the pre-disaster condition and are not eligible for funding. The Disaster Recovery Manager will prepare a supplemental DSR for $66,983 to implement this decision.
Appeal Brief
| Desastre | FEMA-1044-DR |
| Applicant | City of Roseville |
| Appeal Type | Second |
| PA ID# | 061-62938 |
| PW ID# | 11081,16969,11935 |
| Date Signed | 1999-03-09T05:00:00 |
Cross Reference: DSRs 11935, 16969 and 11081; Caltrans Design Manual; Policy Memo #3
Summary: The heavy rains associated with DR-1044 resulted in high flood flows within Dry Creek in the City of Roseville, California. The flows washed out the base of an existing gabion wall causing it to pull away from the bank and sloughing occurred along the bank above the wall. FEMA approved DSR 11935 for $31,617 for the restoration of the bank, including 130 cubic yards (cu yd) of gabions, riprap fabric, 867 cu yd of backfill, and reseeding of the backfill slope. Based on a low bid for the repairs, the City requested supplemental funding for additional repairs to meet codes and standards, including an additional 390 cu yd of gabions. During review of the supplemental request it was determined that $58,500 of the bid constituted an improvement to the pre-disaster condition. FEMA also determined that the repairs originally identified were necessary as a direct result of the disaster and approved DSR 16969 (to replace DSR 11935) for a total of $66,983 for 130 cu yd of gabions and bank repairs. Subsequently, FEMA determined that the repairs were completed without fulfilling the procedural requirements of NEPA and Environmental Policy Memorandum #3 and prepared DSR 11081 to de-obligate DSRs 11935 and 16969. In the second appeal, the City is requesting re-obligation of DSR 11081 and $58,500 for additional gabion repairs. The City contends that the additional repairs were necessary to meet Caltrans' Highway Design Manual (HDM) requirements, which was adopted by resolution as the City's codes and standards. In the second appeal transmittal, the Disaster Recovery Manager indicates Environmental Policy Memo #3 was misapplied.
Issues:
- Did the SOW of the original DSR (11935) replace the pre-disaster condition in-kind?
- Are the original gabion repairs eligible for funding?
- Are any of the additional gabion repairs mandated by an applicable code and standards?
- Yes. The SOW of DSR 11935 replaced the pre-disaster condition in-kind and the Region states the project qualifies for a Catex.
- Yes. Based on the low bid, DSR 16969 (which replaced DSR 11935) provided funding for repair of the damages originally identified as a direct result of the disaster. $66,983 for 130 cu yd of gabions and 867 cu yd of fill is eligible for funding.
- No. Although the HDM was adopted as City code by resolution, the HDM is discretionary and does not uniformly apply to this type of repair. Additional repairs beyond those originally identified constitute an improvement to the pre-disaster condition.
Appeal Letter
March 9, 1999
Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
P.O. Box 419023
Rancho Cordova, California 95741
Dear Mr. Christian:
This is in response to your February 13, 1998, letter to the Federal Emergency Management Agency (FEMA). With this letter, you forwarded a second appeal of Damage Survey Report (DSR) 11081 under FEMA-1044-DR-CA on behalf of the City of Roseville (City). The City is requesting re-obligation of DSRs 11081 and $58,500 for additional repairs of Dry Creek.
The heavy rains washed out the gabion wall and bank of Dry Creek. FEMA approved DSR 16969 for repair of the damages. It was later determined that the requirements of FEMA's Environmental Policy Memorandum #3 were not met and both DSRs were de-obligated. In this appeal, the City contends that the additional repairs were necessary to meet City code and did not cause any environmental concerns. The Disaster Recovery Manager states that FEMA Environmental Policy Memo #3 was misapplied in this situation. As explained in the enclosed analysis, $66,983 for gabion repairs are eligible for funding. Repairs beyond these constitute an improvement to the pre-disaster condition and are not eligible for funding. With this letter, I am requesting the Disaster Recovery Manager to prepare a supplemental DSR for $66,983.
Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on
April 8, 1998. It amends 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Richard A. Buck
Disaster Recovery Manager
Region IX
Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
P.O. Box 419023
Rancho Cordova, California 95741
Dear Mr. Christian:
This is in response to your February 13, 1998, letter to the Federal Emergency Management Agency (FEMA). With this letter, you forwarded a second appeal of Damage Survey Report (DSR) 11081 under FEMA-1044-DR-CA on behalf of the City of Roseville (City). The City is requesting re-obligation of DSRs 11081 and $58,500 for additional repairs of Dry Creek.
The heavy rains washed out the gabion wall and bank of Dry Creek. FEMA approved DSR 16969 for repair of the damages. It was later determined that the requirements of FEMA's Environmental Policy Memorandum #3 were not met and both DSRs were de-obligated. In this appeal, the City contends that the additional repairs were necessary to meet City code and did not cause any environmental concerns. The Disaster Recovery Manager states that FEMA Environmental Policy Memo #3 was misapplied in this situation. As explained in the enclosed analysis, $66,983 for gabion repairs are eligible for funding. Repairs beyond these constitute an improvement to the pre-disaster condition and are not eligible for funding. With this letter, I am requesting the Disaster Recovery Manager to prepare a supplemental DSR for $66,983.
Please inform the applicant of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on
April 8, 1998. It amends 44 CFR 206.206.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
cc: Richard A. Buck
Disaster Recovery Manager
Region IX
Appeal Analysis
BACKGROUNDThe heavy rains associated with DR-1044 resulted in high flood flows within Dry Creek in the City of Roseville, California. The flows washed out the base of an existing gabion wall, causing it to pull away from the bank and sloughing to occur along the bank above the wall. FEMA approved Damage Survey Report (DSR) 11935 for $31,617 for the restoration of the bank, including 130 cubic yards (cu yd) of gabions, 217 square yards (sq yd) of riprap fabric, 867 cu yd of backfill, and reseeding of the backfill slope. Based on a low bid for the repairs, the City requested supplemental funding for $157,100 for additional repairs to meet codes and standards, including 390 additional cu yd of gabions. During review of the supplemental request it was determined that a portion of the additional repairs constituted an improvement to the pre-disaster condition and $58,500 of the repairs were denied. FEMA approved DSR 16969, to replace DSR 11935, for $66,983 for a total of 130 cu yd of gabions, based upon the low bid. Subsequently, FEMA determined that, pursuant to Environmental Policy Memorandum #3, the repairs had been completed without fulfilling the procedural requirements of the National Environmental Policy Act (NEPA) and prepared DSR 11081 to de-obligate DSRs 11935 and 16969.
In the second appeal, the City is requesting re-obligation of DSR 11081 and $58,500 for additional gabion repairs. The City contends that the additional repairs have been completed and were necessary to meet Caltrans' Highway Design Manual (HDM), which was adopted by resolution as the City's code and standards. The City contends the HDM mandated armoring of the bank below scour depth. The City also contends that the repairs did not cause any environmental concerns. In the second appeal transmittal, the Disaster Recovery Manager states that FEMA Environmental Policy Memo #3 was misapplied in this situation and that the funding should not have been deobligated.
DISCUSSION
Wall and Bank Repairs
Review of the documentation indicates that the heavy stream flows washed out 130 linear feet of the gabion wall and eroded the bank and that repair of the area was necessary as a direct result of the disaster. A reasonable and prudent engineering method of repair was provided in the original DSR. DSR 11935 provided $31,617 for 130 cu yd of gabions, 217 sq yd of geotextile fabric, 867 cu yd of backfill, and reseeding of the backfill slope. However, in response to a request for supplemental funding, FEMA prepared DSR 16969 to replace, not supplement DSR 11935, for $66,983 for the original damages, based the low bid. However, FEMA later determined that the repairs were completed without fulfilling the procedural requirements of the National Environmental Policy Act and this funding was de-obligated. The Disaster Recovery Manager now states that the City restored the facility substantially to its pre-disaster condition and FEMA's deobligation was a misapplication of the rule. With the issue of environmental compliance resolved, the documentation provided indicates the repair of the damages originally identified are eligible for funding. Therefore, the appeal to re-obligate DSR 16969 is approved and $66,983 for 130 cu yd of gabion repairs is eligible for funding.
Additional Wall and Bank Repairs
As discussed, repair of the damages originally identified was necessary as a direct result of the disaster event and $66,983 for 130 cu yd of gabions is eligible for funding. The City contends that the additional gabion repair (including 390 cu yd of gabions) was also necessary to repair Dry Creek, in accordance with City codes and standards and Caltrans' HDM. Review of the provided documentation indicates that the City did approve a resolution adopting the City's Department of Public Works, Improvement Standards, on May 19, 1993, well before the disaster. However, the standard states that it applies to construction of improvements which are to be dedicated to the public, and does not specifically address requirements for repair of public improvements. Further, Section 1-2 of the standard does state that situations not covered by this standard (such as gabion wall repairs) shall be designed in accordance with the HDM. Review of the pertinent section of the HDM (Section 873.2) states that the lower limit of bank armoring (i.e. the gabions) should be below the anticipated level of scour. The applicant states that lowering the lower limit of the bank to meet this requirement required the additional gabion protection. Pursuant to Title 44 of the Code of Federal Regulations (CFR), section 206.226 (b), standards which change the pre-disaster condition of the facility must meet five criteria, to be eligible for funding. Of the five criteria, the fourth criteria requires that the standard apply uniformly to all similar types of facilities within the jurisdiction of the owner of the facility. The relevant section of the HDM requiring the additional gabion repairs states that the standard does not apply if the repair is not economically feasible. Therefore, this standard is discretionary and does not apply uniformly to all similar facilities in the City and does not meet FEMA's requirements for codes and standards. As such, the additional repair constitute an improvement to the pre-disaster condition, which is not mandated by an uniformly applied standard and is not eligible for funding. Therefore, this portion of the second appeal is denied.
CONCLUSION
In summary, the Disaster Recovery Manager states that FEMA's usage of Environmental Policy Memo #3 was a misapplication of the rule, in this situation. Review of the documentation demonstrates that the gabion wall and bank repair originally identified was necessary as a direct result of the disaster. As such, $66,983 for these repairs is eligible for funding. However, additional repairs beyond these constitute an improvement to the pre-disaster condition and are not eligible for funding. The Disaster Recovery Manager will prepare a supplemental DSR for $66,983 to implement this decision.