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Repairs to Salt Creek Levee

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DesastreFEMA-1044-DR
ApplicantTehama County Flood Control & Water Conservation District
Appeal TypeThird
PA ID#103-91003
PW ID#15228
Date Signed1998-08-03T04:00:00
PURPOSE: Respond to third appeal submitted by the Tehama County Flood Control and Water Conservation District for permanent restoration of the Salt Creek Levee.

DISCUSSION: The winter storms of January 1995 (FEMA-1044-DR-CA) eroded approximately 350 feet of the Salt Creek Levee. FEMA prepared DSR 15228 for $17,211 for the permanent restoration of the facility. The DSR was found ineligible on the basis that the channel meets the United States Army Corps of Engineers' (USACE's) definition of a flood control work (FCW), such that restoration funding for the channel would be under the specific authority of the Natural Resources Conservation Service. However, the subgrantee was not notified of this determination until the DSR was finalized, more than six months after the initial site inspection. The subgrantee's first and second appeals primarily challenged the Federal Levee Policy as well as FEMA's coordination of disaster assistance as it relates to FCWs and the Policy. Appeal responses upheld the initial determinations of ineligibility. The third appeal reiterates much of the earlier positions, plus indicates that the subgrantee received funding for the same facility in previous disasters, suggesting that FEMA's application of this Policy was inconsistent and misleading. It is found that, given the circumstances under which information was provided during the disaster event regarding funding authorities for FCWs, there is sufficient basis to consider the Salt Creek Levee as an eligible facility for this disaster event.

RECOMMENDED ACTION: Sign letter granting this appeal.

Appeal Letter

August 3, 1998

Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
P.O. Box 239013
Sacramento, California 95823-9013

Dear Mr. Christian:

This is in response to your January 20, 1998, submittal of the Tehama County Flood Control and Water Conservation District's third appeal of Damage Survey Report (DSR) 15228 prepared for permanent restoration of the Salt Creek Levee damaged during the FEMA-1044 disaster event. The DSR was found ineligible on the basis that the channel meets the United States Army Corps of Engineers' (USACE's) definition of a flood control work (FCW), such that restoration funding for the channel would be under the specific authority of the Natural Resources Conservation Service (NRCS).

Based on a review of the circumstances regarding the implementation of the Federal Levee Policy during the 1044/1046 disaster events, it is concluded that flood control facilities damaged during these events which were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program for these disasters only. Accordingly, DSR 15228 has been reviewed for eligibility for permanent restoration funding through the Public Assistance Program. By copy of this letter, I am requesting the Regional Director to prepare a Supplemental DSR for $17,211 to restore the scope of work and estimated costs for DSR 15228. Accordingly, the subgrantee's appeal is granted. Please inform the applicant of my determination.

Sincerely,
/S/
James L. Witt
Director

Enclosure

cc: Martha Z. Whetstone
Regional Director
FEMA Region IX

Appeal Analysis

BACKGROUND
Excessive flood flows resulting from the FEMA-1044 disaster eroded approximately 350 feet of the Salt Creek Levee south of Highway 99 E. Following an inspection, Damage Survey Report (DSR) 15228 was prepared for $17,211 to fund the restoration of the levee by replacing aggregate base, re-shaping the embankments and placing riprap. This DSR was recommended as eligible by the FEMA inspector. This work was performed under the same contract as the repairs that resulted from the January 1993 disaster (FEMA-0979-DR-CA), which were ongoing. During review, which included the Levee Task Force evaluation, the levee was identified as a flood control work (FCW) and under the specific authority of the Natural Resources Conservation Service (NRCS). Therefore, the work was found not eligible for FEMA disaster assistance. The subgrantee, however, was not notified of this determination until the DSR was finalized, more than six-months after the initial site inspection.

The subgrantee submitted first and second appeals regarding the Federal Emergency Management Agency's (FEMA's) determination of ineligibility for 1044-disaster repairs to the Salt Creek Levee. The subgrantee focused primarily on FEMA funding received following the 979-disaster, as well as the application of the Federal Levee Policy during the 1044-disaster. Although the subgrantee did not dispute that the facility meets the United State's Army Corps of Engineers' (USACE's) definition of an FCW, they asserted that the completed repairs were not eligible for the NRCS Emergency Watershed Protection (EWP) program. To support this position, the subgrantee referenced a letter received from NRCS that stated that participation in the EWP program requires project approval prior to bidding, and since bidding was complete before requesting NRCS assistance the project was not eligible for this program.

FEMA responded to these appeals by further clarifying the intent of the Federal Levee Policy and stressing the importance of providing Federal assistance within the appropriate funding authority. In support of the NRCS Program, and the Federal Levee Policy, the Regional Director and the Executive Associate Director upheld the determination of ineligibility.

Third Appeal
The subgrantee's third appeal was transmitted by the California Governor's Office of Emergency Services in a letter dated January 20, 1998. The subgrantee's appeal primarily challenges the Federal Levee Policy itself as well as FEMA's coordination of disaster assistance as it relates to FCWs and the Policy. The subgrantee also reiterates that disaster-repairs were performed under the same contract as the FEMA-funded repairs on the Levee resulting from the January 1993 disaster, suggesting that FEMA's application of the Policy was inconsistent and misleading.

DISCUSSION
In addition to the subgrantee's disagreement regarding the implementation of the Federal Levee Policy, they assert that because FEMA funded similar repairs in a previous disaster, they assumed that the same facility would be eligible in future disasters. With this expectation, they did not apply to the NRCS for funding prior to contract bidding, resulting in their not being eligible for any disaster related assistance.

Consideration for Funding of Flood Control Facilities
Our review of the circumstances associated with eligibility determinations regarding flood control facilities prior to and during the response to the 1995 Winter Storms has concluded that some confusion as to the eligibility of flood control facilities was apparent. We have found that some applicants, including this subgrantee, did receive funding for such facilities during previous disasters, particularly FEMA-979 in 1993, supporting the subgrantee's position that they relied on funding from previous disasters. Additionally, review of the subject DSR finds that the FEMA inspector did not notify the subgrantee that their facility was under the funding authority of another Federal agency, and that the subgrantee was not notified of this determination until the DSR was finalized, more than six-months after the initial site inspection.

Therefore, although the Federal Levee Policy does specifically indicate that permanent restoration of FCWs is not eligible for FEMA funding, it is recognized that subgrantees may have relied on previous funding from FEMA to expect disaster related funding in subsequent disasters. Further, FEMA's delay in notifying subgrantees during the 1995 Storms that their facilities were under the authority of the USACE or NRCS may have contributed to a subgrantee's failure to receive Federal funding for disaster related damages. Accordingly, FEMA has concluded that flood control facilities damaged during the 1044/1046 disaster that were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program.

Eligible Work
In accordance with the discussion presented above, DSR 15228 has been reviewed for eligibility for permanent restoration funding through the Public Assistance Program, consistent with FEMA regulations and policy for restoration of eligible facilities. The subject DSR was prepared for $17,211 to replace the aggregate base on the adjacent road, reshape the channel banks, and place ?-ton riprap along the channel banks. The inspection team was in agreement as to the scope of repair and estimated cost, and the scope of work presented on the DSR reflects that requested by the subgrantee. Based on this review, the Regional Director will prepare a supplemental DSR to restore the scope of work and estimated cost as previously established. It is noted that as for all permanent restoration projects, prior to project approval, it may be necessary, if applicable, for the FEMA regional office to complete a review of this project relative to the various environmental protection and historic preservation regulations.

Future Assistance
Although FEMA is providing this exception for funding of flood control channels for those facilities damaged during the 1044/1046 disaster events, it should be understood that the Federal Levee Policy will be strictly adhered to for all disasters occurring after December 31, 1996. I have enclosed a copy of the 1996 Policy entitled, "Policy for Rehabilitation Assistance for Levees and Other Flood Control Works" for reference regarding funding for flood control channels damaged after 1996.

In preparation for future disaster events, the subgrantee should take appropriate steps to apply to the USACE PL 84-99 Program or the NRCS Emergency Watershed Protection Program. Facilities that meet the USACE's definition of an FCW will not be eligible for FEMA permanent restoration assistance. As indicated in the attached Policy, the USACE defines a flood control work as a "structure designed and constructed to have appreciable and dependable effects in preventing damage by irregular and unusual rises in water level." To determine if a certain facility meets this definition, the USACE will review the design of that facility and in most cases, perform a site inspection. Facilities that meet the definition of an FCW but are not "active" ("inactive") in the PL 84-99 Program due to lack of inspection request, failure to meet design or maintenance criteria, or other reasons determined by the USACE, will not be eligible under the Public Assistance Program. As a result, a facility that meets the USACE definition but is not in "active" status in the program may not be eligible for any Federal disaster assistance for permanent restoration.

Other channels that do not meet the USACE's definition of an FCW may be eligible for FEMA assistance. However, for those channels which appear to meet the definition of an FCW,tete that the facility does not meet the USACE's definition, in order for the channel to be considered an eligible facility. To best support their position, it is recommended that the subgrantee provide a letter from the USACE indicating that they do not consider the facility an FCW. The subgrantees should anticipate that it may be necessary for the USACE to perform an inspection of a site to definitively determine that a facility does not meet their definition of an FCW. This documentation would be significantly important to those facilities which were found ineligible in the 1044/1046 or previous disasters.

CONCLUSION
Flood control facilities damaged during the 1044/1046 disaster events, that were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program, for these disasters only. Accordingly, DSR 15228 has been reviewed for eligibility for permanent restoration funding through the Public Assistance Program. The Regional Director will prepare a supplemental DSR for $17,211 to restore the scope of work identified on the final DSR. The appeal is granted.