Repairs to Chrisanta and Oso Creeks

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Desastre	FEMA-1044-DR
Applicant	City of Mission Viejo
Appeal Type	Third
PA ID#	059-48256
PW ID#	26900,26910,26916,26917,26918
Date Signed	1998-10-06T04:00:00

PURPOSE: Respond to third appeal submitted by the City of Mission Viejo concerning the deobligation of funding from several DSRs prepared for repairs to Oso and Chrisanta Creeks.

DISCUSSION: Excessive flood flows from the winter storms of January 1995 (1044-DR) eroded portions of the Chrisanta and Oso Creeks along 800 linear foot (LF) and 2,000 LF reaches, respectively. The subgrantee determined that along with repairing damaged portions of the Creeks, riprap was required to protect the integrity of the undamaged portions of the Creeks. Subsequently, the subgrantee placed riprap along the entire reaches of both facilities. In June 1995, multiple "Category D" DSRs were prepared for the permanent restoration of the subject facilities. DSRs 26910, 26916, 26917, and 26918 were prepared for repairs to Oso Creek for a total of $726,500. DSR 26900 was prepared for $445,865 for repairs to Chrisanta Creek. FEMA denied funding on the basis that project work was completed prior to the initiation of a NEPA review. During second appeal, the subject facilities were also identified as FCWs and, therefore, under the specific authority of the USACE. I have determined that funding for the permanent restoration of FCWs is eligible under the Public Assistance Program for flood control facilities damaged during the 1044/1046 disasters. Also, riprap is a reasonable repair for eroded earth-lined channels, and does not require NEPA review. Because the subgrantee has not provided documentation establishing the extent of disaster damages, the Regional Director will prepare supplemental DSRs to fund 50% of the costs associated with the permanent restoration of the facilities through placement of riprap.

RECOMMENDED ACTION: Sign the letter informing the GAR of the decision to partially grant the appeal.

Appeal Letter

Appeal Analysis

BACKGROUND
Excessive flood flows from the winter storms of January 1995 (FEMA-DR-1044) damaged City-owned facilities and property throughout the City of Mission Viejo. Among damaged facilities were Oso Creek and Chrisanta Creek, which suffered erosion along 2,000 linear feet (LF) and 800 LF stretches of channel, respectively. The City (subgrantee) contracted an independent construction company to conduct disaster-related repairs. Channel repairs were to consist of replacement of eroded material and addition of rock riprap. Upon review of the damaged facilities, the subgrantee determined that mitigative measures were required to ensure the integrity of the respective channels. For Oso Creek, the subgrantee concluded that by filling eroded portions of the channel with riprap, the flow regime of the channel was altered sufficiently enough to threaten the unprotected portions of the channel bank. Accordingly, the subgrantee placed riprap along the damaged and undamaged portions of the banks of the entire 2,000 LF reach of channel. The scope of repairs for Chrisanta Creek were similar to that for Oso Creek, including placement of riprap at various culverts and other channel structures.

In June 1995, an inspection team consisting of representatives from the City, the California Governor's Office of Emergency Services (OES), and the Federal Emergency Management Agency (FEMA), visited the damaged facilities to prepare Damage Survey Reports (DSRs). At the time of the inspections, the majority of repairs to the channels had been completed, including reconstruction of the undamaged bank sections with riprap. As a result, the inspector was unable to identify the work that was performed specifically to repair disaster-related damages. However, the inspector prepared multiple "Category D" DSRs based on the actual contract costs for the channel repairs and the improvements. For Oso Creek, the inspector prepared DSRs 26910 ($202,894), 26916 ($186,481), 26917 ($139,860), and 26918 ($197,765) for contract costs to repair the various reaches of the channel, resulting in a total cost of $726,500. DSR 26900 was prepared for $445,865 for repairs to Chrisanta Creek. Upon review of the subject DSRs, FEMA denied funding on the basis that the project work was completed before FEMA conducted its National Environmental Policy Act (NEPA) environmental review.

First Appeal
In a transmittal letter dated March 22, 1996, OES forwarded the subgrantee's first appeal of FEMA's determination of ineligibility of the subject DSRs. The subgrantee stated that in prior site visits, FEMA inspectors had encouraged the City to continue with repairs without mention of environmental reviews. The Regional Director denied this appeal, reiterating that the completed project altered a natural channel and, therefore, was not exempted from an Environmental Impact Study (EIS) by statutory or categorical exclusion. Because repairs were completed prior to an EIS review, FEMA was unable to analyze repair alternatives as required by NEPA. The Regional Director also stated that the placement of riprap in the previously dirt lined channel constituted an improved project and also required prior approval from FEMA.

Second Appeal
The subgrantee submitted a second appeal, which was forwarded by OES with a letter dated March 21, 1997. The subgrantee contended that the DSRs were incorrectly prepared as Category D, and rather should have been prepared as Category B DSRs because the repairs were in response to immediate threats to improved property. The subgrantee felt that their request for a change of category for the DSRs was supported by the expediency with which repairs were performed. The subgrantee continued that the need for emergency protective measures precluded the possibility of environmental reviews. The subgrantee also indicated that five DSRs had been approved for emergency protective measures for Oso Creek following the FEMA-979 disaster.

FEMA upheld the Region's initial determination of ineligibility due to the omission of a NEPA review. In response to the request for a change of Category for the DSRs, FEMA stated that the subgrantee had not established the existence of an immediate threat, nor were the project's parameters consistent with reasonable cost-effective emergency measures. Additionally, the letter identified the facilities as flood control works (FCWs) under the specific authority of the U.S. Army Corps of Engineers (USACE) and, therefore, ineligible for FEMA funding of permanent repair.

Third Appeal
The subgrantee's third appeal focuses primarily on the application of the FEMA Levee Policy as well as the FEMA Environmental Policy No. 3, and FEMA's failure to properly initiate NEPA review. The subgrantee also restates that repairs should be considered emergency protective measures and not permanent repairs.

DISCUSSION
Consideration for Funding of Flood Control Facilities
The subgrantee contends that Oso Creek is the responsibility of the City of Mission Viejo, not the USACE, and, therefore, eligible for FEMA funding. The subgrantee continues that FEMA and the USACE failed to determine the status of Oso Creek for possible inclusion in the FCW program. In addition, the subgrantee states that the FEMA Levee Policy "is a backdoor rule that is unenforceable and should not be applied retroactively to the City's projects."

In response to this appeal and other numerous appeals from various applicants regarding the implementation of the Federal Levee Policy during the 1044/1046 disaster events, FEMA conducted an extensive review of the circumstances associated with eligibility determinations regarding flood control facilities prior to and during the response to these disasters. Based on this review, FEMA concludes that some confusion as to the eligibility of flood control facilities was apparent. We have found that some applicants received funding for such facilities during previous disasters, particularly FEMA-979 in 1993, supporting these applicants' positions that they relied on funding from previous disasters. Additionally, for many applicants who did apply before the disaster to the USACE for enrollment in their PL 84-99 Rehabilitation and Inspection Program, inspections of the facilities by the USACE were often not completed prior to the disaster, making them ineligible for the PL 84-99 Program. It is noted that some inspections were not completed within a year of the request, and then not all requested facilities were inspected. Additionally, review of the DSRs in this appeal found that the FEMA inspector did not notify the subgrantee that their facilities were under the funding authority of another Federal agency, and that the subgrantee was not notified of these determinations until the second appeal response was prepared in November 1997.

Therefore, although the Federal Levee Policy does specifically indicate that permanent restoration of FCWs is not eligible for FEMA funding, it is recognized that some applicants may have relied on previous funding from FEMA to expect disaster related funding in subsequent disasters. Further, FEMA's delay in notifying applicants during the 1995 Storms that their facilities were under the authority of the USACE or National Resources Conservation Service (NRCS) may have contributed to an applicant'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 for these disasters. Although some of the circumstances described above do not specifically apply to this subgrantee'' request for funding, the decision to conso result of the 1044/1046 disaster events. The Regional Director will prepare supplemental DSRs for the eligible scope of work determined in this appeal.

Eligible Scope of Work
As the permanent restoration of FCWs has been determined eligible for FEMA funding, the remainder of this analysis will focus on issues concerning NEPA compliance and the subsequent determination of the eligible scope of work.

As previously stated, the subject DSRs were initially prepared as "Category D" and found ineligible because project work was completed prior to the initiation of a NEPA review. Upon second appeal, the subgrantee requested that the DSRs be changed to "Category B - Emergency Work", stating that repairs were performed to protect adjacent public and private property. The subgrantee continued that the quick response to immediate threats precluded the possibility of a NEPA review. The subgrantee, however, has not provided sufficient documentation to illustrate the existence of an immediate threat. Specifically, the subgrantee has not identified what improved property was threatened by a 5-year event. Accordingly, it is found that the completed work is not eligible as Category B emergency work. Therefore, the requested scope of work will be reviewed in accordance with eligibility criteria for permanent restoration assistance (Category D).

The FEMA reviewer had determined that the scope of work performed to repair the channels was a reasonable approach for the reported types of damage. Although placement of the riprap does alter the pre-disaster design of the channels, it has been recognized by FEMA to be a reasonable approach for such repair. Further, the Regional Environmental Officer has also concluded that, generally, repair of an earth channel with riprap protection does not alter the pre-disaster design of the facility sufficiently enough to warrant a NEPA review. Therefore, FEMA finds that the completed work can be reconsidered for restoration funding.

To determine the eligibility of the completed work, it is necessary to determine the extent of the damages that can be specifically attributed to the disaster. As previously stated by the June 1995 inspections, the majority of repairs to the channels had been completed and the inspector was unable to determine the extent of disaster damages. In a July 29, 1998, telephone conversation, the City of Mission Viejo City Engineer estimated that between 80% and 85% of Oso Creek and virtually all of Chrisanta Creek sustained damages. The subgrantee, however, was unable to provide documentation to support these estimates. Additionally, the subgrantee has been unable to provide maintenance records to document the condition of the channel prior to the disaster, which would be necessary to further demonstrate that the individual points of erosion were specifically attributed to the disaster.

FEMA does recognize that for flooding conditions as those reported during the disaster, some erosion of the channel banks would be expected to have occurred. However, due to the lack of documentation available to support the extent of the specific disaster-related damages to the channels, and recognizing that the actual work performed exceeded the scope of work necessary to repair only the disaster damages, it is not possible to provide funding for the full scope of work performed by the subgrantee. Therefore, it is reasonable to attribute a portion, but not all, of the completed efforts to the disaster. On this basis, we have concluded that only approximately 50% of the completed work can be reasonably attributed to repair of the specific damages from the 1044 disaster event. Accordingly, the Regional Director will prepare supplemental DSRs to provide for the permanent restoration of 50% of the costs associated with the repair of Oso and Chrisanta Creeks through the placement of riprap.

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 take steps to meet the criteria of 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 that appear to meet the definition of an FCW, it may be necessary for the subgrantee to provide appropriate documentation to demonstrate 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 subgrantee should anticipate that it may be necessary for the USACE to perform a site inspection to definitively determine that a facility does not meet their definition of an FCW. This documentation would be significantly important to those facilities found ineligible in the 1044/1046 or previous disasters.

CONCLUSION
FCWs damaged during the 1044/1046 disasters are eligible for Federal funding under the Public Assistance Program. Riprap has been determined a reasonable repair method for earth-lined channels, and does not alter the pre-disaster condition of the subject facilities sufficiently enough to warrant a NEPA review. Due to the subgrantee's inability to document extent of disaster-related damages, FEMA has determined it reasonable to fund the permanent restoration of 50% of Oso and Chrisanta Creeks through the placement of riprap. The appeal is partially granted.