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Repair Channel Banks

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DesastreFEMA-1044-DR
ApplicantContra Costa County Public Works Department
Appeal TypeSecond
PA ID#013-92100
PW ID#Multiple
Date Signed1997-10-14T04:00:00
Citation: FEMA-1044-DR-CA; Rock Slope Protection - DSRs: 28340, 28341, 28349, 28366, 28367, 28369, 28380, 28382, and 28384

Cross-Reference: Eligible work, Pre-disaster condition, Codes and Standards

Summary: Rising storm water runoff from 1995 winter storm, eroded the embankments of the drainage channels at several places. In response, FEMA prepared nine DSRs to document the damage and estimate repair costs for channels with earthen slopes. During eligibility review, FEMA determined that repair method proposed by the subgrantee (county's policy), which included considerable quantities of rock slope protection (RSP), would exceed the work necessary to restore the pre-disaster condition of the channel facilities. On that basis, FEMA revised the scopes of work and eligible restoration costs were limited to costs associated with pre-disaster condition. The subgrantee's first appeal stated that the use of RSP was required because they have a standard RSP policy for the earth channel banks. FEMA's first appeal response upheld the initial ineligibility determination but also stated that although funding for dewatering was not approved, the costs may be eligible, only if dewatering is required in conjunction with the eligible work. In their second appeal, the subgrantee contended that the costs associated with the use of RSP, engineering and dewatering are eligible for FEMA funding.

Issues: Are the costs associated with the use of RSP, engineering, construction inspection and environmental processing, and dewatering eligible for FEMA funding?

Findings: No. There was no pre-existing RSP. The subgrantee's policy does not warrant the extent of repair originally described in the DSRs. The approved scopes of work appropriately addressed the pre-disaster restoration of the channel banks. Engineering, construction inspection and environmental processing costs were not necessary to restore the pre-disaster condition of the channel banks. Dewatering is eligible only if performed in conjunction with the eligible work.

Rationale: FEMA can provide assistance to restore an eligible facility on the basis of the design of the facility as it existed immediately prior to the disaster. 44 CFR 206.226.

Appeal Letter

October 14, 1997

Ms. Nancy Ward
Governor's Authorized Representative
Governor's Office of Emergency Services
Public Assistance Section
Post Office Box 239013
Sacramento, California 95823

Dear Ms. Ward:

This letter is in response to your nine submittals dated from February 14, through April 4, 1997, of the Contra Costa County Public Works Department's second appeal of damage survey reports (DSRs) 28340, 28341, 28349, 28366, 28367, 28369, 28380, 28382, and 28384 under FEMA-1044-DR-CA. FEMA approved the costs associated with the disaster-related damages and denied the costs that were not disaster-related.

After reviewing the documentation submitted by the subgrantee, it has been determined that the costs associated with the use of rock slope protection; engineering, construction inspection and environmental processing; and dewatering are ineligible, because the repairs requested by the applicant exceed the work necessary to restore the pre-disaster condition of the channel facilities per 44 CFR 206.226. Also, the county's policy on the use of rock slope protection does not satisfy the requirements of 44 CFR 206.226(b) for an eligible code and standard. Consequently, I am denying this appeal. The basis for my determination is further explained in the enclosed appeal analysis.

Please inform the applicant of my determination. The applicant may submit a third appeal to the Director of FEMA. The appeal should 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

Appeal Analysis

BACKGROUND
The 1995 winter storms caused damage to the drainage channels in Contra Costa County. Rising storm water runoff within the drainage area eroded the embankments of the drainage channels at several places. These drainage channels include Garrity Creek, Rodeo Creek, San Ramona Creek and DA 128 Line A. Contra Costa County Public Works Department is the subgrantee.

Inspectors from the Federal Emergency Management Agency (FEMA) and the State of California Governor's Office of Emergency Services (OES) prepared nine damage survey reports (DSRs) for damages at various locations. This team stated that the county's policy for the use of rock slope protection (RSP) was taken into account while preparing the DSRs. During the review of the DSRs, some of the repair work described in the DSRs was made ineligible. Eligible work in the approved DSRs included the replacement of the quantity of RSP documented as being present prior to the disaster. FEMA stated that it would only fund the eligible work that would bring the facility back to its pre-disaster condition. During review of DSRs 28341, 28366, and 28380, FEMA determined that it was unable to provide any funding because the eligible costs were less than $1,000. Appendix A provides the details of the DSRs.

First Appeal
With the transmittal letters dated January 18, and 25, 1996, the OES transmitted the subgrantee's nine letters, all dated November 20, 1995, appealing the denial of work items from the above referenced DSRs. The subgrantee believed that the RSP and dewatering work, and associated engineering costs described in the DSRs should be eligible. The subgrantee stated that the use of the RSP was denied despite documentation certifying that it was a standard repair policy for the earth channel banks damaged during the disaster event. The subgrantee further stated that required engineering, environmental processing, and dewatering costs should be included on the DSRs. On that basis, the subgrantee contended that FEMA should fund the costs documented on the initial DSR estimates. FEMA denied the first appeal because the pre-disaster design of the channel banks did not include RSP. Also FEMA noted that the county's policy does not mandate the use of the RSP and the policy does not meet the requirements of 44 CFR 206.226(b). With regard to dewatering, FEMA noted that there was no indication that the approved work would require dewatering. Therefore, no costs for dewatering were made eligible.

Second Appeal
The State's letters transmitted the subgrantee's second appeal to FEMA. Details of the dates of these transmittals are shown in Appendix B. Following are the subgrantee's concerns:
  • Rock Slope Protection (RSP): The subgrantee stated that their policy for the use of RSP meets the requirements of 44 CFR 206.226(b).
  • Engineering and Environmental Processing Costs: The subgrantee noted that they would hire a contractor to perform the repairs that require engineering staff time to supervise the work. The subgrantee contended that engineering and environmental processing costs are essential in completing this repair and therefore, pursuant to 44 CFR 206.223(a), 206.226 and 206.228(4), these costs are eligible for FEMA funding.
  • Dewatering Costs: The subgrantee also stated that water will always be present in the drainage channel and the county regulations mandate dewatering before performing any work. Therefore, the subgrantee believed that dewatering costs are essential and should be eligible for FEMA funding pursuant to 44 CFR 206.223(a) and 206.226.
DISCUSSION
The subgrantee's appeal focused on the funding of RSP along with the associated engineering costs and dewatering costs for the drainage channels. The subgrantee indicated that RSP is part of its standard repair policy and therefore is eligible for FEMA funding. The county's policy dated April 17, 1995 states as follows:
  1. "District flood control earth channel bank or basin slope erosions/slipouts should be repaired with loose rock slope protection material conforming to State Standard Plans and Specifications. The specific design shall be taken from accepted technical resources.
  2. "Exceptions will be allowed when the site conditions warrant a different repair method based upon a geotechnical investigation and recommendation."
Pursuant to 44 CFR Section 206.226 (b), for the costs of Federal, State, and local repair or replacement standards, which change the pre-disaster construction of a facility, to be eligible, the standards must:
  1. Apply to the type of repair or reconstruction required;
  2. Be appropriate to the predisaster use of facility;
  3. Be in writing and formally adopted by the applicant prior to project approval or be a legal Federal or State requirement applicable to the type of restoration;
  4. Apply uniformly to all similar types of facilities within the jurisdiction of owner of facility; and
  5. For any standard in effect at the time of the disaster, it must have been enforced during the time it was in effect.
The second point of the policy provides the discretional authority to the subgrantee's personnel to use or not to use RSP while repairing the channel banks. This does not meet the requirements of the above referenced regulation because the use of RSP is not required. Therefore, the placement of RSP in those areas that did not have RSP prior to the disaster is not eligible. Consequently, the associated engineering construction inspection and environmental processing costs are also ineligible for FEMA funding.

The subgrantee is again requesting funding for dewatering costs. Although FEMA denied these costs in the first appeal, FEMA explained that if the subgrantee found that dewatering costs were incurred in conjunction with the approved scope of work, those costs would be eligible. The subgrantee was directed to submit a supplemental request that contained a copy of the First Appeal Analysis and sufficient documentation, preferrably including photographs, to demonstrate the need for dewatering at each site. To date, the subgrantee has not established that dewatering was required for the eligible repair work. Therefore, dewatering costs remain ineligible.

CONCLUSION
The repair method proposed by the subgrantee, which included RSP, exceeded the work necessary to restore the pre-disaster condition of the channel facilities. FEMA determined that the county's policy does not mandate the use of RSP to repair the damaged channels, and does not satisfy the requirements of 44 CFR 206.226(b). A certain amount of pre-existing RSP documented in the DSRs was considered eligible work and was previously approved. However, costs associated with additional RSP work and the engineering, construction inspection and environmental processing are not eligible for FEMA funding. Also, dewatering costs remain ineligible, as it has not been established that dewatering was required. Therefore, Contra Costa Public Works Department's second appeal is denied.

APPENDIX A: DETAILS OF DSRS

DSR#

DAMAGED FACILITY

SCOPE OF WORK @

INITAL DSR ESTIMATE

MONEY OBLIGATED BY FEMA28340

Garrity Creek Embankment (500 feet downstream of Shamrock Drive)

Construct a temporary sand bag coffer dam and provide rip rap for bank stabilization in accordance with county performance standards. Engineering costs were included.

$16,455

$1,835

28341

Garrity Creek Embankment (600 feet downstream of Shamrock Drive)

Construct a temporary sand bag coffer dam and provide rip rap for bank stabilization in accordance with county performance standards. Engineering costs were included.

$2,385

$0 (eligible amount was $202)

28349

Rodeo Creek Embankment

Provide rip rap bank stabilization with filter fabric. Construct a temporary sand bag coffer dam for bank stabilization in accordance with county performance standards. Engineering costs were included.

$16,504

$1,668

28366

DA 128 Line A (500 feet upstream of Oak Grove Rd.)

Provide rip rap on rock protection fabric. Design costs were included.

$2,944

$0 (eligible amount was $366)

28367

DA 128 Line A (100 feet upstream of Radison Rd.)

Repair and stabilize damage with rip rap on rock protection fabric. Engineering costs were included.

$26,381

$2,914

28369

DA 128 Line A (200 and 300 feet upstream of footbridge)

Repair and stabilize damage with rip rap on rock protection fabric. Restore bank washout with compacted backfill. Engineering costs were included.

$15,877

$1,537

28380

San Ramon Creek (200 feet downstream of Miranda Creek)

Repair and stabilize damage with rip rap on rock protection fabric. Engineering costs were included.

$7,224

$0 (eligible amount was $442)

28382

San Ramon Creek (Just upstream of Miranda Creek outlet)

Repair and stabilize damage with rip rap on rock protection fabric. Engineering costs were included.

$34,527

$3,991

28384

San Ramon Creek (100 feet downstream of drop structure)

Repair and stabilize damage with rip rap on rock protection fabric. Engineering costs were included.

$21,390

$3,534

@: Construction activities in the scope of work included dewatering.

APPENDIX B: DETAILS OF TRANSMITTALS OF THE SECOND APPEAL

DSR NUMBER

STATE LETTER

SUBGRANTEE LETTER

28340

3/2097

12/26/96

28341

4/2/97

3/17/97

28349

2/14/97
4/2/97

12/12/96

3/5/97

28366

2/14/97

4/2/97

12/12/96

3/17/97

28367

3/20/97

12/26/96

28369

3/20/97

12/26/96

28380

2/14/97

12/26/96

28382

4/4/97

12/26/96

28384

4/4/97

12/26/96