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Pilgrim Creek Levee Repairs
Appeal Brief
Appeal Letter
Citation: Appeal Brief; Second Appeal; City of Oceanside; FEMA-1044-DR-CA; PA #073-53322
Cross-Reference: DSR 97979; Permanent Repairs; Levee Repair
Summary: Following the winter storms of January 1995, in the City of Oceanside (City), FEMA prepared DSR 97979 to repair seven slipouts on the levees along Pilgrim Creek for $18,349. Upon review, FEMA reduced the DSR to $0 because the damaged facility is a flood control work per U.S. Army Corps of Engineer's (USACE) definition. On October 28, 1996, the State submitted the subgrantee's first appeal. The basis of the appeal was that the USACE indicated in a May 1, 1996, letter that Pilgrim Creek has "never requested to participate in the USACE Rehabilitation Program, therefore, the USACE does not have rehabilitation authority" for the Pilgrim Creek Levee. Based on this letter, the State supported the City's contention that the City has the legal responsibility for repairs to the levee, as required by 44 CFR 206.223 (a)(3). The Regional Director denied the appeal because Pilgrim Creek Levee meets the USACE definition of a "flood control work" and FEMA does not normally provide disaster assistance funding for permanent restoration of a damaged facility that is within the specific authority of another Federal agency, whether or not funding is available from that agency. The State submitted the second appeal on May 5, 1997. The documentation included: 1) the May 1, 1996, letter from the USACE stating that Pilgrim Creek is not under their jurisdiction, 2) a copy of a FEMA project application summary, which states that Pilgrim Creek Levee does not meet the USACE definition of a flood control work, and 3) a statement from the State that FEMA's failure to coordinate Federal disaster assistance among Federal agencies, pursuant to 44 CFR 206.42, resulted in a loss of Federal disaster assistance.
Issue: Is the Pilgrim Creek Levee a flood control work and, therefore, under the authority of the USACE?
Finding: Yes. Upon further checking with the USACE, it was determined that Pilgrim Creek Levee does meet the definition of a flood control work and is the under the authority of the USACE, and thus not eligible for FEMA funding.
Rationale: According to 44 CFR 206.226 (a), FEMA funding will not be made available when another Federal agency has specific authority to restore facilities. The facility meets the definition of a flood control work and is eligible for the USACE program. However, the USACE does not have the authority to repair the levee because the subgrantee has never requested to participate in the USACE Rehabilitation Program.
Appeal Brief
| Desastre | FEMA-1044-DR |
| Applicant | City of Oceanside |
| Appeal Type | Second |
| PA ID# | 073-53322 |
| PW ID# | 97979 |
| Date Signed | 1997-11-18T05:00:00 |
Cross-Reference: DSR 97979; Permanent Repairs; Levee Repair
Summary: Following the winter storms of January 1995, in the City of Oceanside (City), FEMA prepared DSR 97979 to repair seven slipouts on the levees along Pilgrim Creek for $18,349. Upon review, FEMA reduced the DSR to $0 because the damaged facility is a flood control work per U.S. Army Corps of Engineer's (USACE) definition. On October 28, 1996, the State submitted the subgrantee's first appeal. The basis of the appeal was that the USACE indicated in a May 1, 1996, letter that Pilgrim Creek has "never requested to participate in the USACE Rehabilitation Program, therefore, the USACE does not have rehabilitation authority" for the Pilgrim Creek Levee. Based on this letter, the State supported the City's contention that the City has the legal responsibility for repairs to the levee, as required by 44 CFR 206.223 (a)(3). The Regional Director denied the appeal because Pilgrim Creek Levee meets the USACE definition of a "flood control work" and FEMA does not normally provide disaster assistance funding for permanent restoration of a damaged facility that is within the specific authority of another Federal agency, whether or not funding is available from that agency. The State submitted the second appeal on May 5, 1997. The documentation included: 1) the May 1, 1996, letter from the USACE stating that Pilgrim Creek is not under their jurisdiction, 2) a copy of a FEMA project application summary, which states that Pilgrim Creek Levee does not meet the USACE definition of a flood control work, and 3) a statement from the State that FEMA's failure to coordinate Federal disaster assistance among Federal agencies, pursuant to 44 CFR 206.42, resulted in a loss of Federal disaster assistance.
Issue: Is the Pilgrim Creek Levee a flood control work and, therefore, under the authority of the USACE?
Finding: Yes. Upon further checking with the USACE, it was determined that Pilgrim Creek Levee does meet the definition of a flood control work and is the under the authority of the USACE, and thus not eligible for FEMA funding.
Rationale: According to 44 CFR 206.226 (a), FEMA funding will not be made available when another Federal agency has specific authority to restore facilities. The facility meets the definition of a flood control work and is eligible for the USACE program. However, the USACE does not have the authority to repair the levee because the subgrantee has never requested to participate in the USACE Rehabilitation Program.
Appeal Letter
November 18, 1997
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex
Pasadena, California 91103
Dear Mr. Najera:
This is in response to your letter dated May 5, 1997, to the Federal Emergency Management Agency (FEMA). With that letter, you forwarded a second appeal of damage survey report (DSR) 97979 under FEMA-1044-DR-CA on behalf of the City of Oceanside (City), requesting FEMA to reinstate the costs associated with the repair of slipouts on the Pilgrim Creek Levee.
FEMA prepared DSR 97979 for $18,349 to repair seven slipouts on the levees along Pilgrim Creek. Upon review, FEMA reduced the DSR to $0 because the damaged facility is a flood control work, which is under the jurisdiction of the US Army Corps of Engineers (USACE). On October 28, 1996, the State submitted the subgrantee's first appeal. The basis of the appeal was that the USACE indicated in writing that Pilgrim Creek has "never requested to participate in the USACE Rehabilitation Program, therefore, the USACE does not have rehabilitation authority" for the Pilgrim Creek Levee. Based on this letter, the State believed the City has the legal responsibility for repairs to the levee, as required by Title 44 of the Code of Federal Regulations (CFR), section 206.223 (a)(3). On February 19, 1997, the Regional Director denied the appeal because Pilgrim Creek Levee meets the USACE definition of a "flood control work" and FEMA does not normally provide disaster assistance funding for permanent restoration of a damaged facility that is within the specific authority of another Federal agency, whether or not funding is available from that agency.
The State submitted the second appeal on May 5, 1997. The documentation included: 1) a letter from the USACE stating that Pilgrim Creek is not under their jurisdiction, 2) a copy of a FEMA project application summary dated May 9, 1996, which states that Pilgrim Creek Levee does not meet the USACE definition of a flood control work, and 3) a statement from the State that FEMA failed to coordinate Federal disaster assistance among Federal agencies. The issue of this appeal is whether Pilgrim Creek is a flood control work and, therefore, under the jurisdiction of the USACE. As explained by the Regional Director in the first appeal response, under current Federal interagency policy, a flood control work is defined as a "structure designed and constructed to have appreciable and dependable effects in preventing damage by irregular and unusual rises in water level." Upon review of the information submitted, and further coordination with the USACE to clarify the designation of the Pilgrim Creek Levee, it was determined that Pilgrim Creek does meet the definition of a flood control work. As such, rehabilitation authority lies with the USACE, and is not eligible for FEMA funding, pursuant to 44 CFR 206.226 (a). Therefore, I am denying the second appeal.
In the second appeal, the State asserted the issue that FEMA failed to coordinate Federal disaster assistance among Federal agencies, which resulted in substantial loss of Federal disaster assistance and delayed essential repair activities to protect life and safety. We believe that we fulfilled our obligation to coordinate all Federal disaster assistance following the 1044 disaster. USACE was actively implementing its programs immediately after the disaster. A Federal interagency task force composed of FEMA, USACE and Natural Resources Conservation Service representatives evaluated many of the DSRs involving water control facilities to determine if they were flood control works, and under whose authority they were eligible for repairs. In other cases, FEMA consulted directly with USACE representatives to aid in this determination. Based on these reviews, we determined that the facility that is under appeal meets the USACE's definition of a flood control work and is eligible for the USACE's PL 84-99 Rehabilitation and Inspection Program. Therefore, based on the Federal Levee Policy, this facility is ineligible for FEMA funding. The Federal Levee Policy has been in effect for some time. The policy was clarified and reissued in 1993 and 1996. In 1996, FEMA renamed the levee policy "The Policy for Rehabilitation Assistance for Levees and Other Flood Control Works."
Based on the above discussion, I am denying the appeal. Please inform the applicant of my determination. The applicant may submit a third appeal to the Director of FEMA. This appeal must 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
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex
Pasadena, California 91103
Dear Mr. Najera:
This is in response to your letter dated May 5, 1997, to the Federal Emergency Management Agency (FEMA). With that letter, you forwarded a second appeal of damage survey report (DSR) 97979 under FEMA-1044-DR-CA on behalf of the City of Oceanside (City), requesting FEMA to reinstate the costs associated with the repair of slipouts on the Pilgrim Creek Levee.
FEMA prepared DSR 97979 for $18,349 to repair seven slipouts on the levees along Pilgrim Creek. Upon review, FEMA reduced the DSR to $0 because the damaged facility is a flood control work, which is under the jurisdiction of the US Army Corps of Engineers (USACE). On October 28, 1996, the State submitted the subgrantee's first appeal. The basis of the appeal was that the USACE indicated in writing that Pilgrim Creek has "never requested to participate in the USACE Rehabilitation Program, therefore, the USACE does not have rehabilitation authority" for the Pilgrim Creek Levee. Based on this letter, the State believed the City has the legal responsibility for repairs to the levee, as required by Title 44 of the Code of Federal Regulations (CFR), section 206.223 (a)(3). On February 19, 1997, the Regional Director denied the appeal because Pilgrim Creek Levee meets the USACE definition of a "flood control work" and FEMA does not normally provide disaster assistance funding for permanent restoration of a damaged facility that is within the specific authority of another Federal agency, whether or not funding is available from that agency.
The State submitted the second appeal on May 5, 1997. The documentation included: 1) a letter from the USACE stating that Pilgrim Creek is not under their jurisdiction, 2) a copy of a FEMA project application summary dated May 9, 1996, which states that Pilgrim Creek Levee does not meet the USACE definition of a flood control work, and 3) a statement from the State that FEMA failed to coordinate Federal disaster assistance among Federal agencies. The issue of this appeal is whether Pilgrim Creek is a flood control work and, therefore, under the jurisdiction of the USACE. As explained by the Regional Director in the first appeal response, under current Federal interagency policy, a flood control work is defined as a "structure designed and constructed to have appreciable and dependable effects in preventing damage by irregular and unusual rises in water level." Upon review of the information submitted, and further coordination with the USACE to clarify the designation of the Pilgrim Creek Levee, it was determined that Pilgrim Creek does meet the definition of a flood control work. As such, rehabilitation authority lies with the USACE, and is not eligible for FEMA funding, pursuant to 44 CFR 206.226 (a). Therefore, I am denying the second appeal.
In the second appeal, the State asserted the issue that FEMA failed to coordinate Federal disaster assistance among Federal agencies, which resulted in substantial loss of Federal disaster assistance and delayed essential repair activities to protect life and safety. We believe that we fulfilled our obligation to coordinate all Federal disaster assistance following the 1044 disaster. USACE was actively implementing its programs immediately after the disaster. A Federal interagency task force composed of FEMA, USACE and Natural Resources Conservation Service representatives evaluated many of the DSRs involving water control facilities to determine if they were flood control works, and under whose authority they were eligible for repairs. In other cases, FEMA consulted directly with USACE representatives to aid in this determination. Based on these reviews, we determined that the facility that is under appeal meets the USACE's definition of a flood control work and is eligible for the USACE's PL 84-99 Rehabilitation and Inspection Program. Therefore, based on the Federal Levee Policy, this facility is ineligible for FEMA funding. The Federal Levee Policy has been in effect for some time. The policy was clarified and reissued in 1993 and 1996. In 1996, FEMA renamed the levee policy "The Policy for Rehabilitation Assistance for Levees and Other Flood Control Works."
Based on the above discussion, I am denying the appeal. Please inform the applicant of my determination. The applicant may submit a third appeal to the Director of FEMA. This appeal must 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