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Flood Control Works

Appeal Brief Appeal Letter

Appeal Brief

DesastreFEMA-1044/01
ApplicantVentura County
Appeal TypeSecond
PA ID#111-91042
PW ID#Multiple
Date Signed1997-10-20T04:00:00
Citation: FEMA-1044/1046-DR-CA, Flood Control works, Ventura County

Cross-Reference: Flood control works, Levee Policy, USACE Levee Program

Summary: The winter storms of January and March 1995 caused extensive damage to flood control facilities throughout Ventura County. FEMA prepared numerous DSRs to fund repairs to flood control facilities, but determined they were ineligible for FEMA assistance because the U.S. Army Corps of Engineers has statutory authority to repair flood control works. The Regional Director sustained these decisions on first appeal.

Issue: Are the repair of flood control works eligible for FEMA assistance?

Findings: Emergency work may be eligible for FEMA funding. Permanent work is not eligible.

Rationale: The USACE has statutory authority to repair flood control works. FEMA does not fund work that falls under another agency's authority pursuant to 44CFR206.226 and The Federal Levee Policy.

Appeal Letter

October 20, 1997

Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex. Third Floor
Pasadena, California 91103

Dear Mr. Najera:

This is in response to your recent letters, both dated February 26, 1997, that transmitted an appeal of 17 damage survey reports (DSRs) on behalf of the Ventura County Flood Control District under FEMA-1044/1046-DR-CA. Ventura County is appealing the Federal Emergency Management Agency's (FEMA's) decisions to deny funding for the repair of various flood control works throughout the county. A listing of the appealed DSRs is enclosed. FEMA's decisions were based on the fact that flood control works are under the authority of the U. S. Army Corps of Engineers (USACE). Therefore, they are not eligible for FEMA funding. Since all of the appeals pertain to the same issue - the eligibility of flood control works - I am responding with one letter.

The various appeal letters cite several reasons why FEMA should fund the requested repairs. First, the applicant states that FEMA had approved various DSRs for these same or similar facilities, with similar damages, wherein the scope of work included permanent repair of flood control works. Second, you state that FEMA failed in its duty to coordinate the disaster assistance of other federal agencies. Lastly, you state that Section 312 of the Stafford Act allows FEMA to provide Federal assistance when other Federal agencies' funds are not available at the time of application. Before addressing your specific issues, I will comment on the general eligibility of flood control works.

Eligibility for Flood Control Works
Congress authorized both FEMA and USACE to fund repairs to flood control works. When two Federal agencies are authorized to perform the same function, the agencies must determine the best way to implement public policy consistent with congressional intent. In the present case, the USACE has a specific program that encourages owners of flood control works to build/upgrade their facilities to specific standards and to maintain them on a regular basis to ensure that they perform as designed. If the owners meet USACE's requirements and join its program, USACE will fund repairs to those facilities when they are damaged during an unusual event, for example, a flood that is declared a Presidential disaster.

When carrying out its responsibilities under the Stafford Act, FEMA must work with other Federal agencies to provide disaster assistance to applicants without undermining the programs of the other agencies. All Federal agencies must work together towards a common goal - assisting victims and eligible applicants in recovering from the devastating effects of disasters as quickly as possible. USACE provides assistance to owners of flood control works who commit to certain actions to ensure the integrity of their facilities. It is not good public policy for FEMA to fund the repair of flood control works when owners have not made similar commitments to protect the integrity of their facilities by meeting USACE's program requirements. If FEMA were to fund permanent repairs of flood control works that are not participating in the USACE program, that would possibly remove the incentive for those owners to join the USACE program. With that incentive, more flood control works are better maintained and the public is better protected.

The Federal approach to repairing flood control works is articulated in the Federal Levee Policy which FEMA adhered to following the 1995 winter floods. As the applicant has indicated that they are not familiar with this policy, I have enclosed a copy of the 1993 Policy with this letter. Note that the 1993 Policy was utilized during the 1995 winter floods, but has since been revised. Therefore, a copy of the 1996 revision is enclosed as well.

Coordination of Federal Disaster Assistance
You assert that FEMA failed to perform its duty and obligation under the authority of Section 402(2)(3) of the Stafford Act to coordinate all disaster relief assistance provided by Federal agencies. You further cite 44 CFR 206.42, stating that this regulation gives FEMA the responsibility to coordinate all federal disaster assistance, including taking appropriate action to make certain that all of the federal agencies carry out their appropriate disaster assistance roles under their own legislative authorities and operational policies. You assert that FEMA did not notify Ventura County of the requirements of the Federal Levee Policy, nor direct them to request assistance from the USACE or the National Resources Conservation Service (NRCS) until more than one and a half years after the initial storm event. At that point, the USACE had stopped accepting applications for disaster assistance. For these reasons, you conclude that FEMA's failure to properly coordinate all Federal disaster assistance resulted in the loss of federal assistance to the Ventura County.

We believe that we fulfilled our obligation to coordinate all Federal disaster assistance following the 1044 and 1046 disasters. The USACE was actively implementing its programs immediately after the disasters. A Federal interagency Levee Task Force composed of FEMA, USACE and NRCS 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 channels that are under appeal meet the USACE definition of a flood control work and are eligible for the USACE's PL 84-99 Rehabilitation and Inspection Program. It is noted that flood control facility access roads, for which several of the appealed DSRs were prepared for, are considered an integral part of the flood control facility, and are also eligible for the USACE's PL 84-99 Program. Therefore, based on the Federal Levee Policy, these facilities are ineligible for FEMA funding. The Federal Levee Policy has been in effect for some time. The policy was clarified and reissued in 1993 and in 1996. In 1996, FEMA renamed the levee policy "The Policy for Rehabilitation Assistance for Levees and Other Flood Control Works."

Section 312 of the Stafford Act
You argue that section 312(b)(1) of the Stafford Act gives FEMA authority to provide assistance when other Federal funds are not available at the time of application to FEMA. In that provision, the recipient must agree to repay all FEMA assistance when the other Federal assistance is provided. Our General Counsel has opined that the above section of the law applies to assistance to individuals, not public entities. The situation in this case is not one of duplication of benefits but rather that FEMA regulations and policy do not allow FEMA assistance for permanent restoration of an FCW.

Eligibility of other DSRs
The applicant has indicated that other DSRs have been approved for these same channels or similar facilities, and for similar scopes of work. It is noted that some of the DSRs referenced by the applicant were for emergency repairs to flood control facilities, which are eligible for FEMA emergency assistance in accordance with the 1993 Levee Policy. However, I have determined that permanent restoration funding may have been provided for some facilities that are flood control works. As discussed above, flood control works are ineligible for permanent restoration funding. Therefore, I have directed the Regional Director to review these DSRs and take appropriate action.

CONCLUSION
I have reviewed the appeals and have determined that the channels and access rour, these channels are not eligible for FEMA funding. Therefore, I am denying the appeals.

Please inform the applicant of my determination. The applicant may submit a third appeal to the Director of FEMA. The 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 Deputy Director
Response and Recovery Directorate

Enclosure

Enclosure 1
Summary of Appealed DSRs

FEMA-1044-DR-CA

20688

20697

46593

93274

93275

93284

93709

93718

93719

93730

93733

93736

95002

 

FEMA-1046-DR-CA

11394

39977

93716

93721