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Repairs to Antelope Creek Levee

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DesastreFEMA-1046-DR
Applicant; Tehama County Flood Control & Water Conservation District
Appeal TypeSecond
PA ID#103-91003
PW ID#20551
Date Signed1997-11-24T05:00:00


Citation: FEMA-1046-DR-CA; Tehama County Flood Control & WCD; DSR 20551

Cross-Reference: Flood control works, Other Federal agencies, Emergency vs. permanent work

Summary: Excessive flows resulting from the winter storms of 1995 eroded a stretch of the Antelope Creek Levee in Tehama County, and deposited debris at the bottom of the embankment. The applicant previously received funding for emergency repairs to the levee under the NRCS-Emergency Watershed Program (EWP) following the 1044-event. Subsequently, the 1046-event caused a section of riprap reinforcement placed after the 1044-event to slip into the stream. DSR 20551 was prepared for $6,669 to remove debris and restore the levee to pre-disaster condition (Category D). This DSR was found ineligible following the Federal Interagency Levee Task Force's determination that the facility is under the specific authority of NRCS, as it meets the USACE definition of a flood control work (FCW). The subgrantee appealed FEMA's determination in a letter dated December 22, 1995, stating that they had participated in the NRCS-EWP program following the 1044-event, and requested NRCS funding for repairs following the 1046-event. NRCS representatives determined that pursuant to the EWP project agreement, the repairs to the facility constituted a "maintenance requirement" and were, therefore, ineligible for NRCS funding. The subgrantee believed that, in the absence of NRCS funding, FEMA should provide assistance. The Regional Director denied this appeal in a letter dated November 26, 1996, stating that the facility was an FCW and under the specific authority of the NRCS. The subgrantee submitted a second appeal dated December 23, 1996. The subgrantee does not contest that the facility is an FCW and under the authority of NRCS. However, because the facility is ineligible for funding under the NRCS-EWP program, the subgrantee believes that FEMA may provide assistance. The subgrantee also argues that although the repairs are of a permanent nature, they were made to a section that was previously repaired to address an immediate threat. Therefore, work pertains to an emergency repair and not a permanent facility.

Issues:
  1. Does the work performed constitute emergency repairs?
  2. Is the facility eligible for FEMA funding?

Findings:
  1. No. The subgrantee has not demonstrated that an immediate threat existed. Also, repairs represent significant improvement to the pre-disaster condition of the facility and exceed the scope of work required for emergency protective measures.
  2. No. The repairs made were of a permanent nature. As the facility meets the USACE definition of an FCW, the work is not eligible for FEMA assistance.

Rationale: Under the current FEMA Levee Policy, permanent restoration of facilities that fit the USACE definition of an FCW is work that is considered to be within the specific authority of either USACE or the NRCS, and, therefore, not eligible for FEMA assistance. This is true whether or not the USACE or NRCS provides any funding for the project.

Appeal Letter

November 24, 1997

Ms. Nancy Ward
Governor's Authorized Representative
Governor's Office of Emergency Services
P.O. Box 23910
Sacramento, California 95823

Dear Ms. Ward:

This letter is in response to your March 19, 1997, transmittal of Tehama County Flood Control & Water Conservation District's second appeal of damage survey report (DSR) 20551 under FEMA-1046-DR-CA. This DSR was prepared for $6,669 to remove debris and restore the Antelope Creek Levee to its pre-disaster condition.

Based on my review of the documentation submitted in support of the appeal, I have found no basis to overturn our previous determination that the completed work constitutes permanent repair and, as a flood control facility, the levee is not eligible for permanent restoration assistance. Furthermore, although the subgrantee contends that the repairs are not to a permanent facility, but rather address emergency repairs, the subgrantee has not demonstrated that the work performed was in response to an immediate threat to life or property. Also, the repairs represent significant improvement to the facility, and exceed the work required to restore the facility to its pre-disaster condition. Therefore, I am denying the appeal.

Please inform the subgrantee of my determination. The subgrantee 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 Associate Director
Response and Recovery Directorate

Enclosure

cc: Ray Williams
Acting Regional Director
FEMA Region IX

Appeal Analysis

BACKGROUND
The winter storms of 1995 caused damage to a stretch of the Antelope Creek Levee, located east of the town of Dairyville in Tehama County. Flows from the FEMA-1044-DR and FEMA-1046-DR events eroded the raised embankment and deposited debris at the bottom of the bank. The Tehama County Department of Public Works (subgrantee) received funding from the Natural Resources Conservation Service (NRCS) for emergency repairs to the levee following the 1044-event under the NRCS - Emergency Watershed Program (EWP). Subsequently, the 1046-event eroded the same stretch of embankment that was repaired under the EWP program. According to the subgrantee, initial repairs were completed while the water level in Antelope Creek was too high for the excavator to properly dig a toe trench at the base of the embankment. When the water crested again during the 1046-event, a section of riprap reinforcement, placed following the 1044-event, slipped into the stream. The subgrantee claimed that this damage was not reported until the water level receded later in the spring. Damage survey report (DSR) 20551 was prepared for $6,669 to remove debris and restore the levee to pre-disaster condition. This DSR was determined ineligible for FEMA assistance because the Federal Interagency Levee Task Force determined that the facility is under the specific authority of NRCS, as it meets the U.S. Army Corps of Engineer's (USACE's) definition of a flood control work (FCW).

First appeal
The subgrantee appealed FEMA's determination in a letter dated December 22, 1995. The subgrantee stated that their participation in the EWP program began following the 1044-event. The subgrantee visited the facility with NRCS representatives on May 22, 1996, in hopes of receiving additional funding for the repair of the damaged section of the levee. NRCS representatives determined that pursuant to the EWP project agreement, the repairs to the facility constituted a "maintenance requirement" and were, therefore, ineligible for NRCS funding. Because the project did not satisfy NRCS criteria for funding, the subgrantee believed that FEMA should provide assistance. The California Governor's Office of Emergency Services (OES) forwarded this appeal with a letter of transmittal dated April 16, 1996.

The Regional Director responded in a letter dated November 26, 1996, stating that the facility was an FCW and under the specific authority of the NRCS. In accordance with Title 44 of the Code of Federal Regulations (CFR), section 206.226(a), FEMA generally does not provide assistance for permanent restoration to any facility under the authority of another Federal agency. Accordingly, the appeal was denied.

Second Appeal
The subgrantee submitted a second appeal dated December 23, 1996. The subgrantee does not dispute that the facility is an FCW, however, they state that NRCS and the District signed a project agreement that stipulated that NRCS would not participate in future repairs to this project. Furthermore, the subgrantee argues that although the repairs were permanent in nature, they were emergency related. The subgrantee believes that the repairs were not made to a permanent facility, but rather to a damaged portion of an "emergency fix" and, therefore, the repairs should be eligible for FEMA funding. OES forwarded this appeal with a letter of transmittal dated March 19, 1997.

DISCUSSION
The subgrantee does not dispute that the facility in question is an FCW and is under NRCS authority. However, the subgrantee contends that repairs made to the levee are not permanent in nature. They state that the original repairs made to the facility following the 1044 disaster, although permanent in nature, addressed an immediate threat to life and property. The subgrantee continues that repairs following the 1046-event, completed in November 1995, were not made to a permanent facility, but rather to a failed portion of previously completed emergency repairs. The subgrantee, therefore, opines that because repairs are ineligible for NRCS funding, and were not made to a permanent facility, they should be eligible for FEMA funding for emergency repairs to the FCW.

FEMA recognizes the repairs made in January 1995, and funded under the NRCS - EWP, were an emergency measure. However, the subgrantee has not demonstrated that the work completed in November 1995, was performed in response to an immediate threat to life or property to justify funding of the additional work also as emergency repairs. The subgrantee states that they spent the "better part of 1995 in an attempt to obtain assurance of federal funding to assist in the repair of the LeClaire project." When the subgrantee received no such assurances they hired a contractor late in the fall to proceed with repairs. The delay in making repairs indicates a lack of emergency. Also, the subgrantee has provided no documentation to illustrate that the FCW, even in its damaged state, was unable to convey flows from a 5-year storm event to illustrate the presence of an immediate threat. Furthermore, repairs completed in November 1995, represent significant improvements to the facility, and exceed the work required to restore the facility to its pre-disaster condition. On the basis that the subgrantee has not demonstrated the existence of an immediate threat or that the extent of work performed was required as emergency protective measures, the work completed is considered to be permanent restoration to an FCW and is, therefore, under the authority of NRCS.

In accordance with 44 CFR 206.226(a), FEMA generally does not provide disaster assistance funding for permanent restoration of a damaged facility that is within the specific authority of another Federal agency. More specifically, under the FEMA Levee Policy, permanent restoration of facilities that meet the USACE definition of a "flood control work" is work that is considered to be within the specific authority of either the USACE or the NRCS. Accordingly, no FEMA funding is available for permanent restoration of FCWs. This is true whether or not USACE or NRCS provides any funding for the project. If funding is not available for permanent restoration of a flood control work under any USACE or NRCS program, there may be no Federal funding available from any Federal source for the restoration of the flood control work.

CONCLUSION
FEMA has concluded that the facility in question is an FCW and, therefore, under the specific authority of the NRCS. FEMA has also determined that there is no evidence to support that an immediate threat existed. Furthermore, the extent of work performed exceeds the scope of emergency repairs such that it is considered permanent restoration. In accordance with the FEMA Levee Policy, FEMA will not provide funding for the permanent restoration of a facility under the authority of another Federal agency, regardless of whether or not that agency finds the project eligible for assistance. Accordingly, the appeal is denied.