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25899 and 26554

Appeal Brief Appeal Letter

Appeal Brief

DesastreFEMA-1044-DR
ApplicantSan Bernardino Flood Control District
Appeal TypeThird
PA ID#000-00000
PW ID#17600 and 17598,
Date Signed1998-12-22T05:00:00


1. PURPOSE: Respond to third appeals submitted by the San Bernardino Flood Control District for permanent restoration of portions of Cable and Oak Creek.

2. DISCUSSION: The winter storms of January 1995 (FEMA-1044-DR-CA) caused damage to water control facilities throughout San Bernardino County. The FEMA inspector prepared Damage Survey Reports (DSRs) 25899 and 26554 on behalf of the San Bernardino Flood Control District (subgrantee) to provide permanent restoration of portions of Cable Creek and Oak Creek Channels. However, FEMA determined that these specific channels met the United States Army Corps of Engineers' (USACE's) definition of Flood Control Works (FCWs) and were, therefore, ineligible for Public Assistance funding. DSRs 17598 and 17600 were prepared to deobligate funding for DSRs 25899 and 26554, respectively. The subgrantee submitted and second appeals, primarily challenging the Federal Levee Policy but did not provide adequate documentation to support the contention that the channels did not meet the USACE's definition of an FCW. The appeals were denied. In support of their third appeal, the subgrantee has submitted a letter from the USACE, dated June 8, 1998, which states that the improvements to Oak Creek and Cable Creek do not meet USACE engineering criteria and are not FCWs. Therefore, the damaged facilities are eligible for permanent restoration assistance. The Regional Director should prepare supplemental DSRs to fund the eligible scope of work for each DSR, as described in the third appeal analysis. The question of eligible equipment rates also was reviewed, and there is no basis for not using FEMA equipment rates.

3. RECOMMENDED ACTION: Sign the letter granting this appeal.


Appeal Letter

December 22, 1998



Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, Second Floor
Pasadena, California 91103-3678

Dear Mr. Najera:

This is in response to your June 18, 1998 letters transmitting the third appeals of Damage Survey Reports (DSRs) 25899 and 26554 on behalf of the San Bernardino Flood Control District (subgrantee) under FEMA-1044-DR-CA. This letter also pertains to DSRs 17600 and 17598 which were prepared to deobligate funding for DSRs 25899 and 26554, respectively. The subgrantee is appealing the Federal Emergency Management Agency's (FEMA's) deobligation of funding for permanent restoration of damages to Oak Creek and Cable Creek Channels. FEMA had determined that these facilities met the United States Army Corps of Engineers' (USACE's) definition of flood control works (FCWs) and were, therefore, ineligible for Public Assistance funding.

The damaged facilities were the several sections of the earth-lined channel of Oak Creek and revetted channel of Cable Creek. Disaster-related damages were described as erosion of the banks and deposition of sediment within the channels. At the time of the inspections, repair work ranged from 90% to 100% complete at the sites. The DSRs were prepared as Category D (Water Control Facilities) for permanent restoration assistance and were recommended as eligible by the FEMA inspector. During eligibility review, FEMA concluded that each of the channels met the USACE's definition of an FCW, such that restoration funding for the channels was under the specific authority of the USACE. Accordingly, FEMA denied funding for each of these DSRs.

The subgrantee submitted a first appeal letter regarding FEMA's reduction of equipment rates. During the first appeal review, FEMA concluded that each of the channels met the USACE's definition of an FCW, and that restoration funding for the channels under the specific authority of the USACE. Accordingly, FEMA deobligated funding for both of these DSRs.

In support of their third appeal, the subgrantee has submitted a letter from USACE, dated June 8, 1998, which states that the facilities along Oak and Cable Creek do not meet the USACE engineering criteria and are not FCWs. Therefore, based on USACE's determination that these channels do not meet the definition of an FCW, I have found that the damaged facilities are eligible for permanent restoration assistance.

In response to this determination, these DSRs were reviewed for eligibility for permanent restoration funding through the Public Assistance Program, consistent with FEMA regulations and policy for restoration of eligible facilities. The scope of work presented on DSRs 25899/17600 and 26554/17598 is generally consistent with that requested by the subgrantee, and is found to be a reasonable scope for repair of the disaster-related damages as identified by the FEMA inspector. However, some modifications to the costs were made by the FEMA reviewer during final review. The scope item modified by the FEMA reviewer was force account equipment rates. The FEMA reviewer determined that sufficient documentation had not been provided to support the use of the subgrantee's rates. Accordingly, FEMA cost codes were used for estimating equipment costs. Our review has concluded that the use of the FEMA cost codes is an acceptable method for estimating such costs. The subgrantee may submit further documentation to support their equipment rates and other actual repair costs when they submit their request for final payment. Reasonable, documented, actual costs for performing this scope of work can be considered for funding during the closeout of the projects. Therefore, the Regional Director will prepare supplemental DSRs to restore the channels based on the scope of work and estimated funding consistent with that presented on the final DSRs.

Accordingly, the subgrantee's appeal is granted. Please inform the subgrantee of my determination.


Sincerely,

/S/

James L. Witt
Director



cc: Martha Z. Whetstone
Regional Director
FEMA Region IX