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Net Small Project Overrun
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1203-DR-CA; City of Carmel-by-the-Sea; Net Small Project Overrun
Cross Reference: Pre-disaster Design, Eligible Facility, Codes and Standards, Improved Projects
Summary: The El Niño storms of 1998 damaged many public facilities in the City of Carmel-by-the-Sea including roads, drainage structures, embankments and coastal structures. These latter structures included stairways, rock revetments, seawall foundations and pathways. In June 1998, FEMA prepared 21 small project DSRs to provide funding to the Applicant for their response and recovery efforts. The total funded amount for the 21 DSRs was $361,546. The Applicant claims that the total actual cost for implementing the scopes of work on the 21 DSRs was $769,612. The Applicant submitted a request for a NSPO (first appeal) of $411,066 that was later corrected by the Applicant to $408,066. The Regional Director denied the first appeal because no documentation was submitted explaining the reasons for the overruns as required by the regulations. The Applicants second appeal provided text that explained the project overruns as well as detailed documentation in a 3-inch binder. OES supported the appeal, and requested that FEMA approve the additional funding. Most of the total overrun occurred on four projects. On one project, the Applicant constructed weirs across the bottom of a canyon that were not included in the DSR. They assert that the weirs were necessary to repair erosion on the bottom of the canyon, and that the bottom of the canyon is an eligible facility. The other three projects were all located on the Pacific coast where retaining walls (seawalls) were constructed instead of the rip rap revetments specified in the DSRs. The Applicant claims that the seawalls were required by the California Coastal Commission (CCC) so they are eligible for additional funding.
Issues: (1) Is the bottom of the canyon an eligible facility?(2) Are the requirements of the CCC an eligible design standard?(3) Are the overruns on the Flanders Canyon and shoreline protection projects eligible for funding?(4) Are any additional NSPO costs eligible?
Findings: (1) No. The Applicant has not demonstrated that the canyon bottom is a designed, constructed or maintained facility.(2) (3) No. The permit requirements of the CCC are based on judgment, aesthetics and possibly other factors. This permit process is not the same as a design standard.(4) (5) No. They are considered to be Improved Projects, which cap funding at the estimated costs on the DSRs.(6) (7) Yes. The net eligible total costs of all small projects did result in a $7,055 cost overrun.
Rationale: 44 CFR §206.221(h) and 44 CFR §206.226(b).
In regards to the completion date of their small projects, the Applicant asked the Governors Office of Emergency Services (OES) for a time extension in accordance with 44 CFR §206.204(c). In a letter dated February 21, 2002, OES approved an extension of the performance period to January 28, 2002, the completion date of the last small project. The time extension is less than the maximum of 30 months allowed by the regulations.
First Appeal
The Applicant submitted a request for a NSPO (first appeal) to OES on March 20, 2002. The appeal was transmitted to FEMA Region IX by OES in a letter dated May 24, 2002. OES supported the Applicants appeal, although they reduced the Applicants claim by $5,602 with no reason given.
The Regional Director responded to the first appeal in a letter dated July 18, 2002, noting that no documentation was submitted with the appeal explaining the reasons for the overruns, as required by the regulations. The letter stated that proper documentation must be submitted within 30 days or the appeal would be denied. OES responded with a letter dated August 12, 2002, that provided documentation to support the appeal. FEMA denied the first appeal in a letter dated August 30, 2002. The letter stated that the only documentation provided was a spreadsheet showing FEMA funding, the actual costs, and the difference between the two. The requested information regarding the reasons for the overruns was not given. Therefore, the appeal was denied.
Second Appeal
The Applicant submitted a second appeal of FEMAs determination to deny funding for a NSPO in a letter to OES dated November 7, 2002. The letter provided text that explained the project overruns. Detailed documentation was enclosed in a 3-inch binder. OES transmitted this information to FEMA in a letter dated January 14, 2003. OES supported the appeal, and requested that FEMA approve additional funding of $405,464.
The Regional Director transmitted the second appeal along with backup documentation to the Assistant Director of the Response and Recovery Directorate in a letter dated February 13, 2003.
DISCUSSION
FEMA prepared 21 small project DSRs for the Applicant. It is noted that OES has reviewed and approved the actual costs being claimed by the Applicant. With respect to the NSPO, the DSRs can be divided into six primary categories, discussed as Items 1 through 6 below. A tabulated summary of each DSR is provided on Page 6 of this analysis.
Item 1: DSRs 50620 and 51698 Work Not Performed
The Applicant has indicated that the work funded in DSRs 50620 and 51698 was not completed, nor are they intending to perform this work. Accordingly, the eligible costs for these DSRs will be deducted from the total small project funding.
Item 2: DSRs 03577, 50603, 50611, 50614 and 50616 100% Complete at Time of DSR Preparation.
DSRs 03577, 50603, 50611, 50614 and 50616 were 100 percent complete at the time the DSRs were prepared. Therefore, these is no change to the estimated costs for the work, and no adjustments are necessary as part of the NSPO evaluation.
Item 3: DSRs 50606, 50609, 50610 and 51699 Actual Costs Less Than Estimated.
DSRs 50606, 50609, 50610 and 51699 had project underruns, wherein the total actual costs for the eligible work completed was less than that originally estimated. The difference between the estimated cost and the actual cost will be deducted from the total small project funding.
Item 4: DSRs 02051, 50617, 50622, 50699, 51694 and 51697- Actual Costs Greater Than Estimate.
The Applicant claims that the costs to perform the eligible work described in DSRs 02051 (road repairs), 50617 (sinkhole and storm drain repair), 50622 (road repairs), 50699 (road repairs), 51694 (emergency traffic control) and 51697 (shoreline facilities repair) were greater than those estimated on the original DSRs. They assert that these additional costs (cost overruns) reflect the high cost of contract work in California, underestimation of the necessary scope of work and a late accounting entry. All of these projects were competitively bid except for the emergency traffic control. Based on a review of the information provided in the appeal documentation, it appears that the increased costs are justified and that the work completed is consistent with the eligible scopes of work identified on the original DSRs. The increased costs of $65,646 will be counted as eligible costs in the NSPO calculation.
Item 5: DSR 50640 Scope of Repair Significantly Greater Than Estimated
The Applicant claimed that the cost overrun for the erosion protection measures constructed along the bottom of Flanders Canyon was due to an obvious underestimation as to the extent of the repair work required in the drainage channel. The Applicant also claimed that the repairs were made in a sensitive environment that necessitated a formal design, expensive environmental studies, and the use of hand labor rather than heavy equipment.
Documents provided by the Applicant reveal that the actual work completed exceeds the scope identified in the original DSR. In particular, the completed work included between 10 and 20 cross-canyon weirs constructed using gabions and other materials. Approximately 235 CY of gabions were constructed, compared to the 15 CY provided in the DSR for the slope repair only. Cross-canyon weirs did not exist before the disaster, so to be eligible for public assistance funding the weirs would need to satisfy FEMAs hazard mitigation criteria. However, this effort cannot be considered cost-effective because the actual cost of construction was 11.5 times higher than the estimated cost for slope repair. Therefore, the cost of the weirs would not be justified under FEMAs hazard mitigation program.
It is also noted that at the time the DSR was prepared, the Applicant did not concur with the scope of work in the DSR. In a letter to the FEMA Public Assistance Coordinator (PAC) dated June 29, 1998, the Applicant claimed that the canyon is a drainage facility rather than a creek and, therefore, the repair of scour damage to the bottom of the canyon should be eligible. The FEMA PAC apparently disagreed with this position because the DSR was not modified. There is no information in the Applicants letter that indicates that the bottom of the canyon was a designed, constructed, and/or routinely maintained drainage channel. This evidence is necessary for a natural drainage to be classified as a public facility under 44 CFR §206.221(h). FEMA is authorized only to fund the permanent restoration of eligible public facilities. As the bottom of the canyon is not considered an eligible facility, it is not eligible for restoration. Accordingly,la beyond the scope of work found eligible at the time of the preparation of the DSR and that there is no justification provided to consider such work eligible at this time. Accordingly, the additional work completed is found to be an improvement beyond the pre-disaster design. Therefore, the work is considered to be an Improved Project. In accordance with 44 CFR §206.203(d)(1), the funding for such projects is limited to the approved estimate of eligible costs shown on the DSR. Accordingly, no adjustments to funding will be made as part of the NSPO.
Item 6: DSRs 51695, 51696 and 51700 Increased Scope and Construction Costs
DSRs 51695, 51696 and 51700 were prepared for the restoration of runoff and wave damage to shoreline facilities at three locations within the City. Pre-disaster shoreline protection consisted of rip rap revetments in each case. The DSRs were written to restore the damaged revetments, as well as other damaged facilities such as stairs and barrier walls.
The Applicant claims that the cost overruns on these shoreline restoration projects were the result of the high cost of construction in the Monterey area, as well as the requirements of the California Coastal Commission (CCC). It is the Applicants position that the changes from revetment to retaining wall shoreline protection were changes to the method of construction, as opposed to a change of scope. For this reason, the Applicant did not request additional approval from FEMA during project design and construction. The CCC is a State agency that regulates development along the Pacific coast.
As noted above, these DSRs were prepared for the restoration of rip rap revetments that were in place before the disaster. The eligible restoration scheme consisted of re-laying rip rap that could be recovered and importing new rip rap as needed. However, when the Applicant applied for a building permit, the CCC required that retaining walls (seawalls) be built in lieu of rip rap placement.
The restoration of damaged facilities through a FEMA grant must be in conformance with 44 CFR §206.226, which states in pertinent part that work to restore eligible facilities on the basis of the design of such facilities as they existed immediately prior to the disaster is eligible. An exception is allowed if an improvement to the pre-disaster design is necessary in order to conform to current codes or standards. In order to be eligible for funding, the code or standard must meet all of the five criteria identified in 44 CFR §206.226(b).
Criterion 3 requires that the standard be in writing and formally adopted prior to the disaster declaration. The CCC responded to the Applicants coastal development permit application in a report dated March 26, 2001. In that report, the CCC stated that the Applicant does not have a Local Coastal Plan (LCP). If all replacement shoreline protective structures must be walls rather than revetments, the requirement would be found in the LCP. There was no LCP in place prior to the disaster, so the CCCs requirement that the damaged revetments be replaced with retaining walls fails this test of an eligible standard.
Criterion 4 requires that the code or standard be applied uniformly to all similar types of facilities. This is clearly not the case in the City of Carmel-by-the-Sea. Since its formation in 1974, the CCC has approved rip rap revetments in the City of Carmel-by-the-Sea in 1979, 1983, 1997 and 2001. Apparently, retaining walls are approved for shoreline protection rather than revetments on the basis of engineering judgment, aesthetics, and possibly other factors. Although this may be a commendable design process, it does not constitute a standard. The CCCs requirement that the damaged revetments be replaced with retaining walls fails this test of an eligible code or standard.
This analysis of available information indicates that the additional work performed is beyond the scope of work found eligible at the time of the preparation of the DSR and that there is no justification provided to consider such work eligible at this time. Accordingly, the additional work completed would be considered improvements, and DSRs 51695, 51696 and 51700 would be Improved Projects. In accordance with 44 CFR §206.203(d)(1), the funding for such projects is limited to the approved estimate of eligible costs shown on the DSR. Accordingly, no adjustments to funding will be made as part of the NSPO. Further discussion on requirements for Improved Projects is provided below.
NEPA Review Requirements for Improved Projects - DSRs 50640, 51695, 51696 and 51700
The actual scopes of work completed in the DSRs discussed in Items 5 and 6 are considered improvements beyond the pre-disaster design, and are, therefore, considered Improved Projects, as authorized in 44 CFR §206.203(d)(1). FEMA must be informed of proposed changes in scope, including any improvements, to allow FEMA the opportunity to ensure the project complies with the requirements of the National Environmental Policy Act (NEPA) and all other related environmental laws and statutes. Although the Applicant did not comply with FEMAs requirements in this regard, for the coastal as well as for the Flanders Canyon projects, they obtained permits from the U.S. Army Corps of Engineers (USACE), ensuring proper compliance with federal requirements.
They did hire an environmental consultant to perform environmental reviews for all of the improved scopes of work, and also obtained a National Marine Sanctuaries Permit, a California Fish and Game Marine Refuge permit, and for the Flanders Canyon project, they obtained permits from the CCC, the Regional Water Quality Control Board and the California Department of Fish and Game.
The fact that the applicant obtained all required permits from the USACE, in addition to the state mandated permits, indicates substantial compliance with environmental requirements for these improved projects.
CONCLUSION
Based on a review of the information provided in the Applicants second appeal, we find that the total adjustment of small project funding should be an increase of $7,055. This reflects the total of all eligible overruns and underruns as described in this analysis, and as summarized on the table on Page 6 of this analysis.
NSPO SUMMARY
Appeal Brief
| Desastre | FEMA-1203-DR |
| Applicant | City of Carmel-by-the-Sea |
| Appeal Type | Second |
| PA ID# | 053-11250 |
| PW ID# | N/A |
| Date Signed | 2003-06-19T04:00:00 |
Cross Reference: Pre-disaster Design, Eligible Facility, Codes and Standards, Improved Projects
Appeal Letter
June 19, 2003
Mr. Dallas Jones
Governors Authorized Representative
Office of the Director
Governors Office of Emergency Services
Post Office Box 419047
Rancho Cordova, CA 95741-9047
RE: Second Appeal City of Carmel-by-the-Sea, PAID 053-11250, Net Small Project Overrun, FEMA-1203-DR-CA, Various Damage Survey Reports (DSRs)
Dear Mr. Jones:
This letter is in response to the referenced second appeal transmitted by your letter dated January 14, 2003 to the Federal Emergency Management Agency (FEMA), which is now part of the Department of Homeland Security. The City of Carmel-by-the-Sea (Applicant) is requesting funding for a Net Small Project Overrun (NSPO) in the amount of $408,066. FEMA initially denied funding for the NSPO because the Applicant did not submit any documentation that explained the reasons for the overruns, as required by the regulations.
As explained in the enclosed analysis, I have determined that the Flanders Canyon and shoreline protection projects, which account for the largest portion of the cost overrun, are Improved Projects. Therefore, FEMA funding is limited to the estimated amount of the DSRs. However, I have determined that $7,055 for cost overruns on the other projects is eligible. Therefore, I partially approve the appeal. By copy of this letter, I ask the Regional Director to implement this determination.
Please inform the Applicant of my determination. My determination constitutes the final decision on this matter, as set forth in 44 CFR §206.206.
Sincerely,
/S/
Laurence W. Zensinger
Acting Director, Recovery Division
Emergency Preparedness and Response Directorate
Department of Homeland Security
Enclosure
cc: Mr. Jeff Griffin
Regional Director
FEMA Region IX
Mr. Dallas Jones
Governors Authorized Representative
Office of the Director
Governors Office of Emergency Services
Post Office Box 419047
Rancho Cordova, CA 95741-9047
RE: Second Appeal City of Carmel-by-the-Sea, PAID 053-11250, Net Small Project Overrun, FEMA-1203-DR-CA, Various Damage Survey Reports (DSRs)
Dear Mr. Jones:
This letter is in response to the referenced second appeal transmitted by your letter dated January 14, 2003 to the Federal Emergency Management Agency (FEMA), which is now part of the Department of Homeland Security. The City of Carmel-by-the-Sea (Applicant) is requesting funding for a Net Small Project Overrun (NSPO) in the amount of $408,066. FEMA initially denied funding for the NSPO because the Applicant did not submit any documentation that explained the reasons for the overruns, as required by the regulations.
As explained in the enclosed analysis, I have determined that the Flanders Canyon and shoreline protection projects, which account for the largest portion of the cost overrun, are Improved Projects. Therefore, FEMA funding is limited to the estimated amount of the DSRs. However, I have determined that $7,055 for cost overruns on the other projects is eligible. Therefore, I partially approve the appeal. By copy of this letter, I ask the Regional Director to implement this determination.
Please inform the Applicant of my determination. My determination constitutes the final decision on this matter, as set forth in 44 CFR §206.206.
Sincerely,
/S/
Laurence W. Zensinger
Acting Director, Recovery Division
Emergency Preparedness and Response Directorate
Department of Homeland Security
Enclosure
cc: Mr. Jeff Griffin
Regional Director
FEMA Region IX
Appeal Analysis
The El Niño storms of 1998 damaged many public facilities in the City of Carmel-by-the-Sea (Applicant), including roads, drainage structures, embankments and coastal structures. These latter structures included stairways, rock revetments, seawall foundations and pathways. In June 1998, the Federal Emergency Management Agency (FEMA) prepared 21 small project damage survey reports (DSRs) to provide funding to the Applicant for their response and recovery efforts. A small project for this disaster was one that had a DSR amount of less than $47,100. The total funded amount for the 21 DSRs was $361,546. The Applicant claims that the total actual cost for implementing the scopes of work on the 21 DSRs was $769,612. In accordance with 44 CFR §206.204(e), an Applicant can submit an appeal for additional funding when they discover a significant overrun related to the total final cost for all small projects. This is referred to herein as a Net Small Project Overrun (NSPO).In regards to the completion date of their small projects, the Applicant asked the Governors Office of Emergency Services (OES) for a time extension in accordance with 44 CFR §206.204(c). In a letter dated February 21, 2002, OES approved an extension of the performance period to January 28, 2002, the completion date of the last small project. The time extension is less than the maximum of 30 months allowed by the regulations.
First Appeal
The Applicant submitted a request for a NSPO (first appeal) to OES on March 20, 2002. The appeal was transmitted to FEMA Region IX by OES in a letter dated May 24, 2002. OES supported the Applicants appeal, although they reduced the Applicants claim by $5,602 with no reason given.
The Regional Director responded to the first appeal in a letter dated July 18, 2002, noting that no documentation was submitted with the appeal explaining the reasons for the overruns, as required by the regulations. The letter stated that proper documentation must be submitted within 30 days or the appeal would be denied. OES responded with a letter dated August 12, 2002, that provided documentation to support the appeal. FEMA denied the first appeal in a letter dated August 30, 2002. The letter stated that the only documentation provided was a spreadsheet showing FEMA funding, the actual costs, and the difference between the two. The requested information regarding the reasons for the overruns was not given. Therefore, the appeal was denied.
Second Appeal
The Applicant submitted a second appeal of FEMAs determination to deny funding for a NSPO in a letter to OES dated November 7, 2002. The letter provided text that explained the project overruns. Detailed documentation was enclosed in a 3-inch binder. OES transmitted this information to FEMA in a letter dated January 14, 2003. OES supported the appeal, and requested that FEMA approve additional funding of $405,464.
The Regional Director transmitted the second appeal along with backup documentation to the Assistant Director of the Response and Recovery Directorate in a letter dated February 13, 2003.
DISCUSSION
FEMA prepared 21 small project DSRs for the Applicant. It is noted that OES has reviewed and approved the actual costs being claimed by the Applicant. With respect to the NSPO, the DSRs can be divided into six primary categories, discussed as Items 1 through 6 below. A tabulated summary of each DSR is provided on Page 6 of this analysis.
Item 1: DSRs 50620 and 51698 Work Not Performed
The Applicant has indicated that the work funded in DSRs 50620 and 51698 was not completed, nor are they intending to perform this work. Accordingly, the eligible costs for these DSRs will be deducted from the total small project funding.
Item 2: DSRs 03577, 50603, 50611, 50614 and 50616 100% Complete at Time of DSR Preparation.
DSRs 03577, 50603, 50611, 50614 and 50616 were 100 percent complete at the time the DSRs were prepared. Therefore, these is no change to the estimated costs for the work, and no adjustments are necessary as part of the NSPO evaluation.
Item 3: DSRs 50606, 50609, 50610 and 51699 Actual Costs Less Than Estimated.
DSRs 50606, 50609, 50610 and 51699 had project underruns, wherein the total actual costs for the eligible work completed was less than that originally estimated. The difference between the estimated cost and the actual cost will be deducted from the total small project funding.
Item 4: DSRs 02051, 50617, 50622, 50699, 51694 and 51697- Actual Costs Greater Than Estimate.
The Applicant claims that the costs to perform the eligible work described in DSRs 02051 (road repairs), 50617 (sinkhole and storm drain repair), 50622 (road repairs), 50699 (road repairs), 51694 (emergency traffic control) and 51697 (shoreline facilities repair) were greater than those estimated on the original DSRs. They assert that these additional costs (cost overruns) reflect the high cost of contract work in California, underestimation of the necessary scope of work and a late accounting entry. All of these projects were competitively bid except for the emergency traffic control. Based on a review of the information provided in the appeal documentation, it appears that the increased costs are justified and that the work completed is consistent with the eligible scopes of work identified on the original DSRs. The increased costs of $65,646 will be counted as eligible costs in the NSPO calculation.
Item 5: DSR 50640 Scope of Repair Significantly Greater Than Estimated
The Applicant claimed that the cost overrun for the erosion protection measures constructed along the bottom of Flanders Canyon was due to an obvious underestimation as to the extent of the repair work required in the drainage channel. The Applicant also claimed that the repairs were made in a sensitive environment that necessitated a formal design, expensive environmental studies, and the use of hand labor rather than heavy equipment.
Documents provided by the Applicant reveal that the actual work completed exceeds the scope identified in the original DSR. In particular, the completed work included between 10 and 20 cross-canyon weirs constructed using gabions and other materials. Approximately 235 CY of gabions were constructed, compared to the 15 CY provided in the DSR for the slope repair only. Cross-canyon weirs did not exist before the disaster, so to be eligible for public assistance funding the weirs would need to satisfy FEMAs hazard mitigation criteria. However, this effort cannot be considered cost-effective because the actual cost of construction was 11.5 times higher than the estimated cost for slope repair. Therefore, the cost of the weirs would not be justified under FEMAs hazard mitigation program.
It is also noted that at the time the DSR was prepared, the Applicant did not concur with the scope of work in the DSR. In a letter to the FEMA Public Assistance Coordinator (PAC) dated June 29, 1998, the Applicant claimed that the canyon is a drainage facility rather than a creek and, therefore, the repair of scour damage to the bottom of the canyon should be eligible. The FEMA PAC apparently disagreed with this position because the DSR was not modified. There is no information in the Applicants letter that indicates that the bottom of the canyon was a designed, constructed, and/or routinely maintained drainage channel. This evidence is necessary for a natural drainage to be classified as a public facility under 44 CFR §206.221(h). FEMA is authorized only to fund the permanent restoration of eligible public facilities. As the bottom of the canyon is not considered an eligible facility, it is not eligible for restoration. Accordingly,la beyond the scope of work found eligible at the time of the preparation of the DSR and that there is no justification provided to consider such work eligible at this time. Accordingly, the additional work completed is found to be an improvement beyond the pre-disaster design. Therefore, the work is considered to be an Improved Project. In accordance with 44 CFR §206.203(d)(1), the funding for such projects is limited to the approved estimate of eligible costs shown on the DSR. Accordingly, no adjustments to funding will be made as part of the NSPO.
Item 6: DSRs 51695, 51696 and 51700 Increased Scope and Construction Costs
DSRs 51695, 51696 and 51700 were prepared for the restoration of runoff and wave damage to shoreline facilities at three locations within the City. Pre-disaster shoreline protection consisted of rip rap revetments in each case. The DSRs were written to restore the damaged revetments, as well as other damaged facilities such as stairs and barrier walls.
The Applicant claims that the cost overruns on these shoreline restoration projects were the result of the high cost of construction in the Monterey area, as well as the requirements of the California Coastal Commission (CCC). It is the Applicants position that the changes from revetment to retaining wall shoreline protection were changes to the method of construction, as opposed to a change of scope. For this reason, the Applicant did not request additional approval from FEMA during project design and construction. The CCC is a State agency that regulates development along the Pacific coast.
As noted above, these DSRs were prepared for the restoration of rip rap revetments that were in place before the disaster. The eligible restoration scheme consisted of re-laying rip rap that could be recovered and importing new rip rap as needed. However, when the Applicant applied for a building permit, the CCC required that retaining walls (seawalls) be built in lieu of rip rap placement.
The restoration of damaged facilities through a FEMA grant must be in conformance with 44 CFR §206.226, which states in pertinent part that work to restore eligible facilities on the basis of the design of such facilities as they existed immediately prior to the disaster is eligible. An exception is allowed if an improvement to the pre-disaster design is necessary in order to conform to current codes or standards. In order to be eligible for funding, the code or standard must meet all of the five criteria identified in 44 CFR §206.226(b).
Criterion 3 requires that the standard be in writing and formally adopted prior to the disaster declaration. The CCC responded to the Applicants coastal development permit application in a report dated March 26, 2001. In that report, the CCC stated that the Applicant does not have a Local Coastal Plan (LCP). If all replacement shoreline protective structures must be walls rather than revetments, the requirement would be found in the LCP. There was no LCP in place prior to the disaster, so the CCCs requirement that the damaged revetments be replaced with retaining walls fails this test of an eligible standard.
Criterion 4 requires that the code or standard be applied uniformly to all similar types of facilities. This is clearly not the case in the City of Carmel-by-the-Sea. Since its formation in 1974, the CCC has approved rip rap revetments in the City of Carmel-by-the-Sea in 1979, 1983, 1997 and 2001. Apparently, retaining walls are approved for shoreline protection rather than revetments on the basis of engineering judgment, aesthetics, and possibly other factors. Although this may be a commendable design process, it does not constitute a standard. The CCCs requirement that the damaged revetments be replaced with retaining walls fails this test of an eligible code or standard.
This analysis of available information indicates that the additional work performed is beyond the scope of work found eligible at the time of the preparation of the DSR and that there is no justification provided to consider such work eligible at this time. Accordingly, the additional work completed would be considered improvements, and DSRs 51695, 51696 and 51700 would be Improved Projects. In accordance with 44 CFR §206.203(d)(1), the funding for such projects is limited to the approved estimate of eligible costs shown on the DSR. Accordingly, no adjustments to funding will be made as part of the NSPO. Further discussion on requirements for Improved Projects is provided below.
NEPA Review Requirements for Improved Projects - DSRs 50640, 51695, 51696 and 51700
The actual scopes of work completed in the DSRs discussed in Items 5 and 6 are considered improvements beyond the pre-disaster design, and are, therefore, considered Improved Projects, as authorized in 44 CFR §206.203(d)(1). FEMA must be informed of proposed changes in scope, including any improvements, to allow FEMA the opportunity to ensure the project complies with the requirements of the National Environmental Policy Act (NEPA) and all other related environmental laws and statutes. Although the Applicant did not comply with FEMAs requirements in this regard, for the coastal as well as for the Flanders Canyon projects, they obtained permits from the U.S. Army Corps of Engineers (USACE), ensuring proper compliance with federal requirements.
They did hire an environmental consultant to perform environmental reviews for all of the improved scopes of work, and also obtained a National Marine Sanctuaries Permit, a California Fish and Game Marine Refuge permit, and for the Flanders Canyon project, they obtained permits from the CCC, the Regional Water Quality Control Board and the California Department of Fish and Game.
The fact that the applicant obtained all required permits from the USACE, in addition to the state mandated permits, indicates substantial compliance with environmental requirements for these improved projects.
CONCLUSION
Based on a review of the information provided in the Applicants second appeal, we find that the total adjustment of small project funding should be an increase of $7,055. This reflects the total of all eligible overruns and underruns as described in this analysis, and as summarized on the table on Page 6 of this analysis.
NSPO SUMMARY
| ITEM | DSR NO. | DSR COST | CLAIMED COST | ELIGIBLE COST | OVERRUN | UNDERRUN | REMARKS |
| 1 | 50620 | $1,304 | $0 | $0 | $1,304 | Work not performed | |
| 51698 | $35,466 | $0 | |||||
| 2 | 03577 | $3,431 | $3,431 | $3,431 | 100% Complete time of DSR preparation | ||
| 50603 | $5,290 | $5,290 | $5,290 | ||||
| 50611 | $20,463 | $20,463 | $20,463 | ||||
| 50614 | $17,017 | $17,017 | $17,017 | ||||
| 50616 | $4,497 | $4,497 | $4,497 | ||||
| 3 | 50606 | $21,630 | $18,150 | $18,150 | $3,480 | Actual Costs Less than Estimated | |
| 50609 | $9,090 | $8,780 | $8,780 | $310 | |||
| 50610 | $8,464 | $5,641 | $5,641 | $2,823 | |||
| 51699 | $41,237 | $26,029 | $26,029 | $15,208 | |||
| 4 | 50617 | $26,925 | $47,792 | $47,792 | $20,867 | Actual Costs for Eligible Work Greater than Estimated | |
| 50622 | $7,069 | $20,867 | $20,867 | $13,798 | |||
| 02051 | $39,151 | $42,758 | $42,758 | $3,607 | |||
| 50699 | $21,304 | $37,803 | $37,803 | $16,499 | |||
| 51694 | $8,424 | $14,888 | $14,888 | $6,464 | |||
| 51697 | $15,436 | $19,847 | $19,847 | $4,411 | |||
| 5 | 50640 | $5,995 | $68,956 | $5,995 | $0 | $0 | Improved Projects. Funding capped at DSR amount |
| 6 | 51695 | $20,446 | $94,975 | $20,446 | $0 | $0 | |
| 51696 | $24,758 | $67,515 | $24,758 | $0 | $0 | ||
| 51700 | $24,149 | $244,913 | $24,149 | $0 | $0 | ||
| Totals | $361,546 | $769,612 | $368,601 | $65,646 | $58,591 | NSPO is $7,055 | |