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Request for Time Extensions

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DesastreFEMA-1155-DR
ApplicantCounty of Santa Cruz
Appeal TypeSecond
PA ID#087-00000
PW ID#95064, 95065, 08723, 08724, 08725, 08726, 95057, 95058, 08729, 00277
Date Signed2003-06-19T04:00:00

Citation:

FEMA-1155-DR-CA; County of Santa Cruz; Request for Time Extensions, DSRs 95064, 95065, 08723, 08724, 08725, 08726, 95057, 95058, 08729, 00277
 

Cross-reference:

Time Extensions, NEPA Compliance
 

Summary:

As a result of the winter storms in December 1996 and January 1997, the County of Santa Cruz (Applicant) sustained various damages to numerous sections of roadways. FEMA prepared 10 DSRs for repair of road and shoulder damages due to localized slope failures resulting from saturation or erosion, and/or surface damage due to falling hillside debris. The Applicant requested and received time extensions from OES for all this work, citing various reasons for the delay. Between December 2000, and May 2001, the Applicant requested further time extensions beyond the January 4, 2001, regulatory authority of OES. FEMA denied the time extension request being that work had not even begun on the projects, and that the Applicant had failed to demonstrate that circumstances beyond their control caused the delay. The DSRs were deobligated. The Applicant’s first appeal requested reconsideration of the time extensions, citing many of the same reasons as in their original request. The Acting Regional Director denied the first appeal, maintaining that the Applicant did not provide sufficient justification for further extensions. The response also indicated that even if the work was performed within the required timeframe, certain projects were completed without complying with the requirements of the National Environmental Policy Act (NEPA). The Applicant’s second appeal reaffirms the reasons for not completing work within the approved time extensions as presented in the first appeal. As for NEPA compliance, the Applicant concurs that in some cases they were aware the permits were necessary but inadvertently did not obtain them, but in other cases were not aware of the requirement. It is noted that in subsequent conversations, the Applicant has indicated their intention to withdraw their appeal for DSRs 08726, 08729, 95064 and 00277.
 

Issues:

(1) Is a time extension warranted for these projects?(2) Did the completed projects comply with NEPA requirements?
 

Findings:

(1) No, the Applicant has not demonstrated that extenuating circumstances exist to have prevented work from being completed within the required timeframe for DSRs 95057 and 95058. (2) No, for DSRs 08723, 08724, 08725, and 95065, the Applicant did not comply with necessary environmental permitting requirements.
 

Rationale:

44 CFR 206.204, 44 CFR Part 10

Appeal Letter

June 19, 2003

Mr. Dallas Jones
Governor’s Authorized Representative
Office of the Director
Governor’s Office of Emergency Services
P.O. Box 419047
Rancho Cordova, California, 91741-9047

RE: Second Appeal – County of Santa Cruz; PAID 087-00000, Request for Time Extensions, FEMA-1155-DR-CA, Damage Survey Reports (DSRs) 95064, 95065, 08723, 08724, 08725, 08726, 95057, 95058, 08729, 00277

Dear Mr. Jones:

This letter is in response to the referenced second appeal transmitted by your letter dated June 10, 2002. In their appeal, the County of Santa Cruz (Applicant) requested that time extensions be provided for completion of work in 10 DSRs. It is noted, however, that of these 10 DSRs, the Applicant has since expressed their intention to withdraw their appeal on four of them (DSRs 08726, 08729, 95064 and 00277). We apologize for the delayed response.

As explained in the enclosed analysis, I have determined that the Applicant has not demonstrated that extenuating circumstances exist to have prevented work from being completed within the required timeframe for DSRs 95057 and 95058. For DSRs 08723, 08724, 08725, and 95065, although the work has been completed, the Applicant did not comply with necessary environmental permitting requirements such that FEMA may not provide funding toward completion of this work. Therefore, the appeal is denied.

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
Department of Homeland Security

Enclosure

cc: Jeff Griffin
Regional Director
Region IX

Appeal Analysis

BACKGROUND

As a result of the winter storms in December 1996 and January 1997 (FEMA-1155, declared January 4, 1997), the County of Santa Cruz (Applicant) sustained various damages to numerous sections of roadways. Localized slope failures due to saturation or erosion resulted in partial road slip-outs and/or surface damage due to falling hillside debris. The Applicant requested assistance from the Federal Emergency Management Agency (FEMA) for repair of disaster-related damages.

Between February 3 and March 7, 1997, site inspections were made at 10 sites on Rider Road (4 sites), Redwood Road, Prescott Road (2 sites), Wheelock Road, Webb Road, and Graham Hill Road by representatives of FEMA, the California Office of Emergency Services (OES) and the Applicant. Based on the observed damages, FEMA prepared ten Damage Survey Reports (DSRs), DSRs 95064, 95065, 08723, 08724, 08725, 08726, 95057, 95058, 08729, and 00277, in amounts ranging from $7,291 to $92,548. DSRs were prepared in general agreement with the Applicant’s requested scope and costs. Project review concluded that the identified scopes of work met the criteria for either a Statutory Exclusion or Categorical Exclusion from further review under the National Environmental Policy Act (NEPA). However, certain USACE or other permits were identified as being necessary for the Applicant to obtain prior to commencing the work.

In June of 1998 and again in March of 2000, the Applicant requested and received time extensions through December 2000 for these projects from OES, on the basis that the work had not yet begun due to the abundance of storm related projects from the 1155 event, as well as those continuing from previous and subsequent events (FEMA-1044, 1046, 1203, and other non-declared storms), the limited number of contractors available to do the work, and other storm repair projects that had priority due to health and safety concerns. Between December 20, 2000, and May 21, 2001, the Applicant requested further time extensions beyond the January 4, 2001, regulatory authority of OES. The Applicant indicated that the work was delayed due to overall workload of priority storm repairs, delays due to completion of design work, and issuance of required permits from the California Department of Fish and Game and the National Marine Fisheries Service. Projects were proposed to be completed between October 15 and December 31, 2001. In a letter dated August 7, 2001, the FEMA Public Assistance Officer (PAO) denied the time extension request indicating that as of the writing of the Applicant’s most recent letter (May 2001), work had not even begun on the projects, and that the Applicant had failed to demonstrate that circumstances beyond their control caused the delay. As no work had been completed within the last approved deadline of December 31, 2000, the DSRs were deobligated.

On June 8, 2001, the Applicant also submitted a request to change the scope of work on DSR 95058. DSR 95058 was prepared to repair a partial road collapse, including repair of the failed headwall and culvert. The Applicant requested the scope be modified to include rock-buttressing of the downstream slope of the damaged site in order to better facilitate the construction and to permit construction without road closure. The proposed scope increased the cost of the work from $48,691 to a total of $199,753. In a letter dated October 17, 2001, the FEMA PAO denied the change in scope request on the basis that “the last approved completion date for the project was December 31, 2000 and, therefore, funding is not eligible for work completed after that date”.

First Appeal

The Applicant submitted a first appeal of FEMA’s denial of the time extension request for these projects, transmitted by OES in a letter dated November 2, 2001. The Applicant identified many of the reasons as identified above as their basis for not completing their projects within the approved timeframe. OES supported only those DSRs that were complete or had sufficient basis for their delays (DSRs 08729, 08723, 08724, 08725, 95058, 00277, 95065). For the remaining DSRs (DSRs 95064, 08726 and 95057) OES concluded that the Applicant should have been more aggressive in completing the work and did not support the appeal.

The Acting Regional Director denied the appeal in a letter dated February 7, 2002, maintaining that the work was not completed within the approved timeframe and the delays cited by the Applicant did not provide sufficient justification for further extensions. Additionally, the letter indicated that not all the required permits were obtained for work that was completed under DSRs 00277, 08723, 08724, 08725, and 95065, prohibiting FEMA from funding the work even if it was completed within the approved timeframe. Regarding DSR 95058, the Acting Regional Director indicated that the request for the change of scope was not received until six months after expiration of its approved completion, and thus could not be approved.

Second Appeal

The Applicant submitted a second appeal of FEMA’s determination, transmitted and supported by OES in a letter dated June 10, 2002, reaffirming the reasons for not completing work within the approved time extensions as presented in the first appeal. Regarding their failure to obtain necessary permits, the Applicant concurs that in some cases they were aware the permits were necessary but inadvertently did not obtain them, but in other cases were not aware of the requirement. The Acting Regional Director forwarded the Applicant’s appeal to FEMA Headquarters in a letter dated August 27, 2002.

DISCUSSION

The primary issue of the Applicant’s appeal is associated with FEMA’s determination that the Applicant has not demonstrated that extenuating circumstances beyond their control prohibited them from completing the work within the allowable time extensions. However, of equal importance is the issue of non-compliance with environmental permitting requirements.

Upon receipt and review of the second appeal information, FEMA Headquarters conducted a conference call on October 29, 2002, with representatives of FEMA Region IX, the Applicant, and OES. During that call, the Applicant indicated that it is their intent to withdraw their appeal on DSRs 08726, 08729, 95064 and 00277. Therefore, this appeal analysis addresses only the remaining six DSRs (DSRs 08723, 08724, 08725, 95065, 95057 and 95058). Also as a result of this conference call, the Applicant indicated that they would provide additional information to the FEMA Regional Office to demonstrate what environmental permitting had been completed. Such documentation has been submitted to and reviewed by the FEMA Region IX Regional Environmental Officer (REO).

DSRs 08723, 08724, 08725, 95065

The general scope and status of these DSRs is as follow:
· DSRs 08723, 08724, 08725: Rider Road Sites 4, 5 and 6, respectively. These DSRs were prepared to repair roadway shoulder slipouts resulting from toe erosion caused by flooding conditions in the adjacent creek. Repair costs were estimated at $19,937 (DSR 08723), $7,291 (DSR 08724) and $10,819 (DSR 08725). Work was completed in October 2001.
·
· DSR 95065: Prescott Road, Site 21. This DSR was prepared for repair of a roadway slope slipout caused by saturation of the slope. Repair costs were estimated at $16,932. Work was completed in August 2001.
·
It was agreed during the October 2002 conference call that FEMA would reconsider the time extension request for these DSRs if the Applicant could demonstrate that they complied with all necessary environmental permitting requirements. A NEPA review was conducted for each of these projects at the time the DSRs were prepared. The reviewn t this approval was contingent upon compliance with local, state and federal laws or consultations required for the projects. For DSRs 08723, 08724, and 08725, the DSR documentation specifically indicated that the Applicant must comply with the U.S. Army Corps of Engineers permit authority under Section 404 of the Clean Water Act, the Endangered Species Act, and implementation of other identified conditions. Although not specifically addressed in DSR 95065, such compliance was also necessary for this project. Based on our review of the information provided by the Applicant with the second appeal and in response to the conference call, it is concluded that the Applicant did not comply with the Endangered Species Act or Section 404 of the Clean Water Act when completing these projects. The Applicant has confirmed that such permits were not obtained. As these projects are in violation of these requirements, FEMA cannot provide funding for the associated work.

DSRs 95057 and 95058

The general scope and status of these DSRs is as follow:
· DSR 95057: Wheelock Road, Site 13. This DSR was prepared to replace an existing cribwall that collapsed due to a slope slipout resulting from erosion caused by flooding conditions in the adjacent creek. Repair costs were estimated at $33,096.
· DSR 95058: Webb Road, Site 14. A backed up CMP caused a partial road collapse and failure of a non-reinforced retaining wall. The initial cost estimate for repair was $48,691. As indicated earlier in this analysis, the Applicant requested consideration of a change in scope to include buttressing of the slope. However, the Regional Director denied this request because it was made after the time extension for completing the work had passed. The estimated cost for the new scope was $199,753.
·
The Applicant has identified several reasons for not having completed the work for these two DSRs within the required timeframes, including delays in completing engineering design and obtaining permits. Most recently they have indicated that the delay in completion is due to FEMA’s deobligation of the associated DSRs. The Applicant indicated that performance of this work is dependent on receiving funding from FEMA. The County otherwise does not have sufficient funds to complete the work.

It is our understanding that at this time, work has not yet begun on these two projects; more than six years after the damages were incurred. At the time of the last time extension request, it was concluded that the Applicant had not provided sufficient justification for granting a time extension beyond that which had already been provided. Our review of the documentation provided at this time, and based on further discussion with the Applicant during the October 2002 conference call, further supports the determination that sufficient justification still has not been provided. Most importantly, the absence of FEMA funding is not a viable reason for delaying work if such work is truly necessary to restore the function of a facility. Accordingly, the requested time extension cannot be approved.

CONCLUSION

Based on a review of the information provided in the Applicant’s second appeal, we have concluded that the Applicant has not demonstrated that extenuating circumstances exist to have prevented work from being completed within the required timeframe for DSRs 95057 and 95058. For DSRs 08723, 08724, 08725, and 95065, although the work has been completed, the Applicant did not comply with necessary environmental permitting requirements such that FEMA may not provide funding toward completion of this work. The Applicant has expressed their interest in withdrawing their appeal on the remaining four DSRs initially identified in this appeal (DSRs 08726, 08729, 95064 and 00277). The Applicant’s appeal is denied.