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Stetson Avenue

Appeal Brief Appeal Letter

Appeal Brief

DesastreFEMA-1628-DR
ApplicantMarin County
Appeal TypeSecond
PA ID#041-99041-00
PW ID#Project Worksheets 3561 and 3802
Date Signed2008-06-23T04:00:00
Citation: FEMA-1628-DR-CA, Marin County, Stetson Avenue, PW 3561 and 3802

Cross-reference: Emergency Protective Measures; Landslides

Summary: Heavy rains from December 17, 2005, through January 3, 2006, caused the slope located on the private property at 23 Stetson Avenue in Marin County (Applicant) to become over saturated. The heavy saturated soil produced a slope failure measuring approximately 55 feet wide by 70 feet long, and 7 feet in average depth. The work was originally classified as Category G, and was declared ineligible because the Applicant was unable to demonstrate that the landslide occurred on land it owned.

In its first appeal dated October 27, 2006, the Applicant included proof that it owned the property on which the landslide occurred, and a geotechnical report with evidence that the slide was not caused by a pre-existing condition. In the first appeal, the Applicant argued that an immediate threat to the adjacent improved private property existed. The Applicant’s geotechnical engineer recommended construction of a 1,050 square-foot soil nail and shotcrete retaining wall. The Deputy Regional Administrator partially granted the first appeal and authorized funding for a 350 square-foot retaining wall system.

In its second appeal, the Applicant requested additional assistance of $123,130 to fund the entire 1,050 square feet of retaining wall. The Applicant also requested funding for the entire geotechnical study since it was instrumental in FEMA’s decision to fund a 350 square-foot retaining wall and 100 percent of the contractor’s mobilization and demobilization costs.

Issues: Does FEMA retain the authority to define the extent of an eligible emergency protective measure?

Findings: Yes.

Rationale: 44 CFR §206.225; FEMA Response and Recovery Policy 9524.2, Landslides and Slope Failures

Appeal Letter

June 23, 2008

Grace Koch
Governor’s Authorized Representative
Governor’s Office of Emergency Services
Response and Recovery Division
3650 Schriever Avenue
Mather, CA 95655

Re: Second Appeal–Marin County, PA ID 041-99041-00, Stetson Avenue
FEMA-1628-DR-CA, Project Worksheets (PW) 3561 and 3802

Dear Ms. Koch:

This letter is in response to the referenced second appeal submitted by Marin County (Applicant) and transmitted by your letter dated October 29, 2007. The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding for a portion of the emergency work on the landslide area adjacent to 23 Stetson Avenue.

As a result of storms that occurred from December 17, 2005, through January 3, 2006, the slope located to the west of a shed and carport on private property at 23 Stetson Avenue in Marin County became oversaturated. The heavy load of the saturated soil caused a slope failure measuring approximately 55 feet wide by 70 feet long, and 7 feet in average depth. On June 8, 2006, FEMA prepared PW 3561 (category G) to repair the slope. Upon review, FEMA determined that the work was not eligible because the Applicant was unable to demonstrate that the landslide occurred on land that it owned.
In its first appeal dated October 27, 2006, the Applicant requested that FEMA change PW 3561 from permanent work (category G) to emergency protective measures (category B). The Applicant stated that the slide occurred on public property and that it created an immediate threat. The Applicant provided a geotechnical report dated October 6, 2006, prepared by Miller Pacific Engineering Group (MPEG), that concluded that the slope failure was caused by heavy rain saturation and not a pre-existing condition. The MPEG geotechnical report suggested the use of a soil nail and shotcrete retaining wall to address the immediate threat. In a letter dated June 21, 2007, the Deputy Regional Administrator determined that 350 square feet of retaining wall was sufficient to provide cost-effective emergency protective measures at the slide site. The Deputy Regional Administrator approved the preparation of a category B PW (PW 3802) for $60,646.

In its second appeal dated September 4, 2007, the Applicant maintained that the 350 square feet of soil nail and shotcrete retaining wall granted by the first appeal was inadequate protection against a future event. The Applicant requested the total estimated cost of $190,000 to fund the entire 1,050 square feet of retaining wall. The Applicant has not provided engineering data to refute FEMA’s determination that a 350 square-foot retaining wall adequately protects against a 5-year event. FEMA funds emergency protective measures to eliminate or reduce an immediate threat to life, public health, or safety, and significant damage to improved public or private property. FEMA defines an immediate threat as the threat of additional damage or destruction that could reasonably be expected to occur within 5 years. FEMA provides assistance to address the area of immediate threat only, not to stabilize the broader hillside. Since FEMA determined that only 350 square feet of retaining wall is eligible as an emergency protective repair, it reduced the MPEG cost estimate by 66 percent, which constitutes the difference between the original and the adjusted scope of work. The Applicant has not established the need for additional soil nails and shotcrete retaining wall. Therefore, the additional work is ineligible.

The contractor mobilization /demobilization costs, given the type of construction, would have been substantially, if not entirely, incurred whether the scope of work called for a 350 square foot retaining wall or a 1,050 square foot retaining wall and are eligible for FEMA reimbursement. In PW 3802, FEMA provided $3,678 in mobilization/demobilization costs. MPEG estimated $10,000 in mobilization/demobilization costs. Therefore, the remaining $6,322 is eligible for FEMA reimbursement minus the $1,228 that FEMA overpaid for the engineering construction costs. In PW 3802, FEMA provided for $9,259 in geotechnical costs. MPEG estimated $8,031 for construction engineering costs. Therefore, I am partially granting the Applicant’s second appeal in the amount of $5,094 for the contractor’s mobilization/demobilization costs and geotechnical study. By copy of this letter, I am requesting that the Regional Administrator take appropriate action to implement this decision.

Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.

Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate

cc: Nancy Ward
Regional Administrator
FEMA Region IX