Relocation

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4344
Applicant	Santa Rosa
Appeal Type	Second
PA ID#	097-70098-00
PW ID#	PW 147
Date Signed	2021-02-03T17:00:00

Summary Paragraph

As a result of wildfires, FEMA declared a disaster authorizing Public Assistance funding throughout Northern California, including Sonoma County where the City of Santa Rosa (Applicant) is located.  The Applicant’s Fire Station #5 (FS5) was destroyed in the fires.  FEMA created Project Worksheet (PW) 147 to fund in-kind replacement of FS5.  However, because the property was insured, the funding was limited to the policy deductible.  Afterwards the Applicant sought Public Assistance funding to relocate FS5, stating that the original location had higher fire risk and that a new proposed location would mitigate the risk of future damage as a result of wildfire.  FEMA rejected additional funding for the relocation of FS5 stating that the Applicant had not shown it satisfied the criteria of 44 C.F.R. § 206.226(g)(1) to warrant federal funding for relocation.  The Applicant appealed stating that it had satisfied the criteria, arguing that topography, weather, and fuel availability at the original location subject FS5 to repetitive heavy damage which would not be present at the new proposed location.  The Applicant also claimed that the relocation would be cost effective as required by the regulation.  In denying the first appeal determination, the Region IX Regional Administrator stated that the Applicant had not shown the original location was and would be subject to repetitive heavy damage.  Additionally, FEMA’s own cost benefit analysis showed that relocation would not be cost effective.  The Applicant filed its second appeal reiterating the same arguments made on first appeal. 

 

Authorities and Second Appeals

• 44 C.F.R. § 206.226(g)(1)
• PAPPG, at 104.

Headnotes

• 44 C.F.R. § 206.226(g)(1) provides that the RA may approve funding for and require the restoration of a destroyed facility at a new location when: 1) the facility is and will be subject to repetitive heavy damage; 2) approval is not barred by other provisions of title 44 C.F.R.; and, 3) the overall project, including all costs, is cost effective.
  • However, the Applicant has not shown that FS5 is and will be subject to repetitive heavy damage nor that relocation would be cost effective.

Conclusion

The Applicant did not demonstrate that relocation of FS5 satisfied all elements of 44 C.F.R. § 206.226(g)(1) as it did not show that FS5 is and will be subject to repetitive heavy damage, nor did it show that relocation would be cost effective.  The RA properly applied his discretion to deny funding for relocation; therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

As a result of wildfires, widespread damage occurred between October 8-31, 2017, in several Northern California counties and cities.  FEMA declared a major disaster declaration authorizing Public Assistance funding for the affected counties, including Sonoma County where the City of Santa Rosa (Applicant) is located.  The Applicant owned and operated Fire Station #5 (FS5), which was destroyed in the fires.

FEMA approved Project Worksheet (PW) 147 to fund in-kind replacement of FS5.  However, because the property was insured, the approved PW funding was limited to the policy deductible.  The Applicant then sought FEMA funding to relocate the station stating that the original location had a high fire risk and that its new proposed location would significantly mitigate the risk of future damage as a result of wildfire.  In response to discussions and requests from the Applicant, FEMA determined that it did not consider FS5 to be eligible for relocation because it had not been subject to repetitive damage and the Applicant had not shown that the risk of future damage from wildfires would be eliminated or significantly reduced if FS5 were relocated.  Additionally, FEMA found that the cost effectiveness of the relocation was not established.[1]

 

First Appeal

The Applicant submitted its first appeal to the California Governor’s Office of Emergency Services (Grantee) on December 26, 2019.  The Applicant stated that under Title 44 of the Code of Federal Regulations (C.F.R.) § 206.226(g)(1), FEMA may approve funding for restoration of a facility at a new location when the facility: 1) is and will be subject to repetitive heavy damage; 2) the approval is not barred by other provisions of 44 C.F.R.; and, 3) the overall project is cost effective.  The Applicant claimed that the FS5 relocation project satisfies all three components of this requirement

First, the Applicant argued that the topography and weather conditions at the original location subjects the location to high risk repetitive fire damage which would be mitigated by relocation to a lower risk area.  The Applicant stated that there is extra vegetative fuel for the fire at the original location in contrast to the proposed location where, the Applicant claims, there is less fuel for the fires.  The Applicant also noted that California hazard maps are not designed to depict community level wildfire risk, so FEMA cannot use them as the basis for relocation eligibility.  Second, the Applicant argued that the relocation is not barred by any other provision in 44 C.F.R.  Third, the Applicant contended that it prepared a Benefit Cost Analysis (BCA) to show that the relocation is cost effective compared to the costs of rebuilding the original facility.  The Grantee forwarded the appeal with its support to FEMA in a later dated February 17, 2020.

On May 12, 2020, the FEMA Region IX Regional Administrator (RA) denied the appeal.  The RA stated that under 44 C.F.R. § 206.226(g)(1), an RA may exercise their discretionary authority to approve funding for and require the restoration of a destroyed facility at a new location when the three prongs of the regulation are satisfied.  The determination outlines how the Applicant’s approach to its cost-benefit analysis was flawed as it: 1) reduced the project useful life from the default number of years used in relocation analyses; 2) inflated damage values; and, 3) included costs that had already been accounted for.  The RA stated that to be cost effective, the analysis must result in a benefit-cost ratio of 1.0 or greater.  However, FEMA’s own BCA used the proper inputs and concluded that relocating FS5 would result in a benefit-cost ratio of 0.86, and with this outcome, the relocation was not cost effective.

In addition, the RA agreed with the Applicant’s argument that 44 C.F.R. § 206.226(g)(1) did not apply solely to facilities in Special Flood Hazard Areas but rejected the Applicant’s contention that it demonstrated the original location is and will be subject to repetitive heavy damage.  The RA found the Applicant’s documentation did not substantiate that the relocation would eliminate or reduce the risk of the facility being destroyed by a fire in a future event.

 

Second Appeal

On August 27, 2020 the Applicant filed its second appeal with the Grantee.  The Applicant reiterates its original arguments with some additional elaboration.  First, the Applicant notes that it had to active its Emergency Operations Center due to the 2019 Kincaid Fire and evacuate 30 percent of its residents, which demonstrates the potential for repetitive damage.  Second, the Applicant points again to the weather, topography, and fuel as three wildlife risk factors and how the analysis of these issues demonstrates elevated fire risk at the original location and supports relocation of FS5.  Further, the Applicant states that it is not required to eliminate all risk through relocation to satisfy the requirement of 44 C.F.R. § 206.226(g)(1), only that relocation ensure the facility is not subject to repetitive heavy damage.

Finally, the Applicant conducted additional cost-benefit analyses for the proposed relocation to account for the concerns FEMA pointed out in the Applicant’s BCA on first appeal.  The Applicant maintains that these cost-benefit analyses show that relocation is cost effective.  As such, the Applicant requests that FEMA determine relocation of FS5 is eligible and that FEMA award the corresponding funding.  The Grantee forwarded the appeal to FEMA on October 23, 2020 with its support.

 

Discussion

Under 44 C.F.R. § 206.226(g)(l), the RA may approve funding for and require the restoration of a destroyed facility at a new location when: 1) the facility is and will be subject to repetitive heavy damage; 2) approval is not barred by other provisions of title 44 C.F.R.; and, 3) the overall project, including all costs, is cost effective.[2]  All three elements must be satisfied.

With respect to the first element, repetitive heavy damage, the Applicant has not shown that the original location of FS5 is and will be subject to repetitive heavy damage.  The fact that the location was destroyed in the 2017 fires is clear; however, the Applicant has not provided any documentation to show that the facility was damaged prior to the incident in question.  The Applicant provided topography and weather information along with a report from the Applicant’s fire chief, in defense of its claims that the original location of FS5 is at higher risk of being destroyed in the future as a result of fire.  However, this documentation compares risk of one location versus another; it does not show that FS5 would be subject to heavy repetitive damage in the future.

Additionally, in order for the project to be eligible for relocation funding, the relocation must be cost effective.  To satisfy this element, the Applicant submitted a series of BCAs which attempted to show that relocation of FS5 would be cost effective.  However, FEMA performed its own BCA conforming to its process and software, which concluded that the relocation of FS5 would not be cost effective.  The Applicant has not demonstrated that FEMA’s BCA was inaccurate nor that it addressed the issues in its own BCAs.  Therefore, the Applicant did not show that relocation would be cost effective.

As such, the Applicant has not demonstrated that the RA improperly applied his discretion under 44 C.F.R. § 206.226(g)(1) to deny funding for the relocation of FS5.

 

Conclusion

The Applicant did not demonstrate that relocation of FS5 satisfied all elements of 44 C.F.R. § 206.226(g)(1) as it did not show that FS5 is and will be subject to repetitive heavy damage, nor did it show that relocation would be cost effective.  The RA properly applied his discretion to deny funding for relocation; therefore, this appeal is denied.

 

 

[1] Letter from Dir. Recovery Div., FEMA Reg. IX, to Governor’s Authorized Rep., Cal. Governor’s Off. of Emergency Servs. (Oct 10, 2019).

[2] Title 44 Code of Federal Regulations (C.F.R.) §206.226(g)(1) (2017); Public Assistance and Policy Guide, FP 104-009-2, at 104 (Apr. 2017).