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Second Appeal Brief
PA ID# 055-99055-00; Napa County
PW ID# 3223; Circle Oaks Drive Embankment
Citation: FEMA-1628-DR-CA, Napa County, Circle Oaks Drive Embankment, Project Worksheet (PW) 3223
Reference: Improved Project
Summary: On December 30, 2005, heavy rain saturated the soils of the west road embankment at 245 Circle Oaks Drive. As a result, a 90-foot section of the adjacent slope failed. FEMA approved PW 3223 for $341,403 to perform a limited geotechnical study; install a 16-foot tall steel tie-back retaining wall and drainage system; restore the integral ground immediately below the damaged portion of the road; and restore the road paving. Based on the recommendation of its geotechnical consultant, the Applicant excavated to the base elevation of the retaining wall built in 1993 and reconstructed the slope with engineered fill and installed an extensive surface and subsurface drainage system. FEMA denied the Applicant’s request for additional funding based on a change in the method of repair because it determined that the work completed exceeded the pre-disaster design and, therefore, was an improved project.
In a letter dated January 14, 2008, the Applicant submitted its first appeal asserting that it did not exceed the approved scope of work; did not stabilize a landslide; and made no improvements at the project site. In a letter dated August 15, 2008, the Deputy Regional Administrator denied the first appeal. In its second appeal dated October 23, 2008, the Applicant asserts that it limited its work to restoring the original natural integral ground supporting the road. In addition, the Applicant only performed work necessary to restore the pre-disaster road and drainage system. Based on the documentation provided by the Applicant, the completed construction is an improved project that involved stabilizing the slope and installing an improved drainage system.
Issue: Do the embankment repairs constitute an improved project?
Rationale: Title 44 Code of Federal Regulations (CFR) §206.203(d), Improved Projects; 44 CFR §206.226, Restoration of Damaged Facilities