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Maria Ignacio Creek @ Old San Marcos Pass

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1046-DR
ApplicantCachuma Operation & Maintenance Board
Appeal TypeSecond
PA ID#083-91148
PW ID#94719,39630
Date Signed1999-10-29T04:00:00
Citation: FEMA-1046-DR-CA; PA ID 083-91148; DSR 94719/39630.

Cross Reference: Winter storm and flooding; water pipeline damage; improved projects.

Summary: Flood waters from the January-March 1995 winter storms washed away support soil around a blow-off valve in the water pipeline belonging to the Cachuma Operation and Maintenance Board (COMB). The valve was located on the western side of Maria Ignacio Creek at Old San Marcos Pass Road. FEMA approved DSR 39630 on August 1, 1996, for $1,432 to install 38.7 cubic yards of backfill to support the valve. The applicant did not appeal the DSR but waited until it submitted a Project Completion and Certification Report on June 22, 1998, to claim that it had spent $29,885 on the project and that it was due an additional $28,453. The Disaster Recovery Manager (DRM) responded on July 24, 1998, stating that because a Net Small Project Overrun (NSPO) request had not been received by the statutory deadline, the application was closed and that the total funding for the project was $1,432. COMB submitted another first appeal stating that because another project (DSR 39631) had been granted an extension to August 31, 1998, it had 60 days following that date to submit an appeal for additional funding pursuant to 44 CFR 206.204(e). In his January 27, 1999, response, the DRM allowed that COMB provided sufficient documentation to justify that the project was not closed. However, the appeal was denied because it was determined that the eligible scope of work was exceeded thereby making the project an improved project. COMB submitted an April 5, 1999, second appeal in which it stated that the large amount of earthen embankment upstream and downstream protected the structure from erosive creek flows and that without them, it was necessary to place the additional amount of rip rap costing an additional $28,453.

Issue: Should the applicant receive additional funding for the large amount of rip rap that it found necessary to repair the exposure of the blow-off valve.

Findings: No. The work the applicant did to repair the exposure was excessive and rendered the project an improved project. Therefore, funding was capped at the approved eligible amount. Even though another small project had been extended, this did not give the applicant justification to delay reporting overruns on this project. It was determined that rip rap over the fill material was a reasonable way to repair the damage. Therefore, $1,638 is approved for 10.5 cubic yards of grouted rip rap to be placed over the fill material.

Rationale: 44 CFR 206.203(d) Funding Options (1) - Improved Projects

Appeal Letter

October 29, 1999

Mr. D.A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, Second Floor
Pasadena, California 91103

RE: Second Appeal - Cachuma Operation and Maintenance Board
FEMA-1046-DR-CA, DSR 94719/39630, PA ID 083-91148.

Dear Mr. Christian:

This is in response to your June 3, 1999, letter forwarding the referenced April 5, 1999, second appeal from the Cachuma Operation and Maintenance Board (COMB). COMB is appealing the Federal Emergency Management Agency's (FEMA's) denial of its request for reimbursement for a Net Small Project Overrun (NSPO) of $28,453 on Damage Survey Report (DSR) 39630. The applicant also requested reinstatement of the rip rap that was deleted from the original DSR.
In the aftermath of the January-March 1995 winter storms and flooding, FEMA prepared DSR 94719 on August 15, 1995, to replace structural backfill around the blow-off valve structure that became exposed, but voided the DSR because the Bureau of Reclamation appeared to be the party responsible for the repairs. The blow-off valve is one of a number of valves located at low points in the South Coast Conduit pipeline that are used to remove silt and sediment. COMB appealed the ownership determination and FEMA reviewed the evidence. FEMA determined that COMB was responsible for the repairs whereupon FEMA approved DSR 39630 for $1,432 on August 1, 1996, to apply 38.7 cubic yards of backfill material around the blow-off valve. FEMA did not approve the installation of rip rap because there was none on site prior to the disaster.

Almost 18 months later, the applicant submitted a June 22, 1998, Project Completion and Certification Report indicating that it had spent $29,885 on the project and requested supplemental funding of $28,453 to cover the overrun. FEMA's Disaster Recovery Manager (DRM) responded on July 24, 1998, stating that FEMA considered the disaster application closed and that no adjustment would be made to the funding because an NSPO request had not been received within the statutory time limit.

On November 24, 1998, you forwarded COMB's September 28, 1998, appeal of FEMA's determination that its application was closed. The applicant cited 44 CFR 206.204(e) as its justification for the appeal and reiterated its request for additional funding of $28,453. The DRM responded on January 27, 1999, agreeing that the applicant provided sufficient documentation to support the position that its application was not closed. However, the request for additional funding was denied because the applicant had performed an improved project in the repair of the structure and, therefore, pursuant to 44 CFR 206.203 (d)(1), funding for the project was limited to the approved estimated cost.

In the second appeal, the applicant presented no justification for FEMA to fund the overrun. The supporting documentation provided by the applicant consisted only of brochures showing the importance of the Cachuma Project to the region. COMB remained silent for almost 18 months before requesting additional funding and identified an overrun only when it submitted the project completion documents. It claimed in the first appeal that it delayed reporting the overrun because it had an extension on another project (DSR 39631). Even if FEMA grants an extension of a small project because of extenuating circumstances, this does not relieve an applicant of the requirement to make a timely report of overruns on other small projects.

Our review of the project showed that the applicant performed an improved project in repairing the damage. The construction of a retaining wall is clearly an ineligible improvement over the predisaster condition. An improved project caps funding on the project at the estimated cost for eligible work. I am denying the applicant's request for $28,453. However, I have determined that the use of rip rap over the fill material was a reasonable method of repair and, consequently, I am approving $1,638 for the cost of 10.5 cubic yards of grouted rip rip to be placed over the fill. By copy of this letter I am requesting the Regional Director to prepare a supplemental DSR to provide this funding.

Please inform the subgrantee of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.

Sincerely,

/S/

Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

cc: Martha Z. Whetstone
Regional Director
FEMA Region IX