Removal of Soil Debris from State Highway #299

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	FEMA-1044-DR
Applicant	California Department of Transportation
Appeal Type	Second
PA ID#	000-92005
PW ID#	16163
Date Signed	1997-08-15T04:00:00

Citation: FEMA-1044-DR-CA; California Department of Transportation; DSR 16163

Cross-Reference: FHWA, Specific authority, eligibility, Sand, Debris

Summary: 1995 winter rain storms caused flooding and erosion of California State Highway #299, a FHWA Roadway. To minimize the effects of flooding and surface runoff, Caltrans installed a temporary sand bag barrier (nine tons of sand). Debris was removed from behind the barrier by Caltrans using their force account labor. DSR 16163 was written in the amount of $3,050 to reimburse the applicant for costs for associated materials and equipment. However, as the roadway was found to be under the jurisdiction of the FHWA, the scope of work was determined to be ineligible by FEMA.

Caltrans submitted a first appeal, contending that in accordance with the FHWA regulations, costs for the work mentioned in the DSR 16163 was not eligible. Caltrans requested FEMA to reimburse the money. FEMA requested that Caltrans first apply for assistance with FHWA and indicated that if FHWA denied Canltrans' request, then FEMA would consider the project for eligibility under the FEMA program.

Caltrans approached FHWA for assistance. In a letter addressed to Caltrans, FHWA replied that the work mentioned in the DSR was not eligible for FHWA's assistance. With the copy of FHWA's letter, Caltrans submitted a second appeal to FEMA asking FEMA to reconsider the eligibility of the work mentioned in the DSR 16163.

Issues: As a FHWA highway, are the sand bagging efforts reported in DSR 16163 eligible for FEMA funding?

Findings: YES. Two reasons: (1) Funding for this work is not eligible within the FHWA ER program; and (2) the subgrantee has demonstrated that the work was necessary to reduce an immediate threat.

Rationale: (1) FEMA may provide assistance for emergency measures to FHWA roadways when assistance is not otherwise available from the FHWA. (2) Emergency protective measures are eligible for assistance when an immediate threat exists. 44 CFR 206.226(a)(1), 44 CFR 206.224 and 44 CFR 206.225

Appeal Letter

Appeal Analysis

BACKGROUND
The winter 1995 storm caused damages to California State Highway #299. Highway #299 is a two-lane asphalt road that originates near the town of Arcata on the west and meets Interstate Highway I-5 at Redding to the east. The Federal Highway Administration (FHWA) has the specific authority over this highway. The damaged site area, south of the right-of-way of the highway, consists of a high bluff of soft rock mixed with soil, which can be easily eroded. The heavy rain and surface run-off caused erosion and slip outs along the face of the bluff. The California Department of Transportation (Caltans) installed a temporary sand bag barrier (nine tons of sand was used in the barrier sand bags) along the south shoulder of the road (approximately 100 lineal feet) to prevent soil and rocks from getting on the driving surface of the road. The construction created a `channel' at the toe of the bluff such that Caltrans could then clean out the debris from behind the sand bag barrier and keep the road open to the traveling public.

Caltrans subsequently collected the erosion debris at the toe of the bluff and disposed of it. No regular labor costs nor overtime labor costs were recorded. DSR 16163 was prepared to reimburse $3,050 for equipment and material costs incurred for the debris removal. During the review, FEMA determined that the site is a major collector roadway and is under the specific authority of the FHWA. On that basis, the DSR was determined ineligible.

First Appeal
With a January 16, 1996, letter, the State of California Governor's Office of Emergency Services (State) transmitted the subgrantee's December 6, 1995, letter appealing the denial of work items on DSR 16163. The reason stated by FEMA for non-eligibility is that the work was under the jurisdiction of the FHWA. The applicant mentions that in accordance with the FHWA's Emergency Relief (ER) Manual, "heavy maintenance" is not eligible and is excluded from the ER program. The subgrantee believed that FEMA should consider the work eligible for the following reasons:

1. The damaged site is not eligible for assistance by the FHWA and therefore, should be eligible for FEMA assistance.
2. The debris removal activities were necessary to alleviate an immediate threat, satisfying the eligibility criteria for debris removal defined in 44 CFR 206.224. With reference to these criteria, the subgrantee contends that the debris removal was necessary to:
   
   1. remove an immediate threat to the safety of the motoring public;
   2. protect the public-owned State highway from additional damage;
   3. ensure the economic recovery of nearby communities because the timely delivery of goods and services is dependent upon an open and fully functional transportation system.
3. The subgrantee says that this property and the project meet the eligibility requirements as outlined in 44 CFR 206.225(a)(1) and 44 CFR 206.251(a).

FEMA denied the subgratee's first appeal. FEMA mentioned that the review of the documentation indicated that the cost estimate for DSR 16163 is greater than the FHWA's minimum costs criteria, and therefore the subgrantee should apply for FHWA funding.

Second Appeal
The State's January 27, 1997, letter transmitted the subgrantee's October 16, 1996 second appeal of DSR 16163 to FEMA. Caltrans explains that the specific reason for FEMA's disapproval of federal assistance was that the damaged site falls under the jurisdiction of the FHWA. Caltrans has attached a letter written from FHWA to Caltrans which states that the debris removal project was determined ineligible (by FHWA) for ER funding in accordance with 23 CFR 668.109(c). According to FHWA, the site in question had relatively minor emergency work or debris removal efforts performed by Caltrans Maintenance forces; therefore, the work was ineligible for ER funding.

The subgrantee asserts that since FHWA has clearly indicated that it lacks the authority to fund the emergency work performed, FEMA assistance should be available.

DISCUSSION
DSR 16163 (Category A), written for $3,050, was determined ineligible by FEMA because it was determined that FHWA had jurisdiction of Highway #299. FEMA advised Caltrans to notify FHWA regarding this damaged site. The primary issue of the second appeal is to determine whether FEMA should fund the debris removal work performed by the subgrantee. Along with the second appeal, the subgrantee has submitted a copy of the letter from FHWA which mentions that FHWA does not consider the work eligible because the site had relative minor emergency work or debris removal performed by Caltrans.

44 CFR 206.226 (a) (Assitance under other Federal Agency) mentions that "generally disaster assistance will not be made available under the Stafford Act when another federal agency has specific authority to restore facilities damaged or destroyed by an event which is declared a major diasaster." FEMA's Public Assistance Guide (FEMA 286, September 1996) states that "Debris may be cleared from roads and highways including the travel lanes and shoulders, roadside ditches and drainage structures, and the maintained right-of-way. Clearance from federal-aid roads and highways will follow these criteria except when the Emergency Relief program of the Federal Highway Administration is activated."

CONCLUSION
The debris accumulated on Highway #299 as a result of 1995 winter storm was removed by Caltrans as an emergency measure to protect the safety of the public. In accordance with 44 CFR 206.224 and 44 CFR 206.225, work described on DSR 16163 is eligible for federal assistance. Therefore, Caltrans' second appeal of DSR 16163 is approved.