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Debris Removal

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1731-DR
ApplicantCity of Poway
Appeal TypeSecond
PA ID#073-58520-00
PW ID#NA
Date Signed2009-12-16T05:00:00

                 SECOND APPEAL BRIEF
FEMA-1731-DR-CA
City of Poway, PA ID 073-58520-00
Debris Removal

Citation:         FEMA-1731-DR-CA, City of Poway, Debris Removal

Cross

Reference:      Debris Removal

Summary:        On January 4, 2008, FEMA amended the wildfire       declaration to expand the incident type for the disaster to include flooding, mudflows, and debris flows directly related to the wildfires.  The amendment stated that only those areas that the Federal Coordinating Officer (FCO) determined on a case-by-case basis to be damaged or adversely affected would be eligible.  FEMA prepared multiple PWs for the City of Poway (Applicant) for damage sustained as a result of the wildfires.  However, FEMA determined that $196,654 associated with mud and debris flows was ineligible.      

                            The Applicant submitted its first appeal June 16, 2008, arguing that it was inundated with mud, debris, and sediment that flowed into check dams and Lake Poway, the community’s main source of drinking water.  The Applicant claimed that the cost of performing the emergency debris removal totaled $196,654. The Applicant asserted that it was not reasonable for FEMA to determine that only the La Jolla and Rincon Band of Luiseno Indians warranted inclusion under the amendment.                                                                      In a letter dated January 29, 2009, the Acting Regional Administrator denied the appeal, stating that the Applicant did not provide sufficient documentation to establish that the event impacted the Applicant to such extent and intensity as to warrant inclusion under Amendment Number Two.  

                     In a letter dated April 17, 2009, the Applicant submitted its second appeal, reasserting its original argument that the damage sustained and the work performed are eligible for reimbursement under Amendment Number Two.  Further, the Applicant claimed in its second appeal that the revised total for the work performed is $298,024.

Issues:         Is the post-fire debris removal work that the Applicant performed eligible under the amended declaration for public assistance?  

Findings:      No.

Rationale:    44 CFR §206.31-40; 44 CFR §206.223, General work eligibility
                  

Appeal Letter

December 16, 2009

 

  

Frank McCarton

Governor’s Authorized Representative

California Emergency Management Agency

3650 Schriever Avenue

Mather, California 95655

 

Re:    Second Appeal–City of Poway, PA ID 073-58520-00, Debris Removal,

         FEMA-1731-DR-CA

 

Dear Mr. McCarton:

 

This letter is in response to your letter dated June 4, 2009, which transmitted the referenced second appeal on behalf of the City of Poway (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $196,654 for post-fire debris removal costs.

Severe wildfires damaged and destroyed several hundred acres in San Diego County from October 2007 to January 2008.  The President declared a major disaster for the fires on October 24, 2007.  As a result of rainfall that occurred November 30, 2007, FEMA published Amendment Number Two to the declaration on January 4, 2008, to expand the incident type for the disaster to include flooding, mudflows, and debris flows directly related to the wildfires.  The amendment stated that the Federal Coordinating Officer (FCO) would determine on a case-by-case basis the areas that were eligible for assistance under the amendment.  FEMA initially prepared multiple PWs for the Applicant for damage sustained as a result of the wildfires. 

In its first appeal dated June 16, 2008, the Applicant claimed that it incurred damage to its public facilities totaling $196,654 when it was inundated with mud, debris, and sediment from denuded hillsides as a direct result of the October wild fires.  The Applicant stated that this occurred following heavy rain from November 2007 through February 2008, which triggered the debris and mudflow from the compromised burned watershed.  The Applicant asserted that it was not reasonable for FEMA to determine that only the La Jolla and Rincon Band of Luiseno Indians warranted inclusion under the amendment.  The Acting Regional Administrator denied the first appeal January 29, 2009, stating that the Applicant did not submit sufficient documentation to establish that the event impacted the Applicant to such an extent and intensity as to warrant inclusion under the amended declaration. 

The Applicant transmitted information related to its second appeal on April 17, 2009.  The Applicant reiterates its request for reimbursement of debris removal costs, with a revised total of $298,024, and reasserts its original argument.  The Applicant submitted invoices from contractors that show a total of $101,371 that the Applicant indicated that it paid for services related to mudflow debris.  Additionally, the Applicant submitted various weather and reservoir reports for the time period at issue describing the heavy rains in the Applicant’s county. 

The amended declaration authorized the FCO to determine eligibility for those areas damaged or adversely affected as a direct result of the compromised watershed conditions on a case-by-case basis.  The Applicant has not provided sufficient documentation to establish that post-fire rain events impacted the Applicant to such an extent and intensity to warrant inclusion under the amendment.  I have reviewed the information submitted with the appeal and have determined that the Acting Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy.  Accordingly, I am denying the second appeal.

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

Sincerely,

/s/           

Elizabeth A. Zimmerman

Assistant Administrator

Disaster Assistance Directorate

cc:     Nancy Ward

Regional Administrator

FEMA Region IX