N/A
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1044-DR-CA and 1046-DR-CA; Alameda County; Multiple DSRs
Cross-Reference: Flood Control Works Policy, USACE Levee Program
Summary: As a result of the severe winter storms of 1995, various flood control channels in Alameda County were damaged. The Alameda County Flood Control and Water Conservation District requested FEMA assistance. Consequently, FEMA prepared 46 DSRs to document the damages. The reported damages consisted of erosion of road surfaces, channel banks, and inverts and scouring of riprap from channel drop structures. Each DSR was prepared as "Cat D", except DSRs 20032 (Cat C) and 64516 (Cat B). During review, the Levee Task Force concluded that 26 channels met the USACE definition of a flood control work (FCW). However, because the review incorrectly identified the remaining 20 DSRs as drainage channels, those DSRs were found to be eligible and funding was obligated. The subgrantee appealed the determination that the eligible channel repairs did not include their repair standards. In response, the Regional Director conducted a detailed review and concluded that the 20 channels that had initially been found eligible, also met the USACE definition of an FCW. Accordingly, 20 DSRs were prepared to de-obligate funding. The first appeal response also addressed several individual DSRs which were found ineligible for other reasons, such as the total eligible cost was less than $1,000 and emergency work was found to exceed the eligible scope for "Cat B" work. These determinations were appealed by the subgrantee in their second appeal. Also in their second appeal, the subgrantee contends that FEMA's implementation of the Federal Levee Policy resulted in the ineligibility of their FCWs for FEMA assistance.
Issues:
Findings:
Rationale: The USACE has statutory authority to repair flood control works. FEMA does not fund works that fall under another agency's authority pursuant to 44 CFR 206.226 and the Flood Control Works Policy. This is true whether or not USACE provides any funding for the project.
Due to the severe winter storms and flooding that occurred in January and February of 1995, various flood control channels in Alameda County were damaged. The Alameda County Flood Control and Water Conservation District requested Federal Emergency Management Agency (FEMA) assistance for restoration of these channels. Inspection teams visited each damaged facility to document damages and prepare damage survey reports (DSRs). A summary of the channels and particular DSRs addressed in this appeal response is enclosed. It is noted that of the 66 DSRs in this appeal, 46 were prepared in response to the initial site inspections. The remaining 20 DSRs were prepared to de-obligate funding subsequent to the first appeal review.
For the DSRs discussed herein, the reported damages occurred to components of the channels themselves, including access roads and other various appurtenances. Damages generally consisted of erosion of channel banks or road surfaces, scouring of riprap from channel drop structures, and erosion along channel inverts. At the time of the site inspections (April through September 1995), repair of the damaged channels had not been initiated, with the exception of DSRs 64515 and 64516. The scope of work presented on the 46 DSRs was to restore the various facilities to their pre-disaster condition and all DSRs were prepared as Category "D", permanent restoration, except DSRs 20037 (Category "C") and 64516 (Category "B").
During review, the regional staff concluded that the subgrantee's channel repair standards were not eligible for funding, and thus limited the scope of repair to the pre-disaster design. Further, the Federal Interagency Levee Task Force conducted a review of each DSR and concluded that 26 of the channels met the United States Army Corps of Engineers' (USACE) definition of a flood control work (FCW). Accordingly, FEMA denied funding for those DSRs. However, the Levee Task Force review incorrectly identified the remaining 20 DSRs as local drainage channels. Consequently, these DSRs were found to be eligible and funding was obligated.
First appeal
The subgrantee submitted first appeals in various letters dated from April through November 1996. The subgrantee and the California Governor's Office of Emergency Services (OES) appealed FEMA's determination that the subgrantee's channel repair standards did not satisfy eligibility criteria and that restoration funding for certain channels would be under the specific authority of the USACE.
In response to the appeal, the Regional Director conducted a detailed review of every DSR and determined that all of the channels were FCWs and, therefore, ineligible for FEMA funding. Accordingly, 20 DSRs were prepared to de-obligate funding for restoration of these facilities. The Regional Director stated that, in accordance with the Federal interagency agreement between FEMA, the USACE and the Natural Resources Conservation Service (NRCS), FEMA will not fund permanent restoration of water control facilities that meet the USACE definition of an FCW.
The first appeal response also addressed five individual DSRs, which were found ineligible for other reasons, such as the total eligible cost was less than the $1,000 minimum and emergency work was found to exceed the eligible scope for Category B work. Also, DSR 20037, which was prepared to cover repairs to the asphalt base of a channel access road, was only partially de-obligated because some of the work was determined to be eligible. These DSRs were discussed separately in the Regional Director's response to OES. The determinations of ineligibility for these DSRs were disputed in the subgrantee's second appeal and are, therefore, discussed later in this analysis.
Second Appeal
OES forwarded the subgrantee's second appeal in a letter dated April 30, 1997. The primary issue of the appeal is regarding FEMA's implementation of the Federal Levee Policy, which the subgrantee contends resulted in the ineligibility of the various flood control facilities for FEMA assistance. Additionally, the subgrantee is appealing the individual determinations of ineligibility of several DSRs that were addressed in the Regional Director's response to the first appeal. The issues associated with these individual DSRs are discussed separately below.
DISCUSSION
The subgrantee asserts that there was a change in FEMA's implementation of the Federal Levee Policy during the course of the disaster and that they were misled by FEMA inspectors to believe that FEMA funding would be available. In support of this assertion, the subgrantee provided documentation from the USACE and NRCS to establish that the channels are not eligible for restoration funding from these agencies. In the absence of funding from the USACE or NRCS, the subgrantee believes that the flood control channels are eligible for FEMA assistance. However, it is noted that the subgrantee does not contest the determination that the channels meet the USACE definition of an FCW.
In response to the subgrantee's contention that they were misled by FEMA inspectors, it should be noted that the purpose of the field inspection is to document any apparent damage as reported by the subgrantee, and to make a recommendation relative to eligibility. Neither the FEMA field inspectors, nor the State or subgrantee's representatives, are authorized to make final judgement relative to facility or project scope eligibility.
The main issue governing the eligibility of every DSR in this appeal concerns FEMA's implementation of their policy for funding FCWs. FEMA's approach to repairing FCWs is articulated in the Federal Levee Policy, which FEMA adhered to following the 1995 winter floods. The Federal Levee Policy was clarified and reissued in 1993 and in 1996, FEMA renamed it "The Policy for Rehabilitation Assistance for Levees and Other Flood Control Works" (hereinafter, Flood Control Works Policy). The policy states that "Levees that do not meet USACE or Natural Resource Conservation Service (NRCS) definitions of a `flood control work' may be considered by FEMA." This means that permanent restoration of any facility that meets the USACE definition of an FCW is not eligible for FEMA funding, regardless of its participation status in USACE or NRCS programs. To better understand the intent of the Flood Control Works Policy, a discussion of the policy and the roles of FEMA, the USACE and the NRCS in providing restoration assistance is provided below. Also, I have enclosed a copy of the 1993 Policy and 1996 revision.
Congress authorized both FEMA and the USACE to fund repairs to FCWs. When two Federal agencies are authorized to perform the same function, the agencies must determine the best way to implement public policy consistent with congressional intent. In the present case, the USACE has a specific program that encourages owners of FCWs to build/upgrade their facilities to specific standards and maintain them on a regular basis to ensure that they perform as designed. If FCWs meet USACE requirements and are active participants in its program at the time of the disaster, USACE will fund repairs to those facilities when they are damaged during an unusual event, for example, a flood that is declared a major disaster by the President.
When carrying out its responsibilities under the Stafford Act, FEMA must work with other Federal agencies to provide disaster assistance to applicants without undermining the programs of the other agencies. All Federal agencies must work together towards a common goal - assisting victims and eligible applicants in recovering from the devastating effects of disasters as quickly as possible. The USACE provides assistance to owners of FCWs who have committed to certain actions that ensure the integritypacipating in the USACE program, there would be little incentive to join. The incentive to join the USACE program results in better maintained FCWs and, consequently, better protection for the public.
Further, we disagree that there was a change in FEMA's implementation of the Flood Control Works Policy during the course of the disaster. As indicated above, the Flood Control Works Policy has been in effect for some time. The USACE was actively implementing its programs immediately after the disasters (DR-1044 and 1046). Further, a Federal interagency Levee Task Force composed of FEMA, USACE, and NRCS representatives were present during the disaster and evaluated many of the DSRs involving water control facilities to determine if they were FCWs and under whose authority, if any, they were eligible for repairs. Although some channels may have initially been considered eligible for permanent restoration funding when it was not known that they were FCWs, such funding was generally de-obligated when the function of the channels was correctly identified.
The channels under appeal meet the USACE definition of an FCW and are, therefore, ineligible for FEMA permanent restoration funding. The eligibility of several DSRs, which the subgrantee has addressed specifically, is discussed below. However, these DSRs also pertain to work performed on ineligible facilities (FCWs), so the purpose of their discussion is simply for clarification.
DSR 64518 - Debris removal from an FCW
During review of the subgrantee's first appeal, the Regional Director determined that the debris removal work associated with DSR 64518 would be eligible for FEMA funding pending submission of maintenance records. The subgrantee contends in their second appeal that there are no such records because the facility had not experienced any deposition of debris prior to the disaster, as it was designed to be "self-cleaning". The subgrantee is now requesting Category "D" permanent restoration funding for the work.
In order for FEMA to fund Category "A" debris removal from an engineered channel, the pre-disaster level of debris must be established. In this case, the subgrantee has not provided sufficient documentation establishing the pre-disaster level of debris. Alternatively, the work may be eligible for Category "D" permanent restoration funding if the work was performed on an eligible facility. However, the facility is ineligible, as it is an FCW. Therefore, the work is not eligible for any FEMA funding.
DSR 64516 - Various completed repairs to an FCW
DSR 64516 was prepared as a Category "B" emergency protective measure and was changed to Category "D" upon review. The work was completed by contract prior to the site inspection and it includes repairs to a sinkhole and placement of riprap along channel banks and several drop structures. The subgrantee contends that this work was emergency work. However, they have not established an immediate threat to public health and safety or improved property. Further, the work is not eligible for permanent restoration funding because it is an FCW.
DSR 15147 - Below minimum for DSRs
DSR 15147 was prepared for $1,165 to cover permanent restoration to a channel bank. Upon review, the eligible scope of work was reduced, yielding a new total of $759. Because the revised funding was less than the $1,000 minimum for DSRs, the work was determined ineligible. The subgrantee contends that the revised DSR does not conform to their standards for such repairs, and that the work requires $1,165 of FEMA funding. However, the damaged facility is an FCW. Permanent restoration of FCWs is not eligible for FEMA funding and the work is, therefore, ineligible regardless of the dollar amount.
DSRs 20052 and 64517 - Administrative, engineering and geotechnical services
DSRs 20052 and 64517 were prepared to cover the costs for a consulting/geotechnical engineering contractor that was retained by the subgrantee to provide technical services related to disaster recovery. The work performed by the contractor included disaster grant management and engineering and design services. The subgrantee considers the services of the contractor necessary because they were beyond the capabilities of their own staff. They further contend that the work should be funded by FEMA because "it is not covered by the statutory administrative cost."
Pursuant to section 406(f)(1) of the Stafford Act, necessary costs of requesting, obtaining, and administering Federal disaster assistance subgrants will be covered by a statutory administrative allowance based on the percentage of eligible work. The disaster grant management work performed by the subgrantee's contractor is, therefore, ineligible for FEMA funding.
If any engineering or design services were necessary to restore the subgrantee's facilities to their pre-disaster condition, then individual DSRs would include such costs. Additional engineering and design services must be directly related to eligible work. Further, the subgrantee's flood control channels have been determined to be FCWs and, therefore, their permanent restoration is not eligible for FEMA funding. Accordingly, the engineering and design services associated with permanent restoration of the subgrantee's FCWs are also not eligible.
DSR 20037 - FCW patrol roads
DSR 20037 was prepared for $7,164 to cover restoration of a damaged channel bank and access road. Erosion occurred at three locations, undermining the bank beneath the road and washing-out the gravel surface on the road. The DSR was determined ineligible during review by the Levee Task Force because the facility is an FCW. A supplemental DSR was prepared during first appeal to de-obligate $6,084, leaving only the repairs to the asphalt base as eligible. The de-obligated repairs were determined to be ineligible because they were performed on the channel bank, which was considered part of the FCW. The subgrantee contends that the road is not an FCW and all restoration to this road is eligible for Category "C" permanent restoration funding.
A review of the documentation submitted demonstrates that the service road is located parallel and immediately adjacent to the channel at the top of the bank, and is within the designed cross-section of the engineered channel. Accordingly, the road is considered part of the designed flood control facility. Further, it is understood that the purpose of the service road is to provide access to the channel for maintenance and other operational functions, such that the road is considered integral to the function of the flood control facility. Based on conversations with the USACE, it is understood that such roads are required for a flood control facility to be enrolled in the USACE program. Accordingly, such roads are considered part of the FCW and are potentially eligible for restoration within the USACE PL 84-99 Program. Therefore, the road is not eligible for FEMA permanent restoration funding.
Because the road repairs are not eligible for funding, the obligated portion ($1,080) of DSR 20037 will be de-obligated. Additionally, DSR 20032 was prepared for $3,250 to cover similar access road repairs at Tassojaro Creek. This DSR was determined ineligible during initial review because the facility was determined to be an FCW. During first appeal, however, supplemental DSR 83830 was prepared as Category "C" to obligate funding. The first appeal determination was incorrect, as it failed to consider the fact that the road is part of the FCW as described above. Therefore, DSR 83830 will be de-obligated.
CONCLUSION
I have reviewed the appeals and have determined that all of the damaged facilities associated with this appeal meet the USACE definition of an FCW. PA fuhat the repairs to channel access roads are also not eligible. Therefore, I am denying the appeal and funding will be de-obligated ($4,330) for the access road repairs.
Enclosure 1
Summary of appealed DSRs
Appeal Brief
| Disaster | FEMA-1044-DR |
| Applicant | Alameda County |
| Appeal Type | Second |
| PA ID# | 001-91017 |
| PW ID# | Multiple |
| Date Signed | 1997-11-04T05:00:00 |
Cross-Reference: Flood Control Works Policy, USACE Levee Program
Summary: As a result of the severe winter storms of 1995, various flood control channels in Alameda County were damaged. The Alameda County Flood Control and Water Conservation District requested FEMA assistance. Consequently, FEMA prepared 46 DSRs to document the damages. The reported damages consisted of erosion of road surfaces, channel banks, and inverts and scouring of riprap from channel drop structures. Each DSR was prepared as "Cat D", except DSRs 20032 (Cat C) and 64516 (Cat B). During review, the Levee Task Force concluded that 26 channels met the USACE definition of a flood control work (FCW). However, because the review incorrectly identified the remaining 20 DSRs as drainage channels, those DSRs were found to be eligible and funding was obligated. The subgrantee appealed the determination that the eligible channel repairs did not include their repair standards. In response, the Regional Director conducted a detailed review and concluded that the 20 channels that had initially been found eligible, also met the USACE definition of an FCW. Accordingly, 20 DSRs were prepared to de-obligate funding. The first appeal response also addressed several individual DSRs which were found ineligible for other reasons, such as the total eligible cost was less than $1,000 and emergency work was found to exceed the eligible scope for "Cat B" work. These determinations were appealed by the subgrantee in their second appeal. Also in their second appeal, the subgrantee contends that FEMA's implementation of the Federal Levee Policy resulted in the ineligibility of their FCWs for FEMA assistance.
Issues:
- Are the repairs to these FCWs eligible for FEMA assistance?
- Should FEMA overturn any of their first appeal determinations for the individually appealed DSRs?
Findings:
- No. The damaged facilities meet the USACE definition of an FCW and are, therefore, ineligible for FEMA funding.
- No. The documentation provided by the applicant does not support the applicant's position that these DSRs are eligible for FEMA funding.
Rationale: The USACE has statutory authority to repair flood control works. FEMA does not fund works that fall under another agency's authority pursuant to 44 CFR 206.226 and the Flood Control Works Policy. This is true whether or not USACE provides any funding for the project.
Appeal Letter
November 4, 1997
Ms. Nancy Ward
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 239013
Sacramento, California 95823
Dear Ms. Ward:
This letter is in response to your April 30, 1997, submittal of Alameda County's second appeal of 66 damage survey reports (DSRs) under FEMA-1044-DR-CA and 1046-DR-CA. These DSRs were prepared to cover the costs associated with restoration of flood control channels throughout Alameda County.
I have reviewed the appeals and have determined that all of the damaged facilities meet the USACE definition of a flood control work (FCW). Pursuant to the Flood Control Works Policy, FCWs are not eligible for FEMA funding. Further, I have determined that the repairs to channel access roads are also not eligible. The access roads are part of the FCW and are potentially eligible for restoration within the USACE PL 84-99 Program. For these reasons and the reasons discussed in the enclosed appeal analysis I am denying the appeal. Funding will be de-obligated ($4,330) for the access road repairs described in DSRs 20037 and 83830 (supplemental to 20032). The Regional Director will take appropriate action to implement this determination.
Please inform the subgrantee of my determination. The subgrantee may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
Ms. Nancy Ward
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 239013
Sacramento, California 95823
Dear Ms. Ward:
This letter is in response to your April 30, 1997, submittal of Alameda County's second appeal of 66 damage survey reports (DSRs) under FEMA-1044-DR-CA and 1046-DR-CA. These DSRs were prepared to cover the costs associated with restoration of flood control channels throughout Alameda County.
I have reviewed the appeals and have determined that all of the damaged facilities meet the USACE definition of a flood control work (FCW). Pursuant to the Flood Control Works Policy, FCWs are not eligible for FEMA funding. Further, I have determined that the repairs to channel access roads are also not eligible. The access roads are part of the FCW and are potentially eligible for restoration within the USACE PL 84-99 Program. For these reasons and the reasons discussed in the enclosed appeal analysis I am denying the appeal. Funding will be de-obligated ($4,330) for the access road repairs described in DSRs 20037 and 83830 (supplemental to 20032). The Regional Director will take appropriate action to implement this determination.
Please inform the subgrantee of my determination. The subgrantee may submit a third appeal to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
Enclosure
Appeal Analysis
BACKGROUNDDue to the severe winter storms and flooding that occurred in January and February of 1995, various flood control channels in Alameda County were damaged. The Alameda County Flood Control and Water Conservation District requested Federal Emergency Management Agency (FEMA) assistance for restoration of these channels. Inspection teams visited each damaged facility to document damages and prepare damage survey reports (DSRs). A summary of the channels and particular DSRs addressed in this appeal response is enclosed. It is noted that of the 66 DSRs in this appeal, 46 were prepared in response to the initial site inspections. The remaining 20 DSRs were prepared to de-obligate funding subsequent to the first appeal review.
For the DSRs discussed herein, the reported damages occurred to components of the channels themselves, including access roads and other various appurtenances. Damages generally consisted of erosion of channel banks or road surfaces, scouring of riprap from channel drop structures, and erosion along channel inverts. At the time of the site inspections (April through September 1995), repair of the damaged channels had not been initiated, with the exception of DSRs 64515 and 64516. The scope of work presented on the 46 DSRs was to restore the various facilities to their pre-disaster condition and all DSRs were prepared as Category "D", permanent restoration, except DSRs 20037 (Category "C") and 64516 (Category "B").
During review, the regional staff concluded that the subgrantee's channel repair standards were not eligible for funding, and thus limited the scope of repair to the pre-disaster design. Further, the Federal Interagency Levee Task Force conducted a review of each DSR and concluded that 26 of the channels met the United States Army Corps of Engineers' (USACE) definition of a flood control work (FCW). Accordingly, FEMA denied funding for those DSRs. However, the Levee Task Force review incorrectly identified the remaining 20 DSRs as local drainage channels. Consequently, these DSRs were found to be eligible and funding was obligated.
First appeal
The subgrantee submitted first appeals in various letters dated from April through November 1996. The subgrantee and the California Governor's Office of Emergency Services (OES) appealed FEMA's determination that the subgrantee's channel repair standards did not satisfy eligibility criteria and that restoration funding for certain channels would be under the specific authority of the USACE.
In response to the appeal, the Regional Director conducted a detailed review of every DSR and determined that all of the channels were FCWs and, therefore, ineligible for FEMA funding. Accordingly, 20 DSRs were prepared to de-obligate funding for restoration of these facilities. The Regional Director stated that, in accordance with the Federal interagency agreement between FEMA, the USACE and the Natural Resources Conservation Service (NRCS), FEMA will not fund permanent restoration of water control facilities that meet the USACE definition of an FCW.
The first appeal response also addressed five individual DSRs, which were found ineligible for other reasons, such as the total eligible cost was less than the $1,000 minimum and emergency work was found to exceed the eligible scope for Category B work. Also, DSR 20037, which was prepared to cover repairs to the asphalt base of a channel access road, was only partially de-obligated because some of the work was determined to be eligible. These DSRs were discussed separately in the Regional Director's response to OES. The determinations of ineligibility for these DSRs were disputed in the subgrantee's second appeal and are, therefore, discussed later in this analysis.
Second Appeal
OES forwarded the subgrantee's second appeal in a letter dated April 30, 1997. The primary issue of the appeal is regarding FEMA's implementation of the Federal Levee Policy, which the subgrantee contends resulted in the ineligibility of the various flood control facilities for FEMA assistance. Additionally, the subgrantee is appealing the individual determinations of ineligibility of several DSRs that were addressed in the Regional Director's response to the first appeal. The issues associated with these individual DSRs are discussed separately below.
DISCUSSION
The subgrantee asserts that there was a change in FEMA's implementation of the Federal Levee Policy during the course of the disaster and that they were misled by FEMA inspectors to believe that FEMA funding would be available. In support of this assertion, the subgrantee provided documentation from the USACE and NRCS to establish that the channels are not eligible for restoration funding from these agencies. In the absence of funding from the USACE or NRCS, the subgrantee believes that the flood control channels are eligible for FEMA assistance. However, it is noted that the subgrantee does not contest the determination that the channels meet the USACE definition of an FCW.
In response to the subgrantee's contention that they were misled by FEMA inspectors, it should be noted that the purpose of the field inspection is to document any apparent damage as reported by the subgrantee, and to make a recommendation relative to eligibility. Neither the FEMA field inspectors, nor the State or subgrantee's representatives, are authorized to make final judgement relative to facility or project scope eligibility.
The main issue governing the eligibility of every DSR in this appeal concerns FEMA's implementation of their policy for funding FCWs. FEMA's approach to repairing FCWs is articulated in the Federal Levee Policy, which FEMA adhered to following the 1995 winter floods. The Federal Levee Policy was clarified and reissued in 1993 and in 1996, FEMA renamed it "The Policy for Rehabilitation Assistance for Levees and Other Flood Control Works" (hereinafter, Flood Control Works Policy). The policy states that "Levees that do not meet USACE or Natural Resource Conservation Service (NRCS) definitions of a `flood control work' may be considered by FEMA." This means that permanent restoration of any facility that meets the USACE definition of an FCW is not eligible for FEMA funding, regardless of its participation status in USACE or NRCS programs. To better understand the intent of the Flood Control Works Policy, a discussion of the policy and the roles of FEMA, the USACE and the NRCS in providing restoration assistance is provided below. Also, I have enclosed a copy of the 1993 Policy and 1996 revision.
Congress authorized both FEMA and the USACE to fund repairs to FCWs. When two Federal agencies are authorized to perform the same function, the agencies must determine the best way to implement public policy consistent with congressional intent. In the present case, the USACE has a specific program that encourages owners of FCWs to build/upgrade their facilities to specific standards and maintain them on a regular basis to ensure that they perform as designed. If FCWs meet USACE requirements and are active participants in its program at the time of the disaster, USACE will fund repairs to those facilities when they are damaged during an unusual event, for example, a flood that is declared a major disaster by the President.
When carrying out its responsibilities under the Stafford Act, FEMA must work with other Federal agencies to provide disaster assistance to applicants without undermining the programs of the other agencies. All Federal agencies must work together towards a common goal - assisting victims and eligible applicants in recovering from the devastating effects of disasters as quickly as possible. The USACE provides assistance to owners of FCWs who have committed to certain actions that ensure the integritypacipating in the USACE program, there would be little incentive to join. The incentive to join the USACE program results in better maintained FCWs and, consequently, better protection for the public.
Further, we disagree that there was a change in FEMA's implementation of the Flood Control Works Policy during the course of the disaster. As indicated above, the Flood Control Works Policy has been in effect for some time. The USACE was actively implementing its programs immediately after the disasters (DR-1044 and 1046). Further, a Federal interagency Levee Task Force composed of FEMA, USACE, and NRCS representatives were present during the disaster and evaluated many of the DSRs involving water control facilities to determine if they were FCWs and under whose authority, if any, they were eligible for repairs. Although some channels may have initially been considered eligible for permanent restoration funding when it was not known that they were FCWs, such funding was generally de-obligated when the function of the channels was correctly identified.
The channels under appeal meet the USACE definition of an FCW and are, therefore, ineligible for FEMA permanent restoration funding. The eligibility of several DSRs, which the subgrantee has addressed specifically, is discussed below. However, these DSRs also pertain to work performed on ineligible facilities (FCWs), so the purpose of their discussion is simply for clarification.
DSR 64518 - Debris removal from an FCW
During review of the subgrantee's first appeal, the Regional Director determined that the debris removal work associated with DSR 64518 would be eligible for FEMA funding pending submission of maintenance records. The subgrantee contends in their second appeal that there are no such records because the facility had not experienced any deposition of debris prior to the disaster, as it was designed to be "self-cleaning". The subgrantee is now requesting Category "D" permanent restoration funding for the work.
In order for FEMA to fund Category "A" debris removal from an engineered channel, the pre-disaster level of debris must be established. In this case, the subgrantee has not provided sufficient documentation establishing the pre-disaster level of debris. Alternatively, the work may be eligible for Category "D" permanent restoration funding if the work was performed on an eligible facility. However, the facility is ineligible, as it is an FCW. Therefore, the work is not eligible for any FEMA funding.
DSR 64516 - Various completed repairs to an FCW
DSR 64516 was prepared as a Category "B" emergency protective measure and was changed to Category "D" upon review. The work was completed by contract prior to the site inspection and it includes repairs to a sinkhole and placement of riprap along channel banks and several drop structures. The subgrantee contends that this work was emergency work. However, they have not established an immediate threat to public health and safety or improved property. Further, the work is not eligible for permanent restoration funding because it is an FCW.
DSR 15147 - Below minimum for DSRs
DSR 15147 was prepared for $1,165 to cover permanent restoration to a channel bank. Upon review, the eligible scope of work was reduced, yielding a new total of $759. Because the revised funding was less than the $1,000 minimum for DSRs, the work was determined ineligible. The subgrantee contends that the revised DSR does not conform to their standards for such repairs, and that the work requires $1,165 of FEMA funding. However, the damaged facility is an FCW. Permanent restoration of FCWs is not eligible for FEMA funding and the work is, therefore, ineligible regardless of the dollar amount.
DSRs 20052 and 64517 - Administrative, engineering and geotechnical services
DSRs 20052 and 64517 were prepared to cover the costs for a consulting/geotechnical engineering contractor that was retained by the subgrantee to provide technical services related to disaster recovery. The work performed by the contractor included disaster grant management and engineering and design services. The subgrantee considers the services of the contractor necessary because they were beyond the capabilities of their own staff. They further contend that the work should be funded by FEMA because "it is not covered by the statutory administrative cost."
Pursuant to section 406(f)(1) of the Stafford Act, necessary costs of requesting, obtaining, and administering Federal disaster assistance subgrants will be covered by a statutory administrative allowance based on the percentage of eligible work. The disaster grant management work performed by the subgrantee's contractor is, therefore, ineligible for FEMA funding.
If any engineering or design services were necessary to restore the subgrantee's facilities to their pre-disaster condition, then individual DSRs would include such costs. Additional engineering and design services must be directly related to eligible work. Further, the subgrantee's flood control channels have been determined to be FCWs and, therefore, their permanent restoration is not eligible for FEMA funding. Accordingly, the engineering and design services associated with permanent restoration of the subgrantee's FCWs are also not eligible.
DSR 20037 - FCW patrol roads
DSR 20037 was prepared for $7,164 to cover restoration of a damaged channel bank and access road. Erosion occurred at three locations, undermining the bank beneath the road and washing-out the gravel surface on the road. The DSR was determined ineligible during review by the Levee Task Force because the facility is an FCW. A supplemental DSR was prepared during first appeal to de-obligate $6,084, leaving only the repairs to the asphalt base as eligible. The de-obligated repairs were determined to be ineligible because they were performed on the channel bank, which was considered part of the FCW. The subgrantee contends that the road is not an FCW and all restoration to this road is eligible for Category "C" permanent restoration funding.
A review of the documentation submitted demonstrates that the service road is located parallel and immediately adjacent to the channel at the top of the bank, and is within the designed cross-section of the engineered channel. Accordingly, the road is considered part of the designed flood control facility. Further, it is understood that the purpose of the service road is to provide access to the channel for maintenance and other operational functions, such that the road is considered integral to the function of the flood control facility. Based on conversations with the USACE, it is understood that such roads are required for a flood control facility to be enrolled in the USACE program. Accordingly, such roads are considered part of the FCW and are potentially eligible for restoration within the USACE PL 84-99 Program. Therefore, the road is not eligible for FEMA permanent restoration funding.
Because the road repairs are not eligible for funding, the obligated portion ($1,080) of DSR 20037 will be de-obligated. Additionally, DSR 20032 was prepared for $3,250 to cover similar access road repairs at Tassojaro Creek. This DSR was determined ineligible during initial review because the facility was determined to be an FCW. During first appeal, however, supplemental DSR 83830 was prepared as Category "C" to obligate funding. The first appeal determination was incorrect, as it failed to consider the fact that the road is part of the FCW as described above. Therefore, DSR 83830 will be de-obligated.
CONCLUSION
I have reviewed the appeals and have determined that all of the damaged facilities associated with this appeal meet the USACE definition of an FCW. PA fuhat the repairs to channel access roads are also not eligible. Therefore, I am denying the appeal and funding will be de-obligated ($4,330) for the access road repairs.
Summary of appealed DSRs
FEMA-1044-DR-CA | |||
15132 | 15134 | 15147 | 15148 |
15149 | 20015 | 64515 | 97469 |
FEMA-1046-DR-CA | |||
20016 | 20017 | 20018 | 20019 |
20024 | 20025 | 20026 | 20027 |
20028 | 20029 | 20030 | 20031 |
20032 | 20033 | 20034 | 20035 |
20037 | 20039 | 20040 | 20041 |
20042 | 20050 | 20051 | 20052 |
20053 | 64516 | 64517 | 64518 |
71407 | 71412 | 71413 | 71414 |
71415 | 71416 | 71417 | 71418 |
71419 | 71420 | 71421 | 83830 |
DE-OBLIGATION DSRs | |||
17147 | 27174 | 27175 | 27178 |
74490 | 74491 | 74492 | 74493 |
74494 | 74495 | 74496 | 74497 |
74498 | 74499 | 74500 | 97153 |
97154 | 99225 | ||
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