Salton Sea Dikes
Appeal Brief
Appeal Letter
Appeal Analysis
1. PURPOSE: Respond to the third appeal submitted by the Imperial Irrigation District for the emergency protective measures relating to the Salton Sea dikes.
2. DISCUSSION: As a result of the winter storms of 1995, dikes were nearly over-topped at the Imperial Irrigation District's (IID) Salton Sea. IID claimed these conditions posed an immediate threat of flooding to the surrounding properties. The Sea is retained by 17.3 miles of earthen levees and the surrounding properties are mostly agricultural. Damage Survey Report (DSR) 39701 was prepared for $2,426,694 to cover emergency protective measures and DSR 39702 was prepared for $0 to document no eligible damage under FEMA-1046-DR-CA. DSR 39701 was determined ineligible on the basis that that lake levels did not change significantly over previous years and that there was uncertainty as to legal responsibility for the facilities. The first appeal was denied because IID did not have legal responsibility and the threat was not disaster related. The second appeal was denied because the threat of flooding was a pre-disaster condition. The IID is requesting that $3,313,148 be funded for emergency protective measures and permanent restoration. The third appeal should be partially denied, as the measures undertaken were permanent in nature and are not entirely disaster related. However, sandbagging efforts should be considered eligible. Additionally, documentation submitted does not support that any eligible restoration work should be granted.
3. RECOMMENDED ACTION: Sign letter to Governor's Authorized Representative denying this appeal.
BACKGROUND
The Salton Sea is an inland salt-water lake located in southeastern California in Imperial and Riverside Counties. It is the largest lake in California encompassing an area nearly 36 miles long by 9 to 15 miles wide. It has a water surface elevation of approximately 220 feet below sea level and has no natural outlets. The water level of the Salton Sea has been historically controlled by agricultural drainage from irrigation in the Imperial and Coachella Valleys. Agricultural and industrial drainage flows from Mexico also contribute to the lake. The surrounding properties are used primarily for agricultural purposes, but also include several trailer home communities and geothermal power plants. The Salton Sea is under the jurisdiction of and maintained by the Imperial Irrigation District (IID).
Approximately 17.3 miles of earthen dikes retain the Salton Sea. As a result of the winter storms of 1995, the dikes were nearly over-topped as wind-related wave action caused the water surface elevation (WSEL) of the Salton Sea to approach the tops of the dikes. IID claimed that these conditions posed an immediate threat to the surrounding property and requested Federal Emergency Management Agency (FEMA) assistance in repairing the dikes and related facilities.
A Damage Survey Report (DSR) inspection team visited the site on three occasions to document the reported condition of the facility. The inspections revealed that the WSEL was nearly over-topping the dikes at most locations. Based on these inspections and review of available documentation, the inspectors determined that the lack of freeboard was a pre-existing condition caused by rising lake levels and that legal responsibility for the dikes was unclear. Further, the inspectors reported that the freeboard of the dikes had not changed significantly as a result of the disaster or from previous years.
On August 23, 1995, DSRs 39701 and 39702 were prepared to document emergency protective measures and the lack of eligible permanent restoration work, respectively. DSR 39701 was prepared as a Category "B" for $2,426,694 for the construction of new earthen dikes, raising of existing dikes, placement of riprap and sandbags, relocating electrical services, repairing a septic system, and protecting a boat ramp. DSR 39702 was prepared for zero dollars because there was no evidence of damage to any eligible facilities.
FEMA reviewers determined that DSR 39701 was ineligible for public assistance because the repairs were a continuation of existing plans to renovate the facility and most of the repairs were permanent repairs to private facilities. Further, IID did not maintain adequate freeboard prior to the disaster, i.e., the high-water condition was pre-existing.
First Appeal
IID submitted their first appeal which contended that all of DSR 39701 is eligible for FEMA assistance because the properties are the legal responsibility of the IID and that emergency protective measures were required because the disaster resulted in an immediate threat to improved property. Further, they contended that the documentation (IID's Exhibit `B') submitted identified damage overlooked by the inspection team. The Regional Director denied the appeal on the basis that "the IID did not have legal responsibility to perform the work described in DSRs 39701 and 39702" and the work was not required as a result of a disaster event.
Second Appeal
In their second appeal, again IID claimed they had legal responsibility for the facilities and that emergency measures were taken as a result of the disaster event and not because of pre-existing, sub-standard conditions of the dikes and drainage system. Additionally, they claimed that the disaster event resulted in a much higher WSEL than from previous annual flooding events. The IID stated that emergency measures taken during the disaster incident period far exceeded emergency measures normally taken during annual flood events. The Executive Associate Director denied the appeal because it was determined that the repairs performed by IID were not disaster related.
Third Appeal
IID has submitted a third appeal. They are requesting a total of $3,313,148. Most of the claim is for emergency protective measures related to what they term a "perceived" immediate threat due to the rapidly rising lake levels.
DISCUSSION
In their third appeal, IID raises essentially one issue. They claim that an immediate threat did exist and that the emergency protective measures undertaken were necessary. OES continues that argument. Additionally, OES raises several other issues. These include the following. First, because the emergency protective measures were completed within six months of the disaster, they should be eligible. Finally, as was claimed in the first and second appeal, OES claims that the FEMA inspector refused to inspect all the damages listed on IID's exhibit B.
Emergency Protective Measures:
In their appeal, the IID focuses on what they believe as prudent emergency measures and that an immediate threat did in fact exist. They state that the IID, ".perceived and acted on the basis that an `immediate threat' to people and property did, in fact, exist as a result of `the disaster'. They took many actions and incurred extensive costs all of which is well documented.". Further, they state that "The immediate threat, as perceived by IID personnel, translated (with hindsight) into Sea levels on April 19, 1995 of 3.6 inches higher than comparable dates in 1994 and 1993". They go on to say that had the measures not been undertaken, thousands of acres would have been flooded impacting people's lives and property. In other words, IID believes that in February 1995, the rising lake level was significant enough to warrant the emergency protective measures.
Emergency protective measures, eligible for FEMA assistance, are generally of a temporary nature (e.g., temporary levee or sandbagging) unless permanent repairs are proven more cost-effective. Further, all emergency work must be in accordance with FEMA policy for general work eligibility and emergency work pursuant to Title 44 of the Code of Federal Regulation (CFR) Sections 206.223 and 206.225(a). Additionally, 44 CFR 221(d) states that agricultural lands are not considered as improved property.
It would be reasonable to state that the perception of an immediate threat would be subjective at best. Generally, FEMA will be broad in their determination of eligibility when considering an applicant's interpretation of a disaster situation and the need for emergency measures. Typically, there will be some data or evidence, such as gauging station records, which will indicate the level of anticipated flooding and give the basis for the appropriate level of action. According to an undated report included as backup in DSR 39701, it was estimated that should the Salton Sea reach an elevation of 222 feet below sea level that approximately 5610 acres of land would be flooded. The report goes on to explain that current dike levels range from 226 to 219 feet below sea level. As discussed in the Second Appeal Analysis, the highest water surface elevation was 226.6 feet below sea level.
It is agreed that with water levels at 226.6 feet below sea level, an actual threat to the dikes being overtopped in certain locations (those with elevations of 226 feet below sea level) existed. In these instances, some overtopping due to wind related wave action could be expected. Therefore, it would be considered reasonable to perform emergency measures that are temporary in nature, such as sandbagging.
Beyond that, it is difficult to rationalize permanentis raising of the dikes was not entirely related to a rapid rise in water surface elevation caused by the disaster but rather a response to a long-standing problem of rising lake levels. This conclusion is based on several facts. The WSEL of Salton Sea has increased in the past decade and reached near peak elevation for the pre-disaster condition of the dikes from 1992 to 1995. Second, the increases in WSEL during the months of January to April of 1995 (0.6 feet) are approximately the same as those experienced in the two previous years for the same time period (0.7 feet each year). Additionally, it is important to note that the peak WSEL during the disaster was only 0.3 feet higher than that experienced for the two preceding years with lake levels in 1993 reaching 226.9 feet below sea level. As noted in the Second Appeal analysis, this data was obtained from the United States Geological Survey (USGS) observation unit (station number 10254005) in Westmorland, California. Yet, in 1993, no emergency protective measures, such as raising the dikes, were implemented. It is difficult to justify the expenditure of several million dollars based on the fact that in 1993, 0.9 feet of freeboard was sufficient but in 1995, 0.6 feet of freeboard was not. By IID's own admission, the measures implemented in 1995 far exceeded those implemented in previous years. Additionally, it is noted that approximately, 75 percent of the costs requested was for the protection of farmlands. Therefore, it is determined that the raising of the dike through protective measures.
A category B DSR will be prepared to fund sandbagging activities and the pumping of floodwaters in areas where improved property was at risk from water overtopping the dikes. It appears that sandbagging occurred in two areas only. These are Marina Mobile Estates Park and (sandbagging and pumping, $299, 160), Corvina Beach (sandbagging, a portion of $57,892), and Northshore Beach Estates (pumping, a portion of $153,282). Therefore, for Corvina Beach and Northshore Beach Estates, the eligible portion of the total cost will have to be separated.
Time Frame
The City raises the issue that because they performed the raising of the dikes within six months of the disaster declaration, this would constitute the eligibility of the work as emergency protective measures. Although 44 CFR 206.204 (c)(1) requires that emergency protective measures must be completed within six months of a disaster declaration, this in itself does not constitute eligibility of the measure. Pursuant to 44 CFR 206.225 (3), emergency protective measures must eliminate or reduce threats to live, public health or safety or eliminate or reduce the threat of significant damage to improved public or private property to be eligible. As discussed above, the threat of water overtopping the dikes could have been accomplished through less costly means, such as sandbagging.
Permanent Restoration:
DSR 39702 was prepared for zero dollars because it was determined that there was no eligible permanent restoration work for which the IID was legally responsible. The determination was based on the inspection team's observation that the dikes had not overtopped, therefore, no disaster damage occurred. The IID claimed that their Exhibit `B' provided evidence of damage. As noted in both the first and second appeal responses, Exhibit `B' provides no evidence of eligible damage. Therefore, IID's request for re-inspection and preparation of a new DSR to accommodate permanent restoration measures is denied.
CONCLUSION
The IID may have perceived an immediate threat during the disaster. However, the requested emergency protective measures (raises of the dikes) are not eligible for FEMA funding because they are permanent restoration and are beyond the intent of emergency protective measures. Additionally, they are not entirely disaster-related. However, portions of these measures (sandbagging and pumping of floodwaters) are eligible as discussed above. Accordingly, the appeal for funding of DSRs 39701 and 39702 is partially denied.
Appeal Brief
| Disaster | FEMA-1046-DR |
| Applicant | Imperial Irrigation District |
| Appeal Type | Third |
| PA ID# | 025-91000 |
| PW ID# | 39701 and 39702 |
| Date Signed | 1998-07-22T04:00:00 |
2. DISCUSSION: As a result of the winter storms of 1995, dikes were nearly over-topped at the Imperial Irrigation District's (IID) Salton Sea. IID claimed these conditions posed an immediate threat of flooding to the surrounding properties. The Sea is retained by 17.3 miles of earthen levees and the surrounding properties are mostly agricultural. Damage Survey Report (DSR) 39701 was prepared for $2,426,694 to cover emergency protective measures and DSR 39702 was prepared for $0 to document no eligible damage under FEMA-1046-DR-CA. DSR 39701 was determined ineligible on the basis that that lake levels did not change significantly over previous years and that there was uncertainty as to legal responsibility for the facilities. The first appeal was denied because IID did not have legal responsibility and the threat was not disaster related. The second appeal was denied because the threat of flooding was a pre-disaster condition. The IID is requesting that $3,313,148 be funded for emergency protective measures and permanent restoration. The third appeal should be partially denied, as the measures undertaken were permanent in nature and are not entirely disaster related. However, sandbagging efforts should be considered eligible. Additionally, documentation submitted does not support that any eligible restoration work should be granted.
3. RECOMMENDED ACTION: Sign letter to Governor's Authorized Representative denying this appeal.
Appeal Letter
July 22, 1998
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, 3rd Floor
Pasadena, California 91103
Dear Mr. Najera:
This letter is in response to your January 13, 1998, submittal of the Imperial Irrigation District's third appeal of Damage Survey Reports (DSRs) 39701 and 39702 under FEMA-1046-DR-CA. DSRs 39701 and 39702 were prepared to cover emergency protective measures and document the lack of eligible damage, respectively
After reviewing all submitted information, I have determined that the requested emergency protective measures are not eligible for FEMA funding because they are permanent restoration and are beyond the intent of emergency protective measures. Additionally, because the increased level of the Salton Sea was not solely caused by the disaster, they are not entirely disaster-related. However, I have determined that sandbagging activities in several locations was an eligible protective measure. By copy of this letter, I am requesting the Regional Director to prepare a Category B DSR. Also, I have determined that there was no disaster-related damage to the applicant's facilities. Therefore, I have denied this appeal for the reasons contained in the enclosed appeal analysis.
Please inform the applicant of my determination, which constitutes the final level of appeal in accordance with 44 CFR 206.206(e).
Sincerely,
/S/
James L. Witt
Director
Enclosure
cc: Martha Z. Whetstone
Regional Director
FEMA Region IX
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex, 3rd Floor
Pasadena, California 91103
Dear Mr. Najera:
This letter is in response to your January 13, 1998, submittal of the Imperial Irrigation District's third appeal of Damage Survey Reports (DSRs) 39701 and 39702 under FEMA-1046-DR-CA. DSRs 39701 and 39702 were prepared to cover emergency protective measures and document the lack of eligible damage, respectively
After reviewing all submitted information, I have determined that the requested emergency protective measures are not eligible for FEMA funding because they are permanent restoration and are beyond the intent of emergency protective measures. Additionally, because the increased level of the Salton Sea was not solely caused by the disaster, they are not entirely disaster-related. However, I have determined that sandbagging activities in several locations was an eligible protective measure. By copy of this letter, I am requesting the Regional Director to prepare a Category B DSR. Also, I have determined that there was no disaster-related damage to the applicant's facilities. Therefore, I have denied this appeal for the reasons contained in the enclosed appeal analysis.
Please inform the applicant of my determination, which constitutes the final level of appeal in accordance with 44 CFR 206.206(e).
Sincerely,
/S/
James L. Witt
Director
Enclosure
cc: Martha Z. Whetstone
Regional Director
FEMA Region IX
Appeal Analysis
BACKGROUND
The Salton Sea is an inland salt-water lake located in southeastern California in Imperial and Riverside Counties. It is the largest lake in California encompassing an area nearly 36 miles long by 9 to 15 miles wide. It has a water surface elevation of approximately 220 feet below sea level and has no natural outlets. The water level of the Salton Sea has been historically controlled by agricultural drainage from irrigation in the Imperial and Coachella Valleys. Agricultural and industrial drainage flows from Mexico also contribute to the lake. The surrounding properties are used primarily for agricultural purposes, but also include several trailer home communities and geothermal power plants. The Salton Sea is under the jurisdiction of and maintained by the Imperial Irrigation District (IID).
Approximately 17.3 miles of earthen dikes retain the Salton Sea. As a result of the winter storms of 1995, the dikes were nearly over-topped as wind-related wave action caused the water surface elevation (WSEL) of the Salton Sea to approach the tops of the dikes. IID claimed that these conditions posed an immediate threat to the surrounding property and requested Federal Emergency Management Agency (FEMA) assistance in repairing the dikes and related facilities.
A Damage Survey Report (DSR) inspection team visited the site on three occasions to document the reported condition of the facility. The inspections revealed that the WSEL was nearly over-topping the dikes at most locations. Based on these inspections and review of available documentation, the inspectors determined that the lack of freeboard was a pre-existing condition caused by rising lake levels and that legal responsibility for the dikes was unclear. Further, the inspectors reported that the freeboard of the dikes had not changed significantly as a result of the disaster or from previous years.
On August 23, 1995, DSRs 39701 and 39702 were prepared to document emergency protective measures and the lack of eligible permanent restoration work, respectively. DSR 39701 was prepared as a Category "B" for $2,426,694 for the construction of new earthen dikes, raising of existing dikes, placement of riprap and sandbags, relocating electrical services, repairing a septic system, and protecting a boat ramp. DSR 39702 was prepared for zero dollars because there was no evidence of damage to any eligible facilities.
FEMA reviewers determined that DSR 39701 was ineligible for public assistance because the repairs were a continuation of existing plans to renovate the facility and most of the repairs were permanent repairs to private facilities. Further, IID did not maintain adequate freeboard prior to the disaster, i.e., the high-water condition was pre-existing.
First Appeal
IID submitted their first appeal which contended that all of DSR 39701 is eligible for FEMA assistance because the properties are the legal responsibility of the IID and that emergency protective measures were required because the disaster resulted in an immediate threat to improved property. Further, they contended that the documentation (IID's Exhibit `B') submitted identified damage overlooked by the inspection team. The Regional Director denied the appeal on the basis that "the IID did not have legal responsibility to perform the work described in DSRs 39701 and 39702" and the work was not required as a result of a disaster event.
Second Appeal
In their second appeal, again IID claimed they had legal responsibility for the facilities and that emergency measures were taken as a result of the disaster event and not because of pre-existing, sub-standard conditions of the dikes and drainage system. Additionally, they claimed that the disaster event resulted in a much higher WSEL than from previous annual flooding events. The IID stated that emergency measures taken during the disaster incident period far exceeded emergency measures normally taken during annual flood events. The Executive Associate Director denied the appeal because it was determined that the repairs performed by IID were not disaster related.
Third Appeal
IID has submitted a third appeal. They are requesting a total of $3,313,148. Most of the claim is for emergency protective measures related to what they term a "perceived" immediate threat due to the rapidly rising lake levels.
DISCUSSION
In their third appeal, IID raises essentially one issue. They claim that an immediate threat did exist and that the emergency protective measures undertaken were necessary. OES continues that argument. Additionally, OES raises several other issues. These include the following. First, because the emergency protective measures were completed within six months of the disaster, they should be eligible. Finally, as was claimed in the first and second appeal, OES claims that the FEMA inspector refused to inspect all the damages listed on IID's exhibit B.
Emergency Protective Measures:
In their appeal, the IID focuses on what they believe as prudent emergency measures and that an immediate threat did in fact exist. They state that the IID, ".perceived and acted on the basis that an `immediate threat' to people and property did, in fact, exist as a result of `the disaster'. They took many actions and incurred extensive costs all of which is well documented.". Further, they state that "The immediate threat, as perceived by IID personnel, translated (with hindsight) into Sea levels on April 19, 1995 of 3.6 inches higher than comparable dates in 1994 and 1993". They go on to say that had the measures not been undertaken, thousands of acres would have been flooded impacting people's lives and property. In other words, IID believes that in February 1995, the rising lake level was significant enough to warrant the emergency protective measures.
Emergency protective measures, eligible for FEMA assistance, are generally of a temporary nature (e.g., temporary levee or sandbagging) unless permanent repairs are proven more cost-effective. Further, all emergency work must be in accordance with FEMA policy for general work eligibility and emergency work pursuant to Title 44 of the Code of Federal Regulation (CFR) Sections 206.223 and 206.225(a). Additionally, 44 CFR 221(d) states that agricultural lands are not considered as improved property.
It would be reasonable to state that the perception of an immediate threat would be subjective at best. Generally, FEMA will be broad in their determination of eligibility when considering an applicant's interpretation of a disaster situation and the need for emergency measures. Typically, there will be some data or evidence, such as gauging station records, which will indicate the level of anticipated flooding and give the basis for the appropriate level of action. According to an undated report included as backup in DSR 39701, it was estimated that should the Salton Sea reach an elevation of 222 feet below sea level that approximately 5610 acres of land would be flooded. The report goes on to explain that current dike levels range from 226 to 219 feet below sea level. As discussed in the Second Appeal Analysis, the highest water surface elevation was 226.6 feet below sea level.
It is agreed that with water levels at 226.6 feet below sea level, an actual threat to the dikes being overtopped in certain locations (those with elevations of 226 feet below sea level) existed. In these instances, some overtopping due to wind related wave action could be expected. Therefore, it would be considered reasonable to perform emergency measures that are temporary in nature, such as sandbagging.
Beyond that, it is difficult to rationalize permanentis raising of the dikes was not entirely related to a rapid rise in water surface elevation caused by the disaster but rather a response to a long-standing problem of rising lake levels. This conclusion is based on several facts. The WSEL of Salton Sea has increased in the past decade and reached near peak elevation for the pre-disaster condition of the dikes from 1992 to 1995. Second, the increases in WSEL during the months of January to April of 1995 (0.6 feet) are approximately the same as those experienced in the two previous years for the same time period (0.7 feet each year). Additionally, it is important to note that the peak WSEL during the disaster was only 0.3 feet higher than that experienced for the two preceding years with lake levels in 1993 reaching 226.9 feet below sea level. As noted in the Second Appeal analysis, this data was obtained from the United States Geological Survey (USGS) observation unit (station number 10254005) in Westmorland, California. Yet, in 1993, no emergency protective measures, such as raising the dikes, were implemented. It is difficult to justify the expenditure of several million dollars based on the fact that in 1993, 0.9 feet of freeboard was sufficient but in 1995, 0.6 feet of freeboard was not. By IID's own admission, the measures implemented in 1995 far exceeded those implemented in previous years. Additionally, it is noted that approximately, 75 percent of the costs requested was for the protection of farmlands. Therefore, it is determined that the raising of the dike through protective measures.
A category B DSR will be prepared to fund sandbagging activities and the pumping of floodwaters in areas where improved property was at risk from water overtopping the dikes. It appears that sandbagging occurred in two areas only. These are Marina Mobile Estates Park and (sandbagging and pumping, $299, 160), Corvina Beach (sandbagging, a portion of $57,892), and Northshore Beach Estates (pumping, a portion of $153,282). Therefore, for Corvina Beach and Northshore Beach Estates, the eligible portion of the total cost will have to be separated.
Time Frame
The City raises the issue that because they performed the raising of the dikes within six months of the disaster declaration, this would constitute the eligibility of the work as emergency protective measures. Although 44 CFR 206.204 (c)(1) requires that emergency protective measures must be completed within six months of a disaster declaration, this in itself does not constitute eligibility of the measure. Pursuant to 44 CFR 206.225 (3), emergency protective measures must eliminate or reduce threats to live, public health or safety or eliminate or reduce the threat of significant damage to improved public or private property to be eligible. As discussed above, the threat of water overtopping the dikes could have been accomplished through less costly means, such as sandbagging.
Permanent Restoration:
DSR 39702 was prepared for zero dollars because it was determined that there was no eligible permanent restoration work for which the IID was legally responsible. The determination was based on the inspection team's observation that the dikes had not overtopped, therefore, no disaster damage occurred. The IID claimed that their Exhibit `B' provided evidence of damage. As noted in both the first and second appeal responses, Exhibit `B' provides no evidence of eligible damage. Therefore, IID's request for re-inspection and preparation of a new DSR to accommodate permanent restoration measures is denied.
CONCLUSION
The IID may have perceived an immediate threat during the disaster. However, the requested emergency protective measures (raises of the dikes) are not eligible for FEMA funding because they are permanent restoration and are beyond the intent of emergency protective measures. Additionally, they are not entirely disaster-related. However, portions of these measures (sandbagging and pumping of floodwaters) are eligible as discussed above. Accordingly, the appeal for funding of DSRs 39701 and 39702 is partially denied.
Last updated