Cypress Flood Control Channel

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Desastre	FEMA-1046-DR
Applicant	San Bernardino County Flood Control District
Appeal Type	Third
PA ID#	071-91103
PW ID#	95336
Date Signed	1999-06-01T04:00:00

PURPOSE: Respond to third appeal submitted by the San Bernardino County Flood Control District for permanent restoration of Cypress Channel, a flood control facility.

DISCUSSION: The winter storms of March 1995 (FEMA-1046-DR-CA) caused damage to Cypress Channel, in San Bernardino County. FEMA DSR 95336 was prepared to fund repairs of the channel, but it was found ineligible on the basis that the channel meets the United States Army Corps of Engineers' (USACE's) definition of a flood control work (FCW), such that restoration funding for the channel would be under the specific authority of the USACE. The subgrantee's first and second appeals challenged the classification of this facility as an FCW. Appeal responses upheld the initial determinations of ineligibility. The third appeal is requesting a reconsideration of eligibility for DSR 95336 in light of FEMA's recent determination regarding the eligibility of FCWs damaged in the 1044/1046 disaster events. It is found that information regarding the eligibility of FCWs was not provided in a timely manner in these disasters. Therefore, there is sufficient basis to consider this flood control facility as an eligible facility for this disaster event. A supplemental DSR will be prepared for the eligible scope of work described in the attached analysis.

RECOMMENDED ACTION: Sign letter granting this appeal.

Appeal Letter

Appeal Analysis

BACKGROUND

Due to the severe winter storms and flooding that occurred during the FEMA-1046 winter storm event, various flood control facilities in San Bernardino County were damaged. The San Bernardino County Flood Control District (subgrantee) requested disaster assistance from the Federal Emergency Management Agency (FEMA) for the repair of these facilities. FEMA inspection teams, consisting of representatives of FEMA, the California Governor's Office of Emergency Services (OES), and the subgrantee, visited the individual sites to document damages and prepare Damage Survey Reports (DSRs). DSR 95336 is addressed in this appeal analysis.

DSR 95336 addresses the permanent restoration of Cypress Channel, which sustained uplifting and cracking of the concrete channel invert, creating voids beneath the concrete lining. The DSR proposed funding for removal of the damaged portions of the invert, restoration of the subbase and replacement of the invert. Also included in DSR 95336 was the installation of sub drains as a cost effective hazard mitigation measure. At the time of the inspection, DSR 95336 was 5% complete.

During eligibility review, FEMA concluded that this facility meets the United States Army Corps of Engineers' (USACE's) definition of a flood control work (FCW), such that restoration funding for Cypress Channel would be under the specific authority of the USACE. Accordingly, FEMA denied funding for DSR 95336. The subgrantee, however, was not notified of this determination until the DSR was finalized, five months after the initial site inspection.

First Appeal

On July 29, 1996, OES forwarded the subgrantee's first appeal of FEMA's determination that restoration funding for Cypress Channel would be under the specific authority of the USACE. The subgrantee stated FEMA's determination was in error as the facility did not meet the eligibility criteria of the USACE and was, therefore, not eligible for USACE PL 84-99 Rehabilitation and Inspection Program funding. The Regional Director conducted an independent review of the documentation associated with this facility and determined that it meets the USACE definition of an FCW. As such, the subgrantee's first appeal was denied.

Second Appeal

OES forwarded the subgrantee's second appeal on May12, 1997. The subgrantee again argued that the subject facility was not an FCW and was not eligible for USACE assistance. The subgrantee did not, however, provide adequate documentation to support the contention that Cypress Channel does not meet USACE's definition of an FCW. FEMA responded to this appeal by further clarifying the intent of the Federal Levee Policy, and stressing the importance of providing Federal assistance from the appropriate funding authority. In support of the USACE Program, and the Federal Levee Policy, the Executive Associate Director upheld the determination of ineligibility.

Third Appeal

The subgrantee's third appeal letter requests that the eligibility of this facility be reconsidered in light of FEMA's recent determination regarding the eligibility of FCWs damaged during the 1044/1046 disaster events.

DISCUSSION

Consideration for Funding of Flood Control Facilities

In response to numerous appeals from various subgrantees regarding the implementation of the Federal Levee Policy during the 1044/1046 disaster events, we have conducted an extensive review of the circumstances associated with eligibility determinations regarding flood control facilities prior to and during the response to these disasters. Based on this review, it was apparent that there was some confusion as to the eligibility of flood control facilities. Some subgrantees had received funding for such facilities during previous disasters, particularly the 979 disaster event in 1993, supporting these subgrantees' positions that they relied on funding from previous disasters. For many subgrantees who did apply before the disaster to the USACE for enrollment in their PL 84-99 Rehabilitation and Inspection Program, inspections of the facilities by the USACE were often not completed prior to the disaster, making them ineligible for the PL 84-99 Program. Some inspections were not completed within a year of the request, and then not all requested facilities were inspected. Finally, a review of the DSR in this appeal found that FEMA did not notify the subgrantee that the facility was under the funding authority of another Federal agency until the DSR was finalized, five months after the initial site inspection.

Although the Federal Levee Policy specifically states that permanent restoration of FCWs is not eligible for FEMA funding, some subgrantees may have relied on previous funding from FEMA and expected disaster related funding in subsequent disasters. FEMA's delay in notifying subgrantee's that their facilities were under the authority of the USACE or Natural Resources Conservation Service (NRCS) may have contributed to a subgrantee's failure to receive Federal funding for disaster related damages. Accordingly, FEMA has concluded that flood control facilities damaged during the 1044/1046 disaster that were found ineligible based on the Federal Levee Policy, may be considered eligible facilities under the Public Assistance Program for these disasters. Although some of the circumstances described above do not specifically apply to this subgrantee's request for funding, the decision to consider permanent restoration funding of FCWs applies to all FCWs damaged as a result of the 1044/1046 disaster events.

Eligible Work

As this project is now complete, the subgrantee has submitted actual costs for the repair of Cypress Channel. In accordance with the discussion presented above, DSR 95336 has been reviewed for eligibility for permanent restoration funding through the Public Assistance Program, consistent with FEMA regulations and policy for restoration of eligible facilities. The actual costs submitted by the subgrantee for this project are reasonable and consistent with the scope of work outlined in the original DSR. However, as identified in our letter dated December 22, 1998, responding to the third appeal of DSRs 25899/17600 and 26554/17598, there is insufficient documentation to support the use of the subgrantee's equipment rates, which are in excess of FEMA rates. Pursuant to Section 206.228 (a)(1)(ii) of Title 44 of the Code of Federal Regulations, if a subgrantee wishes to claim equipment rates in excess of FEMA rates, FEMA approval must be obtained. Therefore, the subgrantee's equipment costs will be adjusted to reflect FEMA equipment rates.

During eligibility review, a preliminary environmental review was performed. Based on documentation supplied by the subgrantee, the work performed to repair Cypress Channel appears to have been in compliance with applicable environmental regulations.

Future Assistance

Although FEMA is providing this exception for funding of flood control channels for the conditions stated above, it should be understood that the Federal Levee Policy will be strictly adhered to for all disasters occurring after the 1044/1046 events. A copy of the 1996 Policy entitled "Policy for Rehabilitation Assistance for Levees and Other Flood Control Works" is enclosed for reference regarding funding for flood control channels damaged after 1996.

In preparation for future disaster events, it is recommended that the subgrantee take appropriate steps to apply to the USACE PL 84-99 Program or to take steps to meet the criteria of the NRCS Emergency Watershed Protection Program. Facilities that meet the USACE's definition of an FCW will not be eligible for FEMA permanent restoration assistance. As indicated in the attached Po hts in preventing damage by irregular and unusual rises in water level." To determine if a certain facility meets this definition, the USACE will review the design of that facility and in most cases, perform a site inspection. Facilities that meet the definition of an FCW but are not "active" ("inactive") in the PL 84-99 Program due to lack of inspection request, failure to meet design or maintenance criteria, or other reasons determined by the USACE, will not be eligible under the Public Assistance Program. As a result, a facility that meets the USACE definition but is not in "active" status in the program may not be eligible for any Federal disaster assistance for permanent restoration.

Other channels that do not meet the USACE's definition of an FCW are eligible for FEMA assistance. To be considered an eligible facility, the subgrantee must provide appropriate documentation to demonstrate that the facility does not meet the USACE's definition of an FCW. To best support their position, it is recommended that the subgrantee provide a letter from the USACE indicating that they do not consider the facility an FCW. The subgrantee should anticipate that it may be necessary for the USACE to perform an inspection of a site to definitively determine that a facility does not meet their definition of an FCW. This documentation would be significantly important to those facilities that were found ineligible in previous disasters.

CONCLUSION

Flood control facilities that were found ineligible based on the Federal Levee Policy during the 1044/1046 disaster response may be considered eligible facilities under the Public Assistance Program. DSR 95336 has been reviewed for eligibility for permanent restoration funding through the Public Assistance Program, and funding determinations and limits have been addressed. The Regional Director will prepare a supplemental DSR to fund the scope of work for this DSR as described above. The subgrantee's appeal is granted.