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San Clemente Municipal Golf Course
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-0979-DR-CA; City of San Clemente - DSRs 96163, 99430, 99431
Cross Reference: Eligible facility, natural features, public versus private property, emergency versus permanent repair
Summary: The City of San Clemente is requesting funding for stabilization of an undeveloped hillside at the San Clemente Municipal Golf Course, within which a landslide occurred during the 1993 winter storms. The slide occurred within both publicly and privately owned portions of the hillside. No damage to improved public or private property was reported, however, the applicant asserts that the condition of the hillside posed a threat to the private residence located at the top of the slope. DSR 96163 was originally obligated as Category G to fund the permanent restoration of the hillside in the amount of $201,834. In response to the applicant's March 1995 request for additional funding for the actual costs of the completed repair ($310,520), the Regional Director determined that the permanent stabilization of this hillside was not eligible for FEMA assistance, and that the eligible scope of work should be limited to appropriate emergency work efforts. Accordingly, DSR 99430 was prepared to deobligate funding from DSR 96163, and DSR 99431 was prepared as Category B, limiting the eligible scope to the portion of the completed work which was consistent with emergency measures ($140,165). The Regional Director upheld this determination in response to the applicant's first appeal. The applicant filed a second appeal asserting that the completed scope of work, as was originally reviewed and approved by FEMA, was necessary to reduce the threat to the private residence posed by the condition of the hillside.
Issues:
Rationale: Public Assistance for private property and undeveloped public property is limited to emergency work. Emergency work is limited to the effort necessary to eliminate or lessen an immediate threat. Stafford Act Section 403 and 406, 44 CFR 206.221(c)
Due to the severe winter storms that occurred in January through March of 1993, a slope failure occurred within a natural hillside located adjacent to the San Clemente Municipal Golf Course. A private residence is located at the top of the slope (445 Avenida Crespi), and the toe of the slope runs parallel to the east bank of a natural, unimproved creek (El Padro Creek) within the Golf Course property. The upper third of the hillside is privately owned by the adjacent homeowner, with the lower two-thirds of the slope being the property of the City of San Clemente (applicant). A golf cart path is located adjacent to the west side of the creek, and two 42-in. CMP culverts discharge into the creek, also from the west side of the creek, at the location of the slide. During the disaster, excessive flows in the culverts and creek reportedly eroded the toe of the slope, resulting in the slide of the hillside material. The slope failure extended to within about four feet laterally from the residence at the top of the hillside. No specific damage to improved public or private property was reported.
On July 7, 1993, representatives from FEMA, the California Office of Emergency Services (OES) and the applicant visited the site to inspect the damages. In response to this and subsequent site visits, three damage survey reports were prepared to provide funding to evaluate and then repair the hillside.
In a letter dated August 12, 1996, OES forwarded the applicant's first appeal of FEMA's deobligation of DSR 96163 and its replacement with the Category B DSR 99431. OES indicated that the scope of work should not be limited to Category B work, stating that the applicant feels the work was "emergency/permanent" work, and further recognizing that the work was not completed within FEMA's six month deadline for emergency work. The appeal letters also noted that the applicant was unclear how the determination was made to change the category of work from G to B, and how the eligible Category B scope of work was determined.
The Regional Director responded to the first appeal in a letter dated January 21, 1997, stating that as an unimproved hillside, consisting of both public and private property, the site is only eligible for emergency work assistance and is specifically not eligible for permanent restoration. Review of the scope of work and associated funding provided in DSR 99431 (Cat B) was found to be sufficient to address any threat which may have been present to adjacent improved properties. Accordingly, the applicant's appeal was denied. Additionally, during this review effort, it was found that the geotechnical study funded in the initial Category B DSR 46024 had never been completed. The applicant had utilized a study prepared for, and paid by, the residential property owner. Any additional engineering efforts expended by the applicant were associated with permanent design issues for which the hillside is not eligible. DSR 83620 was prepared to deobligate funding from DSR 46024 (<$20,000>).
Second Appeal
The applicant filed a second appeal through OES on June 27, 1997, asserting that the completed hillside repair was necessary to reduce the threat to the upslope residence. The applicant indicated that FEMA had initially reviewed and approved the work which was completed, such that the later reduction in the eligible scope of work appears arbitrary.
DISCUSSION
The primary issue of appeal is regarding the eligibility of repair of a failed hillside. As indicated above, the landslide occurred in an undeveloped hillside, within the limits of both private and public property. No damage to any improved public or private properties was identified. The completed repair included extensive site grading and the installation of a new hillside drainage system and culvert within the creek. In response to the applicant's request for supplemental funding for the actual costs of the completed slope repair, the Regional Director determined that the completed scope of work represented permanent slope stabilization for which the hillside was not eligible. The revised scope of work was thus limited to that which was considered to be consistent with the level of effort associated with the intent of Emergency Work and was obligated as the Category B DSR 99431. The applicant's second appeal asserts that they are unclear as to how this reduction in scope was determined, and that the full scope was necessary to alleviate the disaster imposed threat.
According to the Stafford Act, FEMA assistance regarding disaster damaged private property and publicly owned natural features is limited to providing emergency protective measures (Category B) in the event that the condition of the hillside posed an "immediate threat" to an eligible public or private facility, such as the adjacent road or residence. To be eligible, emergency protective measures must be cost effective and are limited in scope to those efforts which reduce the "immediate" threat to specific property. The intent of the emergency measures is to provide a temporary means of "reducing a threat" until permanent repairs are implemented. Permanent restoration of private property and publicly owned natural features is not eligible for Public Assistance funding.
The private property owner hired GeoSoils, Inc. (GSI) to perform a geotechnical assessment of the site and the slope failure, and to provide recommendations for repair of the slope. The GSI report dated May 5, 1993, found that the subsurface conditions within the hillside consisted of a thin layer of clayey ovendrock. The slope failure is characterized in the report as a surficial slope failure, wherein the shallow overburden soils became saturated and slid along the face of the bedrock surface. Based on the information in the GSI report, the failure plane did not extend below the bedrock surface.
Based on the geologic site conditions reported by GSI, wherein bedrock was encountered within 4 ft. of ground surface, it is reasonable to expect that the residence at the top of the slope is supported by a foundation system, whether it be conventional spread footings or pile foundations, bearing on or in the bedrock materials. Accordingly, any further movement of the overburden soils would not be expected to adversely affect a foundation system bearing in the underlying rock material. Further, as the landslide occurred within the overburden soils and the underlying bedrock material appears to have remained intact, there is no evidence to support that the stability of the bedrock material has been compromised by the disaster, thus creating a potential for a "deep seated" failure as suggested in the GSI report. Therefore, it is concluded that the disaster related condition of the hillside would have little to no adverse impact on the residence at the top of the slope. Although not addressed in the documentation, it may be possible that further slippage of the failed soil mass into the creek at the toe of the slope could result in flooding of and potential damage to the adjacent golf cart path.
Therefore, it is found that the primary "threat" resulting from the disaster related slope failure is due to the potential for further movement of the already failed slope material. Accordingly, an eligible emergency protective measure must be directly related to reducing this type of threat, and must be cost effective. Examples of this level of effort may include temporary filling (buttressing) at the toe of the slope to prevent further movement of the failed soil mass toward the creek, excavation of the failed mass material, and/or placement of erosion control fabric (plastic sheeting) over the slide area until permanent repairs are implemented. Such permanent repairs are the responsibility of the applicant and/or the private property owner. Any work performed in excess of this level of effort would not be eligible for Category B funding.
The scope of repair completed by the applicant consisted of extensive slope modifications, including benching into the rock surface and placing soil fill to a one horizontal to one vertical (1H:1V) slope, thus raising the grade of the slope in some areas more than 10 feet. A drainage system within the hillside was installed. Additionally, a new 72-in. culvert was installed within the creek to contain flow, mitigating future potential for erosion of the hillside, and the creek backfilled. This work effort exceeds the level of work necessary to reduce the identified threat. Accordingly, the full scope of work is not eligible for FEMA funding.
Recognizing that the applicant may have been eligible for some emergency protective measures, DSR 99431 was prepared to provide some assistance toward this effort. As the full scope of the completed work was found to exceed the intent of emergency work, the FEMA regional office reviewed the bid summary sheet and subsequent change orders provided by the applicant and funded those items which could be associated with protective measures. As identified in the Region's first appeal response, the selected items included costs for removal of debris material from the hillside (clear and grub) and from within the channel (change order 1), slope grading (placement of fill), some slope drainage, construction erosion control efforts and associated engineering efforts (9% allowance). All other work described in the bid and other subsequent change orders were found to be representative of permanent work, exceeding the intent of emergency protective measures, and therefore found to be ineligible for Category B funding.
CONCLUSION
The slope failure occurred within a natural hillside, within the limits of both publicly and privately owned property. For such properties, FEMA assistance is limited to providing emergency protective measures directed toward reducing an identified immediate threat to life or improved property. Based on the documentation provided, the potential threat posed by the slope failure is the potential movement of the failed soil material. Accordingly, eligible protective measures would have been limited to reducing the potential for such movement. I have found that the scope of work funded in the Category B DSR 99431 more than adequately compensates the applicant for emergency measures which have been found eligible to reduce this identified threat. The additional work completed by the applicant far exceeds that which is considered necessary to reduce the threat. Accordingly, costs associated with these additional items are not eligible for FEMA assistance. The applicant's appeal is denied.
Appeal Brief
| Disaster | FEMA-0979-DR |
| Applicant | City of San Clemente |
| Appeal Type | Second |
| PA ID# | 059-65084 |
| PW ID# | 96163, 99430, 99431 |
| Date Signed | 1998-02-06T05:00:00 |
Cross Reference: Eligible facility, natural features, public versus private property, emergency versus permanent repair
Summary: The City of San Clemente is requesting funding for stabilization of an undeveloped hillside at the San Clemente Municipal Golf Course, within which a landslide occurred during the 1993 winter storms. The slide occurred within both publicly and privately owned portions of the hillside. No damage to improved public or private property was reported, however, the applicant asserts that the condition of the hillside posed a threat to the private residence located at the top of the slope. DSR 96163 was originally obligated as Category G to fund the permanent restoration of the hillside in the amount of $201,834. In response to the applicant's March 1995 request for additional funding for the actual costs of the completed repair ($310,520), the Regional Director determined that the permanent stabilization of this hillside was not eligible for FEMA assistance, and that the eligible scope of work should be limited to appropriate emergency work efforts. Accordingly, DSR 99430 was prepared to deobligate funding from DSR 96163, and DSR 99431 was prepared as Category B, limiting the eligible scope to the portion of the completed work which was consistent with emergency measures ($140,165). The Regional Director upheld this determination in response to the applicant's first appeal. The applicant filed a second appeal asserting that the completed scope of work, as was originally reviewed and approved by FEMA, was necessary to reduce the threat to the private residence posed by the condition of the hillside.
Issues:
- Is the damaged hillside eligible for emergency or permanent work assistance?
- Was the full scope of work necessary to reduce an identified threat?
Rationale: Public Assistance for private property and undeveloped public property is limited to emergency work. Emergency work is limited to the effort necessary to eliminate or lessen an immediate threat. Stafford Act Section 403 and 406, 44 CFR 206.221(c)
Appeal Letter
February 6, 1999
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
Public Assistance Section
150 East Colorado Boulevard, Suite 303
Pasadena, CA 91105
Dear Mr. Najera:
This letter is in response to the second appeal of damage survey reports (DSRs) 96163, 99430, and 99431, in which the San Clemente Municipal Golf Course requested disaster assistance funds for stabilization of an undeveloped hillside within which a landslide occurred during the 1993 winter storms (DR-979). No damage to improved public or private property was reported. Accordingly, the Regional Director had determined that permanent stabilization of the natural hillside was not eligible, and limited funding to the portion of the completed work which was consistent with emergency measures (Category B, $140,165). The applicant's appeal asserts that the full scope of the completed work was necessary to reduce the threat to the private residence posed by the condition of the hillside, and requested that the actual costs of the completed work be funded ($310,520).
As discussed in the enclosed analysis, I have determined that the scope of work funded in the Category B DSR 99431 more than adequately compensates the applicant for emergency measures which have been found eligible to reduce the identified threat. The remaining portion of the work completed by the applicant represents permanent work and/or an improvement to the site, and far exceeds that which is considered necessary to reduce the threat. Accordingly, costs associated with these additional items are not eligible for FEMA assistance. The applicant's appeal is denied.
Please inform the applicant of this determination. The applicant 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
cc: Dianne Bona
Acting Regional Director
FEMA Region IX
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
Public Assistance Section
150 East Colorado Boulevard, Suite 303
Pasadena, CA 91105
Dear Mr. Najera:
This letter is in response to the second appeal of damage survey reports (DSRs) 96163, 99430, and 99431, in which the San Clemente Municipal Golf Course requested disaster assistance funds for stabilization of an undeveloped hillside within which a landslide occurred during the 1993 winter storms (DR-979). No damage to improved public or private property was reported. Accordingly, the Regional Director had determined that permanent stabilization of the natural hillside was not eligible, and limited funding to the portion of the completed work which was consistent with emergency measures (Category B, $140,165). The applicant's appeal asserts that the full scope of the completed work was necessary to reduce the threat to the private residence posed by the condition of the hillside, and requested that the actual costs of the completed work be funded ($310,520).
As discussed in the enclosed analysis, I have determined that the scope of work funded in the Category B DSR 99431 more than adequately compensates the applicant for emergency measures which have been found eligible to reduce the identified threat. The remaining portion of the work completed by the applicant represents permanent work and/or an improvement to the site, and far exceeds that which is considered necessary to reduce the threat. Accordingly, costs associated with these additional items are not eligible for FEMA assistance. The applicant's appeal is denied.
Please inform the applicant of this determination. The applicant 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
cc: Dianne Bona
Acting Regional Director
FEMA Region IX
Appeal Analysis
BACKGROUNDDue to the severe winter storms that occurred in January through March of 1993, a slope failure occurred within a natural hillside located adjacent to the San Clemente Municipal Golf Course. A private residence is located at the top of the slope (445 Avenida Crespi), and the toe of the slope runs parallel to the east bank of a natural, unimproved creek (El Padro Creek) within the Golf Course property. The upper third of the hillside is privately owned by the adjacent homeowner, with the lower two-thirds of the slope being the property of the City of San Clemente (applicant). A golf cart path is located adjacent to the west side of the creek, and two 42-in. CMP culverts discharge into the creek, also from the west side of the creek, at the location of the slide. During the disaster, excessive flows in the culverts and creek reportedly eroded the toe of the slope, resulting in the slide of the hillside material. The slope failure extended to within about four feet laterally from the residence at the top of the hillside. No specific damage to improved public or private property was reported.
On July 7, 1993, representatives from FEMA, the California Office of Emergency Services (OES) and the applicant visited the site to inspect the damages. In response to this and subsequent site visits, three damage survey reports were prepared to provide funding to evaluate and then repair the hillside.
- DSR 46024 (not in appeal) was prepared in response to the July 1993 site inspection, as Category B, to fund a geotechnical engineering study to evaluate the condition of the hillside ($20,000). This scope of work was never completed by the applicant and was later deobligated by FEMA in response to the first appeal.
- DSR 96163 was prepared on November 9, 1993, as Category G, to fund the permanent repair of the hillside in the amount of $201,834. The scope of work consisted of extensive slope modifications, including benching into the rock surface and placing soil fill to a one horizontal to one vertical (1H:1V) slope, thus raising the grade of the slope in some areas more than 10 feet. A drainage system within the hillside was installed. Additionally, a new 72-in. culvert was installed within the creek to contain flow, mitigating future potential for erosion of the hillside, and the creek backfilled.
- DSR 04601 was prepared on February 4, 1994, as a supplement to DSR 96163, to reimburse the applicant for the California Fish and Game permit fee ($662).
- DSR 99430 was prepared to deobligate funding from DSR 96163 (<$201,834>).
- DSR 99431 was prepared as Category B to fund the portion of the completed scope of work considered consistent with the level of effort associated with Emergency Work, including funding for engineering and quality control testing ($140,165).
In a letter dated August 12, 1996, OES forwarded the applicant's first appeal of FEMA's deobligation of DSR 96163 and its replacement with the Category B DSR 99431. OES indicated that the scope of work should not be limited to Category B work, stating that the applicant feels the work was "emergency/permanent" work, and further recognizing that the work was not completed within FEMA's six month deadline for emergency work. The appeal letters also noted that the applicant was unclear how the determination was made to change the category of work from G to B, and how the eligible Category B scope of work was determined.
The Regional Director responded to the first appeal in a letter dated January 21, 1997, stating that as an unimproved hillside, consisting of both public and private property, the site is only eligible for emergency work assistance and is specifically not eligible for permanent restoration. Review of the scope of work and associated funding provided in DSR 99431 (Cat B) was found to be sufficient to address any threat which may have been present to adjacent improved properties. Accordingly, the applicant's appeal was denied. Additionally, during this review effort, it was found that the geotechnical study funded in the initial Category B DSR 46024 had never been completed. The applicant had utilized a study prepared for, and paid by, the residential property owner. Any additional engineering efforts expended by the applicant were associated with permanent design issues for which the hillside is not eligible. DSR 83620 was prepared to deobligate funding from DSR 46024 (<$20,000>).
Second Appeal
The applicant filed a second appeal through OES on June 27, 1997, asserting that the completed hillside repair was necessary to reduce the threat to the upslope residence. The applicant indicated that FEMA had initially reviewed and approved the work which was completed, such that the later reduction in the eligible scope of work appears arbitrary.
DISCUSSION
The primary issue of appeal is regarding the eligibility of repair of a failed hillside. As indicated above, the landslide occurred in an undeveloped hillside, within the limits of both private and public property. No damage to any improved public or private properties was identified. The completed repair included extensive site grading and the installation of a new hillside drainage system and culvert within the creek. In response to the applicant's request for supplemental funding for the actual costs of the completed slope repair, the Regional Director determined that the completed scope of work represented permanent slope stabilization for which the hillside was not eligible. The revised scope of work was thus limited to that which was considered to be consistent with the level of effort associated with the intent of Emergency Work and was obligated as the Category B DSR 99431. The applicant's second appeal asserts that they are unclear as to how this reduction in scope was determined, and that the full scope was necessary to alleviate the disaster imposed threat.
According to the Stafford Act, FEMA assistance regarding disaster damaged private property and publicly owned natural features is limited to providing emergency protective measures (Category B) in the event that the condition of the hillside posed an "immediate threat" to an eligible public or private facility, such as the adjacent road or residence. To be eligible, emergency protective measures must be cost effective and are limited in scope to those efforts which reduce the "immediate" threat to specific property. The intent of the emergency measures is to provide a temporary means of "reducing a threat" until permanent repairs are implemented. Permanent restoration of private property and publicly owned natural features is not eligible for Public Assistance funding.
The private property owner hired GeoSoils, Inc. (GSI) to perform a geotechnical assessment of the site and the slope failure, and to provide recommendations for repair of the slope. The GSI report dated May 5, 1993, found that the subsurface conditions within the hillside consisted of a thin layer of clayey ovendrock. The slope failure is characterized in the report as a surficial slope failure, wherein the shallow overburden soils became saturated and slid along the face of the bedrock surface. Based on the information in the GSI report, the failure plane did not extend below the bedrock surface.
Based on the geologic site conditions reported by GSI, wherein bedrock was encountered within 4 ft. of ground surface, it is reasonable to expect that the residence at the top of the slope is supported by a foundation system, whether it be conventional spread footings or pile foundations, bearing on or in the bedrock materials. Accordingly, any further movement of the overburden soils would not be expected to adversely affect a foundation system bearing in the underlying rock material. Further, as the landslide occurred within the overburden soils and the underlying bedrock material appears to have remained intact, there is no evidence to support that the stability of the bedrock material has been compromised by the disaster, thus creating a potential for a "deep seated" failure as suggested in the GSI report. Therefore, it is concluded that the disaster related condition of the hillside would have little to no adverse impact on the residence at the top of the slope. Although not addressed in the documentation, it may be possible that further slippage of the failed soil mass into the creek at the toe of the slope could result in flooding of and potential damage to the adjacent golf cart path.
Therefore, it is found that the primary "threat" resulting from the disaster related slope failure is due to the potential for further movement of the already failed slope material. Accordingly, an eligible emergency protective measure must be directly related to reducing this type of threat, and must be cost effective. Examples of this level of effort may include temporary filling (buttressing) at the toe of the slope to prevent further movement of the failed soil mass toward the creek, excavation of the failed mass material, and/or placement of erosion control fabric (plastic sheeting) over the slide area until permanent repairs are implemented. Such permanent repairs are the responsibility of the applicant and/or the private property owner. Any work performed in excess of this level of effort would not be eligible for Category B funding.
The scope of repair completed by the applicant consisted of extensive slope modifications, including benching into the rock surface and placing soil fill to a one horizontal to one vertical (1H:1V) slope, thus raising the grade of the slope in some areas more than 10 feet. A drainage system within the hillside was installed. Additionally, a new 72-in. culvert was installed within the creek to contain flow, mitigating future potential for erosion of the hillside, and the creek backfilled. This work effort exceeds the level of work necessary to reduce the identified threat. Accordingly, the full scope of work is not eligible for FEMA funding.
Recognizing that the applicant may have been eligible for some emergency protective measures, DSR 99431 was prepared to provide some assistance toward this effort. As the full scope of the completed work was found to exceed the intent of emergency work, the FEMA regional office reviewed the bid summary sheet and subsequent change orders provided by the applicant and funded those items which could be associated with protective measures. As identified in the Region's first appeal response, the selected items included costs for removal of debris material from the hillside (clear and grub) and from within the channel (change order 1), slope grading (placement of fill), some slope drainage, construction erosion control efforts and associated engineering efforts (9% allowance). All other work described in the bid and other subsequent change orders were found to be representative of permanent work, exceeding the intent of emergency protective measures, and therefore found to be ineligible for Category B funding.
CONCLUSION
The slope failure occurred within a natural hillside, within the limits of both publicly and privately owned property. For such properties, FEMA assistance is limited to providing emergency protective measures directed toward reducing an identified immediate threat to life or improved property. Based on the documentation provided, the potential threat posed by the slope failure is the potential movement of the failed soil material. Accordingly, eligible protective measures would have been limited to reducing the potential for such movement. I have found that the scope of work funded in the Category B DSR 99431 more than adequately compensates the applicant for emergency measures which have been found eligible to reduce this identified threat. The additional work completed by the applicant far exceeds that which is considered necessary to reduce the threat. Accordingly, costs associated with these additional items are not eligible for FEMA assistance. The applicant's appeal is denied.