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Levee Damage
Appeal Brief
Appeal Letter
Citation: FEMA-1044-DR-CA; Alameda County Flood Control District; DSR 15573 - Levee damage
Cross-Reference: Flood Control Works, Levee Policy, USACE Levee Program
Summary: As a result of the winter storms of January 1995, heavy rains caused flooding along the Zone 5, Line B levee (Mowry Slough), between the intersection with Line D and the south end of the levee. The heavy flows resulted in erosion and deposition of debris along the embankments and damage to a control arm and flap gate. DSR 15573 (Category D) was prepared for $23,000 to cover costs associated with debris removal and flap gate and embankment repair. Upon review, it was determined that this facility was ineligible for permanent restoration funding because it is a flood control work (FCW) and is, therefore, under the authority of the USACE or NRCS. The subgrantee submitted a first appeal on the basis that USACE does not have responsibility to maintain this channel, therefore, permanent repairs are eligible for FEMA funding. The Regional Director upheld the determination of ineligibility and stated that under current Federal interagency policy, public agencies must look to USACE or NRCS for funding to restore disaster damaged FCWs. In the second appeal, the subgrantee reiterated the first appeal issues and included a letter from the USACE denying funding under the PL 84-99 Program.
Issues: Should FEMA fund the permanent restoration of the Flood Control levee?
Findings: No, the facility has been determined to be a FCW, therefore, permanent repairs are not eligible for FEMA funding.
Rationale: The USACE has statutory authority to repair FCWs. FEMA does not fund works that are 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 Brief
| Disaster | FEMA-1044-DR |
| Applicant | Alameda County Flood Control District |
| Appeal Type | Second |
| PA ID# | 001-91001 |
| PW ID# | 15573 |
| Date Signed | 1997-10-14T04:00:00 |
Cross-Reference: Flood Control Works, Levee Policy, USACE Levee Program
Summary: As a result of the winter storms of January 1995, heavy rains caused flooding along the Zone 5, Line B levee (Mowry Slough), between the intersection with Line D and the south end of the levee. The heavy flows resulted in erosion and deposition of debris along the embankments and damage to a control arm and flap gate. DSR 15573 (Category D) was prepared for $23,000 to cover costs associated with debris removal and flap gate and embankment repair. Upon review, it was determined that this facility was ineligible for permanent restoration funding because it is a flood control work (FCW) and is, therefore, under the authority of the USACE or NRCS. The subgrantee submitted a first appeal on the basis that USACE does not have responsibility to maintain this channel, therefore, permanent repairs are eligible for FEMA funding. The Regional Director upheld the determination of ineligibility and stated that under current Federal interagency policy, public agencies must look to USACE or NRCS for funding to restore disaster damaged FCWs. In the second appeal, the subgrantee reiterated the first appeal issues and included a letter from the USACE denying funding under the PL 84-99 Program.
Issues: Should FEMA fund the permanent restoration of the Flood Control levee?
Findings: No, the facility has been determined to be a FCW, therefore, permanent repairs are not eligible for FEMA funding.
Rationale: The USACE has statutory authority to repair FCWs. FEMA does not fund works that are 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
October 14, 1997
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 the State of California Governor's Office of Emergency Services' March 20, 1997, submittal of the Alameda County Flood Control District's second appeal of damage survey report (DSR) 15573 under FEMA-1044-DR-CA. The subgrantee is requesting funding for permanent restoration of the Zone 5, Line B levee (Mowry Slough), between the intersection with Line D and the south end of the levee. The heavy flows during the January 1995 flood event caused erosion and deposition of debris along the embankments and damage to a control arm and flap gate.
The inspection team prepared DSR 15573 (Category D) for $23,000 to cover the costs associated with debris removal, flap gate repair, and embankment repair. Upon review, it was determined that the facility was a flood control work (FCW). Accordingly, this facility was determined ineligible for permanent restoration funding because FCWs are under the authority of the U. S. Army Corps of Engineers (USACE) or the Natural Resources Conservation Service (NRCS).
The subgrantee's first appeal, submitted on November 15, 1995, stated that because neither the USACE nor NRCS have statutory authority to maintain this channel, the permanent repairs are eligible for reimbursement under the Federal Emergency Management Agency (FEMA) Public Assistance program. The Regional Director upheld the determination of ineligibility and stated that under current Federal interagency policy, public agencies must look to USACE or NRCS for funding to restore disaster damaged FCWs.
The subgrantee's second appeal, submitted on December 19, 1996, restates the subgrantee's position in the first appeal. The subgrantee included a letter from the USACE responding to their request for funding under the USACE PL 84-99 Rehabilitation and Inspection Program. The USACE stated that the levee in question is not on their "active" list because Zone 5 has not applied to the PL 84-99 Program. Therefore, the USACE has no authority to repair the damages. However, the USACE indicated that the subgrantee can apply to the Program for consideration to become eligible for future assistance. The subgrantee does not dispute that the levee meets the USACE definition of an FCW. However, they conclude that because no funding is available from another Federal agency, FEMA may fund these repairs. Accordingly, this letter will clarify the eligibility of FCWs for FEMA permanent restoration funding.
Congress authorized both FEMA and 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's 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. USACE provides assistance to owners of FCWs who have committed to certain actions that ensure the integrity of their facilities. If FEMA were to fund permanent repairs of FCWs that are not participating 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.
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." 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.
Based on a review of the documentation submitted with this appeal, I concur with the Regional Director's first appeal determination that the project is not eligible for FEMA assistance. Therefore, I have denied this appeal.
Please inform the applicant of my 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
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 the State of California Governor's Office of Emergency Services' March 20, 1997, submittal of the Alameda County Flood Control District's second appeal of damage survey report (DSR) 15573 under FEMA-1044-DR-CA. The subgrantee is requesting funding for permanent restoration of the Zone 5, Line B levee (Mowry Slough), between the intersection with Line D and the south end of the levee. The heavy flows during the January 1995 flood event caused erosion and deposition of debris along the embankments and damage to a control arm and flap gate.
The inspection team prepared DSR 15573 (Category D) for $23,000 to cover the costs associated with debris removal, flap gate repair, and embankment repair. Upon review, it was determined that the facility was a flood control work (FCW). Accordingly, this facility was determined ineligible for permanent restoration funding because FCWs are under the authority of the U. S. Army Corps of Engineers (USACE) or the Natural Resources Conservation Service (NRCS).
The subgrantee's first appeal, submitted on November 15, 1995, stated that because neither the USACE nor NRCS have statutory authority to maintain this channel, the permanent repairs are eligible for reimbursement under the Federal Emergency Management Agency (FEMA) Public Assistance program. The Regional Director upheld the determination of ineligibility and stated that under current Federal interagency policy, public agencies must look to USACE or NRCS for funding to restore disaster damaged FCWs.
The subgrantee's second appeal, submitted on December 19, 1996, restates the subgrantee's position in the first appeal. The subgrantee included a letter from the USACE responding to their request for funding under the USACE PL 84-99 Rehabilitation and Inspection Program. The USACE stated that the levee in question is not on their "active" list because Zone 5 has not applied to the PL 84-99 Program. Therefore, the USACE has no authority to repair the damages. However, the USACE indicated that the subgrantee can apply to the Program for consideration to become eligible for future assistance. The subgrantee does not dispute that the levee meets the USACE definition of an FCW. However, they conclude that because no funding is available from another Federal agency, FEMA may fund these repairs. Accordingly, this letter will clarify the eligibility of FCWs for FEMA permanent restoration funding.
Congress authorized both FEMA and 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's 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. USACE provides assistance to owners of FCWs who have committed to certain actions that ensure the integrity of their facilities. If FEMA were to fund permanent repairs of FCWs that are not participating 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.
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." 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.
Based on a review of the documentation submitted with this appeal, I concur with the Regional Director's first appeal determination that the project is not eligible for FEMA assistance. Therefore, I have denied this appeal.
Please inform the applicant of my 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